Baldwin Shop 'N Save

National Labor Relations Board - Board Decisions

Jun 27, 1994

314 N.L.R.B. 114 (N.L.R.B. 1994)

114
314 NLRB No. 17
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Counsel for the General Counsel filed a motion to strike portions
of the Respondent’s brief, alleging that the Respondent made asser-
tions of fact that were not part of the record. The Respondent filed
a response to the motion and counsel for the General Counsel filed
a reply. We deny counsel for the General Counsel’s motion. We
have not, however, relied on any assertion of fact that was not part
of the record in this case.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge found that Store Manager Zukiewicz had told the
Union’s payroll checker, Haviland, on March 15, 1993, that Artie
Devine was no longer employed, but that Zukiewicz had admitted
in her testimony that this was not true. The record does not support
this finding. Haviland testified that Devine was described as a man-
ager at that meeting. Zukiewicz testified that in an August 20, 1992
meeting with union representatives, she identified Devine as a man-
ager. Further, in her notes of the August 20 meeting Zukiewicz indi-
cated that she had described Devine as part of management. In a
written summary of the March 15, 1993 meeting Zukiewicz noted
that Devine had not been employed on August 20, 1992. Zukiewicz
testified, however, that this was a mistake and that Devine had been
employed on August 20, 1992. The judge’s erroneous finding does
not affect the result reached here.
In referring to the allegations concerning the information requested
regarding employees Klelgrowski and Devine, the judge stated that
he would deal with the allegations as alleging that the Respondent
failed and refused to furnish the information until late January 1983.
The correct date should be late January 1993. At fn. 7 in his deci-
sion the judge stated that in April 1982 Haviland refused to sign a
verification attesting to the accuracy of the information that she had
received. Haviland did sign such a verification in April 1992 but re-
fused to do so in May 1992. These inadvertent errors do not affect
our decision.
1 All dates are for the period from July 1, 1992, through June 30,
1993, unless otherwise indicated.
2 The General Counsel’s motion to correct transcript is granted. I
have found other errors which have been noted and corrected.
Zukiewicz, Inc. d/b/a Baldwin Shop ’N Save and
United Food and Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO–
CLC. Cases 6–CA–24950, 6–CA–25054, 6–CA–
25104, and 6–CA–25282
June 27, 1994
DECISION AND ORDER
BY MEMBER STEPHENS, DEVANEY, AND COHEN
On August 13, 1993, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and counsel for the General
Counsel filed a brief in answer to the Respondent’s ex-
ceptions.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Boards adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Zukiewicz, Inc. d/b/a Bald-
win Shop ’N Save, Baldwin, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
JoAnn F. Dempler, Esq., for the General Counsel.
Richard Sandow, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
James R. Reehl, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Pittsburgh, Pennsylvania, on June
10 and 11, 1993.1 The charges and amended charges were
filed on various dates during the period October 13 through
February 22 by United Food and Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO–CLC (the
Union). The second consolidated amended complaint, which
issued on April 1, alleges that Zukiewicz, Inc. d/b/a Baldwin
Shop ’N Save (Respondent or the Company) violated Section
8(a)(1), (3), (4), and (5) of the National Labor Relations Act.
The gravamen of the complaint is that the Company alleg-
edly: (1) issued a 3-day suspension to employee Diana Sing-
er because of her union and protected concerted activities,
and because she gave testimony to the Board; and (2) failed
and refused to furnish the Union with requested information
necessary and relevant to the Union’s performance of its du-
ties as bargaining representative. The Company’s answer de-
nies commission of the alleged unfair labor practices.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally and to file briefs.
On the entire record in this case,2 and from my observation
of the demeanor of the witnesses, and having considered the
briefs submitted by the General Counsel and the Company,
I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a Pennsylvania corporation with an office
and place of business in Baldwin, Pennsylvania, is engaged
in the operation of a retail grocery store. In the operation of
its business, the Company annually derives gross revenues in
excess of $500,000 and annually purchases and receives at
its Baldwin facility goods valued in excess of $50,000 di-
rectly from points outside the State of Pennsylvania. I find,
as the Company admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
115BALDWIN SHOP ’N SAVE
3 Unless otherwise indicated, ‘‘Zukiewicz’’ refers to Joan
Zukiewicz.
II. THE LABOR ORGANIZATION AND BARGAINING
UNIT INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act. At all times material, the Union has
been the designated and recognized exclusive collective-bar-
gaining representative of the Company’s employees in a unit
appropriate for collective bargaining. The unit, as defined in
the recognition clause of the collective-bargaining contract
between the Company and the Union which was in effect
from February 1, 1990, through January 31, 1993, and the
current contract (effective February 1, 1993, through January
31, 1996) is as follows:
1.1 The Union shall be the exclusive bargaining
agency for all store employees except the owners, store
managers, store co-managers and produce managers
employed at Baldwin Shop ’N Save or at any future su-
permarket locations owned by Zukiewicz, Inc., which
may be operated in any areas assigned to Local 23 by
the United Food and Commercial Workers International
Union. Past practices will be observed.
So far as indicated by the present record, the Company oper-
ates only the Baldwin store.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Suspension of Diana Singer and Information Request
Pertaining to Singer
Diana Singer began working for the Company on August
24, 1991. Like most of the store employees, she was a stu-
dent and part-time employee. Singer worked as a cashier,
usually 25 to 30 hours per week. The collective-bargaining
contract contained a 45-day union-security clause, and Singer
was a union member.
Both the 1990–1993 and 1993–1996 contracts provided
that employees were entitled to 1-week paid vacation after 1
year of continuous service. For employees hired on or before
October 1 (like Singer) ‘‘eligibility for vacations shall be
computed from original date of employment.’’ Such employ-
ees ‘‘earn and accrue vacation each year on the anniversary
date of his/her employment,’’ and like all employees, ‘‘must
take their time off.’’ The contract further provided as fol-
lows:
13.3 Vacation selections will be granted on a senior-
ity basis, so far as possible, preference as to dates being
given in the order of length of service. The time of va-
cation shall be fixed by the Employer at any mutually
convenient time during the calendar year but no em-
ployee shall be compelled to take a vacation prior to
April 15. The Employer shall have the final decision.
The employees must make known their vacation pref-
erences by April 15 and, after April 15 the Employer
shall have the right to assign vacation times. The Em-
ployer will post the sign up sheet for vacation sched-
ules by January 1 of each year.
At the beginning of 1992, Store Manager Joan Zukiewicz
posted a ‘‘tentative vacation sheet’’ on which employees
could indicate requested vacation times.3 Zukiewicz testified
that some time during the spring or summer, in response to
inquiries from new employees, she posted a notice concern-
ing vacation eligibility. The list indicated vacation eligibility
for recent employees, including Singer (1 week after Septem-
ber 1, 1992, to September 1, 1993). Singer testified that the
list was posted some time during the last 3 months of 1992.
Singer entered her name on the tentative vacation sheet,
requesting September 15 to 26. Later she scratched her name
off the list, because she was not certain she could take time
off from school. She did not enter another date. However in
early September Singer again changed her mind. On Sep-
tember 5 she handed Joan Zukiewicz’ son, Manager Joey
Zukiewicz, a written request to take vacation from September
18 to 27. She received no answer. On September 8 she
placed a note to Joan Zukiewicz in the cash drawer, renew-
ing her request. Again receiving no response, Singer testified
that she went to Joan Zukiewicz and verbally presented her
request. Zukiewicz denied the request, explaining that people
with more seniority needed the time off. Singer then com-
plained to Paul Brophy, the Union’s business representative.
Brophy called Joan Zukiewicz, and asked what was the prob-
lem. Zukiewicz said that other employees with more senior-
ity then Singer wanted to take off that week. Brophy insisted
that Singer was entitled to take her requested vacation time.
Zukiewicz told him to look at the contract. Brophy replied
that if Singer did not get her requested vacation, he would
look into filing charges, meaning an unfair labor practice
charge. On September 15 the Union filed an unfair labor
practice charge (Case 6–CA–24878), received by the Com-
pany the next day, alleging that the Company violated Sec-
tion 8(a)(1) and (3) by denying Singer a vacation because of
her union and concerted activities. Zukiewicz testified that a
named employee with more than 10 years’ seniority wanted
a vacation at the same time as Singer, that two employees
were off sick, and that she could not grant Singer’s request
on such short notice.
