NLRB: Firm Can Withhold ESPP Data

October 23, 2003 ( - A company was within its rights when it held back information from a union about participants in the firm's Employee Stock Purchase Plan (ESPP) as well as those solicited to participate.

That was the upshot of a two to one ruling by the National Labor Relations Board (NLRB), which decided that the ESPP was not a subject of mandatory bargaining because it did not constitute “wages,” and did not operate as a retirement plan, according to a CCH report. Member Dennis Walsh dissented, arguing that the ESPP, which provides its employees with substantial advantages related to their purchase of their employer’s stock, is a mandatory bargaining subject.

Member Peter Schaumber concluded that the ESPP did not constitute “wages” because employees received no “emolument of value.” The ESPP was also not a “condition of employment” because it did not operate as a retirement plan.

In his dissent, Walsh argued that the ability of employees under the ESPP to buy and sell stock in their employer without requiring the services of a broker and without incurring brokerage fees, “is clearly a benefit for them when compared to their inability to buy and sell stock in publicly traded companies without requiring the services of a broker and the payment of brokerage fees.”

He pointed out that this benefit to the employees under the ESPP is exclusively available to them because they are the [employer’s] employees. “This ESPP benefit is, therefore, a term and condition of their employment, and thus a mandatory subject of bargaining,” Walsh asserted.

The case is Pieper Electric, Inc, PPC Holdings, Inc .