Rice Growers Assn.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 837 (N.L.R.B. 1993)

837
312 NLRB No. 129
RICE GROWERS ASSN.
1 303 NLRB 980.
2 Congresso de Uniones Industriales de Puerto Rico v. NLRB, No.
91–1959.
3 See 303 NLRB at 981 fn. 5.
4 In adopting the court’s decision as the law of this case, we note
that the court stated there that the Union had requested a copy of
the Casera Foods contract ‘‘while the bargaining was in progress.’’
The evidence shows, however, that the Union’s request for a copy
of the Casera contract was made on June 20, 1990, which was nearly
2 months after the parties had ceased their ‘‘effects’’ bargaining and
the Respondent had closed the plant.
5 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
September 30, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 31, 1991, the National Labor Relations
Board issued its Decision and Order in this proceed-
ing,1 finding that the Respondent had not violated the
Act by refusing, on request, to furnish the Union with
a copy of the sales and distribution contract between
its parent corporation, Rice Growers Association of
California, and Casera Foods, Inc. The Board therefore
dismissed the instant complaint. Thereafter, Congresso
de Uniones Industriales de Puerto Rico (the Union)
filed a petition for review with the First Circuit.
On June 11, 1992, the court vacated the Board’s de-
cision, and remanded the case to the Board for further
proceedings consistent with its decision.2 The court
disagreed with the Board’s finding that the Respondent
was not in de facto control of the requested informa-
tion so as to create an obligation to provide it under
Section 8(a)(5) of the Act. The court indicated, citing
inter alia, Arch of West Virginia, 304 NLRB 1089
(1991), which issued after the Board’s earlier decision
here, that it could not reconcile the Board’s finding in
this case with other Board decisions which the court
indicated required ‘‘an employer, confronted with an
information request, to make reasonable efforts to ob-
tain the relevant information from another corporation,
such as a parent company.’’ Thus, the court remanded
the case to give the Board an opportunity to explain
whether there was ‘‘some clear basis for distinguishing
this case from past precedent . . . .’’
On August 19, 1992, the Board notified the parties
that it had accepted the remand and invited the parties
to submit statements of position. The Respondent then
filed a statement of position.
The Board has reconsidered this case in light of the
court’s opinion and the Respondent’s statement of po-
sition. The Board has decided to accept the court’s de-
cision as the law of this case. Although there might be
some bases for distinguishing this case from those
cited by the court, we concede that there is broad lan-
guage in those opinions concerning the obligation of
an employer to seek requested information from others
with which it has a business relationship. Rather than
rely on any factual difference between this case and
those, we conclude that the Respondent’s refusal to
make reasonable efforts to obtain the requested infor-
mation would not have satisfied its bargaining obliga-
tion under Section 8(a)(5) and Section 8(d) of the Act
if the information were deemed relevant. Given the
ground on which we disposed of this case in our ear-
lier decision, we did not reach the issue of relevancy.3
We must now decide that issue, i.e., whether the infor-
mation requested by the Union on June 20 was nec-
essary and relevant to the Union’s performance of its
role as the exclusive bargaining representative of the
unit employees.4 For the reasons stated below, we find
that relevancy was not proven, and the Respondent
therefore did not violate the Act by refusing to provide
the requested information.
The evidence shows that the Respondent was a
Puerto Rico corporation wholly owned by Rice Grow-
ers Association of California (Rice Growers) which is
headquartered in Sacramento, California. On February
23, 1990,5 the Respondent sent a letter informing the
Union that it was considering closing the rice packag-
ing and distribution facility in Puerto Rico where the
unit employees worked and suggesting that they meet
to bargain about this matter. Thereafter, the Respond-
ent and the Union met on three occasions in March
and April to discuss the plant closure. After the parties
could not reach an agreement on severance pay, the
Union filed a grievance on this subject that resulted in
an arbitration case that is pending before the Arbitra-
tion Bureau of the Puerto Rico Department of Labor.
The hearing in that case has been postponed pending
the resolution of the unfair-labor-practice issues raised
here.
On April 30, the Respondent closed its plant and
permanently laid off all the unit employees. Rice
Growers at some indeterminate time entered into a
contract with Casera Foods, Inc. to handle the sale and
distribution of the small amounts of prepackaged rice
that Rice Growers continues to import into Puerto
Rico. On June 20, the Union wrote a letter to the Re-
spondent requesting a copy of the contract between
Rice Growers and Casera Foods. The Union stated
there, in pertinent part, that it understood Casera ‘‘is
distributing the rice which our members used to proc-
ess’’ and that ‘‘[t]he unionized employees who used to
work as forklift operators for the distribution of pack-
aged rice, have been affected by the unilateral action
you have taken.’’ The Respondent refused to provide
the Union with the requested information.
