Trustees of Grinnell College (18-CA-300972)

United States Government

National Labor Relations Board

OFFICE OF THE GENERAL COUNSEL

Advice Memorandum

S.A.M.

DATE:

May 25, 2023

TO:

Jennifer Hadsall, Regional Director

Region 18

FROM:

Richard A. Bock, Associate General Counsel

Division of Advice

SUBJECT: Trustees of Grinnell College

Case 18-CA-300972

133-0100-0000-0000

530-6067-6067-6000

530-6067-6067-5200

530-6067-6067-6033

This case was submitted for advice as to whether the Employer violated the Act

when it refused to provide names, contact information, and job titles for unit

employees as requested by the Union. The Employer asserted that the requested

information included confidential education records and providing it to the Union

without student-employees’ consent would run afoul of the Employer’s duties under

the Family Educational Rights and Privacy Act of 1974 (“FERPA”). We first conclude

that the Employer failed to show that the records requested are education records as

defined by FERPA and therefore failed to establish it had a legitimate and substantial

confidentiality interest in the requested information. Accordingly, the Employer

violated Section 8(a)(5) by failing to provide the Union with the information. Second,

even assuming FERPA applies to the requested information, we conclude that

issuance of complaint, absent settlement, is still appropriate. Although the Employer

satisfied its initial obligation to offer an accommodation on how to provide the

information while complying with FERPA, and the parties met and bargained over

accommodation proposals, the parties could not reach agreement to resolve the

dispute. Thus, the Board must balance the parties’ interests and strike an

appropriate accommodation in light of the parties’ proposals

Although the Employer

satisfied its initial obligation to offer an accommodation on how to provide the

information while complying with FERPA, and the parties met and bargained over

accommodation proposals, the parties could not reach agreement to resolve the

dispute. Thus, the Board must balance the parties’ interests and strike an

appropriate accommodation in light of the parties’ proposals. In litigating this case,

the Region should take the position that the proper balancing and accommodation

here is for the Employer to affirmatively seek releases from student-employees

actually covered by FERPA and, for those who refuse or fail to sign a release, provide

the Union with de-identified information.

FACTS

Grinnell College (“Employer”) is a private not-for-profit college in Grinnell, Iowa

that educates undergraduate students. The Union of Grinnell Student Dining

Workers (“Union”) was initially formed in 2016 to represent the Employer’s dining

hall student-employees. After the Union was elected and certified, the parties entered

Case 18-CA-300972

- 2 -

into multiple successive collective-bargaining agreements. The most recent collective-

bargaining agreement is effective from July 1, 2021 to June 30, 2023.

In early 2022,1 the Union sought to represent all of the Employer’s student-

employees. The Employer and Union entered into a neutrality agreement in March,

and in May the Union won the election and was certified as the representative of

virtually all student-employees. Soon after, the Union sought to accrete into the unit

the Employer’s Community Advisors, who had been explicitly excluded from the

certified unit. The Employer voluntarily recognized the Union as the representative of

those additional student-employees upon a showing of majority support via card

check

won the election and was certified as the representative of

virtually all student-employees. Soon after, the Union sought to accrete into the unit

the Employer’s Community Advisors, who had been explicitly excluded from the

certified unit. The Employer voluntarily recognized the Union as the representative of

those additional student-employees upon a showing of majority support via card

check.

On June 28, in preparation for bargaining for a successor contract, the Union

emailed the Employer an information request seeking, among other items, names,

contact information, and bargaining unit job titles for all bargaining unit student-

employees as well as race, ethnicity, and gender for each unit member. On July 6, the

Employer informed the Union that information on individual student-employees

implicated FERPA and the Employer would need each student-employee to sign a

release before the Employer could provide such unit data.2

FERPA protects the privacy of student education records; colleges or universities

that violate FERPA are subject to the loss of federal funding.3 FERPA provides that

postsecondary schools must obtain a student’s written, prior consent when disclosing

“personally identifiable information” from education records, unless an exception

applies.4 The exceptions include, among others, records that are considered student

“directory information.”5

On July 15 and 18, the Union communicated its view that FERPA releases were

not necessary to disclose unit membership and contact information because the

Employer provided the Union with similar information in the past without obtaining

1 All dates hereinafter are in 2022, unless otherwise stated.

2 The remaining information requested was either provided or the parties agreed was

no longer necessary.

