Rice Growers Assn.

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 980 (N.L.R.B. 1991)

980
303 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On February 14, 1991, Administrative Law Judge Walter H. Maloney
issued the attached decision. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
2 No exceptions were filed to the judge’s further findings that the Respond-
ent’s financial statements for the years 1988 and 1989 were not germane to
the Union’s arbitration case involving severance pay for the unit employees
and that, therefore, the Respondent did not unlawfully refuse to provide this
information to the Union.
3 All dates are in 1990 unless otherwise noted.
Rice Growers Association of California (P.R.), Inc.
and Congresso de Uniones Industriales de
Puerto Rico. Case 24–CA–6163
July 31, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
Exceptions filed to the judge’s decision in this case1
present the question whether the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing to
provide certain requested information to the Union.
The Board has considered the exceptions in light of
the record and briefs and has decided to affirm the
judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(5) by refusing to furnish the Union with a
copy of the contract that the Respondent allegedly had
entered into with a third party concerning the distribu-
tion of prepackaged rice in Puerto Rico.2 For the rea-
sons stated below, we find merit in the Respondent’s
exceptions to this finding.
The Respondent was a Puerto Rico corporation
wholly owned by Rice Growers Association of Cali-
fornia (Rice Growers) which is headquartered in Sac-
ramento, California. For about 30 years, the Respond-
ent handled incoming shipments of short-grain Cali-
fornia rice from Rice Growers which the Respondent
packaged and distributed in Puerto Rico. The Union
had represented the Respondent’s employees engaged
in unloading and packaging operations since about
1969. The most recent collective-bargaining agreement
between the Respondent and the Union was effective
February 26, 1988, and would have expired on Feb-
ruary 25, 1991, if the Respondent had not ceased oper-
ations beforehand.
On February 23, 1990,3 Bill Ludwig, the director of
operations for Rice Growers, came to San Juan and
conducted a meeting during which he told all the Re-
spondent’s employees that Rice Growers was consid-
ering terminating operations at that plant because rice
sales in Puerto Rico had substantially declined. That
same day, the Respondent’s attorney, Radames A.
Torruella, sent a letter to Arturo Figueroa, the Union’s
president, informing him of the possible plant closure
and suggesting that they meet to bargain about matters
relating to this subject.
The Respondent and the Union subsequently met to
discuss the plant shutdown on March 5, March 7, and
April 20. During the March 7 meeting, Torruella in-
formed the Union that Rice Growers had definitely de-
cided to close the plant and that April 30 would be the
last day of operation. Thereafter, the Respondent and
the Union could not reach an agreement on the amount
of severance pay the Respondent owed the unit em-
ployees under their collective-bargaining agreement.
There is an arbitration case pending before the Arbitra-
tion Bureau of the Puerto Rico Department of Labor
regarding the dispute over severance pay. A hearing in
that case was postponed at the Union’s request until
the Board decided the unfair-labor-practice issues
raised here.
On April 30, the Respondent closed its plant and
permanently laid off all employees. Rice Growers,
which continues to import small amounts of pre-
packaged rice into Puerto Rico, has entered into a con-
tract with Casera Foods, Inc. to handle their sale and
distribution. Casera Foods does not employ any former
employees of the Respondent. On June 20, Figueroa
wrote a letter to Steve Polich, the Respondent’s former
operations manager who now serves as a consultant for
Rice Growers, requesting a copy of the contract be-
tween the Respondent and Casera Foods. The Re-
spondent refused to provide the Union with that docu-
ment. The sole issue raised in this case is whether the
Respondent’s refusal to furnish this information vio-
lated Section 8(a)(5) of the Act.
In finding that the Respondent’s conduct was unlaw-
ful, the judge stressed the evidence that before the Re-
spondent ceased operations it employed forklift opera-
tors who handled packages of rice from the time that
the Respondent completed its packaging operations
until the product was placed on delivery trucks. The
judge found that employees of Casera Foods are per-
forming this same work, on the prepackaged rice that
Rice Growers now ships to Puerto Rico, that unit em-
ployees were arguably doing before April 30. These
facts, in the judge’s view, ‘‘conceivably might give
rise to a claim by displaced employees under the con-
tract for wrongfully subcontracting out unit work.’’
