Teamsters Local 921 (San Francisco Newspaper)

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 901 (N.L.R.B. 1992)

901
309 NLRB No. 145
TEAMSTERS LOCAL 921 (SAN FRANCISCO NEWSPAPER)
1 In that case, the Board dismissed the case as moot after the re-
fusal to furnish information was resolved by the arbitrator. There,
the parties had agreed to arbitrate the grievance; they selected an ar-
bitrator; the respondent agreed to comply with the arbitrator’s ruling;
and, the respondent furnished the information in compliance with the
arbitrator’s ruling prior to the hearing before the trial examiner. Ac-
cordingly, the Board found that under those circumstances, a reme-
dial order was not necessary, but did not pass on the trial examiner’s
finding that there had not been a violation of Sec. 8(a)(5) and (1).
2 The Employer sought records of Micheletti’s earnings as an inde-
pendent contractor during the backpay period and in the years pre-
ceding his discharge (1988–1990).
3 Jewish Federation Council, 306 NLRB 507 (1992).
4 Interstate Food Processing Corp., 283 NLRB 303, 306 (1987).
Newspaper and Periodical Drivers Local 921, Inter-
national Brotherhood of Teamsters, AFL–CIO
and San Francisco Printing Company d/b/a
San Francisco Newspaper Agency. Case 20–
CB–8780
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 12, 1992, Administrative Law Judge Jay
R. Pollack issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the
Respondent filed cross-exceptions, a supporting brief,
and an answer to the General Counsel’s exceptions,
and the General Counsel filed an answering brief to
the Respondent’s cross-exceptions.
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, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The complaint alleged that the Respondent violated
Section 8(b)(3) of the Act by refusing to furnish the
Employer with certain requested information in a time-
ly manner. The Employer requested this information
from the Respondent in order to comply with an arbi-
trator’s award of backpay to employee Anthony
Micheletti. The judge, however, dismissed the com-
plaint as moot, relying on Sinclair Refining Co., 145
NLRB 732 (1963).1 He reasoned that the arbitrator re-
tained jurisdiction over compliance with his decision in
favor of Micheletti, and that the information had been
supplied to the Employer prior to the unfair labor prac-
tice hearing, in compliance with the arbitrator’s rul-
ings.
The General Counsel excepted to the judge’s dismis-
sal, arguing, inter alia, that Sinclair is distinguishable
because in that case the complaint alleged a refusal to
furnish information as the violation of the Act, but
here, the alleged violation is the delay in furnishing the
information. We find merit in these exceptions.
The facts are not in dispute. In an arbitration pro-
ceeding between the Respondent and the Employer
over the suspension and discharge of Micheletti, the
arbitrator ruled in favor of Micheletti and awarded him
reinstatement and backpay. In an attempt to comply
with the backpay portion of the arbitrator’s award, in
February 1991, the Employer requested information
from the Respondent regarding Micheletti’s earnings
during the backpay period (a period from sometime in
1990 through March 1991). On March 8, 1991, the Re-
spondent furnished the Employer with records of
Micheletti’s earnings and expenses in 1990. On April
26, 1991, the Employer requested a statement of
Micheletti’s earnings between January and March
1991. The Respondent furnished this information on
April 30, 1991; this statement, however, did not in-
clude earnings from Micheletti’s work as an independ-
ent contractor (i.e., chauffeur). On May 15, 1991, the
Employer requested information regarding Micheletti’s
earnings as an independent contractor.2
At this point, a dispute arose between the parties
over whether Micheletti’s earnings as an independent
contractor should be used to reduce the Employer’s
backpay calculation. The Respondent argued that be-
cause Micheletti worked as an independent contractor
before his discharge, such earnings should not mitigate
the backpay amount. The Employer contended that it
required a statement of Micheletti’s earnings as an
independent contractor in order to determine whether
such earnings increased as a result of time freed for
independent contractor work caused by the discharge,
and thus whether such earnings should be deducted
from the backpay award.
Between June 6 and September 23, 1991, the parties
communicated back and forth over this issue. During
this time, the Respondent supplied, in pieces, some of
the requested information. The parties also agreed to
bring the dispute back to the arbitrator for resolution.
Subsequently, the arbitration was scheduled but later
indefinitely postponed by the arbitrator. The Respond-
ent ultimately supplied all the requested information on
September 23, 1991.
