Episode 50: The Duty to Provide Information

Chris and Loyd discuss the duty to provide information in the collective bargaining environment focusing on both the legal and practical aspects of the obligation. 

References:

Island County, Decision 11946-A (PECB, 2014) - Washington State Public Employment Relations Commission

City of Redmond, Decision 8879-A (PECB, 2006) - Washington State Public Employment Relations Commission

Seattle School District, Decision 5542-C (PECB, 1997) - Washington State Public Employment Relations Commission

Snohomish PUD, Decision 7656-A (PECB, 2003) - Washington State Public Employment Relations Commission

Transcript

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Chris Casillas: 0:00

The negotiations are fueled by information. The more we know about what our opponent needs and the better we can convey our own needs, the more likely we are to reach an agreement. But there is a real tension in the process of exchanging information, as negotiators want to reveal enough to make apparent their own interests without compromising their position while simultaneously seeking as much information from their negotiation partner, who is faced with the same dilemma. In collective bargaining, this tension is heightened even further under the duty to provide information consistent with the parties' good-faith bargaining obligation. So what is a party's legal duty to disclose information in bargaining? What should they consider disclosing in an effort to reach an agreement, and how can negotiators best manage the exchange of information to achieve the best possible outcome? In this episode of the PERColater, Loyd and Chris take up these questions and others in the second part of our series on legal issues and collective bargaining. As a programming note, the information discussed in today's episode should not be construed as a formal position of the Washington State Public Employment Relations Commission, nor does it constitute legal advice on the topics discussed. All references to agency decisions and discussions of hypothetical scenarios are for educational purposes only. Hello and welcome to the PERColater podcast. My name is Chris Casillas—a member of the Washington State Public Employment Relations Commission and one of your cohosts for the podcast—and I'm joined by my ever-present partner in crime, Loyd Willaford. Loyd, how you doing today?

Loyd Willaford: 2:01

I am good, Chris, and welcome again to all the PERColators out there.

Chris Casillas: 2:06

Yeah, good to be back with you. And as mentioned in our last podcast, this will be kind of our second episode in a series of podcasts that we are working on related to legal issues in the negotiation process and how the law around collective bargaining impacts you as a negotiator and, more broadly, the entire collective bargaining process and relationship. And for those of you who are regular listeners, you'll know our last episode started with kind of a general overview of the duty to bargain in good faith, and we looked at kind of what our commission has said around those legal responsibilities that the parties have under our statute. And today we take another step forward from that and look more specifically at the duty to provide information. And that duty isn't kind of an outgrowth of the general duty to bargain good faith but has some specifics to it and involves some interesting scenarios that we want to spend some time talking about today. So, consistent with our kind of approach we've established from last time, I want to start with giving Loyd a chance here to kind of provide a general framework for our discussion here on today's episode, and then we'll look at some more specific scenarios around that and how that might impact the bargaining process. So with that in mind, Loyd, you want to start us off here, and then we'll take it from there.