Because he found there was at least the possibility that
the Union could have formulated a bargaining proposal
leading to the revival of this limited facet of the Re-
spondent’s former operations, the judge found that
under the Board’s broad definition of relevance the Re-
spondent had a duty to furnish the contract with Casera
Foods to the Union. The judge therefore concluded
that the Respondent violated Section 8(a)(5) by its re-
fusal to provide the requested information.
Contrary to the judge, we find that the Respondent
did not violate the Act by failing to furnish the Union
981RICE GROWERS ASSN.
4 Cf. American Commercial Lines, 291 NLRB 1066, 1084–1085 (1988);
Food & Commercial Workers Local 1439 (Layman’s Market), 268 NLRB 780,
781 (1984).
5 Based on our disposition of this case, we find it unnecessary to pass on
the judge’s finding above that the information sought was relevant to the
Union’s role as the collective-bargaining representative of the unit employees.
1 The principal docket entries in this case are as follows:
Charge filed by Congreso de Uniones Industriales de Puerto Rico (the
Union) against the Respondent on May 17, 1990; amended charges filed by
the Union against the Respondent on June 19 and 29, 1990; complaint issued
against the Respondent by the Regional Director of Region 24 on June 29,
1990; Respondent’s answer filed on August 10, 1990; hearing held in Hato
Rey, Puerto Rico, on December 3 and 4, 1990; briefs filed with me by the
General Counsel and the Respondent on or before January 28, 1991.
2 The Respondent admits, and I find, that it is a Puerto Rico corporation
which, until April 30, 1990, was engaged in the manufacture, sale, and dis-
tribution of rice and related products. In the course and conduct of this oper-
ation, it annually purchased and received goods and products at its Catano
(San Juan), Puerto Rico, plant directly from points and places outside the
Commonwealth of Puerto Rico which were valued at an excess of $50,000.
Accordingly, the Respondent is an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act. The Union is a labor organiza-
tion within the meaning of the Act.
3 Errors in the transcript are noted and corrected.
with a copy of the Casera contract. Based on Polich’s
uncontradicted testimony at the hearing, it was Rice
Growers, and not the Respondent, which had entered
into a contract with Casera Foods to provide for the
distribution of prepackaged rice in Puerto Rico. Yet,
the Union made its information request for a copy of
the contract to Polich as the operations manager for the
Respondent, Rice Growers’ then-defunct subsidiary.
The Respondent was not a party to the Casera contract,
and Polich, the Respondent’s operations manager prior
to its closing, testified that he was not aware of the
contents of a contract between Rice Growers and
Casera. Further, the entity that possesses this requested
information, Rice Growers, has not been joined as a
party to this case.
We also stress that the General Counsel has made
no effort to establish that Rice Growers and the Re-
spondent were a single employer of the unit employees
or that the Respondent had been an alter ego of Rice
Growers. In the absence of any evidence showing that
the preclosure relationship between the Respondent
and Rice Growers met either test, we do not find that
the Respondent was in de facto control of the re-
quested information so as to create an obligation for
the Respondent to provide it under Section 8(a)(5) of
the Act.4 We therefore conclude, on the basis of this
record, that the General Counsel has failed to establish
that the defunct Respondent had the statutory duty or
even the capacity to provide the Union with a copy of
the contract between its former parent, Rice Growers,
and Casera Foods.5 For these reasons, we shall dismiss
the complaint in its entirety.
ORDER
The complaint in this case is dismissed.
Stanley Orenstein, Esq. and Efrain Rivera-Vega, Esq., for the
General Counsel.
Francisco Chevere, Esq. and Radames A. Torruella. Esq., of
San Juan, Puerto Rico, for the Respondent.