Shortly after Brophy’s call, about 5:15 p.m. on September
10, there was, as Joan Zukiewicz later indicated in a memo
to herself, a ‘‘blow-up’’ or ‘‘confrontation’’ at the register
between herself and Singer concerning vacation time.
Zukiewicz asked what was wrong. Singer testified in sum
that Zukiewicz was abusive toward her, calling her a spoiled
brat and a liar, and asserting that Zukiewicz was sick of her
‘‘shit.’’ Zukiewicz testified that Singer never personally
asked her for the vacation time. However, Zukiewicz testified
concerning the confrontation at the register. Zukiewicz testi-
fied in sum as follows: Singer was acting in a rude manner.
Zukiewicz asked her what was the matter. Singer indicated
that she was angry about not getting her requested vacation
time. Zukiewicz was not abusive toward Singer. Zukiewicz
explained the ‘‘time frame,’’ and that ‘‘we had more senior
people looking for vacation who had already requested it
under the time frame of the contract.’’ Singer said she did
not have a copy of the contract, and Zukiewicz suggested she
get one from the Union. Singer, in her testimony, admitted
that Zukiewicz told her that under the contract people with
more seniority get time off first, and Singer replied that she
never saw the contract.
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The letter indicated that suspension would begin on October 11.
However in context it is evident that Zukiewicz confused dates and
that suspension would begin on Monday.
Singer and Zukiewicz testified concerning another se-
quence of events which eventually culminated in Singer’s
suspension. Singer testified in sum as follows: On Thursday,
September 10, prior to her confrontation with Zukiewicz,
Singer was at school (Community College). Another person
accidently knocked her down some steps. She was not aware
of any injury and did not then report the matter. The fol-
lowing day, at work, she told Ralph, the produce manager,
that her back was bothering her and she was going to the
hospital. She went, X-rays were taken, and she was given
discharge instructions and a request by the attending physi-
cian that she be excused from work on September 11 and 12.
Singer returned to the store and gave the papers to Joan
Zukiewicz. She told Zukiewicz that a black man age 23 to
26 knocked her down. She did not say that she reported the
incident to school security. Zukiewicz commented that no
one that age would go to college, but she did not request fur-
ther documentation. Singer did not work on September 11 or
12. She went home and followed the discharge instructions.
Singer reported to work on September 13, but complained to
Ralph that her back hurt. He sent her home. The following
day (September 14), at school she was almost knocked down
again. Her back irritated her, and she asked the school nurse
for a note. Singer referred to the prior injury, but did not
make clear that the injury occurred at school. The nurse told
her to see the doctor at the hospital, and made no report con-
cerning the matter. Singer again went to the hospital. The
doctor told Singer that her back was bruised. She again re-
ceived discharge instructions, together with the physician’s
request that she be excused from work for 24 hours. The fol-
lowing day (September 15) Singer gave Joan Zukiewicz the
papers. Zukiewicz simply said ‘‘okay’’ and Singer did not
work that day.
As indicated, the Union filed its unfair labor practice
charge on September 15. On September 18 Singer received
notice of a certified letter from Joan Zukiewicz, dated Sep-
tember 15 but postmarked September 17 ‘‘pm.’’ Zukiewicz
stated in sum that on September 11 Singer said she could not
work due to being pushed at school, and that she ‘‘made out
a report at school.’’ Zukiewicz requested ‘‘as your em-
ployer’’ that Singer give her a copy of the report within 5
days. Singer initially testified that she did not see the letter,
but subsequently admitted that she did receive the letter.
Singer further testified in sum as follows: When the 5 days
were up (apparently September 20) Zukiewicz asked her for
the report. Singer told her she forgot it. Singer did not tell
Zukiewicz that there was no report. Business Representative
Brophy advised her that she fulfilled her obligation by fur-
nishing the physicians’ excuses. Singer asked Zukiewicz why
she wanted the report. Zukiewicz answered that the doctors’
excuses weren’t good enough. On September 21 Singer
handed Zukiewicz a letter which she had prepared with as-
sistance from Brophy and union counsel. The letter, in sum,
described the September 10 incident, stated that security was
not notified and no report filed, and advised Zukiewicz that
she could contact the doctors if she had further questions.
Zukiewicz told Singer that the letter was not good enough.
That same day (September 21) Brophy appointed Singer as
union shop steward. As will be discussed, there is a fact
question as to when the Company received notice of her ap-
pointment.
By certified letter dated and postmarked October 6, and re-
ceived October 7, Zukiewicz informed Singer that she was
suspended for 3 days beginning Monday, October 12 ‘‘for
insubordination, frequent unexcused calling off work and ap-
parent lying.’’4 Zukiewicz indicated that this action was trig-
gered by Singer’s failure to supply the school report. She
added that the suspension would be lifted if Singer brought
the report ‘‘that you so adamantly said you made out.’’ On
October 9 Singer handed Zukiewicz a letter, which she pre-
pared on advice of Brophy and union counsel, enclosing the
school nurse’s summary of her interview with Singer on Sep-
tember 18. In her summary, the nurse described Singer’s nar-
rative of the events beginning with her fall on September 10.
The nurse indicated that Singer first came to her on Sep-
tember 14, and that at the time, she did not realize that the
September 10 incident occurred on campus. Zukiewicz told
Singer that this was not the report she was expecting. Singer
served the suspension.
Joan Zukiewicz testified in sum as follows: On September
11 a cashier reported to her that Singer was telling some em-
ployees that she was pushed down by a black kid at school.
Zukiewicz asked Singer what happened. Singer said that a
kid ran past her at school, knocked her down steps, her leg
was hurt, and she reported the incident to school security.
Zukiewicz asked her for the report, because ‘‘we investigate
. . . on any kind of a problem on any kind of an activity
(involving injury) whether it’s outside the store or inside the
store.’’ Singer said she would get the report. She did not say
there was no report, and she worked her shift that day. Sub-
sequently Singer made excuses for failing to bring in the re-
port, e.g., that she was late for school. Zukiewicz was con-
cerned because honesty and trustworthiness was particularly
important for a cashier. Zukiewicz rejected Singer’s Sep-
tember 21 letter because she wanted the school report. On
September 25 and 28 Zukiewicz again asked for the report.
Each time Singer gave an excuse for not bringing in the re-
port. On September 28 or 29, Zukiewicz handed Singer a
note informing her that unless Singer produced the note with-
in 5 days, ‘‘further disciplinary action may have to be
taken.’’ Zukiewicz called Community College, and was in-
formed that all such incidents on campus were documented,
but Zukiewicz would have to request such documentation
from the student. Zukiewicz was concerned because Singer
was not being truthful. When Singer again failed to produce
the report, Zukiewicz issued the suspension letter.
Business Representative Brophy testified that on Sep-
tember 21 he appointed Singer as union shop steward. Union
receptionist Carol Bacco testified in sum that on September
21 she prepared, stamped, and deposited for mail pickup a
letter addressed to ‘‘Baldwin Shop ’N Save,’’ informing the
Company of Singer’s appointment as steward. It is undis-
puted that by letter dated December 14 addressed to ‘‘Joan
Zukiewicz’’ at ‘‘Baldwin Shop ’N Save,’’ the Union in-
formed the Company of Singer’s appointment effective Sep-
tember 21, and that Zukiewicz received the letter. Zukiewicz
testified that the December 14 letter was the first notice she
received that Singer had been appointed shop steward. I do
not credit Zukiewicz in this regard. I find that Zukiewicz re-
117BALDWIN SHOP ’N SAVE
ceived the September 21 letter and knew by late September
that Singer was designated union shop steward.
