Abercrombie & Fitch Co.

National Labor Relations Board - Board Decisions

Oct 17, 1973

206 N.L.R.B. 464 (N.L.R.B. 1973)

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abercrombie & Fitch Co. and Local 153, Office &
Professional Employees International Union, AFL-
CIO. Case 2-CA-12859
October 17, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On July 3, 1973, Administrative Law Judge Jerrold
H. Shapiro issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held on May 16, 1973, is based on
charges filed by the above-named Union on January 22,
1973, and a complaint issued on March 23, 1973, on behalf
of the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director of
the Board,' Region 2, alleging that Abercrombie & Fitch
Co., herein called the Respondent, has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the National Labor Relations Act, herein called the Act.
The Respondent filed an answer denying the commission of
the alleged unfair labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the General
Counsel's oral argument and the Respondent's postheanng
brief, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Abercrombie & Fitch Co., the Respondent, a New York
corporation with a store located in New York City on the
corner of East 45th and Madison Avenue, herein called the
New York City Store, is engaged in the retail sale of sporting
goods and related products in several States, including New
York. In the course of business operations, Respondent
annually receives gross revenues in excess of $500,000 and
annually purchases goods and commodities valued in excess
of $50,000 directly from suppliers located outside the State
of New York. Respondent admits that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Local 153, Office & Professional Employees Internation-
al Union, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III THE QUESTION PRESENTED
The ultimate question presented in this proceeding is
whether the Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to supply the Union with information
relevant and necessary to the Union's evaluation and prose-
cution of a grievance filed by an employee represented by
the Union.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union, the collective-bargaining representative of
the salesmen employed at the New York City store, is signa-
tory to a collective-bargaining agreement with the Respon-
dent covering these employees. The agreement, effective
from March 1, 1972, until February 28, 1975, contains a
grievance-arbitration procedure which provides' for binding
arbitration by an arbitrator selected by the New York State
Mediation Service. On September 29, 1972, Respondent
discharged salesman Raymond Morillo. The Union filed a
grievance on his behalf and eventually submitted the griev-
ance to arbitration. The instant case involves this grievance,
particularly the Union's requests for information to evalu-
ate and successfully prosecute the grievance.
Monllo on Friday, September 29, 1972,1 signed a state-
ment in which he admitted stealing $10 that day from a cash
register. He was discharged the same day. On Monday
morning, October 2, the Union's chief steward at the New
York City Store, Briggs, spoke to the Respondent's person-
nel manager, Charles McDermott, about Morillo's dis-
charge. McDermott showed him Morillo's confession and
told Briggs that the cashier reports for Morillo's cash regis-
ter showed shortages totaling about $7,000 over a period of
All dates herein refer to 1972 unless otherwise designated.
206 NLRB No. 109
ABERCROMBIE & FITCH CO.
-several months. The same afternoon McDermott again met
with Briggs, who was accompanied by Morillo. Morillo stat-
ed that he had signed the confession under duress and ex-
plained the circumstances under which he had signed the
confession.
On October 4, McDermott met with the Union Secretary-
Treasurer John Kelly, Briggs, and Morillo at which time
Kelly asked for and received the Respondent's explanation
for discharging Morillo. Kelly's stated position was that the
confession signed by Morillo would not "stand up," and
that Kelly did not believe the Respondent had sufficient
cause to discharge Monllo. Kelly requested and McDer-
mott refused to reinstate Morillo, at which point Kelly de-
clared that the Union had no alternative but to take the
discharge to arbitration and asked McDermott to give him
a copy of Morillo's signed confession, the cash register tapes
for Morillo, and any other information pertinent to the
discharge. McDermott told Kelly to reduce the grievance to
writing and to make a written request for the information.
On October 5, by letter, Kelly notified McDermott that "it
is the [Union's] intention to submit Morillo's discharge un-
der the grievance machinery and arbitration in our con-
tract" and requested that the Respondent supply the
following information:
1. A copy of the statement signed by Morillo on Sep-
tember 29, 1972.
2. A copy of the cash register tape of his register for
that date.
3. A list of any and all discrepancies between that tape
and the record of the Cashiers Department.
