For Case Originally Filed In 2002, CERB Rules That Every Union Request For Relevant Information Triggers New Obligations For Employer and New Statute of Limitations To File Charge, Even If Union Previously Requested Same Information.
A recent decision by the Commonwealth Employment Relations Board (CERB, formerly known as the Labor Relations Commission) clarified when employers are supposed to respond to information requests and when labor organizations are supposed to file unfair labor practice charges about the employer’s incomplete response. Generally, public employers in Massachusetts have a duty to furnish information requested by a union, when the information is relevant and necessary for the union to prepare for bargaining, grievances, and administering a collective bargaining agreement. When a union believes that an employer’s response is lacking, the union has six months from the date it received the employer’s response to file a charge of prohibited practice with the Division of Labor Relations (DLR).
In Cambridge Public Health Comm’n, MUP-02-3605 (January 21, 2009), the union made a series of information requests for a report about restructuring the employer’s operations. (The Union requested other materials). The Employer first denied the request in a February 2002 letter. The Union renewed its requests in later months, resulting including a request in October 2002. The Union then filed a charge with DLR in November 2002.
CERB ruled that the clock started ticking on the Union’s six-month statute of limitations when the employer denied the request in February 2002. As a result, the Union’s November 2002 was too late to challenge the February 2002 letter. However, the Union’s subsequent request for the same information, followed by a subsequent refusal by the employer, “restarted” the six-month clock ticking:
[t]hat the Association had made prior requests for the same information and that the Alliance previously had refused to provide the information does not forever relieve the Alliance of its statutory obligation, because the Association asserted in its [subsequent] letter that it still needed the information and provided reasons in support of that assertion.
Just like every paycheck triggers a new and different statute of limitations under the famed Lily Ledbetter Fair Pay Act (discussed here: http://blog.aflcio.org/2009/01/29/lilly-ledbetter-watches-as-obama-signs-fair-pay-act/), CERB effectively ruled that every new request for information also triggers a new and different statute of limitations under c.150E, so long as the information is relevant at the time of the new request.
There are a few interesting asides about this decision. First, CERB apparently will not rule upon an employer’s obligations to provide information if the request does not specifically cite G.L. c.150E – the law CERB is charged with administering. Here, CERB ignored requests that only cited the Public Records Law, G.L. c.66, §10. Second, this case illustrates the slow pace of decisionmaking by CERB. This case was filed in November 2002. Despite the decision discussed here, this dispute is far from resolved. CERB’s decision dealt only with the timeliness issue and not with whether the employer lawfully refused to provide the restructuring report in the first place.