Loyd Willaford: 3:49

Sure. So the duty to provide information— as Chris just mentioned—it really flows from the duty to bargain in good faith. You know, I think I mentioned in the last podcast, good faith often has a—it's a specific—like we want to have transparent communications, and you cannot do that if you don't have relevant and necessary information. And that's the two really prongs of what is the thing that both parties have a duty to provide? It's information relevant to the collective bargaining process and necessary for the party to carry out its collective bargaining responsibilities. I will say necessary and relevant sounds like, oh, that could be very narrow, and I would not want to mislead people—it's actually fairly broad. Our commission, following the National Labor Relations Board precedent, has interpreted that as basically, is it probably relevant? Not is it actually relevant, but could it be relevant in some form or fashion? So it's a pretty broad standard. It's not a standard without limit, however. So, there are examples where parties request information that maybe would not be required to be provided. And if that happens, the obligation is to communicate about that—like if, in other words, if you think that the information that's been requested is not relevant or is not necessary, your obligation, as the other party, is to communicate that and to be specific about it. What is it, you know, why do you think it's not relevant? Or, you know, why is it not necessary? Or is there some other reason why you shouldn't have to provide this information? And that communication piece—to communicate about these things—that's one of the obligations: is to engage in negotiat—it's either provide the information as requested or then engage in negotiations. And I would say one of the things about the negotiations—and this comes up a lot in our PERC cases—we have a ton of cases on timeliness: how quickly do you have to provide the information? And basically the best practice here is, once you get an info request, to communicate to the other side. Either just give them the stuff immediately or tell them, hey, it's going to take X amount of time. And that amount of time ought to be reasonable. In other words, it shouldn't take you six months to provide maybe a list of people in the bargaining unit. There's a kind of test of reasonableness—is this the kind of thing that—you know—maybe it takes a lot of time to put together a bunch of data, but you need to communicate about that. And that duty to communicate is ongoing, so it doesn't—it's not a one-time, oh, you tell people it's going to take X amount of time, and then that timeline blows by, and you don't ever communicate again—that's going to be a problem. So basically, negotiation—or, like I said, if you think, hey, it's going to take an amount of time, but we could provide you probably some of this quicker if we knew that you were asking for a narrower set. Or the other thing that comes up is where there's an info request, and it's voluminous, and you could provide some of the stuff immediately, but other stuff would take longer. You can't just sit on the stuff that you could provide. You have to communicate with the other side and say, when can you provide stuff? And basically a back-and-forth to make sure that the parties get the relevant and necessary information in some kind of a reasonable amount of time so that you can fulfill the collective bargaining obligations. That's the whole point, right? There's an underlying principle here that we need this information to have these full and frank communications, and we need to do it in a reasonable amount of time. Related to that is where these info requests maybe are—either one party thinks they're not relevant or they're overbroad. Again, you got a duty to communicate about that, and then the other side then has an obligation to try to—you know—reach some kind of an accommodation so that you can get to that exchange of information so that you can actually get to collective bargaining. I mean, this info request—and I often tell people—you know—when this comes up, this is kind of a sideshow, or it ought to be a sideshow because it's not—you just need the information to get to the collective bargaining. So spending a lot of time talking about info requests is time that you are not spending discharging the actual collective bargaining. So as a practice point, or just to be mindful of that when you request information, you know, hopefully it's going to be relevant and as directly relevant as you can. If you make a bunch of info requests that are going to put the other side to a bunch of work, that is not getting to collective bargaining. They are also not collective bargaining, and it can really sort of delay things. So just to be mindful of that—that you're not being, you know, overbroad or burdensome or if you make an ambiguous request—like the other side doesn't know what you're asking for and they come back and say we don't know what you're asking for, and then you take two months to tell them what you're asking for—that's also going to burden the collective bargaining process and, at some point, start to look like what may be called bad faith, which this whole topic, in terms of PERC case law, is going to fall under unfair labor practice. It is an unfair labor practice to fail the bargain in good faith, and one of the things that you can do is not provide information or do things in that information process that holds up the collective bargaining process. So that's kind of a broad overview of the duty to provide information. And Chris, do you have anything to add to that?

Chris Casillas: 9:40

Yeah, no, thanks Loyd. That's a really good kind of synopsis of, I think, some of the key points in our case law. And maybe to put a slightly finer point on it, I always like the language from the commission here—basically, kind of encapsulating everything of what you said that the broader process—collective bargaining process here is—of which this duty to provide information kind of flows from—is one in which communication is at the center. And as the commission said, it's not a game of hide and seek. This is not, you know, kind of advanced, complex litigation where the parties are kind of slugging it out back-and-forth over discovery requests and information requests. This is about furthering the collective bargaining process. And I think all of the things that you just mentioned really kind of boil down to that central premise. And I like how you emphasize kind of the words communication and negotiation—like it's not just a here you go—I don't need to say anything else about it. Just do it—you know, there's invariably a back-and-forth here because that's what collective bargaining is, and this is an outgrowth of that general issue. So in addition to that, I also wanted to just kind of look at this on a little bit of a secondary level beyond kind of the legal framework, which Loyd just did a great job kind of detailing, but also kind of more generically, examine it and think about it from the perspective of any negotiator and addressing this broader problem that we refer to in the world of dispute resolution as this issue of information