McDermott did not answer this letter nor did the Respon-
dent supply the information. The Union on October 25 in
Case 2-CA-12770 filed an unfair labor practice charge with
the Regional Director for Region 2, alleging that the Re-
spondent, in violation of the Act, was refusing to furnish the
Union the information requested in Kelly's letter of October
5. Also, Kelly by another letter to McDermott on Novem-
ber 2 reiterated the previous request for information. On
November 7, McDermott responded by letter and refused
to furnish the Union the requested information, stating "the
company's position in this matter remains unchanged, We
will be most happy to meet with [representatives of the
Union] and review the evidence on which we discharged
Morillo." A meeting was arranged for November 16 at
which time McDermott met with Union Representative
Scully. They discussed Morillo's grievance. McDermott
showed Scully the following documents: Morillo's confes-
sion of September 29; the cash register tape of September
29 from Morillo's register; the cashier's daily report showing
the total cash sales and the amount of money removed from
the register on September 29 indicating a shortage of $45;
the September 29 cash register audit envelope for the regis-
ter showing the total sales segregated into "cash," "charge,"
"bank charge," and "credit sales"; and the portions of the
40 odd sales checks written by the three cashiers using this
register on September 29 showing the amount of the sale,
method of payment, and name of salesman. Scully exam-
ined all of these documents-the business record relating to
the cash register are herein collectively called the "cash
465
register records"-and McDermott explained to Schully
how they related to each other. McDermott, however, spe-
cifically stated that the "cash register records" by them-
selves did not establish that Morillo took the $10 because
he was not the only salesman who used the register, that two
other salesmen used it throughout the day in question. Mc-
Dermott also told Scully that using the "cash register re-
cords" he had prepared an analysis showing that there was
a $45 shortage. Scully at the end of the meeting requested,
and McDermott refused to furnish, copies of the various
documents shown Scully.2
Scully testified that based on the information furnished
him on November 16 and the information previously pro-
vided by Morillo that he, Scully, was able to evaluate
Morillo's grievance which he concluded had merit. Scully
on November 16, following his meeting with McDermott,
testified he decided to withdraw his charge which alleged
that the Respondent had refused to furnish the Union with
information on the Morillo grievance and to submit the
Morillo grievance to arbitration. Accordingly, on Novem-
ber 16 Scully by letter to the Regional Director requested
that he be allowed to withdraw the Union's charge filed
against the Respondent 3 and on the same date, by letter,
notified the New York State Board of Mediation of a dis-
pute with the Respondent over Morillo's discharge and re-
quested that the Mediation Board designate an arbitrator to
hear the dispute. The chairman of the Mediation Board by
letter of November 21 notified the Respondent and the
Union that a hearing on this matter was scheduled for Janu-
ary 10, 1973, before a designated arbitrator. Shortly before
the scheduled arbitration, on or about January 2, 1973,
Morillo showed a letter from the insurance company appar-
ently investigating Respondent's cash register shortages
which indicated that the shortages involved about $7,000
over a period of time. The Union's attorney had been under
the impression that the Respondent's only defense before
the arbitrator would be that Morillo had taken $10 on Sep-
tember 29. Now, to see whether this was still true, in light
of the aforesaid letter, the Union's attorney instructed
Union Representative Scully to request all the evidence the
Respondent intended to rely on in presenting its case to the
arbitrator. Scully, on January 2, 1973, sent the following
letter to McDermott.
In view of our upcoming arbitration on the discharge
of Mr. Raymond Morillo, we request that you furnish
us with copies of all correspondence, documents, pa-
pers or records that you propose to rely upon in refer-
ence to the arbitration.
We also request that you furnish us with the names of
all persons you intend to rely upon to support your
position, as well as any statements by such person(s) in
the possession of the Employer relative to the above
grievance.
This information required by our attorneys and we ask
that you forward it to us immediately.
2
What took place at this meeting is based on the credible testimony of
McDermott, who impressed me as an honest witness.
3 The Regional Director approved the request on November 22.
466 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
By a letter to the Union on January 4, 1973, 'the
Respondent's attorney refused to supply this information
explaining, "we are unable to provide said information at
the present time. I know of no procedural rule of the New
York State Mediation Board which provides for pre-arbitra-
tion discovery, which is what you are requesting." Shortly
after this the Respondent's lawyer notified the Union's law-
yer that the only reason the Respondent would advance at
the arbitration hearing for Morillo's discharge was the al-
leged $10 theft on September 29. In fact, during the arbitra-
tion proceeding the Respondent at no time took the position
that Morillo was discharged for anything other than the
theft of $10.