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The judge pointed out that during the hearing the Union’s presi-
dent, Arturo Figueroa, gave testimony indicating his belief that the
Casera contract might establish that Casera was either a successor
or alter ego of the Respondent which could also be held responsible
for the severance pay the Union claimed the Respondent owed the
unit employees. As the judge found, however, the General Counsel
did not raise these issues and the evidence failed to establish that
there was any legal connection between the two entities.
7 Although the judge apparently thought that the contract the
Union had requested was between the Respondent and Casera Foods,
we note that the evidence here establishes that Rice Growers, and
not the Respondent, is the party to that contract.
8 Kentile Floors, 242 NLRB 755, 757 (1979).
9 This point on which we are distinguishing Arch of West Virginia,
i.e., the requirement for a threshold showing of relevancy, is dif-
ferent from the issue of potential ability to obtain the requested doc-
uments. As indicated above, we have accepted as law of the case
the court’s view that Arch of West Virginia is dispositive on that
question.
Although noting that the Union failed to articulate
well, either before or during the hearing, its reasons for
wanting the Casera contract, the judge found that the
Respondent’s refusal to provide this document was un-
lawful.6 He stressed that before the Respondent ceased
operations it employed forklift operators who handled
packages of rice from the time that the Respondent
completed its packaging operations until the product
was placed on delivery trucks. Because he found that
employees of Casera Foods are performing this same
work on the prepackaged rice that Rice Growers ships
to Puerto Rico, the judge concluded that this ‘‘conceiv-
ably’’ could give rise to a claim by the displaced em-
ployees that the Respondent had breached the collec-
tive-bargaining agreement by subcontracting unit work.
The judge also emphasized that there was at least the
possibility that the Union could have formulated a bar-
gaining proposal leading to the revival of the Respond-
ent’s forklift operations. Thus, based on his finding
that under the Board’s broad definition of relevance
the Respondent had an obligation to supply the re-
quested information, the judge concluded that the Re-
spondent violated Section 8(a)(5) by refusing to pro-
vide the Union with a copy of the Casera Foods con-
tract.7
It is well established that an employer has an obliga-
tion to furnish, on request, information needed by the
bargaining representative for the proper performance of
its statutory duties. NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967). Information about the terms
and conditions of employment of bargaining unit per-
sonnel is presumptively relevant. Pfizer, Inc., 268
NLRB 916, 918 (1984); Timkin Roller Bearing Co.,
138 NLRB 15 (1962), enfd. 325 F.2d 746, 750 (6th
Cir. 1963), cert. denied 376 U.S. 971 (1964). However,
as the Board stated in Ohio Power Co., 216 NLRB
987, 991 (1975):
[W]here the request is for information with re-
spect to matters occurring outside the unit, the
standard is somewhat narrower (as where the pre-
cipitating issue or conduct is the subcontracting of
work performable by employees within the appro-
priate unit) and relevance is required to be some-
what more precise. . . . The obligated is not un-
limited. Thus where the information is plainly ir-
relevant to any dispute there is no duty to provide
it.
Here, the Union has sought information regarding
the contractual relationship that Rice Growers has with
another business enterprise. Because this information
does not relate to unit employees’ terms and conditions
of employment, the Union had the burden under Ohio
Power, supra, to establish that the information was
necessary and relevant to bargaining. We conclude,
contrary to the judge, that the Union has not estab-
lished the relevance of the information requested from
the Respondent.
We stress that the only explanation the Union of-
fered for seeking a copy of the Casera contract in its
June 20 letter was that it understood Casera ‘‘is dis-
tributing the rice which our members used to process’’
and that ‘‘[t]he unionized employees who used to work
as forklift operators for the distribution of the pack-
aged rice, have been affected by the unilateral action
you have taken.’’ Even assuming, as the judge did,
that the information was relevant because the Union
could have used it during bargaining to make a case
for reestablishing that aspect of the Respondent’s
former operation involving the forklift drivers, we are
unable to find that the Union’s letter was sufficiently
explicit so as to convey this objective to the Respond-
ent. We also note that during the hearing the union of-
ficial who wrote the letter offered a different expla-
nation for seeking the information when he testified
that he needed it to determine whether Casera had any
liability for the severance pay owed to the unit em-
ployees. Yet, as the judge found, the General Counsel
has not alleged that Casera is either a single employer
with the Respondent or a successor employer. The
Union also has failed to show that this information
pertained to its pending grievance concerning the unit
employees’ severance pay or to any possible violation
of the parties’ collective-bargaining agreement. The
Board has held that ‘‘[r]elevance cannot be established
by speculative argument alone without record evidence
to support the applicability of those arguments to the
present circumstances.’’8 Our recent decision in Arch
of West Virginia, supra at 1092–1093, is distinguish-
able because the union in that case had ‘‘an objective
factual basis’’ for believing that a single employer re-
lationship existed there. No such allegation exists
here.9 Thus, on the basis of the sparse record before
us, we find that the justification the Union gave for
wanting the requested information was too vague and
839RICE GROWERS ASSN.