3 20 U.S.C. § 1232g(a), (b); 34 C.F.R. §§ 99.1–5.

4 20 U.S.C. § 1232g(b)(1), (d); 34 C.F.R. § 99.30.

5 20 U.S.C. § 1232g(a)(5)(B), (b)(1); 34 C.F.R. § 99.37(a).

ilar information in the past without obtaining

1 All dates hereinafter are in 2022, unless otherwise stated.

2 The remaining information requested was either provided or the parties agreed was

no longer necessary.

3 20 U.S.C. § 1232g(a), (b); 34 C.F.R. §§ 99.1–5.

4 20 U.S.C. § 1232g(b)(1), (d); 34 C.F.R. § 99.30.

5 20 U.S.C. § 1232g(a)(5)(B), (b)(1); 34 C.F.R. § 99.37(a).

Case 18-CA-300972

- 3 -

releases,6 it constituted directory information, and employment information is not an

education record. As to the request for race, ethnicity, and gender information, the

Union consented to the Employer providing aggregate, de-identified data instead.

In its reply on July 19, the Employer asserted that the intersection of the Act and

FERPA was a developing area of law and that it had to balance its duties under the

Act with its duty to keep students’ personal information confidential under FERPA.

The Employer explained that when directory information is combined, directly or

indirectly, with private information, a FERPA release is required. In other words,

providing directory information, such as names and contact information, for a subset

of students—e.g. only those employed by the college—would be prohibited absent

their consent. The Employer offered to contact students to obtain such releases. It

also indicated that it was exploring the possibility of a blanket release authorizing

disclosure of employment data to the Union to avoid the need for releases for each

information request. The Employer offered to meet and the Union requested that the

parties do so.

On August 1, the parties met to discuss the issues concerning the information

request and FERPA

o obtain such releases. It

also indicated that it was exploring the possibility of a blanket release authorizing

disclosure of employment data to the Union to avoid the need for releases for each

information request. The Employer offered to meet and the Union requested that the

parties do so.

On August 1, the parties met to discuss the issues concerning the information

request and FERPA. The Union pressed the Employer as to why it had changed its

position on needing individual releases to furnish information, whether the requested

records were actually education records, and why such information was not covered

by the directory information exemption, especially since it had been provided in the

past. The Employer reiterated that this was an evolving area of law, explained that

its understanding of the law had changed, and that these were education records that

required a release. The Employer also distinguished between voter lists provided

during the unionization process and unit information relevant to the collective-

bargaining process.7 The Union inquired about the downside risk of furnishing the

information without releases and pointed out that some employment information was

already effectively public since the Employer published lists of Community Advisors

and other positions to the student body. The Union also noted that it was aware of

another college that agreed to provide similar information to the corresponding union

without a FERPA release. The Union suggested that the parties employ an opt-out

process—i.e., students would be notified of the expected release of information and

could object to the disclosure of their individual information—and asserted that the

6 The Employer previously provided similar information during the initial election

process, in connection with the neutrality agreement, and for the dining hall student-

employees from 2016 onward

oy an opt-out

process—i.e., students would be notified of the expected release of information and

could object to the disclosure of their individual information—and asserted that the

6 The Employer previously provided similar information during the initial election

process, in connection with the neutrality agreement, and for the dining hall student-

employees from 2016 onward.

7 At some point during the meeting, the parties discussed the fact that during

negotiations for the neutrality agreement, the Employer had determined that voter

information constituted directory information.

Case 18-CA-300972

- 4 -

collective-bargaining agreement contemplated such a process.8 The Employer

responded that it would need to speak with legal counsel about the opt-out proposal.

The Employer offered to give the Union a roster of students and the Union could

reach out to students directly to obtain FERPA releases. The Union told the Employer

that it would file an unfair labor practice charge with the Board if the Employer did

not immediately provide the requested information without FERPA releases. It

further stated that the Employer’s insistence on releases meant the information

would not be provided in a timely manner, which would impede the Union’s ability to

negotiate. The parties were unable to reach an accommodation during the meeting.

