Jewish Federation Council

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 507 (N.L.R.B. 1992)

507
306 NLRB No. 96
JEWISH FEDERATION COUNCIL
1 In adopting the judge’s finding that the Respondent was obligated
to provide the information the Union requested, we note that the Re-
spondent was obligated to provide the information for the Union to
prepare for arbitration regardless of whether or not the Union had
already decided to process the grievance to arbitration. See, e.g.,
Chesapeake & Potomac Telephone Co., 259 NLRB 225, 227 (1981),
enfd. 687 F.2d 633 (2d Cir. 1982); Fawcett Printing Corp., 201
NLRB 964, 972 (1973).
1 All dates refer to 1991 unless otherwise indicated.
2 In lieu of a brief, General Counsel cited authority in her opening
statement.
Jewish Federation Council of Greater Los Angeles
and Community and Social Agency Employees
Union, Local 800, American Federation of
State, County and Municipal Employees, AFL–
CIO. Case 31–CA–18794
February 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 13, 1991, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed an answering brief.
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,1 findings, and con-
clusions and to adopted the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Jewish Federation Council
of Greater Los Angeles, Los Angeles, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Julia A. Osborn, Esq., for the General Counsel
Barton W. Robertson, Esq. (Tyre, Kamins, Katz & Granof),
of Los Angeles, California, for the Respondent.
Glenn Rothner, Esq. and Larry Abrams, Esq. (Reich, Adell
& Crost), of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Los Angeles, California, on Sep-
tember 19, 1991,1 pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board for
Region 31 on June 6, and which is based on a charge filed
by Community and Social Agency Employees Union, Local
800, American Federation of State, County and Municipal
Employees, AFL–CIO (the Union) on April 22. The com-
plaint alleges that Jewish Federation Council of Greater Los
Angeles (the Respondent), has engaged in certain violations
of Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act).
Issue
Whether Respondent is required to provide the Union with
certain requested information and documents which pertain
to the facts and circumstances surrounding the termination of
former unit employee Beryl Stoker, when the Union filed a
grievance over the termination and is taking the matter to ar-
bitration.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
Charging Party and Respondent.2
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a California corporation which
operates a business funding and performing social services
and maintains its principal place of business in Los Angeles,
California. Respondent further admits that in the course and
conduct of its business operations, it annually sends substan-
tial funds to recipients located outside the State of California.
Respondent further admits that in the course and conduct of
its business operations, it annually derives revenues in excess
of $250,000. Accordingly, it admits, and I find, that it is an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Community and Social
Agency Employees Union, Local 800, American Federation
State, County and Municipal Employees, AFL–CIO is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
In mid-March, Beryl Stoker, an adverse witness for Re-
spondent, was terminated from her job. At the time of termi-
nation, Stoker had worked for Respondent for 10 to 11 years
and was the president of the Union.
Respondent is party to a collective-bargaining relationship
with the Union and the applicable collective-bargaining
agreement contains a provision guaranteeing bargaining unit
employees tenure unless ‘‘just cause’’ exists for separation.
In addition, the bargaining agreement contains a grievance
and arbitration provision, under which the Union has filed
one or more grievances challenging Stoker’s termination as
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lacking just cause. As of the date of hearing, arbitration of
the termination had been scheduled for October 7. Although
the Union has filed charges with the Board contending that
the termination of Stoker violated the Act, a decision on
whether to issue a complaint has been deferred pending arbi-
tration. Accordingly, the merits of Stoker’s discharge are not
in issue in this case. What is in issue concerns the Union’s
request for certain information from Respondent which it
contends it needs to process effectively Stoker’s grievance
and which it also contends it is entitled to under Board laws.
Sometime in the fall of 1990, the Union hired labor con-
sultant Edward Purcell, General Counsel’s sole witness.
Shortly after beginning his employment, Purcell had a meet-
ing with Attorney Barton Robertson, Respondent’s attorney
of record in this proceeding and Respondent’s witness at
hearing. Despite some insignificant dispute about exactly
what was said at the meeting, I find that Robertson told Pur-
cell that Stoker had serious problems with her job perform-
ance and had received a prior negative job evaluation which
she did not grieve. More specifically, I find that Robertson
added that Stoker was in jeopardy of losing her job. When
given this information about Union President and union ex-
ecutive board member Stoker, newly hired labor consultant
Purcell reacted as might be expected: he advised Robertson
that any action to terminate Stoker would be seen by the
Union as a ‘‘declaration of war’’ and the Union would fight
the termination ‘‘all the way.’’
Sometime in December 1990, Purcell was given official
notice that Stoker was to be terminated. Apparently formal
separation did not occur until March because Stoker was not
working during the period due to disability.
In February, Purcell and Robertson had a conversation in
which they agreed to waive preliminary grievance steps and
present the matter to the Jewish Federation Personnel Com-
mittee, the last step in the grievance procedure prior to arbi-
tration. On February 25, Purcell sent a letter to Robertson.