At the outset, we note, as did the judge, that the ex-
istence of an arbitration proceeding does not relieve a
party from its duty to furnish relevant information re-
quested by the other party.3 Rather, when a request for
relevant information is made, the nonrequesting party
must either supply the information or adequately ex-
plain why it is unable to comply.4 In addition, the
Board finds that an unreasonable delay in furnishing
requested information is as much a violation of the Act
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Bundy Corp., 292 NLRB 671 (1989); Operating Engineers Local
12, 237 NLRB 1556, 1558–1559 (1978).
6 Jewish Federation Council, supra; D. J. Electrical Contracting,
303 NLRB 820 (1991).
7 The Respondent, although admitting at the hearing that the infor-
mation requested was relevant to determine the amount of backpay
due to Micheletti, argued that the information was in the hands of
a third party and therefore equally accessible to the Employer. The
judge, however, expressly rejected this argument. He found that in
the absence of any evidence that the Respondent had difficulty ob-
taining the information, it had an affirmative obligation, as the ex-
clusive collective-bargaining representative of the bargaining unit
employees and as Micheletti’s representative at the arbitration, to ob-
tain and furnish the information to the Employer. We agree.
8 We find Sinclair, supra, distinguishable. As we stated previously,
in that case the complaint alleged the refusal to furnish the informa-
tion as the violation of the Act. Because the information had been
already furnished at the time of the hearing in that matter, the Board
found that a remedial order would not effectuate the policies of the
Act under those circumstances. Here, the violation alleged and found
is the delay in providing the information.
9 Interstate Food Processing, supra, 283 NLRB at 306.
10 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.’’
as an out-and-out refusal to supply such information.5
Thus, subsequent compliance with a request for infor-
mation does not cure the unlawful refusal to supply the
information in a timely manner and belated compliance
with a request for such information does not render
moot a complaint of an unlawful refusal timely to sup-
ply the requested information.6
Here, the judge expressly found that the Respondent
delayed furnishing the requested information to the
Employer because of the Respondent’s contention at
the time of the request that the information was not
relevant to the issue of backpay. In addition, we note
that the Respondent has proffered no adequate expla-
nation for its failure to provide the information in a
timely manner.7 Therefore, by delaying the furnishing
of the requested information for more than 4 months,
and in the absence of any explanation for its failure to
comply with the request, we find that the Respondent
violated Section 8(b)(3) of the Act.
We further find, unlike the judge, that the complaint
has not been rendered moot. The Respondent’s belated
compliance with the Employer’s information request
did not cure its unlawful delay and a cease-and-desist
remedy remains appropriate to vindicate the policies of
the Act.8 Accordingly, we shall issue the following
amended conclusions of law, remedy, and Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 3.
‘‘3. By failing and refusing to furnish the Employer
in a timely manner with certain requested information,
the Respondent engaged in unfair labor practices with-
in the meaning of Section 8(b)(3) of the Act.’’
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist therefrom. We shall not order the Respond-
ent to furnish the requested information because the in-
formation already has been given the Employer. Con-
sequently, a cease-and-desist order will suffice to rem-
edy the violation found.9
ORDER
The National Labor Relations Board orders that the
Respondent, Newspaper and Periodical Drivers, Local
921, International Brotherhood of Teamsters, AFL–
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Employer by failing timely to furnish it requested
information relevant to its compliance with an arbitra-
tor’s award of backpay to Anthony Micheletti.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post in conspicuous places, in the Newspaper
and Periodical Drivers, Local 921, International Broth-
erhood of Teamsters, AFL–CIO business office, meet-
ing halls, and places where notices to its members are
customarily posted, copies of the attached notice
marked ‘‘Appendix.’’10 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized represent-
ative, shall be posted immediately upon receipt and
maintained for 60 consecutive days thereafter. Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 20 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain in good
faith with San Francisco Printing Company d/b/a San
903TEAMSTERS LOCAL 921 (SAN FRANCISCO NEWSPAPER)
Francisco Newspaper Agency by failing timely to fur-
nish it with requested information relevant to its com-
pliance with the arbitrator’s award of backpay to An-
thony Micheletti.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
NEWSPAPER AND PERIODICAL DRIVERS,
LOCAL 921, INTERNATIONAL BROTHER-
HOOOD OF TEAMSTERS, AFL–CIO
Mary Vail Esq., for the General Counsel.
Andrew H. Baker, Esq. (Beeson, Tayer, & Bodine), of San
Francisco, California, for the Respondent.
Nick C. Geannacopulos, Esq. (Seyfarth, Shaw, Fairweather
& Geraldson), of San Francisco, California, for the Em-
ployer.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at San Francisco, California, on May 19, 1992.