STATEMENT OF THE CASE
WALTER H. MALONEY, Administrative Law Judge. This
case came on for hearing before me at Hato Rey, Puerto
Rico, on an unfair labor practice complaint,1 issued by the
Regional Director for Region 24, which alleges that Re-
spondent Rice Growers Association of California (P.R.),
Inc.,2 violated Section 8(a)(1) and (5) of the Act. More par-
ticularly, the complaint alleges that the Respondent failed
and refused to produce relevant data which the Union de-
manded in order to fulfill its duty of representing the mem-
bers of a bargaining unit in a plant which the Respondent
closed on April 30, 1990. The complaint originally addressed
a refusal to provide five items of requested information: fi-
nancial statements for 1988 and 1989, disclosure of the
names of the title holders of the Respondent’s plant at
Catano, Puerto Rico, disclosure of the names of the
incorporators of the Respondent, a copy of a contract entered
into by the Respondent with Casera Foods, Inc., to handle
the distribution of Respondent’s products in Puerto Rico after
the closing of the plant, and a list of the Respondent’s fork-
lift operators who were employed on the date the plant
closed. At the hearing, the Respondent produced the names
of the title holders of the plant, the incorporators of the Re-
spondent corporation, and a list of the forklift operators who
worked for the Respondent on the date the plant closed. The
Union was satisfied that this information complied with its
request with respect to those items, so the complaint was dis-
missed as to them, leaving in dispute the Respondent’s obli-
gation to furnish its 1988 and 1989 financial statements and
a copy of its contract with Casera Foods, Inc. As to these
requests, the Respondent asserts that they are irrelevant to
the Union’s duty to bargain and to any issue negotiated or
to be negotiated between the parties. On these contentions,
the issues were joined.3
FINDINGS OF FACT
The Unfair Labor Practices Alleged
The Respondent is a Puerto Rico Corporation wholly
owned by Rice Growers Association of California. The latter
makes its headquarters in Sacramento, California. For nearly
30 years, the Puerto Rico affiliate has handled incoming
shipments of short-grain California rice which is sold on the
island under the brand name Sello Rojo. To process this in-
coming rice, the Respondent maintained a dock and factory
at Catano, a part of the Port of San Juan, where it offloaded
bulk shipments of rice that arrived in ships. It then packaged
them in 3- or 5-pound bags for sale in Puerto Rico. It em-
ployed 54 bargaining unit employees in the unloading and
packaging operation. Its sales and distribution activities were
handled by nonunit employees or by independent contractors.
Since about 1969, the Respondent maintained a series of col-
lective-bargaining agreements with the Union. The most re-
cent contract was effective February 26, 1988, and was
scheduled to expire on February 25, 1991.
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The stilted nature of the contents of the written documents recited herein
is due to the fact that they are English translations of the originals. All nego-
tiations between the parties, both oral and written, were conducted in Spanish.
On February 23, 1990, Bill Ludwig, the director of oper-
ations for Respondent’s parent corporation, came to San Juan
from California and addressed a meeting of all employees,
unit and nonunit alike, at the Catano plant. Speaking with the
assistance of local counsel Francisco Chevere, who acted as
interpreter, Ludwig told the employees that the Company
was considering the closing of the plant because rice sales
in Puerto Rico had dropped precipitously in recent years. He
attributed the drop in sales to a change in consumer tastes.
According to Ludwig, Puerto Ricans were moving away
from purchases of the short-grain rice which Respondent was
selling under the Sello Rojo label and were beginning to buy
large quantities of medium-grain rice. The latter is produced
in Arkansas, Louisiana, and elsewhere in the south and is
being marketed on the island by the Respondent’s competi-
tion.
During this meeting, the Union’s general shop steward,
Luis Melendez, asked Ludwig if employees could do any-
thing to forestall the plant closing. Ludwig replied that unfor-
tunately they could not because the problem related to a de-
crease in sales and, change in consumer taste rather labor
costs. On the same day, a letter was sent to Arturo Figueroa,
the president of the Union, informing him of the possible
closing of the plant and suggesting that a meeting might be
held to negotiate the question of the closing and matters re-
lated to it.
Meetings relative to the closing of the plant were held on
March 5 and 7 and April 20 at the office of the Conciliation
and Arbitration Bureau of the Puerto Rico Department of
Labor. Torruella told Figueroa the same thing that he had
said in previous correspondence, namely that there was a
possibility that the plant might close. As requested in pre-
vious correspondence, Figueroa brought with him to the
meeting a list of written proposals relating to closing which
he gave to Torruella. It read:
I. Alternative
A. Have the company pay severance and that salaries
and other fringe benefits be reduced to 25%, except the
health plan and bonus, if the company or any other em-
ployer continues operating.