The prevailing rule of law is that where one witness testi-
fies that he mailed a certain letter and the alleged recipient
testifies that he never received the letter, the questions of
whether the letter was mailed and received are not resolved
by any conclusive presumption; but rather, present questions
of fact. IX Wigmore, On Evidence, par. 2519; see also, Ma-
chinists District 9 (Marvel-Schebler), 237 NLRB 1278 fn. 6
(1978). Singer testified that she said nothing to Zukiewicz
about her status as steward prior to the January 1993 contract
negotiations. However on October 9 the Union filed a griev-
ance over Singer’s suspension, which Zukiewicz admittedly
received. The grievance identified Singer as the steward, but
the Company raised no question in this regard. By letter
dated February 29, 1992, Zukiewicz informed the Union that
all union correspondence ‘‘must be sent directly to Joan
Zukiewicz at Baldwin Shop ’N Save,’’ and that any other
correspondence ‘‘shall be considered as non-correspondence
and will not [sic] recognized.’’ As indicated, the Union’s
September 21 letter, unlike the December 14 letter, was not
addressed directly to Zukiewicz. The Company’s February
29, 1992 policy statement takes on added significance in
light of strange developments involving Singer’s union dues
deductions after September 21. A steward paid less union
dues than a rank-and-file union member. An outside firm,
Charley Brothers, Inc., processed payrolls for union-rep-
resented firms, including checkoff of union dues. By letter
dated September 21, the Union informed Charley Brothers of
Singer’s appointment, and requested that her dues be ad-
justed to the steward rate as of October 1. However,
Zukiewicz testified that Charley Brothers cannot make
changes in dues deductions for company employees without
her authorization. Nevertheless, Singer’s dues were deducted
at the steward rate in October. Thereafter, in November and
December, her dues were deducted at the higher, rank-and-
file member rate. Union Secretary-Treasurer James Bono tes-
tified that he sent the Union’s December 14 letter when he
learned of the upward adjustment. Zukiewicz, in her testi-
mony gave a rather lame, hearsay explanation. According to
Zukiewicz, she learned after December 14 that an employee
at Charley Brothers initially changed Singer’s dues to the
steward rate, and then changed the rate a second time be-
cause she thought she was wrong the first time. It is evident
from the October dues adjustment, that Charley Brothers re-
ceived notice in September that Singer was appointed stew-
ard. It is unlikely that Charley Brothers would make the first
change, and even more unlikely, the second change, without
checking with or being authorized by the Company. I find
that Zukiewicz received the Union’s September 21 letter, but
instructed Charley Brothers to rescind the dues reduction, ei-
ther because the letter failed to comply with her declared
policy, or because Zukiewicz did not wish to admit that she
knew of Singer’s appointment at the time she suspended
Singer.
Returning to the exchanges between Zukiewicz and Singer,
I find that Singer told Zukiewicz that she reported the Sep-
tember 10 incident, and at least impliedly promised to bring
the report. As indicated, Singer testified that after receiving
Zukiewicz’ written request she told Zukiewicz that she forgot
to get the report. Singer would not have said this without in-
dicating that there was a report and she intended to bring it
to Zukiewicz. However, I find that Zukiewicz did not request
the report prior to receiving the Union’s unfair labor practice
charge. Zukiewicz had a practice of writing self-serving
memoranda, either in correspondence or notes to herself, or
both. This practice may have stemmed from her experience
in a prior unfair labor practice case (which will be dis-
cussed). Zukiewicz tended to load such memoranda with any
facts which she believed might justify her position. If
Zukiewicz had requested the report prior to sending her letter
dated September 15, it is probable that she would have so
indicated in the letter. However, the letter unambiguously
purports to be an initial request. In view of the postmark
dated September 17 p.m., I find that Zukiewicz actually pre-
pared and sent the letter after she received the unfair labor
practice charge.
Zukiewicz’ suspension letter was demonstrably false in
one significant respect. Zukiewicz told Singer that she was
suspended in part for ‘‘frequent unexcused calling off
work.’’ However, the Company failed to produce any evi-
dence that Singer had a record of excessive or unexcused ab-
sences. Singer testified without contradiction that Zukiewicz
and the produce manager excused (and the produce manager
on one occasion even directed) her absences related to the
September 10 injury. Zukiewicz, the Company’s only wit-
ness, did not deny Singer’s testimony in this regard.
With respect to the September 10 confrontation between
Zukiewicz and Singer, I credit Singer’s testimony to the ef-
fect that Zukiewicz initiated the confrontation and engaged in
a vituperative outburst against Singer. I have reservations
concerning the credibility of both Zukiewicz and Singer.
However, Singer was by far the more credible witness. As
found, the evidence indicates that Zukiewicz gave a patently
false reason for suspending Singer, falsely denied any knowl-
edge of Singer’s status as steward prior to December 14, and
backdated her first letter to Singer. Zukiewicz was demon-
strably determined to avoid or conceal any facts which might
prejudice her defense. In contrast Singer candidly admitted
that she told Zukiewicz that she forgot to bring the report,
although she could easily have denied that she ever told
Zukiewicz there was a report. Except where otherwise indi-
cated, I have credited Singer’s testimony where it conflicts
with that of Zukiewicz.
I find that the Company suspended Singer in reprisal for
Singer’s determined pursuit of her grievance over denial of
a vacation request, specifically, by enlisting the Union’s aid,
including filing of an unfair labor practice charge. Zukiewicz
made clear, by her outburst on September 10, that she was
angry over the fact that Singer complained to Business Rep-
resentative Brophy, and invoked the Union’s aid, including
the possibility of a charge. The following day Singer did not
approach Zukiewicz to describe the incident at school. Rath-
er, Singer was talking to other employees. Nevertheless
Zukiewicz, for no apparent legitimate reason, injected herself
into the matter, summoned Singer, questioned her about the
incident, and suggested she was lying. Zukiewicz accepted
the proffered physicians’ excuses and hospital discharge in-
structions without comment. By September 16 Singer was
back at work. However on receiving the unfair labor practice
charge, Zukiewicz promptly revived the matter. She de-
manded that Singer produce the school report. As indicated,
Zukiewicz testified that she did so in accordance with stand-
ard company practice to investigate any incident involving
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘somebody being hurt,’’ even if the accident occurred away
from work. In fact, the Company had no such practice. The
Company failed to produce any documentary evidence to in-
dicate that it ever requested verification of injury other than
doctor’s excuses. The parties stipulated that the Company
had no records during the period from January 1, 1990, to
the date of this hearing (other than that involving Singer),
which would show that the Company requested unit employ-
ees to furnish verification other than doctor’s excuses. This,
notwithstanding that another employee was absent from work
for a lengthy period of time during the summer of 1992, by
reason of a fall and resulting injuries away from the store.
Zukiewicz also testified that she pursued the matter because
she was concerned about Singer’s honesty and trust-
worthiness. However, Zukiewicz admitted in her testimony
that she had no reason to question Singer’s honesty in her
work as cashier, and that Singer had never been written up
for shortages. Zukiewicz recognized until September 16 that
her only legitimate concern was Singer’s physical ability to
perform her job. That interest was satisfied by the documents
which Singer brought to her. After receiving the unfair labor
practice charge, Zukiewicz revived and relentlessly pursued
the matter. Zukiewicz proceeded to suspend Singer notwith-
standing that Singer provided Zukiewicz with her written
statement and that of the school nurse, fully explaining the
facts and making clear there was no other report which could
be furnished.
I am not persuaded that Singer’s appointment as shop
steward was a factor in Zukiewicz’ decision to give her a 3-
day suspension. By September 21 Zukiewicz had embarked
on the course of action which led to the suspension. The
store had been without a steward for some time, the previous
steward having left the Company’s employ. Zukiewicz testi-
fied that she was pleased to have a steward, as this relieved
her of paperwork functions which would normally be per-
formed by the steward. I have no reason to question her as-
sertion. Diana Singer testified that Zukiewicz did not indicate
any hostility toward her in her role as steward. However, as
previously discussed, Zukiewicz’ testimony concerning her
knowledge of the appointment, reflects adversely on her
credibility.
On the basis of the Company’s knowledge of and out-
spoken hostility toward Singer by reason of her protected ac-
tivity, the timing of the Company’s actions, and the false and
pretextural reasons advanced by the Company for suspending
Singer, the General Counsel presented a prima facie case that
the Company suspended Singer because she sought union aid
in support of her grievance, including the unfair labor prac-
tice charge filed on her behalf. As the Company’s expla-
nation for suspending Singer was not credible, it follows that
the Company failed to meet its burden of establishing that
it would have suspended her in the absence of such activity.