That evening, the Union followed up with the Employer by email asking for a

response on the one-time opt-out suggestion.

On August 3, the Employer notified the Union that it would not be able to

provide the requested information without a FERPA release from each student. It

explained that an opt-out process would not meet FERPA standards. It offered to

provide generic pay and position data and to use its electronic communications system

to request release authorizations from student-employees

ut suggestion.

On August 3, the Employer notified the Union that it would not be able to

provide the requested information without a FERPA release from each student. It

explained that an opt-out process would not meet FERPA standards. It offered to

provide generic pay and position data and to use its electronic communications system

to request release authorizations from student-employees. The Union responded on

August 4, complaining that the Employer was deviating from its prior practice and

suggesting the Employer designate certain employment data “directory information.”

According to the Union, that process contemplates an opt-out period and the Union

proposed giving student-employees a week to opt out. The Union informed the

Employer if it did not guarantee within 48 hours that the information would be

provided either with no release or via an opt-out process, the Union would file an

unfair labor practice charge with the Board.

On August 6, the Employer responded and listed four options for the Union to

choose from on how to proceed: (1) obtain FERPA releases from students, which the

Employer again offered to send out to student-employees; (2) provide generic pay and

position data not linked to any personally identifiable information as well as a list of

enrolled students; (3) consider altering “directory information” to include place and

position of employment (but not any other employment-related information), which

the Employer cautioned would first require considerable deliberation with key

stakeholders in the campus community; or (4) file an unfair labor practice charge.

On August 8, the Union replied that none of those options satisfied the

Employer’s obligation to provide information under the Act

include place and

position of employment (but not any other employment-related information), which

the Employer cautioned would first require considerable deliberation with key

stakeholders in the campus community; or (4) file an unfair labor practice charge.

On August 8, the Union replied that none of those options satisfied the

Employer’s obligation to provide information under the Act. While the Union

expressed appreciation for the Employer’s willingness to explore designating certain

employment information as directory information, it disagreed with the need for

8 Section 3.1 of the collective-bargaining agreement states: “The parties recognize that

to fulfill its obligation to represent employees under this Agreement, the Union

should have access to the names and contact information of employees covered by this

Agreement. The parties recognize and agree that Employee students may choose to

keep their contact information confidential.”

Case 18-CA-300972

- 5 -

stakeholder deliberations, which would cause further delay. Accordingly, the Union

proceeded with filing the instant charge alleging a failure to furnish names, contact

information, and job titles for the bargaining unit. The Union subsequently requested,

and the Employer provided, estimates as to how long each of the above options would

take. The parties have yet to reach agreement on how to proceed.

ACTION

We first conclude that the Region should issue complaint, absent settlement,

alleging the Employer violated Section 8(a)(5) by refusing to furnish the requested

unit information because the Employer has failed to establish that the information

was subject to FERPA. Second, even assuming it could substantiate its confidentiality

interest, complaint should issue because the parties could not reach an

accommodation and the information at issue has not been provided

ment,

alleging the Employer violated Section 8(a)(5) by refusing to furnish the requested

unit information because the Employer has failed to establish that the information

was subject to FERPA. Second, even assuming it could substantiate its confidentiality

interest, complaint should issue because the parties could not reach an

accommodation and the information at issue has not been provided. The Region

should then submit to the Board that the appropriate balance and accommodation in

the instant case is for the Employer to affirmatively seek FERPA releases from any

student-employees who are actually covered by FERPA, turn over the information to

the Union for those who signed, and, because some may fail or refuse to sign a

release, provide the Union with their respective de-identified information.

A. Legal Principles

A collective-bargaining representative is entitled to information relevant and

necessary to carry out its statutory duties and responsibilities, including bargaining

for a successor collective-bargaining agreement.9 When an employer asserts that

information requested by a union is confidential, the Board balances the union’s need

for the relevant information against any legitimate and substantial confidentiality

interests asserted by the employer.10 When the assertion stems from a state or federal

law, the Board will consider that in its assessment of whether a legitimate

9 See, e.g., Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme

Indus. Co., 385 U.S. 432, 435–36 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 151–

53 (1956).