The unfair labor practice charge which the complaint in
this case is based on was filed by the Union on January 20,
1973.
As described above, the documentary information in the
possession of the Respondent relevant to its contention that
Morillo had stolen $10 was his confession and the "cash
register records." The only other documents relating to the
alleged theft which the record shows that the Respondent
possessed are a written analysis of the "cash register re-
ports" prepared in late October by McDermott and a writ-
ten statement submitted by Morillo on November 16 to an
agent of the insurance company investigating the alleged
theft. McDermott's analysis is a one-page breakdown of the
"cash register records." It takes the sales transactions which
are listed in chronological order on the cash register tape
and segregates them by the method of payment, i.e., cash,
charge, or credit, and illustrates there was a shortage of $45.
McDermott, as found above, when he met with Scully on
November 16, informed him that he had made this analysis
but did not show it to Scully. McDermott credibly testified
that his purpose in preparing such an analysis was "I as-
sumed that on the forthcoming arbitration, this tape [refer-
ring to the cash register tape] was to have been submitted
in evidence. To have submitted this tape to somebody with-
out an explanation and to try to pick the transactions off it
at a table, it would have been a long, cumbersome, and
confusing situation." Regarding the statement given on No-
vember 16 by Morillo to the agent for the insurance compa-
ny, the statement, in substance, presents Morillo's version
of the events leading up to his discharge, that he did not
steal the $10 and that his written confession given to the
Respondent's security people was the result of coercion.
There is insufficient evidence to determine the exact date
this statement was turned over to the Respondent by the
insurance company. The record establishes only that in
"early January" the Respondent's lawyer mentioned the
statement to McDermott and that in the middle of January
the Respondent's lawyer for the first time showed the state-
ment to McDermott.
B. Discussion and Ultimate Findings
It is now settled that an employer fails to bargain in good
faith, and thereby violates Section 8(a)(5) and (1) of the Act,
if it refuses to furnish a union with information relevant and
necessary to the proper performance of the Union's statu-
tory representative function of processing grievances.
N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967). The,
fact that a request for this type of information is made by
a union following its decision to submit, or the actual sub-
mission of, a grievance to arbitration does not relieve an
employer of its statutory obligation. Fawcett Printing Corpo-
ration, 201 NLRB No. 139, Sec. II, F,2. However, the Board
has held "that the employer is [not] obligated to furnish such
information in the exact form requested by the representa-
tive. It is sufficient if the information is made-available in
a manner not so burdensome or time consuming as to im-
pede the process of bargaining." The Cincinnati Steel Cast-
ings Company, 86 NLRB 592, 593. Guided by these princi-
ples, I will now review the evidence.
The Union, using the grievance-arbitration procedure in
its contract with Respondent, grieved over the
Respondent's discharge of employee Morillo, and in con-
nection with this grievance requested that the Respondent,
in effect, furnish it with all information relevant to the dis-
charge, including certain specified information. The Re-
spondent furnished all of the requested information,4 but at
all times refused to comply with the Union's request for a
copy of Morillo's confession and copies of the "cash register
records." Respondent's personnel manager, McDermott,
however, showed all of these documents to Union Repre-
sentative Scully and discussed the information contained in
documents with Scully. The information was not complicat-
ed. There is no evidence that Scully did not have ample time
to read over and digest the information or was prohibited
from taking notes or that Scully believed he was not compe-
tent to evaluate the information. To the contrary, Scully
withdrew the Union's charge he had previously filed with
the Board alleging Respondent had violated the Act by
refusing to furnish this information which was needed by
the Union to decide whether to submit Morillo's grievance
to arbitration, and at the - same time Scully submitted
Morillo's grievance to arbitration. Plainly, Scully believed
that he had been given an adequate opportunity to intelli-
gently consider and evaluate the requested information.
I realize that the Board in certain situations has stated
that good-faith bargaining requires an employer to furnish
information "with an opportunity for the Union to make a
copy of such information if it so desires." United Aircraft
Corp., 192 NLRB 382 (voluminous records covering thou-
sands of employees),' citing Lasko Metal Products Inc., 148
4 There is insufficient evidence to establish that the signed statement exe-
cuted by Morillo on November 16 for an investigator employed by an insur-
ance company was in the possession or under the control of the Respondent
at the time it received the January 2, 1973, written request from Union
Representative Scully to furnish the Union with all documents and papers
that the Respondent intended "to rely upon in reference to the arbitration."