asymmetry: 11:26

the fact that parties coming into a bargaining process don't possess an equal and shared amount of information in that process. On one level, that can be seen as kind of a strategic advantage that one party may hold over another in terms of the information that they do possess. But it also creates a real problem in the in the bargaining process because, with that information asymmetry, it can sometimes create the impression that there's not a, what we call a bargaining zone—kind of an overlap, at least a potential overlap—between the parties, where a deal might lie, but they don't—they can't recognize it because of the disparity in information between the parties. And so there's kind of this push-and-pull in the process where you do want to be cautious about, you know, how much information you're sharing and not sharing too much to essentially kind of undermine your position in the bargain, but you also have to share enough so that the other side has important details to make decisions around, and to kind of better understand what your interests are and what your objectives are in the process. As a negotiator in labor relations, but really for any negotiator coming into this process, you really have to kind of ask yourself two critical questions. One: what information in the bargain do you need to acquire? And also, secondly, and just as important, what information do you need to disclose? Because the disclosure of some or much of that information that's in your possession that the other side may not have might be critical to identifying that bargaining zone—that overlap between the parties where a potential deal lies. And so you have to—you kind of have to ask yourself those questions at the outset and think about a strategy around those. Or you could be in a position where you—you know—a theoretical deal is out there, but the parties don't discover it because they're being too strategic and cautious about sharing information. But as I said, you know, you do want to be thoughtful about what you share. You don't necessarily want to come into a negotiation and you know, for example, kind of reveal your side's bottom line on economics. I mean, I suppose that's one strategy, but, you know, not one that probably anybody is gonna take. But as I said, conversely, you have to kind of think about how you can get enough information across the table so that the other side kind of better understands your perspective and where you're trying to get to. And so, some things you can do in this regard to kind of manage that tension is, one, develop what I call kind of an information plan. Think about, ahead of time, some of those answers to those questions that I posed: what information do you need to get? What information do you need to disclose? How are you going to go about it? If you have a plan ahead of time, of course that plan may not fully come into fruition, and you may need to call a few audibles along the way, but having a plan ahead of time is a really important idea. Second, think about kind of revealing information in segments. You don't necessarily kind of put everything out right away, but stagger it a bit, in part, to see kind of what is reciprocated. What does the other side do with that? Do they also share some information as a result, or do they stay kind of closed off? If they reciprocate and some of that trust develops, that's a good way to be more open to sharing even more information. Also think about building those relationships outside of the table. And trust is an important topic here. I think Loyd and I have actually spoken on the topic in the past, and, you know, that's another important thing to kind of think about, maybe even go so far as the outset—kind of think about a ground rule around some information sharing and what the parties kind of commit to in the process so that there's a common understanding at the outset. And then as you go through the process, even if someone on the other side isn't necessarily forthcoming, think about what Chris Voss refers to as asking

these calibrated questions: 16:00

the open-ended questions that are designed to kind of elicit that information. So even without kind of expressly always saying, hey, give us this piece of information, a well phrased question can elicit some of that information without even necessarily recognizing it. So those are some kind of strategies and ideas to kind of think about more broadly as a negotiator in terms of tackling this problem of information asymmetry at the table and making sure you don't end up in a situation where a possible, theoretical deal is there, but you miss out on the opportunity because of a withholding of information that would be vital to share to reach that deal. So, wanted to share that perspective as well, but moving beyond there and kind of back to perhaps our kind of original topic, I think this is a good opportunity also to kind of think through some specific situations that have occurred in the past. And Loyd, maybe you and I can kind of dive into that now and discuss a little bit how this has played out in some specific situations that I think many of our listeners have probably confronted themselves on some level. Anything there?

Loyd Willaford: 17:19

Sure. Before we kind of do that, I want to kind of come back to something. I think you made a great point, Chris, about having a plan. And I would say one of the things that's sort of implicit in that about, you know, releasing information in segments—you do not have to wait for an information request to release information. It is not a requirement to receive that—you can, in fact, I mean, I've seen very effective collective bargaining relationships where there's just, you know, at the outset, they have—there's a culture where we reveal this information, we don't wait for request. We know what information has historically been, you know, relevant—you know, budget information, summaries of information that maybe has been relevant in the past. And there's no waiting; you just disclose the information because it's—we know that, you know, you're going to need this. And Chris, I think you highlighted this—that often is a way to build some trust, like we're not hiding the ball. We're revealing without you asking. And often, there's some goodwill that's built up by that. And so that's something to think about, you know. And Chris, as you mentioned, I think you know, obviously there's some balance here. You know, nobody's going to go out and tell everybody what their bottom line is because we need to have that dance of negotiation as—to borrow a term from Nina Meierding, which I—you mentioned, you know, and I think I've mentioned this before, I did not have an appreciation for how important that was until I became a mediator.

Chris Casillas: 18:51

Yeah.

Loyd Willaford: 18:53

So that's—that measured release is actually a way of building the trust and the same thing—in the same way that the back-and-forth of negotiation, even. Everybody knows that there's a little dance going on, but it's a way of making sure that nobody feels like they've been hoodwinked in the same way as releasing information. When you give people the information and then they have an opportunity to go back and verify it, and when they say, yep, this is accurate, now there's a little bit of trust; they didn't have to ask for it. Now, when you're at the negotiation table and you have a position, they trust you—yes, that's really your position—so that release of information can be effective kind of in the sort of relationship building. So—

Chris Casillas: 19:39

Yeah.