Therefore the Company violated Section 8(a)(1), (3), and (4)
of the Act.
On October 19 the Union withdrew its unfair labor prac-
tice charge. Singer asked Business Representative Brophy
when she could take her vacation. By letter dated November
18, Brophy, noting there were about 6 weeks left in the cal-
endar year, asked Zukiewicz to notify the Union and Singer,
by November 24, when ‘‘union steward’’ Diana Singer could
take her vacation. Singer and Brophy testified in sum that
they understood Singer had to take her vacation by the end
of 1992. The Company did not reply to the letter. On De-
cember 14 Singer placed a note to Zukiewicz in the cash
drawer, requesting to take her paid vacation from December
27 to January 2. Singer received no response. In January
Singer attended contract negotiations in her capacity as stew-
ard. At that time Singer again raised the matter of her vaca-
tion. Zukiewicz explained that Singer could take her accrued
vacation time in 1993. Singer testified that this was the first
time she was so informed. By letter dated January 26 to
union counsel, with a copy to Singer, company counsel ex-
plained Singer’s vacation rights. Company counsel stated in
sum as follows: Vacation time accrued from anniversary date
to anniversary date. However, scheduling of vacations was
done on a calendar-year basis in accordance with the con-
tract. Singer delayed in selecting vacation times in late 1992,
and such times were not available. However, she did not lose
her accrued 1992 vacation time, but could schedule such
time, up to her next anniversary date, to be used before Sep-
tember 1, 1993. Similarly she had until September 1, 1994,
to use her 1-week vacation time accrued as of September 1,
1993. Singer should make her request as soon as possible,
to ensure maximum likelihood that her preference would be
available.
Singer took her accrued vacation in April 1993 and ar-
ranged to take a second vacation in late August 1993 (time
accrued in 1993). Joan Zukiewicz testified that in September
she told Singer that she would not lose her vacation time,
but would ‘‘get it from her one year of employment to the
second year of employment.’’ The General Counsel contends
that the Company violated Section 8(a)(5) by failing and re-
fusing from November 18 to January 26 to furnish the Union
with the information requested by the Union in its November
18 letter.
The collective-bargaining contract was silent as to the
timespan during which employees could take their accrued
paid vacation. Determination of vacation times was left to
the Company’s discretion, subject to certain contractual limi-
tations. The contract stated that ‘‘the time of vacation shall
be fixed by the Employer at any mutually convenient time
during the calendar year,’’ thereby leaving open the possible
interpretation that ‘‘calendar year’’ meant the year in which
leave accrued. The Company’s posted eligibility list, which
the Company never sent to the Union, did not make clear
whether it referred to accrual or use dates, and did not make
clear whether and during what period of time employees
were required to use or otherwise lose paid vacation leave.
I credit Singer’s testimony that she did not learn until the
January negotiations, that she could use her accrued leave
after January 1, 1993. Even on the basis of Zukiewicz’ testi-
mony (which I do not credit), it is evident that Zukiewicz
did not make clear to Singer when she could take her vaca-
tion.
The matter of when Singer could take her paid vacation
pertained to the wages and working conditions of a unit em-
ployee. Therefore, the Union was entitled to such informa-
tion. Nevertheless the Company intentionally delayed for
more than 2 months before giving a simple answer to a sim-
ple question. It is a violation of Section 8(a)(1) and (5) for
an employer to fail or refuse to furnish to a union any infor-
mation which is relevant and necessary for the Union to have
in order to fulfill its duty as bargaining representative. It is
also an unfair labor practice for an employer to fail or refuse
119BALDWIN SHOP ’N SAVE
5 The Company argues (Br. 4) that ‘‘a delay in providing informa-
tion is not an unfair labor practice.’’ The cases cited by the Com-
pany do not support that proposition. Rather, they turn on the rea-
sonableness of the delay. In Decker Coal Co., 301 NLRB 729, 733
(1991), the Board found the delay to be reasonable in light of the
complexity of the requested information, and a misunderstanding as
to the information sought. In Hostar Marine Transport Systems, 298
NLRB 188, 196 (1990), the requested information pertained to con-
tract negotiations. The Board found in sum that the delays did not
disrupt negotiations, and (unlike the present case), the delays ‘‘were
not lengthy and not deliberate.’’
6 The record does not indicate the correct spelling of this name.
Spelling herein is as stated in the complaint and answer.
to furnish such information in a timely manner. See in par-
ticular, Postal Service, 308 NLRB 547, 551 fn. 1 (1992). See
also EPE Inc., 284 NLRB 191, 200 (1987), enfd. in pertinent
part 845 F.2d 483 fn. 2 (4th Cir. 1988); Seiler Tank Truck
Service, 307 NLRB 1090 at 1101 (1992); FMC Corp., 290
NLRB 483, 489 (1988).5
I find that the Company delayed unreasonably and arbi-
trarily in giving the Union the requested information. Singer
did not lose her accrued vacation time. However the Com-
pany kept both Singer and the Union in the dark, forcing
Singer to request alternative and possibly unwanted vacation
times because she believed that otherwise she would lose her
accrued time. The Company had no valid reason for waiting
over 2 months to furnish the requested information. The
Company thereby violated Section 8(a)(5) and (1) of the Act.
B. Other Union Requests for Information
1. Requests pertaining to actual or asserted nonunit
personnel
In addition to the unit description previously quoted, the
collective-bargaining contract (both 1990–1993 and 1993–
1996) provided in pertinent part (art. 14.1) that: ‘‘The owners
and/or the managers can perform their work as in the
past. . . . Supervisors, contact men or professional employ-
ees are permitted to instruct, supervise, advise and check op-
erations and perform other related duties within the stores,
however, they shall not do the production work of the bar-
gaining unit.’’
On November 12, 1991, the Company and the Union exe-
cuted a ‘‘Dispute Resolution Agreement,’’ in conjunction
with an informal Board settlement of consolidated Cases 6–
CA–23409 and 6–CA–23737. The unfair labor practice pro-
ceeding involved, in part, allegations that the Company failed
or refused to deduct or transmit union dues and initiation
fees pursuant to their union-security agreement. The Dispute
Resolution Agreement included the following pertinent provi-
sions:
8. The Union payroll checker shall be given access to
the following:
(1) Payroll records of Union employees and employ-
ees awaiting Union membership;
(2) Payroll records of management employees, lim-
ited solely to the records’ identification of the names
of said employees and specifically not including any
other information with regard to said management
employees, and specifically further not including any
financial information with regard to said manage-
ment employees;
(3) No information concerning family members of
the owners except that the Union will be notified,
upon request, of the number of family members em-
ployed and, in the event a new family member works
at the store, who has not previously been so em-
ployed, then, and only then, the Employer will pro-
vide to the Union payroll checker the name of this
family member and the family relationship.
By providing this information, the Employer specifi-
cally reserves all rights with regard to past practices
and the Collective Bargaining Agreement; however, the
Employer agrees to proceed in the manner identified
above as a settlement of the dispute.
. . . .
10. This Agreement is acknowledged by the parties
to resolve specified issues and disputes which have oc-
curred and does not establish any precedent with regard
to any future issues which may arise.
11. This entire Agreement is entered into by the par-
ties for the purpose of promoting present and future
amicable relations, and the parties acknowledge that
any future issues will be seriously addressed to achieve
amicable resolution.
The Dispute Resolution Agreement did not purport to define
the terms ‘‘management employees’’ and ‘‘family mem-
bers.’’ Testimony and documentary evidence adduced in the
present proceeding indicates that ‘‘family members’’ were
excluded from the bargaining unit, although their exact status
was not made clear on the record. The General Counsel
states in its brief that: ‘‘It is undisputed that according to the
past practices of the parties, these family members were ex-
cluded from the bargaining unit.’’
The complaint alleges that since about October 26 the
Union has requested and the Company has failed and refused
to furnish the Union with the following information: ‘‘The
status of Jill Klelgrowski as to whether she is part-time, full-
time or student and her address, social security number and
starting date.’’6 The complaint also alleges that since about
November 30, the Union has requested and the Company has
failed and refused to furnish the Union with the status, hire
date, social security number, and address for Artie Devine.
