Mission Foods

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 345 NLRB No. 49 788 Gruma Corporation d/b/a Mission Foods and United Food and Commercial Workers Union, Local 99.1 Case 28–CA–20161 August 27, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on February 16, 2005, the General Counsel issued the complaint on March 18, 2005, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain and to provide information following the Un- ion’s certification in Case 28–RC–5987. (Official notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allegations in the complaint. On April 5, 2005, the General Counsel filed a Motion for Summary Judgment and Motion to Supplement its Summary Judgment Motion. On April 11, 2005, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion for summary judgment should not be granted. The Respon- dent filed a response, and the General Counsel filed a reply brief. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to furnish information that is alleged to be relevant and necessary to the Union’s role as bargaining representa- tive, but contests the validity of the Union’s certification based on its objections to the election in the representa- tion proceeding. In addition, the Respondent asserts that there are genuine issues of material fact as to the rele- vance and necessity of some of the information requested by the Union. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any 1 We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers from the AFL–CIO effective July 29, 2005. representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).2 We also find that there are no factual issues warranting a hearing with respect to most of the items in the Union’s request for information. By letter dated December 2, 2004, the Union requested certain information from the Respondent, listed in 107 paragraphs. (See App. A.) In its response to the Notice to Show Cause, the Respondent raises several defenses to its failure to provide the re- quested information, which are addressed below. 1. Harassment and bad faith The Respondent argues that the Union’s purpose in re- questing such voluminous information is a harassment tactic, and that because the request was not made in good faith, it should be denied, citing Hawkins Construction Co., 285 NLRB 1313, 1314 (1987), enfd. denied on other grounds 857 F.2d 1224 (8th Cir. 1988) (a request for information must be made in good faith, otherwise, it may be denied). However, in Hawkins, the Board also held that there is a presumption that a union acts in good faith when it requests information from an employer, until the contrary is shown. Id. at 1314. Here, the Re- spondent’s sole argument supporting its contention is the volume of the Union’s information request. This asser- tion, without more, is insufficient to overcome the pre- sumption of good faith, particularly in light of the fact that most of the Union’s information request on its face appears to involve relevant information requested to ful- fill its role as collective-bargaining agent. See, e.g., Honda of Hayward, 314 NLRB 443, 449 (1988) (length of union’s 24-page information request did not indicate bad faith, given the need for extensive information to prepare for initial bargaining). 2. Overbroad and burdensome The Respondent contends that the information re- quested in paragraphs 6, 13–14, 37, 39–40, 42, 46–47, 57, 75, 79–81, 84–86, 89, 99, and 102–103 is overly broad and unduly burdensome to produce. The Respon- dent argues generally that in some instances the Union does not provide a time period for the particular informa- tion sought, but rather requests the information for any period of time that the Respondent has been operating. The Respondent further argues that it would have to go through each individual employee’s file to determine 2 Chairman Battista did not participate in the underlying representa- tion proceeding. He agrees, however, that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding concerning the Union’s certification or reconsideration of the decision in the representation proceeding, and that summary judgment is therefore appropriate. MISSION FOODS 789 whether the information exists, and that such a task would be unduly burdensome given the number of em- ployees involved. The Respondent’s failure to raise, at the time of the re- quest, any issue concerning the possible burden of com- plying with the Union’s request undermines its claim of burdensomeness as a defense. See Honda of Hayward, 314 NLRB at 450, citing Oil Workers Local 6-418 v. NLRB, 711 F.2d 348, 353 fn. 6 (D.C. Cir. 1983) (if a party “does wish to assert that a request for information is too burdensome, this must be done at the time infor- mation is requested, and not for the first time during the unfair labor practice proceeding”). In addition, the Board has held that “an employer may not simply refuse to comply with an ambiguous or over- broad information request, but must request clarification or comply with the request to the extent that it encom- passes necessary and relevant information.” Superior Protection Inc., 341 NLRB 267, 269 (2004), enfd. 401 F.3d 282 (5th Cir. 2005). See also Streicher Mobile Fu- eling, Inc., 340 NLRB 994, 995 (2003), affd. 138 Fed. Appx. 128, 2005 WL 1395063 (11th Cir. 2005) (unpub- lished). Further, although the Board and courts have held that there are some acceptable limits on information requests that would otherwise entail