Outrage No Substitute for Relevance

Patrick Scully

The NLRB General Counsel’s Division of Advice recently rejected a union’s claim that it was entitled to receive financial data regarding an employer’s intended use of government largesse resulting from the federal Tax Cuts and Jobs Act (“TCJA”).  The employer had announced plans to use some of the tax benefit to pay bonuses to and increase 401(k) contributions for its non-union employees.  Because the union was bargaining on behalf of employees at a number of the employer’s television stations, it declared that Congress intended the tax benefit to “trickle down” to workers and requested, among other things, the employer’s estimate of gains due to the tax cut, as well as plans for capital investment, executive compensation, and plans for stock buybacks and dividends.

The Division of Advice found primarily that the employer’s decisions regarding how to spend the tax gains were matters of core entrepreneurial concern and not mandatory subjects of bargaining.  Accordingly, the union was not entitled to information regarding those decisions.  Additionally, while the employer had declared that it intended to share some of the tax gains with employees, it did not ever claim that its ability to provide benefits to union-represented employees was related to the tax benefits or its plans for the money.  The employer never claimed that it could not fund (or could not afford) increases in benefits for union-represented employees.  Because the Union could not identify a factual assertion made by the employer in bargaining to which the information could arguably relate, the Division found no violation in the employer’s refusal to provide the requested information.

While this case did not involve a change in the law, it is a good reminder about the importance of an employer’s language in bargaining—it is always better for an employer in bargaining to declare it won’t do something than to claim that it “can’t”.

Nexstar Media Group, Inc. Case 3-CA-22094, Advice Memorandum (October 15, 2018)