II. Alternative
A. That all benefits established in the collective bar-
gaining agreement be paid and that these be continued
for a year, once severance payment has been made.
B. That any employer who packages rice in this
mill’s packing facilities recognize the union and the
present employees.4
In this discussion, in later discussions, and throughout the
litigation of this case frequent reference was made to the
2800-hour provision found in article XXII of the collective-
bargaining agreement. It is entitled ‘‘Mechanization and
Elimination of Positions’’ and reads:
1. The Company may eliminate personnel perma-
nently due mechanization when it deems so convenient,
but will be compelled to pay to each permanent em-
ployee terminated due to this reason one hundred eighty
(180) hours for each year of continuous service with the
Company, up to a total maximum of two thousand eight
hundred (2,800) hours.
2. This same procedure will apply when the Com-
pany deems it convenient and in fact does eliminate a
position permanently for reasons not connected with
mechanization.
It was well understood by both parties that most, if not all,
of the members of the bargaining unit had over 15.5 years
of service with the Respondent, so any applicability of article
XXI would result in most instances in a payment of the max-
imum amount allowed in section one of that article. Torruella
made no response to the Union’s demands other than to say
that he would transmit them to his client.
At the March 7 meeting, Torruella informed all present
that the Company had in fact decided to close the plant and
that April 30 would be the last day. Most of this meeting
was taken up in a side-bar discussion between Figueroa and
Torruella. Both men have been engaged in labor relations in
Puerto Rico over a long period of time and have handled
many matters with each other. In their private discussion,
Torruella expressed to Figueroa his legal opinion that the
mechanization clause of the contract did not apply to plant
closings and that the Company was not obligated to apply its
provision to the matter at hand. He distinguished the provi-
sions of the Rice Growers contract from provisions of an-
other contract the two had administered at another employ-
er’s place of business where a mechanization clause was ap-
plied to a plant closing situation.
Torruella made the suggestion to Figueroa that it would be
easier to take his proposal for a full 2800-hour severance
payment to company officials in California if it could be pre-
sented on the basis of a deferred payment. He suggested 40
percent on the closing of the plant and 30 percent at two
other intervals spread over a year. Figueroa preferred to wait
6 months following the closing and then pay the full amount
in a lump sum. Figueroa conceded at the hearing that
Torruella had made it clear that, in discussing the terms of
a severance payment, he had no authority to make an offer
on behalf of his client and was not in fact doing so.
Torruella did say he would try to sell the idea to company
officials. Figueroa said he would present both propositions to
his membership and inform Torruella of their feelings. At
this meeting, Figueroa asked company representatives for the
names of the incorporators of the business and the names of
the owners of the company property at Catano. It is disputed
whether, at this time, he also asked for the 1988 and 1989
financial statements in issue in this case.
A membership meeting did take place about a week later,
at which time the members of the bargaining unit expressed
a preference for a single lump sum payment 6 months after
the date of the plant closing. This preference was commu-
nicated by Figueroa to the Company.
The parties met again on April 20. On this occasion, the
Respondent was represented only by Chevere. Chevere told
Figueroa on this occasion that the Respondent had what it
felt was a reasonable proposal to make on the subject of sev-
erance pay. Figueroa replied that he did not want to hear the
proposal and insisted on the payment of the full 2800 hours
of severance pay mentioned in the mechanization clause of
983RICE GROWERS ASSN.
the contract. He threatened to go to court or to arbitration
if the full amounts were not paid. There is no dispute that,
at this meeting, Figueroa asked Chevere for a copy of the
Respondent’s 1988 and 1989 financial statements. There is
also no dispute that the Respondent never communicated to
the Union, either at the April 20 meeting or thereafter, the
severance pay proposal which it attempted to make at the
outset of the discussion.