In pertinent part, the letter requests certain information which
the Union desired to have before presenting the grievance to
the Jewish Federation Personnel Committee:
Also, in preparation for the Personnel Committee
meeting on the termination grievance in particular, the
Union will need a complete statement of the Employ-
er’s reasons for Ms. Stoker’s termination, and copies of
all documents and statements in its possession which
support the Employer’s position in this matter. Addi-
tionally, we request copies of all disciplinary
memos/letters, and all performance evaluations from her
file as well as any commendatory statements which
may be in the Employer’s possession. Should any of
the documents reference alleged work attendance defi-
ciencies, please also provide attendance for all periods
referred to in the documents.
Thank you for your timely response to this inquiry.
[G.C. Exh. 2.]
The Union did not receive the requested information and
on March 18, Purcell sent a copy of the February 25 letter
to Robertson renewing his request for the information (G.C.
Exh. 3).
No hearing was ever held before the Jewish Federation
Personnel Committee because it attached a condition which
the Union found unacceptable: that each side must present its
evidence outside the presence of the other side. The Union
claimed the condition would violate the contract and past
practice as established in the processing of prior grievances
not connected to Stoker. On March 19, Purcell sent a letter
to Sue Wellerstein, Respondent’s personnel director, stating
the Union’s objection to the procedure discussed above and
its refusal to participate. In addition, Purcell wrote,
Also, I want to reiterate the Union’s need for infor-
mation relating to the termination case as requested of
your attorney on February 25, 1991 and again on
March 18, 1991. This information is necessary for us
to evaluate the Stoker cases for arbitration as well as
to allow the Union to prepare for arbitration hearing
should that be decided by us. Given Mr. Robertson’s
delay in providing this data, I specifically request your
intervention to expedite its transmission.
Thank you for your assistance. [G.C. Exh. 4.]
Because the parties could not agree on the correct proce-
dures for presenting Stoker’s grievance to the Jewish Federa-
tion Personnel Committee, both sides subsequently agreed to
proceed directly to arbitration. However, the Union still
lacked the information it requested in the letter of February
25. On March 20, Robertson wrote to Purcell setting forth
Respondent’s reasons for not furnishing the requested infor-
mation. The letter reads as follows:
I am responding to your ‘‘second notice’’ in this
matter. As we previously discussed, there is no provi-
sion in the collective bargaining agreement for pre-arbi-
tration discovery and this response should not be con-
strued as implying any such provision.
Beryl was orally advised of the basic reasons for her
termination by Mark Friedman when he, I, you and
Beryl first met to discuss the possibility of an amicable
resolution of this matter.
To summarize them briefly, during the latter part of
1989 and during 1990 Beryl’s performance was dis-
cussed with her on a regular basis by the Foundation’s
Director of Finance and Administration and the Foun-
dation’s Accounting Manager. These discussions out-
lined what was required of her, reviewed the adequacy
of her performance, and pointed out the problem areas,
principally the errors in her accounting work and her
failure to follow normal, accepted accounting proce-
dures.
Her performance did not improve. A timely evalua-
tion was done at her anniversary date in July, 1990 and
a work plan was written and was discussed with her,
with John Garfield being present.
Subsequent to the presentation of the work plan, Ber-
yl’s immediate supervisor conducted regular bi-weekly
meetings with her to assist her in achieving the goals
of the work plan. However, her performance did not
improve.
The Foundation’s Audit and Fiscal Committee re-
viewed the situation and concurred with management
that she should be terminated. I immediately thereafter
notified you and we commenced our ultimately unsuc-
cessful attempts at an amicable resolution.
509JEWISH FEDERATION COUNCIL
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
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.
I trust this satisfies your request for the reasons for
the termination. As for any requested documents, it is
apparent since you have already advised Federation of
your desire to arbitrate this matter that you are seeking
pre-hearing discovery to which you are not entitled.
However, as I previously told you, we will cooperate in
providing material at the arbitration hearing, which you re-
quest in advance of the hearing, without the need for you to
have subpoenas issued. [G.C. Exh. 5.]
B. Analysis and Conclusions
I begin with a brief general statement of the applicable law
as stated by the Board in American National Can Co., 293
NLRB 901, 904 (1989), affd. 924 F.2d 518 (4th Cir. 1991):
It is well settled that an employer has a duty to sup-
ply requested information to a union that is the collec-
tive-bargaining representative of the employer’s em-
ployees if the requested information is relevant and rea-
sonably necessary to the union’s performance of its re-
sponsibilities. NLRB v. Acme Industrial Co., 385 U.S.
432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956); see also Central Soya Co., 288 NLRB 1402
(1988). Disclosure by an employer of requested infor-
mation ‘‘necessary . . . to enable [a union] to evaluate
intelligently grievances filed’’ or contemplated, allows
a union to ‘‘sift out meritorious claims’’ and facilitates
the arbitral process. NLRB v. Acme Industrial Co.,
supra at 435, 437–438. The standard for determining
the relevancy of requested information is a liberal one
and it is necessary only to establish ‘‘the probability
that the desired information is relevant, and that it
would be of use to the union in carrying out its statu-
tory duties and responsibilities.’’ NLRB v. Acme Indus-
trial, supra at 437. See also Leland Stanford Junior
University, 262 NLRB 136, 139 (1982), and cases cited
there.