Loyd Willaford: 19:40

But yeah. To transition, Chris, to your point about talking about some of these cases, I think I mentioned in my remarks about this issue of timeliness, and how quick do you release information? And there is an Island County case on this point where the union requested a bunch of information in July, and they asked specifically that the information be released as documents become available; basically, don't wait around. Back to my point earlier about—you make a request and it's a voluminous request. In the end, the other side waits until they have all the information before they give any of it out. One practice pointer: when you make a request, you could put in there: please give us it. I would say I don't know that you necessarily need to do that. I do think there's a good faith obligation to try to release the information on a timely basis. And the commission has been very emphatic about this. There's lots and lots of cases about—even a delay as short as two or three months can be an unfair labor practice. So it's always going to be—like all of our cases, it's always going to be context-specific—what exactly happened. But there is an expectation that you are promptly responding to information requests so that there can be bargaining. So what happened in this case is that the union makes this request. There's not a lot of communication. They provide some, but they never tell the union when they're going to get the rest of it, and then they finally got around to responding in November. July to November is a four-month gap, and commission said that's too late. You did not fulfill your duty. That's an unfair labor practice.

Chris Casillas: 21:29

So I mean—now we're not here to dispense legal advice to anyone and whatnot, but to get a little bit into the realm of what would you do here, Loyd? Like, when—if you were kind of in this employer's shoes, and you get this kind of very, you know, voluminous, large, maybe complex request and whatnot—like what, you know—what are the next two or three things that you would do in response to that that's kind of consistent with what we've heard from the commission in terms of what the responsibility is? Like, what would you do, Loyd?

Loyd Willaford: 22:10

Sure. Well, the first thing I would do is immediately—like within 24 to 48 hours—say I've got the request; we're going to get you a response. And maybe I would have some timelines. And where I've seen things be effective—if you go back and look at our cases, there are some kind of repeat players in the information request ULPs, and I'm not going to name names, but if you go look at enough cases, you will find them. And over time, what some of these repeat customers have managed to do, to their credit, is they put policies in place that now—that recognize these things about timeliness and response. And so there's kind of a form—a process. So when I get info requests, what happens? I respond that I got the request. I let you know when I'm going to have a more detailed response. And on the these long lists, I would probably have a bullet-point-by-bullet-point response for each request. Like number one: we have this; we're going to get it to you by x date, or we're going to need more time. And give as much detail about your response—like specifically when, or if you're not going to respond, can't respond, or don't—whatever—give information about that. Okay, we think this is not relevant, and here's why it's not relevant. Like we—there's no issue in our collective bargaining agreement or it's not—it didn't have anything to do with the agreements that we're dealing—you know, please tell us why you think it's relevant. And what that does is it shifts the burden back to the other party now to explain. You've given a response. You've fulfilled your obligation to communicate. Now the other side is going to have to come back and say, yeah, we understand. You think it's not relevant. We think it's relevant, and here's why. And then you start that back and forth, And then, you know, provide the information as quickly as possible. You know, if you have it, if it's clear what it is, just give it up. Don't wait around, you know. And obviously, there's balance. We know, you know, people are busy. They have all kinds of other obligations. This goes back to what I said earlier about being mindful about—when you make a request, what is the impact on the other side going to be? And to think about that. You need the information, and obviously you need to get it. But you also need to think about, well, how is that going to impact our bargaining? And to do it in a way that is mindful of whatever—you know—what's going to happen to the other side when you do that. So, you know, it comes back to what we've said earlier about communication and being clear and being as prompt as you can. Obviously, nobody says, oh, just drop everything and do this stuff. But there is an urgency, I guess, that I think sometimes where people get into trouble is where they lose sight of that. Because it's not something that you can just sit on, you know—respond and communicate and be as detailed as you can. So that's kind of how I, you know, having read our cases and having had a few of those in hearings—those practices, I think would prevent a lot of problems.