10 See Mobil Oil Corp., 303 NLRB 780, 780–81 (1991) (employer’s confidentiality

interest in drug informant’s identity not so great as to excuse failure to disclose any

information; employer ordered to produce summary of informant’s report); Minnesota

Mining & Mfg

U.S. 301, 303 (1979); NLRB v. Acme

Indus. Co., 385 U.S. 432, 435–36 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 151–

53 (1956).

10 See Mobil Oil Corp., 303 NLRB 780, 780–81 (1991) (employer’s confidentiality

interest in drug informant’s identity not so great as to excuse failure to disclose any

information; employer ordered to produce summary of informant’s report); Minnesota

Mining & Mfg. Co., 261 NLRB 27, 30–31 (1982) (employer failed to substantiate

confidentiality interest in substances used and produced at plant based on trade

secrets as to vast majority of substances; ordering bargaining over protective

safeguards as to substances that, if known to a competitor, could put employer at

competitive disadvantage), enforced sub nom. Oil, Chem. & Atomic Workers Local 6-

418 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983).

Case 18-CA-300972

- 6 -

confidentiality interest exists.11 The employer has the burden to establish that it has

such a confidentiality interest and that this interest outweighs the union’s need for

the information.12 If established, the employer may not simply refuse to furnish the

requested information but must seek an accommodation with the union that will

effectuate the union’s interest in obtaining the information.13 Thus, it is the

employer’s duty to offer the union a reasonable accommodation.14 If the union is not

satisfied with the employer’s proffered accommodation, it is required to respond and

explain why the employer’s offer is insufficient but it need not propose a precise

alternative.15 Where the parties are unable to reach an accommodation, despite good

faith bargaining, the Board will balance the parties’ respective interests and strike an

accommodation “in light of proposals made during bargaining.”16

11 See Borgess Medical Center, 342 NLRB 1105, 1105 (2004) (recognizing state law

that deemed medical incident reports sought by union confidential); GTE California,

Inc., 324 NLRB 424, 425 n.2, 426–27 & n.5 (1997) (taking into account

g, the Board will balance the parties’ respective interests and strike an

accommodation “in light of proposals made during bargaining.”16

11 See Borgess Medical Center, 342 NLRB 1105, 1105 (2004) (recognizing state law

that deemed medical incident reports sought by union confidential); GTE California,

Inc., 324 NLRB 424, 425 n.2, 426–27 & n.5 (1997) (taking into account that customer

contact information sought by union was not subject to disclosure except in limited

circumstances under state law).

12 A-1 Door & Building Solutions, 356 NLRB 499, 500–01 (2011).

13 Id.; Metropolitan Edison Co., 330 NLRB 107, 107–08 (1999) (flat rejection of

request for informant names constituted failure to bargain to accommodate union’s

interest); GTE California, 324 NLRB at 426–27 (employer acted lawfully by offering

accommodation that parties bargained over and union ultimately accepted, namely,

connecting union with complaining customer by telephone rather than providing

customer’s unlisted information).

14 Borgess, 342 NLRB at 1106 (employer’s proposed accommodation—department

head’s general testimony about prior medical incidents—not sufficient to provide

specific disparate treatment evidence for union to prepare for grievance arbitration).

15 Id.; Piedmont Gardens, 362 NLRB 1135, 1137 n.7 (2015), enforced sub nom. Am.

Baptist Homes of the W. v. NLRB, 858 F.3d 612 (D.C. Cir. 2017). See Allen Storage &

Moving Co., 342 NLRB 501, 503 (2004) (employer fulfilled bargaining obligation by

offering to open its books in lieu of producing business records revealing customer

names but union refused without discussion or explanation).

16 Metropolitan Edison, 330 NLRB at 109–10 (where employer failed to seek an

accommodation, Board ordered accommodation bargaining while recognizing that the

parties may return to the Board if unable to reach agreement).

led bargaining obligation by

offering to open its books in lieu of producing business records revealing customer

names but union refused without discussion or explanation).