In its brief, the General Counsel moved to amend the com-
plaint to allege a delay in production of the information con-
cerning Klelgrowski and Devine until about late January. The
complaint further alleges that about February 2, the Union by
letter requested the Company to furnish the following infor-
mation:
1. Names of all persons who are on the payroll of
or regularly perform work for Baldwin Shop ’N Save
and who the Company contends are excluded from the
bargaining unit;
2. the basis for their exclusion from the bargaining
unit (i.e., supervisor, owner, etc.);
3. job or duties performed by each such person;
4. date that each such person began working for
Baldwin Shop ’N Save;
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. total hours per week worked by each such indi-
vidual during the last three (3) months; and
6. family relationship, if any, if that is the alleged
basis for exclusion.
The complaint alleges that from about February 2 until about
March 15, the Company failed and refused to furnish the in-
formation requested in item 1, and since February 2 the
Company has failed and refused to furnish the information
requested in items 2 through 6.
Jo Ann Haviland is the Union’s membership service rep-
resentative payroll checker. She reports to Union Secretary-
Treasurer Bono. Haviland is responsible, on a monthly basis,
for examining the payroll sheets of signatory employers and
comparing them with the Union’s record, known as a BA
sheet. Haviland looks for names, addresses, social security
numbers, start dates, and positions of new hires, changes in
employee status, e.g., from part time to full time, and termi-
nation dates. She brings the information to the Union’s of-
fice, where it is entered on the BA sheet, in order to keep
union records current. Haviland has been performing this
function at the Company’s store since November 1990. The
payroll sheets shown to Haviland do not contain information
on nonunit personnel, except for the names of management
personnel. The sheets contain pay rates for unit employees.
However Haviland does not compile such information, and
the Union does not record pay rates on its BA sheets. As in-
dicated, Haviland is primarily responsible for obtaining infor-
mation from the Company’s payroll records. She also signs
up new members. She is not responsible for determining or
resolving the accuracy of such information. Bono is respon-
sible for determining whether union dues and initiation fees
are properly deducted and paid. Business Representative
Brophy is responsible for determining whether employees are
paid at the proper rate.
In June 1992 Haviland, orally and by letter, requested Joan
Zukiewicz to furnish the names and positions of company
management personnel. Zukiewicz responded that this was
not part of the Dispute Resolution Agreement, and Haviland,
as payroll checker, was ‘‘out of line asking for this informa-
tion.’’ On August 20 Bono met with Zukiewicz in an effort
to resolve outstanding union concerns that the Company was
failing to provide accurate or complete information con-
cerning unit members, and failing to properly deduct or remit
dues and initiation fees. Bono testified in sum as follows:
Zukiewicz identified only three persons as managers; specifi-
cally, George Powell as meat manager, Ralph Maeslin as
produce manager, and Patricia Lombardi as deli manager,
trainer, and computer operator. Zukiewicz did not mention
either Jill Klelgrowski or Artie Devine. She identified four
new hires. She also told Bono that on the average some 8
to 11 family members worked in the store. Bono recorded
the names given to him. Zukiewicz testified in sum as fol-
lows: There are some 18 to 21 union members in the store.
Family members are excluded from the unit. There are about
six to eight family members working in the store. Anyone
with a key to the store is a manager. When the parties nego-
tiated the Dispute Resolution Agreement, she identified the
managers and family members, but did not mention Artie
Devine because ‘‘he wasn’t around that much.’’ She verbally
told Haviland several times that Klelgrowski and Devine
were managers. Zukiewicz initially testified that she said the
same thing to Bono at their August 20 meeting, but subse-
quently testified that she mentioned only Devine. At that
meeting, she gave Bono the names of four management per-
sonnel (Powell, Maeslin, Lombardi, and Devine) without in-
dicating their positions, and said there were about 10 family
members in the store. She recorded in her notes of the meet-
ing that she gave this information to Bono. When Bono
asked for more information, she referred to the Dispute Res-
olution Agreement, and Bono did not inquire further.
I credit the testimony of Haviland and Bono, and I find
that Zukiewicz did not identify either Klelgrowski or Devine
as management personnel. As indicated, Zukiewicz testified
that on several occasions she told Haviland that Klelgrowski
and Devine were managers. However in her letter of May 14,
1992, to Haviland, she asserted as indicated that Haviland
was ‘‘out of line’’ by asking for the names of management
people. Her letter is inconsistent with her testimony. Also as
indicated, Zukiewicz was inconsistent in her testimony as to
whether she identified Klelgrowski. If Zukiewicz refused to
identify the positions of the asserted supervisory personnel,
then it is unlikely that Bono would have identified in his
notes (as he did) the specific positions or duties of Powell,
Maeslin, and Lombardi.
The collective-bargaining contract contains meatcutter
rates of pay. Zukiewicz testified that meatcutting is bar-
gaining unit work. Diana Singer testified in sum as follows:
Artie Devine works part time as a meatcutter in the meat de-
partment. He does not work there as a manager. George
Powell manages the meat department. Jill Klelgrowski
worked in the store in August, September, and October 1992,
was out for about 4 months, returned and is currently work-
ing in the store. Singer observed her working as a cashier in
the deli department. She did not appear to be working as the
manager. Nancy Zukiewicz manages the deli department.
The work of a cashier, like meatcutting, is unit work. (As
indicated, Singer works as a cashier.) Klelgrowski told Sing-
er that she worked ‘‘for the deli’’ but did not have to be in
the Union and would not pay union dues. Devine’s daughter
told Singer that Devine worked there 6 years as a meatcutter
and did not have to pay union dues. After she became shop
steward, Singer reported this information to Business Rep-
resentative Brophy, saying she thought they should be in the
Union. Brophy testified that on receiving this information, he
told Secretary-Treasurer Bono and payroll checker Haviland
that Klelgrowski and Devine were doing unit work but were
not union members. Haviland testified in sum as follows: On
October 26, after returning from her payroll check at the
store, Brophy asked if she had information on Klelgrowski.
Haviland did not. She called Zukiewicz and asked about
Klelgrowski’s status. Zukiewicz asked where she got the
name. Haviland said Brophy gave her the name. Zukiewicz
asked where he got the name. Haviland did not know. After
checking with Brophy, she called back and told Zukiewicz
that Bono requested the information. Zukiewicz responded
that if she learned where Bono got the name, she might give
the information, and hung up. Thereafter Haviland was un-
able to reach Zukiewicz. By letter dated November 3,
Haviland, at Bono’s direction, requested Zukiewicz to furnish
the status of Klelgrowski, whether part time, full time, or
student, and her address, social security number and starting
date, and to do so by November 13. The Company did not
respond to the letter. By letter dated November 30, Haviland,
121BALDWIN SHOP ’N SAVE
at Brophy’s direction, requested such information for Artie
Devine, renewed the Union’s request for the information on
Klelgrowski, and requested the information by December 10.
The Company did not respond to this letter. The payroll
sheets furnished by the Company for Haviland’s examina-
tion, did not contain the names of Klelgrowski or Devine. As
indicated, I do not credit Zukiewicz’ assertion that she re-
peatedly told Haviland that Klelgrowski and Devine were
managers. I credit Haviland.
In January 1993 the Company and the Union commenced
negotiations for a new contract. Joan Zukiewicz testified in
sum as follows: At a negotiating session on January 24, a
question was raised concerning Klelgrowski and Devine.
Zukiewicz prepared and gave to Jack Lewis, the Union’s
chief negotiator, a memo dated January 24, stating that ‘‘Art
Devine is management’’ and that: ‘‘Jill Kiliarowski [sic] was
a management employee. She is no longer employed.’’ How-
ever, January 24 was a Sunday, and there were no Sunday
negotiating sessions. As a courtesy to the Union, she ex-
plained their functions. Devine has been working at the store
for some 20 years, but never worked on a regular basis.
Devine’s function is presently to train employees. That func-
tion is always performed by managers or family members.