Chris Casillas: 25:21

And I think—you know—you've said it probably 62 times so far in this recording, but that word communicate is really so central to everything. If this were Sesame Street and C was the letter of the day, we would say—you know—communicate is our word of the day for this episode. It's such a critical part of this process. But I think you also highlight too there a few other things, Loyd. You know, it's also important to understand, though, that I think the commission has put some boundaries on what it is that needs to be produced. And, you know, there's not just a general responsibility to provide information that's not been requested specifically or hasn't, you know, been the basis of some kind of position in bargaining or necessary for enforcement of the agreement. You know, somebody has to ask for it, and it has to be related to something that's either being bargained at the table or relevant to enforcement of the agreement. And so you don't have to—I think the commission has been pretty clear, like there's not a duty to kind of affirmatively go out and provide that information—although, as you point out earlier, sometimes that's a really good practice in terms of thinking about the broader relationship and moving the process forward in collective bargaining, but as a legal matter, not a duty to kind of just affirmatively provide the information—and also, coupled with that, not a duty to produce records that don't exist. Like, just because the other side asked for something, a piece of information—like, if it's not something that you possess that you've created before, you don't have to kind of go and spend the next, you know, 20 hours putting together a complex spreadsheet that you didn't have in the first place. And we've seen that in a few different decisions—one that comes to mind is the City of Redmond case from several years ago—where the commission was pretty clear on that point, and also too recognizing that, as we've said a few times now, this is not just limited to active kind of negotiations between the parties in terms of collective bargaining agreement or some type of side agreement negotiations, but also extends to the enforcement phase of the life cycle of a contract. And that includes, you know, situations of questions over interpretation of the contract or potential employee discipline. Doesn't necessarily mean that there has to be some kind of active grievance or formal discipline to be imposed before that duty to provide information kicks in. As a Seattle School District case, issued by the commission—again—several years ago, made clear—like, those aren't prerequisites for that duty to provide provide information. You know, in that case, I think there were a couple employees that had been put out on administrative leave, no formal action taken yet, but the union requested some information, and there was a duty to supply that information even though no formal action had yet been taken. So you got to be kind of mindful of this responsibility and a lot of different facets of the collective bargaining relationship beyond just the active negotiation of a contract itself. So any final thoughts there or other examples, Loyd?

Loyd Willaford: 28:48

Yeah. Well, one thought I had was you reminded me that, you know, there is not a duty to produce new documents or, you know, information that you don't already have. And this is—it reminds me, we haven't touched on this, and I'm not going to touch on any detail, but in Washington state, for public employers, there's also the Public Records Act, which is another avenue. It is a separate and distinct avenue. I think that's important for people to understand that, and we're not going to be talking about the PRA on this podcast, but you should be aware of it, and that there is some interaction between the duty to provide collective bargaining obligation. But they're really distinctive, separate duties that the under the—again, without getting anything more specific of that, just to be be aware of that. I will say the example of—Chris, you mentioned, like, for example, grievances and preparing for arbitration, you know, or understanding the positions like administering the contract. The issue of things like confidentiality of documents, like witness—sometimes like witness statements or people's opinions. So again, there's a duty to sort of communicate. And interestingly enough, I know I was going to mentioned this—there was a Snohomish County PUD case where the commission said the employer had—both parties made requests for witness statements and notes regarding the investigation—I think, investigation notes both parties. And the commission said the employer had to turn over their investigation notes, but the union did not have to turn over its investigation notes. And this is a kind of a subtle distinction— I mean, well, that seems like not fair; doesn't this go both ways? Well, the rationale was this was a grievance—it was a termination grievance, and the union's investigation notes had nothing to do with the reason that the employer terminated the employee. And so it wasn't relevant to the—for the employer to fulfill its collective bargaining obligation. So there could be some sort of subtle distinctions and to just to be aware of that and realize that there are reasons for that.

Chris Casillas: 31:16

Yeah. Yeah, good point to finish on there—recognizing sometimes that the responsibility doesn't necessarily kind of evenly flow both ways. And that's perhaps an instance of that, so. Well, thanks Loyd so much. Great discussion, you know, kind of giving us an opportunity here to further dig in on this duty to bargain in good faith and thinking about its impacts on the bargaining process itself and as negotiators and kind of what we have to manage—and today, kind of doing a deeper dive into the duty to provide information that flows from that. So hopefully we helped develop a little bit of a better understanding on kind of some of the legal parameters there but also some of the practical considerations that you as a negotiator should be thinking about in terms of, you know, sitting down at the bargaining table and what information you need to acquire and may need to disclose, both legally but also, as I said, kind of practically in an effort to try and reach a resolution. So enjoyed the conversation, Loyd, thanks so much. We will hope to continue this series by looking at some other related specific topics in this area, and we welcome you to join us for those future conversations. Thank you.

Loyd Willaford: 32:45

Yep, thanks all. Take care.