On September 10, 1991, San Francisco Printing Co. d/b/a
San Francisco Newspaper Agency (the Employer) filed the
charge alleging that Teamsters Union Local 921 (Respondent
or the Union) committed certain violations of Section 8(b)(3)
of the National Labor Relations Act (the Act). On October
31, 1991, the Regional Director for Region 20 of the Na-
tional Labor Relations Board issued a complaint and notice
of hearing against Respondent, alleging that the Union vio-
lated Section 8(b)(3) of the Act by refusing to furnish, in a
timely manner, certain requested information to the Em-
ployer. Respondent filed timely answers to the complaint, de-
nying all wrongdoing.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a Nevada corporation, with an office and
place of business in San Francisco, California, where it has
been engaged in the publication, circulation and distribution
of daily newspapers. During calendar year 1990, the Em-
ployer derived revenues in excess of $200,000. Further, the
Employer held membership in and/or subscribed to various
interstate news services, published nationally syndicated fea-
tures and advertised nationally sold products. Accordingly,
Respondent admits and I find that the Employer is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent admits and I find that at all times material,
Respondent has been a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Respondent represents a bargaining unit of drivers em-
ployed by the Employer. In 1990, employee Anthony
Micheletti, a driver represented by the Respondent was sus-
pended and discharged. A grievance was filed under the col-
lective-bargaining agreement. Respondent processed the
grievance to arbitration. In February 1991, the arbitrator
found in favor of Micheletti and ordered reinstatement and
backpay. The arbitrator retained jurisdiction over compliance
with his decision.
Upon receipt of the arbitrator’s award the Employer of-
fered reinstatement to Micheletti. Micheletti returned to work
on March 11, 1991. Maryann Kelly, labor relations manager
for the Employer, sought information from the Union con-
cerning Micheletti’s earnings during the backpay period. In
February, Kelly spoke with Ben Papapietro, Respondent’s
secretary-treasurer and asked for the records of Micheletti’s
earnings during the backpay period. On March 8, Kelly re-
ceived records from the Union, showing Micheletti’s earn-
ings and expenses for 1990. On April 26, 1991, Kelly re-
quested a statement of earnings of Micheletti for the period
January 1991 through March 1991. On April 30, Kelly re-
ceived a letter from the Union’s attorney forwarding informa-
tion from Micheletti’s accountant showing Micheletti’s earn-
ings and expenses during the backpay period. The account-
ant’s letter only showed earnings as an employee and did not
include earnings as an independent contractor.
On May 15, Kelly sought information concerning
Micheletti’s earnings for work performed as an independent
contractor—chauffeur. Micheletti had worked as a chauffeur
before his discharge. The Union contended that since
Micheletti had previously worked as chauffeur those earnings
should not mitigate damages. Kelly desired the information
to ascertain whether Micheletti’s earnings increased during
the backpay period. Kelly took the position that an increase
in Micheletti’s earnings would be as a result of the time
freed for such work by the discharge and, therefore, that such
interim earnings should be deducted from gross backpay. On
June 6, the Union’s attorney provided a copy of Micheletti’s
IRS form 1099 for the year 1989. The Union maintained that
Micheletti worked as a chauffeur prior to his discharge and,
therefore, his earnings as a chauffeur could not be used as
interim earnings. The letter also stated that if backpay could
not be resolved, the Union would request that the arbitrator
schedule a backpay hearing.
Approximately 2 weeks later, Jack Ford, union business
agent, called Kelly. Kelly told Ford that she had not yet re-
ceived the information concerning Micheletti’s earnings as an
independent contractor for 1991. Further she indicated that
she wanted to establish an average of Micheletti’s earnings
as an independent contractor for the years preceding his dis-
charge. Ford said the information was irrelevant and that he
would not give the information. Ford suggested that the par-
ties bring the dispute to the arbitrator.
By letter dated June 21, the arbitrator scheduled a hearing
for September 10. On August 2, the arbitrator, at the request
of the Employer, issued a subpoena to Micheletti for the re-
quested information. On August 15, the Union’s attorney
filed a motion to quash the subpoena. In a conference call,
the arbitrator changed the return date for the subpoena from
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 16 to September 10. On September 6, the Employer
received some of the requested information concerning
Micheletti’s earnings for 1988–1990. On September 9, the
arbitrator granted the Employer’s request for a continuance
to review the supoenaed documents. The arbitration has been
postponed indefinitely. On September 23, the Union supplied
the Employer with the remainder of the requested informa-
tion. The General Counsel’s complaint alleges no violation
after September 1991.