10 Fairfield Daily Republic, 275 NLRB 7, 9 (1985), Bohemia, Inc.,
272 NLRB 1128 (1984).
11 Because the entire unit had been terminated at that date and the
plant closed, there was also no ‘‘unit work’’ remaining to be subcon-
tracted. That work had reverted to the control of the parent corpora-
tion, and how it chose to have the work done was not governed by
the collective-bargaining agreement, absent an arguably meritorious
contention that the parent corporation itself had obligations under the
agreement. Neither the General Counsel nor the Charging Party
made such a contention. Thus, the fact that the collective-bargaining
agreement had not expired when the Union made its request to the
Respondent is simply irrelevant. Therefore, although the expiration
date of the contract may, as our dissenting colleague urges, distin-
guish this case from Eazor Express, 271 NLRB 495 (1984), it is a
difference without a distinction.
speculative to establish its relevance to collective bar-
gaining.10
Furthermore, as stated, the Union’s information re-
quest came nearly 2 months after the Respondent
closed the facility on April 30, There are no allega-
tions that the Respondent unlawfully refused to bargain
about the decision to close or the effects of that deci-
sion. The General Counsel also has not alleged that the
Respondent unlawfully laid off the unit employees. Be-
cause the unit employees’ layoffs resulted from a law-
ful plant closing, we find that subsequent to April 30
there were no unit employees who could generate a
bargaining obligation for the Respondent to provide
the requested information.11 As the Board stated in
Eazor Express, supra, 271 NLRB at 497, ‘‘[a] union’s
right to bargain, and thereby to obtain information,
does not extend in perpetuity.’’ For these reasons, we
find that the Respondent had no bargaining obligation
at the time the Union made its postclosure request for
information on June 20. Accordingly, we shall dismiss
the complaint in its entirely.
ORDER
The complaint in this case is dismissed.
MEMBER DEVANEY, dissenting.
Contrary to the majority, I would find that the infor-
mation that the Union requested here was necessary
and relevant to the performance of its duties as the ex-
clusive collective-bargaining representative of the unit
employees. Thus, I conclude that the Respondent vio-
lated Section 8(a)(5) of the Act by its refusal to pro-
vide such information.
The evidence shows that in its June 20, 1990 letter
to the Respondent the Union sought a copy of the con-
tract between the Respondent’s parent, Rice Growers
Association of California, and Casera Foods. The
Union explained there that it understood Casera ‘‘is
distributing the rice which our members used to proc-
ess’’ and that ‘‘[t]he unionized employees who used to
work as forklift operators for the distribution of pack-
aged rice, have been affected by the unilateral action
you have taken.’’
Although the Union had the burden of proving the
relevance of information concerning employees outside
the bargaining unit, the standard for relevancy is the
same ‘‘liberal discovery-type standard’’ in all cases.
Loral Electronic Systems, 253 NLRB 851, 853 (1980);
Curtiss-Wright Corp., 145 NLRB 152 (1963), enfd.
347 F.2d 61 (3d Cir. 1965). Applying this liberal
standard here, I agree with the judge that the Union
has demonstrated the relevance of the Casera contract
in its June 20 letter to the Respondent. Thus, the
Union, by its reference to the ‘‘forklift operators,’’ ef-
fectively apprised the Respondent of the Union’s con-
cern that Casera was performing forklift operations for-
merly done by unit employees and thereby established
the Union’s need for any information about this work
which may be included in the Casera contract. In so
concluding, I note that the majority’s reliance on Eazor
Express, 271 NLRB 495 (1984), to support its finding
that the Respondent had no duty to furnish the re-
quested information, is misplaced in the present con-
text because, unlike there, the collective-bargaining
agreement between the Respondent and the Union cov-
ering these employees had not expired when the Union
made its request.
For these reasons, I would adopt the judge’s finding
that the Casera contract was relevant to bargaining and
that the Respondent violated Section 8(a)(5) by refus-
ing to furnish it. Thus, I dissent from my colleagues’
finding that the Union failed to establish the relevance
of the requested information.