16 Metropolitan Edison, 330 NLRB at 109–10 (where employer failed to seek an

accommodation, Board ordered accommodation bargaining while recognizing that the

parties may return to the Board if unable to reach agreement).

Case 18-CA-300972

- 7 -

B. The Employer Failed to Show its Confidentiality Interest in the

Requested Information Was Legitimate and Substantial

Under FERPA, postsecondary schools must obtain a student’s written, prior

consent when disclosing “personally identifiable information” contained in education

records unless an exception applies.17 Employment records are only subject to FERPA

as education records if the student-employee is “employed as a result of [their] status

as a student.”18

Here, although the Employer, as an educational institution, has a substantial

and legitimate confidentiality interest in education records subject to FERPA, the

Employer has failed to show that the particular student-employee records sought by

the Union meet the definition of education records under FERPA. We recognize where

FERPA confidentiality requirements are established, the Employer has a significant

17 20 U.S.C. § 1232g(b)(1); 34 C.F.R. § 99.30. Although the statute is written in terms

of parental consent, the permission required transfers to the student once they attend

a postsecondary institution. See 20 U.S.C. § 1232g(d).

18 34 C.F.R. § 99.3(b). The statute broadly defines education records as those

containing “information directly related to a student” that are maintained by an

educational institution. 20 U.S.C. § 1232g(a)(4). The corresponding regulation

contains the same broad definition, but states that the term “education records”:

does not include: . . .

(3)

institution. See 20 U.S.C. § 1232g(d).

18 34 C.F.R. § 99.3(b). The statute broadly defines education records as those

containing “information directly related to a student” that are maintained by an

educational institution. 20 U.S.C. § 1232g(a)(4). The corresponding regulation

contains the same broad definition, but states that the term “education records”:

does not include: . . .

(3)

(i) Records relating to an individual who is employed by an

educational agency or institution, that:

(A) Are made and maintained in the normal course of

business;

(B) Relate exclusively to the individual in that individual’s

capacity as an employee; and

(C) Are not available for use for any other purpose.

(ii) Records relating to an individual in attendance at the agency

or institution who is employed as a result of his or her status as a

student are education records and not excepted under paragraph

(b)(3)(i) of this definition.

34 C.F.R. § 99.3(b) (Emphasis added.). Although paragraph (3)(ii) above is preceded

by exclusionary language (“does not include”), the Department of Education has

treated the emphasized language above as dispositive in opinion letters to unions and

educational institutions—in other words, the administering agency interprets the

regulation to mean that FERPA protects employment records only if an individual’s

employment is contingent on their status as a student.

Case 18-CA-300972

- 8 -

stake in complying with the statute because it otherwise risks losing its federal

funding.19 But not all student employment records are covered by FERPA

cational institutions—in other words, the administering agency interprets the

regulation to mean that FERPA protects employment records only if an individual’s

employment is contingent on their status as a student.

Case 18-CA-300972

- 8 -

stake in complying with the statute because it otherwise risks losing its federal

funding.19 But not all student employment records are covered by FERPA. Indeed,

while a graduate student working for a university-employer as a teaching assistant or

a resident assistant working in student housing might fairly be assumed to be

employed contingent on being a student, the same cannot be said of a student-

employee working in the dining hall, such as those included in the unit at issue

here.20 Accordingly, the Employer had the burden to show that the employment of the

students covered by the request is contingent on them being enrolled at the college in

order for its invocation of FERPA to be effective and it failed to meet this burden. For

example, it has not provided job announcements describing that only enrolled

students may apply or employment contracts demonstrating that employment was

dependent on student status. Thus, the Employer unlawfully failed to furnish the unit

information requested by the Union because its confidentiality concerns are

unsubstantiated.