Devine sometimes cuts meat, because he is training two em-
ployees. They are David Kineer, Zukiewicz’ son-in-law, and
Robert Staniszewski, a cousin but a union member. However
the only personnel presently in the meat department are Man-
ager George Powell and trainee Kineer. Devine has also sub-
stituted for persons ‘‘doing management work’’ when they
were out sick or on vacation. Any involvement with money
or inventory is handled by management people. Jill
Klelgrowski was also a management employee who trained
employees. She also assisted in office work, specifically, in
pricing, which was never done by nonmanagement personnel.
She left the Company in December 1992. The Union nego-
tiators did not ask any further questions about Klelgrowski
or Devine. Union Chief Negotiator Lewis initially testified
that he did not recall discussion of Klelgrowski and Devine,
but subsequently admitted that the Company gave an expla-
nation. He told the Company that he would not get involved
in charges or grievances over exclusions. The General Coun-
sel in its motion to amend complaint (Br. 29) indicates that
it accepts Zukiewicz’ testimony concerning the negotiating
session. As the General Counsel’s present contention is en-
compassed within the pertinent complaint allegations, no for-
mal amendment of the complaint is necessary. I shall deal
with the pertinent allegations as alleging that the Company
failed and refused to furnish the requested information until
late January 1983.
By letter dated February 2, as alleged in the complaint,
Secretary-Treasurer Bono requested Zukiewicz to furnish the
information (items 1–6) concerning ‘‘persons excluded from
bargaining unit.’’ Jack Lewis, the Union’s coordinator of col-
lective bargaining, testified that the Union made its request
because they needed verification as to whether the informa-
tion they received was correct. Alluding to the matter of
Klelgrowski and Devine, Lewis testified that some employ-
ees questioned why others were not paying dues, although
they were not managers. Secretary-Treasurer Bono testified
that at the present time, he does not have reason to believe
that anyone other than Devine and Klelgrowski were not
properly reported.
The Company did not respond to the Union’s February 2
letter. On March 15 Haviland went to the Company’s store
for a monthly payroll check. Acting on Bono’s instructions,
she presented the Union’s February 2 letter, and asked for
the requested information. Zukiewicz circled certain names
on the payroll sheet, and wrote an ‘‘X’’ beside each of the
items 2 through 6 on the letter. She told Haviland that the
Union was entitled only to the names. For the first time,
Zukiewicz told Haviland that Devine was a manager. She
told Haviland that Devine was no longer employed by the
Company, but admitted in her testimony that this was not
true. Zukiewicz testified that in her view, the Union was en-
titled only to the names of management personnel, in accord-
ance with the Dispute Resolution Agreement.
As a general rule, a union as bargaining representative is
presumptively entitled to information concerning the terms
and conditions of employment of unit employees. The em-
ployer has the burden of showing irrelevance or other reason
why such information should not be furnished. When the re-
quested information ostensibly relates to persons outside the
bargaining unit, the Union must demonstrate a reasonable
basis to suspect that a contract violation has occurred, or that
the information is relevant to bargainable issues or would be
of use to the Union in carrying out its statutory duties and
responsibilities. This ‘‘discovery-type standard’’ decides
nothing about the merits of the Union’s contractual claims.
Actual violations need not be established in order to show
relevancy. The Union’s basis for its request may consist in
part or even entirely of hearsay or inaccurate information, in-
cluding complaints from union members. It is not necessary
that the Union’s information be consistent only with a con-
tract violation. Moreover, the requesting union need not in-
form the signatory employer of the factual basis for its re-
quests, but need only indicate the reason for its request. Such
reason may also be self-evident or indicated by the employ-
er’s own representations. See Corson & Gruman Co., 278
NLRB 329, 333–334 fn. 3 (1986), enfd. 811 F.2d 1504 (4th
Cir. 1987), and cases cited therein; AGA Gas, 307 NLRB
201 fn. 2 (1992); Lamar Outdoor Advertising, 257 NLRB 90,
93 (1981).
Applying the foregoing principles to the facts of the
present case, I find that the Union had and demonstrated a
reasonable and proper basis for requesting the information
concerning Klelgrowski and Devine, and for the general re-
quest set forth in its February 2 letter.
The Dispute Resolution Agreement, as indicated, refers to
‘‘management employees,’’ without defining that term. How-
ever, the collective-bargaining contract states that the bar-
gaining unit consists of ‘‘all store employees except the own-
ers, store managers, store co-managers and produce man-
agers.’’ Therefore, the Dispute Resolution Agreement may
reasonably be interpreted as referring to the contractually ex-
cluded categories, rather than, as suggested by Zukiewicz in
her testimony, anyone she chooses to designate as ‘‘manage-
ment employees.’’ As indicated, Zukiewicz variously testi-
fied that a management employee, in her opinion, could be
anyone who has a key to the store, trains other employees,
prices goods, or has any involvement with money or inven-
tory. This, notwithstanding that cashiers, who handle money,
are included in the bargaining unit. It is evident, in light of
Zukiewicz’ free-wheeling definitions, that a real question is
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
presented as to whether the Company has improperly ex-
cluded employees from the unit.
The Dispute Resolution Agreement required the Company
to make available to the union payroll checker, payroll
records showing the names of management employees. Nev-
ertheless, prior to March 1993 the payroll records shown to
Haviland never contained the names of Klelgrowski and
Devine as either unit or management employees. The Com-
pany does not contend that either employee was or is a fam-
ily member. Zukiewicz conceded in her testimony that she
knowingly withheld Devine’s name during the 1991 settle-
ment negotiations, and in March 1993, falsely told Haviland
that Devine no longer worked for the Company. It is undis-
puted that both Klelgrowski and Devine were working at the
store during October and November, when the Union re-
quested information concerning those employees. On the
basis of these facts alone, it is evident that the Union had
reasonable cause to believe that both were unit employees,
the Company was failing to so report them to the Union, and
that Zukiewicz understood this to be the basis for the
Union’s request.
The Union had additional information on which to base a
reasonable suspicion that Klelgrowski and Devine were unit
employees. Union Steward Singer informed the Union that
Devine worked as a meatcutter (unit work), Klelgrowski
worked as a cashier (also unit work), neither appeared nor
claimed to be a manager, and both were employed at the
store at the time of the present hearing. Zukiewicz testified
in sum that Devine cut meat because he trained employees,
that Klelgrowski also trained employees and did pricing, and
that she no longer worked for the Company. At most,
Zukiewicz’ assertions raise a fact question which would war-
rant further investigation. Moreover, even on the basis of
Zukiewicz’ testimony, the Union has reason to believe that
Devine and Klelgrowski were performing unit work.
Zukiewicz did not claim that either employee was an owner,
store manager, store comanager, or produce manager. She
also testified that only managers or family members train
employees. However, not all family members are managers.
Some perform unit work, but are excluded from the unit sim-
ply on the basis of the prior practice to exclude family mem-
bers. Therefore it does not follow that the work which they
perform is not unit work. At least, there is a substantial ques-
tion in this regard.
In light of the Union’s experience in the matters of
Klelgrowski and Devine, the Union had a reasonable basis
for at least suspecting that the Company was failing to report
the identity of unit employees under the guise of asserting
(when discovered) them to be management personnel, or
simply concealing their identity. Therefore, the Union was
warranted in making its February 2 request (items 1 through
5) concerning ‘‘persons excluded from bargaining unit.’’
Items 1 through 5 were reasonably calculated to elicit infor-
mation which would assist the Union in investigating wheth-
er such persons were improperly excluded from the unit.
Such information was relevant and necessary to the Union’s
responsibilities in determining whether there were contract
violations, and in representing such employees. The letter re-
fers to persons ‘‘who the Company contends are excluded
from the bargaining unit.’’ By using such terminology, the
Union put the Company on notice that the Union was ques-
tioning whether they were properly excluded, thereby indi-
cating the reason for its request. I further find that the Union
had a reasonable basis for requesting information set forth in
item 6, i.e., ‘‘family relationship, if any, if that is the alleged
basis for exclusion.’’ As indicated, there is no contractual
reference to family members, and the Dispute Resolution
Agreement did not define that term. Zukiewicz testified that
her cousin, who worked in the store, was a union member.
