"Because a union’s other duties include the duty to see to it that an employer meets its [collective bargaining agreement] obligations, the employer’s duty to furnish information extends to data requested in order properly to administer and police a collective bargaining agreement." N.Y. & Presbyterian Hosp. v. NLRB , 649 F.3d 723, 729 (D.C. Cir. 2011) (citation and internal quotation marks omitted)."[T]he duty imposed by section 8(a)(5) is subject to a minimum standard of relevance: ‘The union’s need and the employer’s duty depend, in all cases, on the probability that the desired information [is] relevant, and that it [will] be of use to the union in carrying out its statutory duties and responsibilities.
Similarly, a list of prices could have helped the union with accomplishing its stated goal of “compar[ing] the prices of competitors.” Not only was this information relevant to whether KLB faced an increasingly competitive business atmosphere, but the union's contemporaneously proffered reason for needing the information—double-checking the company's competitiveness claim—satisfies the “minimum standard of relevance” established by our precedent. New York and Presbyterian Hospital v. NLRB, 649 F.3d 723, 729 (D.C.Cir.2011). Of course, the specific information necessary to verify a competitiveness claim will vary depending on the circumstances of the case.
So long as the information is "relevant to the union's representational functions," the employer is obligated to provide it upon request. Oil, Chem. & Atomic Workers Local Union No. 6–418 v. NLRB , 711 F.2d 348, 357 (D.C. Cir. 1983) ; see N.Y. & Presbyterian Hosp. v. NLRB , 649 F.3d 723, 729 (D.C. Cir. 2011). This standard is in keeping with the observation in Acme Industrial Co. that a "liberal standard as to relevancy" decreases the burdens and expense of resolving labor conflicts by providing the union with an opportunity to evaluate the merits of a claim without forcing it to "take a grievance all the way through to arbitration."
[3] We hold that, notwithstanding the Board's petition for enforcement only two days after its decision, the statutory bar to considering Legacy Health's objection holds firm. While it is true that, once the Board applies for enforcement, this court obtains jurisdiction over the case, it is also true that the Board retains concurrent jurisdiction until the record is filed. See 29 U.S.C. § 160(e); see also N.Y. Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C. Cir. 2011). We shared concurrent jurisdiction with the Board from August 11, 2010, when the Board filed its application for enforcement, through September 17, 2010, when the Board filed its certified list of the contents of the record with this court.
We hold that, notwithstanding the Board's petition for enforcement only two days after its decision, the statutory bar to considering Legacy Health's objection holds firm. While it is true that, once the Board applies for enforcement, this court obtains jurisdiction over the case, it is also true that the Board retains concurrent jurisdiction until the record is filed. See 29 U.S.C. § 160(e); see also N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C.Cir.2011). We shared concurrent jurisdiction with the Board from August 11, 2010, when the Board filed its application for enforcement, through September 17, 2010, when the Board filed its certified list of the contents of the record with this court.
An employer's duty to bargain collectively under § 8(a)(5) of the NLRA includes the duty to supply a union with information that will allow it to "negotiate effectively and . . . perform properly its . . . duties as bargaining representative." N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011) (quotation omitted). Employers accordingly have a "general obligation . . . to provide information that is needed by the [union] for the proper performance of its duties."
See Oil, Chem. & Atomic Workers Local Union No. 6–418 v. NLRB, 711 F.2d 348, 359 (D.C.Cir.1983). And, although we have previously held only that an employer must timely respond to a union's request for relevant information, see N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 730 (D.C.Cir.2011), we have no basis to quarrel with the majority of the Board's extension in this case, to the proposition that an employer must timely respond to a request for presumptively relevant information. This is the sort of legal and policy determination to which we are obliged to defer.
We review the Board's application of the law to the facts for reasonableness. See New York & Presbyterian Hospital v. NLRB, 649 F.3d 723, 729 (D.C.Cir.2011). The “special circumstances” exception to Section 7 is designed “to balance the potentially conflicting interests of an employee's right to display union insignia and an employer's right to limit or prohibit such display.”
Furthermore, although Weigand's exceptions to the ALJ's decision referenced a comment posted by Cornelius, he never specifically challenged the ALJ's failure to find that the Union committed any unfair labor practices on the basis of any comment made by Cornelius. See N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C.Cir.2011) (holding that respondent failed to preserve issue on petition for review where “the language [in respondent's exceptions to the ALJ's decision] was too broad to put the Board on notice” of respondent's specific objection). And during oral argument, counsel for Weigand conceded that his client was not claiming that any comments posted by Union agents were threats. Therefore, Weigand's belated claims regarding Cornelius are not properly before the court.
The Board suggests that we should not even consider these first two procedural arguments because the Hospital failed to timely raise them before the agency. Ordinarily, of course, we lack jurisdiction to hear arguments not raised before the Board in the first instance. 29 U.S.C. § 160(e); N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 733 (D.C.Cir.2011). But there is no dispute here that the Hospital did make these arguments in the refusal-to-bargain proceedings—indeed, the Board specifically considered and rejected both of them in the Refusal–to–Bargain Order directly before us.