Moreover, Scully testified, in effect, that the purpose of this request was to
determine whether the Respondent in the arbitration proceeding intended to
defend against the discharge on grounds other than the alleged theft of $10,
and testified that Respondent's attorney subsequently notified the Union's
attorney that the Respondent's sole defense before an arbitrator would be the
alleged theft of $10. Under all of these circumstances , I am of the opinion
that the Respondent was not obligated to furnish the Union Morillo's No-
vember 16 statement
Regarding the Union's request embodied in Scully's letter of January 2,
1973, that Respondent furnish the Union with statements of persons other
than Morillo, there is no evidence that the Respondent at any time had in
its possession such statements relevant to Morello's discharge
ABERCROMBIE & FITCH CO. 467
NLRB 976, 978 (names , hire dates, and wage rates of all new
hires and employees hired since the start of a strike). In
United Aircraft and Lasko Metal Products either the volume
of information requested or the nature of the information
and its intended use made the information useless to the
Union without copies. In the instant case, the information
consists of Morillo's confession, less than half a page in
length, which can be easily read and understood in a matter
of a few minutes, and of uncomplicated cash register rec-
ords consisting of three one -page documents and a series
of sales slips . Also, there is no evidence that the union
representative was prohibited from making notes about the
information, nor did the union representative exhibit or
voice any difficulty in evaluating the information in the
manner furnished . For all of these reasons , I am of the
opinion that the United Aircraft and Lasko Metal Products
cases are distinguishable from the instant situation and con-
clude that the Respondent in the circumstances of this case
made available the requested information "in a manner not
so burdensome or time consuming as to impede the process
of bargaining ." The Cincinnati Steel Castings Company, su-
pra-
Regarding the failure of the Respondent to furnish Mc-
Dermott's analysis of the "cash register reports," this analy-
sis is based on and contains the identical information
furnished and explained to the union representative on No-
vember 16 by McDermott. The analysis is simply a graphic
presentation prepared for use primarily to explain the
Respondent's case to an abritrator. I am of the opinion that
in these circumstances the analysis is either irrelevant or, if
relevant, of such trivial significance that there is no basis
whatever for concluding that the failure to supply it would
impede the Union in its proper functioning or that its pos-
session might have enabled the Union to represent Morillo
more effectively. Thus, I conclude the Respondent was not
obligated to give the analysis to the Union.
To recapitulate, based on the foregoing, I find that the
Respondent furnished the Union all relevant information in
its possession relating to Morillo's grievance , the Respon-
dent was not obligated to furnish McDermott' s analysis to
the Union, the Respondent' s refusal to furnish copies of the
information cannot be said to have been burdensome or
restrictive on the Union and, I further find that nothing the
Respondent said or did demonstrates that the Respondent
was not acting in good faith .5 Consequently, I conclude that
Respondent did not violate Section 8 (a)(5) and ( 1) of the
Act, as alleged , by failing and refusing to furnish the Union
with information . Accordingly , I shall[ recommend that the
complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact and the
entire record , I make the following:
CONCLUSIONS OF L.4m
1. Abercrombie & Fitch Co., the Respondent , is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 153, Office & Professional Employees Interna-
tional Union, AFL-CIO, the Union, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. All sales personnel at the Respondent's New York City
store who are actually engaged in selling, but excluding
buyers, associate buyers, assistant buyers, and supervisors
within the meaning of Section 2(11) of the Act constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Local 153, Office & Professional Employees Interna-
tional Union, AFL-CIO, is the exclusive representative of
all the employees in the aforesaid appropriate unit for the
purposes of collective bargaining with respect to rates of
pay, wages , hours of employment, or other conditions of
employment.
5. The Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section -10(c) of the
Act, I hereby issue the following recommended:
ORDER6
The complaint is dismissed in its entirety.
had been witnessed by two named security employees The evidence , howev-
er, does not establish that this portion of the confession was deliberately
concealed rather than that the attestation had been inadvertently left off and
added at a later date
6 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
5It appears that , when McDermott on November 16 showed Monllo's
confession to Union Representative Scully, it did not indicate on its face it