Given these facts and the Company’s shifting and vague an-
swers as to the number of family members working in the
store, the Union had a reasonable basis for requesting infor-
mation concerning persons excluded on the alleged basis of
family membership. Again, as the Union referred to the
Company’s contention and alleged basis for exclusion, the
Union put the Company on notice that it was questioning
whether such persons were properly excluded from the bar-
gaining unit.
I further find that the Union did not waive its right to ob-
tain the requested information by entering into the Dispute
Resolution Agreement. The Board has long held that waiver
of a bargaining right, including the right to obtain informa-
tion, will not be found unless such waiver was clear and un-
mistakable. In the present case, there was no clear and un-
mistakable waiver. In their negotiations which culminated in
the agreement, the parties never discussed or agreed that
paragraph 8 would constitute the exclusive means and man-
ner by which the Union could obtain personnel information.
The agreement itself does not so state or infer. On the con-
trary, paragraph 10 indicates that the agreement was intended
to resolve the then pending disputes between the parties, and
‘‘does not establish any precedent with regard to any future
issues which may arise.’’ More significantly, the agreement
did not give the Company the right to unilaterally determine
which personnel were excluded from the unit. The Union had
reason to believe that the Company was failing to properly
identify unit employees, and was entitled to information
which would aid in investigating the matter. I find that the
procedure established in paragraph 8 applied where was no
question concerning the status of personnel as ‘‘management
employees’’ or ‘‘family members,’’ and did not limit or pre-
clude the Union from questioning such alleged status. More-
over, as discussed, the Union had reason to believe that the
Company was failing to comply with its obligations under
paragraph 8. Therefore the Union was entitled to additional
information in order to determine the accuracy of the Com-
pany’s representations.
In sum, I find that the requested information was relevant
and necessary to the Union’s performance of its duties as
bargaining representative. I also find that the Company vio-
lated Section 8(a)(5) and (1) by arbitrarily and unreasonably
failing and refusing, until late January, to furnish requested
information concerning the status of Jill Klelgrowski and
Artie Devine, and until mid-March, to furnish the names of
persons on the company payroll, who the Company contends
are excluded from the bargaining unit. I further find that the
Company violated and is violating Section 8(a)(5) and (1) by
failing and refusing to furnish the information requested by
the Union in its letter of February 2, including, if applicable,
information pertaining to Klelgrowski and Devine.
2. Requests preliminary to contract negotiations
By letter dated November 5, Union Director of Collective
Bargaining George Yurasko informed the Company that Jack
123BALDWIN SHOP ’N SAVE
7 In April 1982 Joan Zukiewicz requested that Haviland sign a
verification attesting to the accuracy of the information which she
received. Haviland refused. Thereafter Zukiewicz did not ask
Haviland to sign a verification.
Lewis would be the Union’s contract negotiator. Yurasko re-
quested the Company to promptly furnish, in order ‘‘to pre-
pare for negotiations,’’ a current seniority list of unit em-
ployees, including name, date of hire, classification (includ-
ing student status, if applicable), and current rate of pay. The
Union renewed its request in a followup letter dated Decem-
ber 22, signed by Lewis. The Company did not respond to
the Union’s request until the first negotiating session on Jan-
uary 11. At that session the Company presented Lewis with
a seniority list of unit employees indicating their names, date
of hire, whether full or part-time, and student if applicable,
but not pay rates. The Company verbally informed Lewis of
the pay rates (and whether the students were in high school
or college), and Lewis wrote in the information on the list.
However, Union Steward Singer informed Lewis that the in-
formation was inaccurate in that two employees were actu-
ally paid more. By letter dated the following day, Lewis in-
formed the Company that the Union determined some infor-
mation to be incorrect; and that ‘‘subject to the Dispute Res-
olution Agreement,’’ the Company furnish payroll records by
January 18, ‘‘to enable us to verify the aforementioned infor-
mation.’’ By letter dated January 13, company counsel re-
quested Lewis to specify those classifications which he be-
lieved incorrect, rather than have the Company ‘‘submit list
after list without knowing what inaccuracies you believe
exist.’’ By letter dated January 22, Lewis responded that the
Union wanted ‘‘to review payroll records for all 18 bar-
gaining unit employees, in order to determine whether each
one is in fact at the proper pay rate based on their hire date
and classification.’’ Lewis asserted that the Union was mak-
ing this request because the previous list contained two er-
rors, and ‘‘therefore, we want proof of the actual pay rates
of all employees, to verify the accuracy of the rates pre-
viously given to us.’’ Lewis requested that the information
be given at the next negotiating session. Lewis testified that
the Company provided the requested information, including
payroll sheets, the discrepancies were resolved, and the par-
ties resumed their negotiations. There were a total of four ne-
gotiating sessions, all in January. On January 27 or 28, the
unit employees, rejecting the Union’s recommendation, voted
to accept a tentatively negotiated contract. The parties even-
tually signed the contract.
The Company contends in sum that it made the requested
information available to the Union through payroll checker
Haviland pursuant to the Dispute Resolution Agreement; and
further provided the ‘‘redundant information’’ to Lewis with-
out prejudice to the Union’s position in negotiations. Lewis
testified in sum as follows: He initially requested the infor-
mation, preliminary to contract negotiations, in accordance
with standard union practice, in order to ‘‘know at what
point we’re starting from when we make our proposals to the
employer’’ and to ‘‘have some idea of what cost factors
we’re dealing with.’’ The Union’s own records were com-
piled and maintained for the purpose of recording dues obli-
gations and payments. They did not include pay rates. The
records were sometimes inaccurate. For example, if an em-
ployee went on leave, the Union would remove the original
hire date and enter a new date when the employee returned,
in order to reflect dues obligations. However the original hire
date, which no longer appeared on the Union’s records, was
needed to determine the employee’s proper pay rate. The
Union also did not always keep records current, particularly
when they did not affect dues obligations.
The complaint alleges that the Company violated Section
8(a)(5) and (1) by failing and refusing, from November 5 to
January 11, to furnish the Union with the information re-
quested in its November 5 letter. I do not agree. The Com-
pany had already made all the requested information avail-
able to the Union, except with respect to persons whom the
Company contended were excluded from the unit. The Com-
pany made that information available in accordance with the
Dispute Resolution Agreement. The Company should not be
held accountable if the Union, for its own reasons, chose not
to record all payroll information, failed to keep an accurate
record of such information, or used the information only for
a limited purpose. The Company was not obligated to repeat-
edly prepare and submit the same information. The payroll
records were readily accessible to payroll checker Haviland,
the Union’s designated representative. The Union was there-
upon free to check the accuracy of that information.7 Except
with respect to excluded personnel (as previously discussed),
the Union did not and does not now contend that the payroll
sheets were inaccurate. Rather, the Union asserted that the
list furnished on January 11 was inaccurate as to two em-
ployees, and that it needed the payroll sheets (which it could
have examined and copied at any time), in order to verify
accuracy of pay rates. The present case is thus distinguish-
able from Safelite Glass, 283 NLRB 929, 948 (1987), enfd.
in part 890 F.2d 1573 (10th Cir. 1989), on which the General
Counsel principally relies. In Safelite, the reports furnished
by the employer on a monthly basis were probably incom-
plete, in that they indicated only the names of employees
from whose pay dues were deducted. Therefore, the union in
that case had a valid basis for requesting a list of all unit
employees. In the present case, the payroll records made
available to Haviland purported to contain the names of all
unit employees, whether union members or ‘‘awaiting unit
membership.’’ As matters turned out, the list furnished on
January 11, rather than the payroll records, was inaccurate.
At this point, the Union requested the same information
which Haviland could have obtained when she made her
monthly check. Therefore, I am recommending that the perti-
nent allegations of the complaint be dismissed.
By letter dated November 6, Chief Negotiator Lewis re-
quested the Company furnish ‘‘a copy of your current health
plan, the scheduled plan description, the current cost of each
level of benefits provided, by each benefit cost, and the total
cost charged on a monthly basis, each employee covered, by
name and their current level of coverage.’’ He requested the
information by November 20. Lewis testified that by ‘‘sched-
uled,’’ he meant ‘‘summary.’’ The Company did not respond
to Lewis’ letter. At the second negotiating session the Com-
pany provided the Union with a ‘‘basic breakdown and de-
scription of benefit levels.’’ The Company asserted that it
was not obligated to provide the requested cost information,
and refused to furnish that information. The Company had its
own health coverage plan. The Union provided information
concerning union plans, and they discussed comparative ben-
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Company’s reliance on Sylvania Electric Products v. NLRB,
291 F.2d 128 (1st Cir. 1961), cert. denied 368 U.S. 926 (Sylvania
I); and Sylvania Electric Products v. NLRB, 358 F.2d 591 (1st Cir.