Analysis and Conclusions
It is well settled that a union’s duty to bargain in good
faith by furnishing requested information to an employer for
the purpose of collective bargaining is commensurate with
the similar duty imposed by the Act upon employers. Team-
sters Local 959 (Frontier Transportation Co.), 244 NLRB 19
(1979); Machinists Local 78 (Square D Co.), 224 NLRB 111
(1976); Graphic Communications Local 13 (Oakland Press
Co.), 223 NLRB 994 (1977), enfd. 598 F.2d 267 (D.C. Cir.
1979).
It is well settled that an employer has a statutory duty to
provide a union, upon request, with relevant information the
union needs for the proper performance of its duties as a col-
lective-bargaining representative. NLRB v. Acme Industrial
Co., 385 U.S. 432, 435–436 (1967); Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979). In determining whether an em-
ployer is obligated to supply particular information, the ques-
tion is only whether there is a ‘‘probability that the desired
information [is] relevant, and that it would be of use to the
union in carrying out its statutory duties and responsibil-
ities.’’ NLRB v. Acme Industrial Co., supra at 437. As the
Supreme Court has stated, the disclosure obligation is meas-
ured by a liberal ‘‘discovery-type standard,’’ not a trial-type
standard, of relevance. Id. Respondent admits that the infor-
mation requested was relevant to determine the amount of
backpay due Micheletti under the arbitrator’s award.
Respondent argues that the information was in the hands
of a third party and therefore, equally accessible to the Em-
ployer. Respondent contends that it requested the information
from Micheletti and furnished the information in due course.
See Food & Commercial Workers Local 1439 (Layman’s
Market), 268 NLRB 780 (1984). See American Commercial
Lines, 291 NLRB 1066, 1085 (1988). I do not find that argu-
ment persuasive. The Union is the exclusive representative of
the employees in the bargaining unit and under Section
8(a)(5) the Employer cannot bargain directly with an em-
ployee. General Electric Co., 150 NLRB 192 (1964), enfd.
418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965
(1970).
The Union represented Micheletti in the arbitration and the
postarbitration dispute concerning backpay. I find that the
Employer acted properly in requesting the information from
the Union rather than from Micheletti, the grievant, or the in-
terim employer, a disinterested third party. Under the cir-
cumstances, the Union had an affirmative obligation to ob-
tain the information and furnish the information to the Em-
ployer. There was no evidence that Respondent had difficulty
obtaining the information from Micheletti. Rather it appears
the delay was caused by the Union’s position that the infor-
mation was not relevant to the issue of backpay.
The Union contends that the Employer should have sub-
poenaed the material from Micheletti since the arbitrator had
retained jurisdiction for backpay purposes. In Acme, supra,
the Supreme Court held that an employer was obligated to
comply with a request for information to determine whether
to pursue a grievance.
The existence of an arbitration procedure does not relieve
an employer or union from its duty to furnish the other party
with information necessary to determine whether to process
a grievance to arbitration. Jewish Federation Council, 306
NLRB 507 (1992). The duty to supply the requested infor-
mation does not terminate when the grievance is taken to ar-
bitration. Id. In International Harvester Co., 241 NLRB 600
(1979), the Board held that a bargaining agreement which
vested an arbitrator of a grievance with authority to order
disclosure of information did not require deferral of the un-
fair labor practice charges.
However, in Sinclair Refining Co., 145 NLRB 732 (1963),
the Board dismissed the case as moot after the refusal to fur-
nish information was resolved by an arbitrator. In that case
the circumstances were that the parties had agreed to arbi-
trate the grievances; the parties had selected the arbitrator;
the Respondent had expressed its willingness to supply any
data the arbitrator ruled was necessary; the Respondent did
furnish data in accord with the rulings of the arbitrator; and
the arbitration hearings were completed before the case was
heard by the trial examiner. Thus, the Board found that no
remedial order was necessary under the circumstances.
In the instant case the discharge of Micheletti was before
an agreed-upon arbitrator. The arbitrator retained jurisdiction
over compliance with the decision. The dispute over backpay
and the request for information occurred while the arbitrator
had jurisdiction. The Respondent complied with the rulings
of the arbitrator. The information was supplied prior to the
hearing before me. While the arbitration has not yet been
completed, the delay is not due to the information request at
issue here. Thus, I find Sinclair Refining to be controlling
precedent and would dismiss the complaint as moot. The
International Harvester case is distinguishable because in
that case neither the dispute nor the refusal to furnish infor-
mation had gone to an arbitrator. Here we are dealing with
an issue that has been resolved by arbitration rather than a
question of prearbitration deferral.
CONCLUSIONS OF LAW
1. San Francisco Newspaper Agency is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent, Local 921, International Brotherhood of
Teamsters Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate Section 8(b)(3) of the Act
as alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]