C. Even Assuming a Legitimate and Substantial Confidentiality Interest

Exists, Complaint Should Issue to Allow the Board to Balance the

Parties’ Interests

Assuming the Employer had shown the records were subject to FERPA, issuance

of complaint, absent settlement, is nonetheless warranted in this case. We recognize

that the Employer generally complied with the duties imposed on a party raising

confidentiality concerns in response to an information request

st

Exists, Complaint Should Issue to Allow the Board to Balance the

Parties’ Interests

Assuming the Employer had shown the records were subject to FERPA, issuance

of complaint, absent settlement, is nonetheless warranted in this case. We recognize

that the Employer generally complied with the duties imposed on a party raising

confidentiality concerns in response to an information request. It timely raised its

confidentiality interests with the Union and presented a reasonable accommodation

by offering to seek written releases from students so that it could provide the

requested information to the Union and still comply with its FERPA obligations.21

The parties also engaged in back-and-forth, good faith discussions to try to reach

agreement on a satisfactory accommodation. The parties met to discuss

19 See Borgess, 342 NLRB at 1105–06 (state law prohibiting disclosure of information

about a facility’s self-review documentation supported legitimacy of confidentiality

interest); GTE California, 324 NLRB at 426–27 (state law ensuring customer

confidentiality serves important public policy that Board cannot ignore even if it

would be preempted). See generally Novotel New York, 321 NLRB 624, 639 n.69 (1996)

(in enforcing Act, Board must be cognizant of obligation to consider other federal

statutes and the public policy behind their Congressional objectives).

20 It is unclear from the existing evidence whether Community Advisors serve a

function similar to a resident assistant.

21 See Detroit Edison, 440 U.S. at 317–20 (denying enforcement of Board order

requiring employer to unconditionally provide employee aptitude test scores where

employer had well founded confidentiality interest and was willing to disclose scores

upon receipt of written consents).

s unclear from the existing evidence whether Community Advisors serve a

function similar to a resident assistant.

21 See Detroit Edison, 440 U.S. at 317–20 (denying enforcement of Board order

requiring employer to unconditionally provide employee aptitude test scores where

employer had well founded confidentiality interest and was willing to disclose scores

upon receipt of written consents).

Case 18-CA-300972

- 9 -

accommodation options and continued the exchange of ideas over email. Ultimately,

however, the parties were not able to reach agreement and the requested information

has not yet been provided in any form. Thus, at this point, the Board needs to strike

an accommodation in light of the options discussed by the parties.

We note that this case is distinguishable from Allen Storage & Moving, where the

Board dismissed the information request allegation against the employer because the

employer there offered an accommodation but the union failed to accept it and did not

engage in any discussions or provide an explanation.22 Here, although the Union

failed to accept any of the Employer’s offers, it engaged in discussions about

alternative options for obtaining the information, conveyed the reasons for its

skepticism of the Employer’s FERPA-based concerns, and gave explanations as to why

the proffered accommodations were unsatisfactory. Indeed, the Union offered counter

proposals, which the Employer rejected, claiming they did not satisfy FERPA’s

disclosure requirements or would take significant time to implement.

Because the parties were unable to achieve an accommodation through

bargaining, issuing complaint alleging the Employer violated Section 8(a)(5) is

necessary to present the issue to the Board so that it may balance the parties’

interests and determine an appropriate accommodation in light of their proposals

during bargaining

osure requirements or would take significant time to implement.

Because the parties were unable to achieve an accommodation through

bargaining, issuing complaint alleging the Employer violated Section 8(a)(5) is

necessary to present the issue to the Board so that it may balance the parties’

interests and determine an appropriate accommodation in light of their proposals

during bargaining. In this case, the Region should urge the Board to order the

Employer—as to any student-employees’ records that the Employer has established

are subject to FERPA—to obtain individual FERPA releases from those student-

employees and provide the information for those who signed. Because some students

may fail or refuse to execute a release, the Employer should also provide the Union

with de-identified information about those bargaining unit employees. This approach

properly balances the Employer’s duties under the Act and FERPA while also

recognizing the Union’s legitimate need to receive the information and its stated

interest in doing so as expeditiously as possible.23

22 342 NLRB at 503.

23 The Region should note in its briefs to the ALJ and Board that such an order would

not preclude the parties from bargaining over classifying certain categories of

information as “directory information” to streamline the sharing of basic unit

information on an opt-out basis in the future. See 34 C.F.R. § 99.3 (defining directory

information as “information contained in an education record of a student that would

not generally be considered harmful or an invasion of privacy if disclosed” and

providing a non-exhaustive list of examples).