On April 25, Figueroa followed up his oral demand for fi-
nancial statements with a letter to Torruella incorporating the
same demand in writing. In another letter, dated April 30 and
written to Steve Polich, the Respondent’s operations man-
ager, Figueroa made a demand for a full application of the
mechanization clause to all laid-off employees and again
threatened to go to arbitration if the Company failed to com-
ply. In a letter dated April 1 which Figueroa wrote to Ramon
Hernandez, the Respondent’s general manager, he claimed
that the Respondent was importing prepackaged rice from the
United States which was formerly packaged at Catano by
unit employees. He asserted that this was a violation of the
contract and made a claim for time lost by unit employees
resulting from the transportation of this rice into Puerto Rico
from the continental United States. The claim was made be-
fore the plant closed and referred to activities allegedly tak-
ing place while the Catano plant was still in operation.
On April 30, the Catano plant was closed and all employ-
ees, unit and nonunit alike, were permanently laid off. The
plant is now inactive. The Respondent continues to import
small amounts of prepackaged Sello Rojo rice into Puerto
Rico from California. It has contracted with Casera Foods,
Inc., a food distributor of many years experience, to handle
the sale and delivery of this prepackaged material to various
retail outlets. Casera performs this activity from its plant,
which is located several miles from Catano. It is undisputed
that Casera has not employed any former employees of the
Respondent. On June 20, Figueroa wrote a letter to Polich
requesting a copy of the contract between the Respondent
and Casera governing the distribution of prepackaged Sello
Rojo rice imported by the Respondent from California. The
Respondent refused to provide it.
There is presently pending before the Arbitration Bureau
of the Puerto Rico Department of Labor an arbitration case,
filed by the Union against the Respondent, in which it is de-
manding the application of the mechanization clause of the
contract to the April 30 layoff. The Union also made other
demands for contractual payments which are not a part of
this proceeding including a demand for payment of a Moth-
er’s Day bonus. Part of the arbitration case has been settled
but the claim for 2800 hours of severance pay for each quali-
fied employee is still pending. A hearing in that case was
postponed at the request of the Union to await the outcome
of the Board case.
Analysis and Conclusions
In determining the duty of an employer to provide infor-
mation to its collective-bargaining representative the Board
stated in Buffalo Concrete, 276 NLRB 839, 840 (1985), enf.
in pertinent part 803 F.2d 1333 (4th Cir. 1986):
In determining the relevance of the requested infor-
mation, a liberal discovery-type standard is used. NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). Thus, some in-
formation is presumed relevant, such as information
concerning the terms and conditions of employment of
employees represented by the union. Ohio Power Co.,
216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir.
1979). The presumption of relevance does not apply to
information concerning financial data. The relevance of
that type of information must be established by the
union.
In evaluating whether the financial information re-
quested by the Union was relevant and the Respondents
were therefore obligated to provide it, we agree with
the judge that such an evaluation must start from the
following premise:
[W]hen an employer objects to a union’s bar-
gaining demands on the basis that it is unable to af-
ford the cost of the proposal, it is under a duty to
let the union see its books and records so that the
union can verify the truthfulness of the employer’s
contention. [276 NLRB at 838.]
The key determination in this case is thus whether
the Respondents refused to agree to the Union’s con-
tract proposals because of an inability to afford the cost
of the proposal or because they did not want to pay the
cost of the proposal.
There are no special words or phrases which must be uttered
before an employer’s stated inability to pay the cost of a pro-
posal triggers an obligation defined in Truitt. For instance, a
claim that the adoption of a union proposal would make it
noncompetitive in the market place has been deemed to be
the equivalent of a plea of poverty. As former Chief Justice
Burger wrote, in a decision rendered when he was a member
of the U.S. Court of Appeals for the District of Columbia
Circuit:
The Company asserts that a claim of inability to pay is
not shown when the Company merely claims that the
increases will prevent it from competing. But the liabil-
ity to compete is merely the explanation of the reason
why the Company could not afford the economic ben-
efit. [Steelworkers v. NLRB (Stanley Artex Windows),
401 F.2d 434 (D.C. Cir. 1968).]
For similar instances when other bargaining positions have
been deemed to trigger a Truitt obligation, see Monarch Ma-
chine Tool Co., 227 NLRB 1880 (1977); Stanley Building
Co., 166 NLRB 98 (1967); Graphic Communications Local
5 v. NLRB, 538 F.2d 496 (2d Cir. 1976); Latimer Bros., 242
NLRB 50 (1979). No company officials or representatives in
this case ever actually said that the Respondent could not af-
ford the Union’s 2800-hour severance pay proposal. It is the
contention of the Union and the General Counsel that what
the Respondent said and what the Respondent did was the
equivalent of a plea of poverty.