1966), cert. denied 385 U.S. 852 (Sylvania II) is misplaced. In Syl-
vania II, the court modified its earlier opinion in Sylvania I, holding
that the Board could properly find that a union was entitled to infor-
mation concerning the cost of welfare benefits, where the Union
sought ‘‘better to evaluate the desirability of an increase in welfare
benefits as against an equivalent increase in take-home pay.’’ As in-
dicated, in the present case Lewis testified in sum that this was a
reason why he requested the information. In NLRB v. Borden, Inc.,
supra, the First Circuit Court held in sum, without qualification, that
the bargaining representative was presumptively entitled to informa-
tion concerning the cost of health and other benefit plans. It is evi-
dent that Sylvania I is no longer viable law. See also NLRB v. Gen-
eral Electric Co., 418 F.2d 736, 750 (1969), cert. denied 397 U.S.
965; and NLRB v. John S. Swift Co., 277 F.2d 641, 645 (7th Cir.
1960); both cited with approval in NLRB v. Borden.
9 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
efits. The Company never indicated that it wished to change
the existing plan, and never raised any question of cost or
company ability to pay for health coverage. The parties did
not discuss cost, and there was no discussion of changing
levels of benefits in return for raising wages. The parties
agreed to maintain the existing plan and health coverage.
Lewis testified that he requested cost information for two
reasons. First, he wanted the information in order to know
what he could propose. Thus, if the information indicated
that the company plan was more expensive than the union
plan, he might have proposed that the Company convert to
the union plan and put the saving toward a wage increase.
Second, the Union needed the information in order to inform
unit employees of their COBRA rights. (Under COBRA, 26
U.S.C. § 162(K)(2)(C)(i) and 162(K)(4)(A), when an em-
ployee leaves his employment, the employee has the option
of continuing his health insurance coverage for a specified
period at a cost equal to the employer’s cost plus a small ad-
ministrative fee.)
The complaint alleges that the Company violated Section
8(a)(5) and (1) by failing and refusing to furnish the Union
with the information related to costs of health coverage, and
by failing and refusing until late January to furnish the other
information requested in the Union’s November 6 letter. I so
find. The Company, with no explanation and no response
whatsoever, waited over 2 months, until after negotiations
had commenced, to provide the Union with basic information
concerning health care coverage, i.e., as Lewis testified, a
‘‘basic breakdown and description of benefit levels.’’ The
delay was arbitrary, unreasonable, inexcusable and unlawful.
The Company further violated Section 8(a)(5) and (1) by
failing and refusing to furnish the requested cost information.
Information concerning the cost of employee fringe benefits
is presumptively relevant and reasonably necessary to a
union in carrying out its collective-bargaining functions, par-
ticularly during ongoing negotiations. See Coca-Cola Bot-
tling Co., 311 NLRB 45 fn. 5 (1993), citing Borden, Inc.,
235 NLRB 982, 983 (1978), enfd. in pertinent part 600 F.2d
313 (1st Cir. 1979).8
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees of the Company in the unit as set forth
in article 1 of the current collective-bargaining agreement be-
tween the Company and the Union constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material the Union has been and is the ex-
clusive representative of all of the employees in the unit de-
scribed above.
5. By failing and refusing to furnish and promptly furnish
the Union with requested information which is relevant and
necessary to the Union’s performance of its function as col-
lective-bargaining representative, the Company has engaged,
and is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
6. By discriminatorily suspending Diana Singer because of
her union and concerted activities, and because she caused
a charge to be filed and gave testimony under the Act, the
Company has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(3) and (4) of the
Act.
7. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed by Section
7 of the Act, the Company has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1), (3), (4), and (5) of the Act, I shall rec-
ommend that it be required to cease and desist therefrom and
take certain affirmative action designed to effectuate the poli-
cies of the Act. I shall recommend that the Company be or-
dered to revoke the suspension given to Diana Singer in Oc-
tober 1992, to remove from its records any reference to the
unlawful suspension of Singer, to give Singer written notice
of such removal, to inform her that this unlawful conduct
will not be used as a basis for future personnel actions
against her, and to make her whole for any loss of earnings
and benefits she may have suffered by reason of such sus-
pension, with interest. Interest shall be as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).9 I shall
further recommend that the Company be ordered to promptly
furnish the Union with the information requested by the
Union in its letter of February 2, 1993, pertaining to persons
excluded from the bargaining unit; the information to cover
the period from February 2, 1993, to the date such informa-
tion is given. I shall also recommend that the Company be
ordered to promptly furnish the Union with current informa-
tion as requested by the Union in its letter of November 6,
1992, pertaining to the costs of the Company’s health cov-
erage plan.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
125BALDWIN SHOP ’N SAVE
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Zukiewicz, Inc. d/b/a Baldwin Shop ’N
Save, Baldwin, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discriminatorily suspending or otherwise discrimi-
nating against employees because of their union or concerted
activities, or because they file charges or give testimony
under the Act.
(b) Failing or refusing to bargain collectively in good faith
with the Union as the exclusive representative of all its em-
ployees in the above-described appropriate unit, by failing or
refusing to promptly furnish the Union with information
which is relevant and necessary to its function as such rep-
resentative.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Revoke the suspension given to Diana Singer in Octo-
ber 1992, remove from its records any reference to the un-
lawful suspension of Singer, and notify her in writing that
this has been done and that evidence of her unlawful suspen-
sion will not be used as a basis for future personnel actions
against her.
(b) Make whole Diana Singer for any loss of earnings and
benefits she may have suffered by reason of such suspension,
with interest, as set forth in the remedy section of this deci-
sion.
(c) Promptly furnish the Union with the information re-
quested by its letter of February 2, 1993, pertaining to per-
sons excluded from the bargaining unit, the information to
cover the period from February 2, 1993, to the date such in-
formation is given.
(d) Promptly furnish the Union with current information as
requested by its letter of November 6, 1992, pertaining to the
costs of the Company’s health coverage plan.
(e) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due.
(f) Post at its Baldwin, Pennsylvania office and place of
business copies of the attached notice marked ‘‘Appen-
dix.’’11 Copies of the notice on forms provided by the Re-
gional Director for Region 6, after being signed by Respond-
ent’s authorized representative, shall be posted by Respond-
ent immediately upon receipt, and be maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discriminatorily suspend or otherwise dis-
criminate against employees because of their union or con-
certed activities, or because they file charges or give testi-
mony under the Act.
WE WILL NOT fail or refuse to bargain collectively in good
faith with United Food and Commercial Workers Inter-
national Union, Local Union 23, AFL–CIO–CLC as the ex-
clusive representative of our employees in the unit set forth
in our collective-bargaining agreement with Local 23, by
failing or refusing to promptly furnish Local 23 with infor-
mation which is relevant and necessary to its function as
such representative.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your right to engage
in union or concerted activities, or to refrain therefrom.
WE WILL revoke the suspension given to Diana Singer in
October 1992, remove from our records any reference to the
unlawful suspension of Singer, and notify her in writing that
this has been done and that evidence of her unlawful suspen-
sion will not be used as a basis for future personnel actions
against her.
WE WILL make whole Diana Singer for any loss of earn-
ings and benefits she may have suffered by reason of such
suspension, with interest.
WE WILL promptly furnish Local 23 with the information
requested by its letter of February 2, 1993, pertaining to per-
sons excluded from the bargaining unit; the information to
cover the period from February 2, 1993, to the date such in-
formation is given.
WE WILL promptly furnish Local 23 with current informa-
tion as requested by its letter of November 6, 1992, per-
taining to the costs of our health coverage plan.
ZUKIEWICZ, INC. D/B/A BALDWIN SHOP ’N
SAVE