The duty to supply the requested information does not ter-
minate when the grievance is taken to arbitration. O & G In-
dustries, 269 NLRB 986, 987 (1984). Without the requested
information, the Union is hampered in effectively and intel-
ligently performing its duty of ensuring that its constituents
are treated fairly by the Employer and that their contractual
rights are respected and vindicated. Trustees of Boston Uni-
versity, 210 NLRB 330, 334 (1974). The Union is also ham-
pered in making an informal judgment of the merits of the
grievance, whether to pursue it further or drop it. The law
no longer requires the bargaining representative to play a
game of blind man’s bluff in its efforts to protect the em-
ployees’ interests. Id., p. 334.
Respondent contends that the Union’s request for the in-
formation in question was not made in good faith. More spe-
cifically, Respondent states that the Union always intended
to take the Stoker termination to arbitration and was there-
fore seeking prehearing discovery (Br. p. 7).
Respondent has the burden of proof to show union bad
faith. West Point Pepperell, 290 NLRB 1242, 1244 (1988).
In proving its case, Respondent must produce evidence to
overcome a presumption that the Union is acting in good
faith. O & G Industries, supra at 987. If Respondent can
show bad faith in requesting the information in question, the
duty to provide same can be avoided. J. J. Case Co. v.
NLRB, 253 F.2d 149, 153 (7th Cir. 1958).
In this case, I find that Respondent has failed to show
Union bad faith. The Board will find the party requesting in-
formation is in good faith if at least one reason for the de-
mand can be justified. Island Creek Coal Co., 292 NLRB
480, 489 (1989). In applying the law cited above to the facts
of this case, I fail to find any evidence showing the Union
always intended to take the Stoker case to arbitration. Even
if Purcell’s ‘‘declaration of war’’ and fighting the termi-
nation ‘‘all the way’’ statements to Robertson could be so in-
terpreted, the fact remains that the Union had every right
under the ‘‘just cause’’ provision of the contract to evaluate
the evidence and ensure that Stoker’s rights were protected.
Had the information been furnished to the Union when re-
quested, the Union would have evaluated it and, I must as-
sume, have acted accordingly. There is no reason shown in
this case to believe that the Union would have squandered
its limited resources to fight a hopeless case. What would
that have accomplished.
In its brief at page 7, the Union appears to suggest that
on October 7, the first day of the arbitration, Respondent
may have produced some or all of the information in issue.
If this is so, I do not see this case as moot, because belated
compliance does not exonerate. Fairmont Hotel, 304 NLRB
746, 748 fn. 11 (1991); D. J. Electrical Contracting, 303
NLRB 820 fn. 1 (1991); Tubari Ltd., 299 NLRB 1223, 1228
(1990).
CONCLUSION OF LAW
By failing and refusing to furnish to the Union promptly
upon its request, a complete statement of the Employer’s rea-
sons for Stoker’s termination, copies of all documents and
statements in its possession which support the Employer’s
position in this matter, copies of all disciplinary
memos/letters, and performance evaluations from her file and
work attendance data, if relevant to the termination, Re-
spondent engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) of the
Act.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist and that it take certain affirmative action necessary to
effectuate the policies of the Act.
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended3
ORDER
The Respondent, Jewish Federation Council of Greater Los
Angeles, Los Angeles, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.’’
(a) Refusing or failing to bargain in good faith with the
Union by withholding from it requested information relevant
to the processing of grievances or the administration of their
collective-bargaining agreement.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish to the Union promptly a complete
statement of the Employer’s reasons for Beryl Stoker’s termi-
nation, copies of all documents and statements in its posses-
sion which support the Employer’s position in this matter,
copies of all disciplinary memos/letters, and performance
evaluations from her file and work attendance data, if rel-
evant to the termination.
(b) Post at its place of business in Los Angeles, California,
copies of the attached notice, which is marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Regional Di-
rector for Region 31, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and shall be maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees customarily are 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.
(c) 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 refuse or fail to bargain in good faith with
the Community and Social Agency Employees Union, Local
800, American Federation of State, County and Municipal
Employees, AFL–CIO, by withholding from it requested in-
formation relevant to the processing of grievances or the ad-
ministration of our collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, furnish to the Union a complete
statement of our reason for Beryl Stoker’s termination, cop-
ies of all documents and statements in our possession which
support our position, in connection with the March 1991 ter-
mination of a bargaining unit employee, copies of all dis-
ciplinary memos/letters, and performance evaluations from
her file and work attendance data, if relevant to the termi-
nation, which information is needed to enable the Union to
process a grievance on that employee’s behalf.
JEWISH FEDERATION COUNCIL OF GREATER
LOS ANGELES