While the reasons given by several company spokesmen
for the closing of the plant may have some remote bearing
on the precise question at issue in this case, the fact that the
Respondent was closing its plant because of economic dif-
ficulties and shortfalls in sales does not directly address its
duty to provide financial information in response to the
Union’s severance pay demand. What the General Counsel
must establish is that the Respondent objected to the Union’s
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The General Counsel took the opposite position in its brief.
2800-hour demand because it could not meet that specific de-
mand, not that the Respondent was closing its plant because
of severe economic constraints which it had disclosed even
before the Union had formulated that demand. This is nec-
essarily so, since a Truitt obligation is, in essence, an asser-
tion by the Supreme Court that good-faith bargaining re-
quires, in certain instances, the verification of an economic
position taken during bargaining. What was and still is at
issue in the bargaining controversy between these parties is
severance pay, not plant closing. If the Respondent had a
Truitt obligation, it was with respect to its position on sever-
ance pay, not plant closing.
The statements by company officials relied on by the Gen-
eral Counsel in support of his contention that there is a
verification obligation are, for the most part, statements re-
garding the plant closing, not severance pay. The principal
statements made by the Company in response to the sever-
ance pay demand came from Torruella and Chevere.
Torruella’s statement to Figueroa that the Company was not
obligated to make the 2800-hour severance payment set forth
in the mechanization clause of the contract was a legal opin-
ion based on a reading of the contract, not an assertion on
his part that the Company could not meet such an obligation
if it was disposed to do so. Chevere’s later statement that the
2800-hour provision was a ‘‘heavy’’ one is likewise a de-
scription of the obligation, not an assertion that it could not
be met. When Torruella conveyed his opinion to Figueroa
concerning the applicability of the contract provision and re-
ceived from Figueroa his first demand for full severance pay-
ments, Torruella’s immediate response was that he would try
to sell the idea to his client and that his task would be much
easier if payments could be arranged on an installment basis
rather than in a lump sum. Far from being a plea of poverty,
it was a plea for reasonableness, an implied assertion that the
Respondent not only could meet but might actually meet the
demand if only the Union would exercise some patience.
Such statements are at odds with the basic premise of a
verification requirement and demonstrate that the Respondent
never said, even by implication, that it was financially unable
to meet Figueroa’s demand.
While the Board will direct the production of information
which is designed to aid a union preparing and presenting ei-
ther a grievance or arbitration case, the information in ques-
tion must be relevant to the case. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967); Montgomery Ward & Co., 234
NLRB 588 (1978). The Union has filed, and there is now
pending, before an arbitrator a claim that the Respondent is
obligated, pursuant to provisions of its collective-bargaining
agreement, to make to each laid-off employee a severance
payment as defined by the mechanization clause of the con-
tract. The arbitrator who is scheduled to hear the case has
never determined that the 1988 and 1989 financial statements
at issue in this case are relevant to the case before him, al-
though such a determination on his part is not necessarily
dispositive of the question before the Board. What is deter-
minative of the relevance of such information in the arbitra-
tion case is the fact that the outcome of that case depends
on the legal obligations of the Respondent set forth in that
contract, not on whether the Respondent is or is not finan-
cially able to meet those obligations. It is no defense to the
Respondent in the arbitration case that it cannot afford to
comply with the contractual provisions at issue therein if, in
fact, it has such an obligation. Accordingly, what the 1988
and 1989 financial statements may or may not disclose con-
cerning its financial health have no possible bearing on the
questions to be decided by the arbitrator. In light of these
considerations, much of the complaint which alleges that the
Respondent violated Section 8(a)(1) and (5) of the Act by its
refusal to produce requested financial statements must be dis-
missed.
With regard to the production of the Casera contract, other
considerations come into play. As noted, supra, a wide-rang-
ing discovery-type view of relevance is the one that must be
applied in resolving this issue. Figueroa’s reasons for want-
ing the Casera contract were not well articulated, either at
the hearing or elsewhere. In his June 20 letter to Polich, in
which a demand for the contract was first made, Figueroa
merely states that ‘‘the unionized employees who used to
work as forklift operators for the distribution of packaged
rice have been affected by the unilateral action you have
taken.’’ His testimony at the hearing indicated a belief that
the Casera contract might establish that Casera was a suc-
cessor or alter ego of the Respondent who could be inter-
pleaded in the pending arbitration case and stand financially
responsible for any award the arbitrator might make. At the
hearing in this case, counsel for the General Counsel indi-
cated that he was not claiming that Casera was a successor
to the Respondent. Indeed, he would be in a poor position
to do so, since Casera has no financial connection with the
Respondent, has hired no supervisory or unit employees from
the Respondent’s plant, and operates a business which is
largely unrelated to the work which the Respondent did.
Under no applicable theory of Board law could Casera be
deemed a successor or alter ego to the operation which
closed at Catano on April 30.5
The fact that the potential relevance of the Casera contract
to the bargaining relationship between the parties was poorly
spelled out does not mean that it does not exist. At Catano,
the Respondent employed forklift operators who, among
other things, handled packages of rice between the time they
were processed and the time they were placed on trucks for
delivery. A suggestion to this effect is contained in the
above-noted June 20 letter. Even though the Respondent’s
rice which now comes into the Casera warehouse is pack-
aged in California, it must be unloaded in Puerto Rico,
placed in storage, moved about the warehouse, and loaded on
trucks. This is the same work that unit employees were argu-
ably doing before April 30. These facts conceivably might
give rise to a claim by displaced employees under the con-
tract for wrongfully subcontracting out unit work. There is
a possibility, depending on the costs experienced by Casera
and reflected in the requested contract, that the Union could
formulate a bargaining proposal leading to the revival of this
limited facet of the former operation at the Respondent’s
plant and the rehiring of a few unit employees by the Re-
spondent. Again, none of these possibilities may exist. How-
ever, under the broad definition of relevance contained in
Board law, there is enough in this record to warrant a finding
that the contract between the Respondent and Casera Foods,
Inc., respecting its ongoing handling of the Respondent’s
product in Puerto Rico is relevant to the bargaining relation-
ship between the parties to this case. See Brooklyn Gas Co.,
985RICE GROWERS ASSN.
220 NLRB 189 (1975), and case cited therein. Accordingly,
I conclude that, by its failure to provide the Union with its
contract with Casera Foods, Inc., the Respondent violated
Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Rice Growers Association of California (P.R.), Inc., is
now, and at all times material has been, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Congreso de Uniones Industriales de Puerto Rico is a
labor organization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees employed
by the Respondent at its rice mill located in Catano, Puerto
Rico, but excluding all other employees, guards, and super-
visors, as defined in the Act, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material, the Union has been the exclusive
collective-bargaining representative of all employees of the
Respondent employed in the unit found appropriate in Con-
clusion of Law 3, within the meaning of Section 9(a) of the
Act.
5. By failing and refusing to furnish the Union with a
copy of its contract with Casera Foods, Inc. the Respondent
violated Section 8(a)(1) and (5) of the Act. The aforesaid un-
fair labor practice has a close, intimate, and adverse effect
on the free flow of commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend to the Board that it
be required to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
policies of the Act. I will recommend that the Respondent
be required to furnish to the Union copies of all present and
past contracts that it has entered into with Casera Food, Inc.,
relating to the storage and distribution of rice imported by
the Respondent into Puerto Rico. I will also recommend to
the Board that the Respondent be required to distribute the
usual notice informing employees of their rights and the re-
sults of this case. Since the Respondent has closed its Catano
plant and has no other place of business in Puerto Rico, a
conventional notice posting requirement would serve no pur-
pose in this case and would, in effect, nullify the benefits
which notice posting is supposed to provide to employees.
Accordingly, I will recommend that the Respondent be re-
quired to mail signed copies of the attached notice, in Span-
ish, to all Catano employees at their last known address.
[Recommended Order omitted from publication.]