an undue burden, the onus is on the employer to show that production of the data would be unduly burdensome, and to offer to cooperate with the union in reaching a mutually acceptable ac- commodation. See, e.g., Yeshiva University, 315 NLRB 1245, 1248 (1994); U.S. Testing Co. v. NLRB, 160 F.3d 14, 20–21 (D.C. Cir. 1998); Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1094 (1st Cir. 1981), abrogated on other grounds NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 fn. 7 (1990). Here, the Respon- dent has failed to proffer any evidence in support of its assertion that the information requests would be unduly burdensome, and has not made any effort to reach a mu- tually acceptable accommodation with the Union. Ac- cordingly, we find that the assertion that the information request was overbroad and burdensome does not excuse the Respondent’s failure to comply with the request.3 3 In par. 80 of the information request, the Union seeks a list of all employees who have engaged in conduct for which discipline was considered, but ultimately not imposed, including the name of the em- ployees, the date of the incidents, the nature of the discipline consid- ered, and the reason discipline was not imposed. To the extent that the Respondent does not keep records of certain types of information, it is not obligated to produce such information. Further, pars. 13–14, 37, 39–40, 42, 46–47, 57, 75, 79–81, and 84– 86 do not specify a time period for which the information is sought. Consistent with other paragraphs of the Union’s request, we shall re- quire the Respondent to provide the requested information for a period 3. Pertaining to nonunit employees The Respondent maintains that much of the informa- tion sought by the Union is not relevant and or necessary to its collective-bargaining duties. Specifically, the Re- spondent alleges that the information requested in para- graphs 2–3, 5, 7–8, 10, 14–20, 27, 29–30, 37–40, 42, 46– 47, 57, 61, 63, 71–72, 75, 79–81, 85–86, 88–89, 93–94, 100, 102–103, and 106 pertains to nonunit employees and therefore is not presumptively relevant to mandatory subjects of bargaining. It is well established that although a union’s informa- tion request may not be specifically limited to bargaining unit employees, and therefore could be construed as re- questing information pertaining to nonunit as well as unit employees, this does not justify an employer’s blanket refusal to comply with the union’s request. See Streicher Mobile Fueling, 340 NLRB at 995 (failure to limit re- quest to bargaining unit information did not excuse non- compliance with request as to unit employees); Superior Protection Inc., 341 NLRB at 269 (employer may not simply refuse to comply with an ambiguous or overbroad information request, but must request clarification or comply to the extent it encompasses necessary and rele- vant information). In such cases, the Board will construe the requests that seek presumptively relevant information as pertaining to unit employees, even though the information requested is not consistently described in these specific terms. See, e.g., Metro Health Foundation, Inc., 338 NLRB 802 fn. 2 (2003) (partial denial of summary judgment on informa- tion request did not excuse failure to provide other, clearly relevant, information, which Board construed to pertain to unit employees); Freyco Trucking Inc., 338 NLRB 774 fn. 1 (2003) (request for payroll records and benefit fund payments construed to pertain to unit em- ployees). Accordingly, we find that the assertion that the infor- mation request pertained to nonunit employees does not excuse the Respondent’s failure to comply with the re- quest to the extent that it could be construed to pertain to unit employees.4 of 1 year prior to the date of the request, unless the Union can demon- strate why a longer period of time is necessary to the performance of its duties as the collective-bargaining representative of the unit employees. 4 In pars. 57, 75, and 79 of the information request, the Union seeks information concerning either “any employee” or “all employees” who were disciplined for certain infractions. By construing the Union’s requests to pertain only to unit employees, these paragraphs duplicate par. 6, which seeks copies of all disciplinary records of actions taken against unit employees for the past year. Accordingly, the Respondent is not obligated to produce any information in response to pars. 57, 75, and 79 to the extent that such information is duplicative of information provided in response to par. 6. Further, in par. 14, the Union seeks a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790 4. Nonmandatory subjects of bargaining The Respondent contends that the Union seeks infor- mation that does not pertain to mandatory subjects of bargaining, and therefore is not relevant or necessary to the collective-bargaining process. Specifically, the Re- spondent maintains that it does not have an obligation to provide the information requested in paragraphs 9, 11, 15–20, 22, 25–26, 31–34, 43, 53–56, 64, 66, 71, 73, 81, 91, 99–100, 102–103, and 106. Information that relates to wages, hours, and terms and conditions of employment of the unit employees is pre- sumptively relevant. See, e.g., Crowley Marine Services, 329 NLRB 1054, 1060 (1999), enfd. 234 F.2d 1295 (D.C. Cir. 2000). It is well established that most of the types of information sought by the Union here are pre- sumptively relevant for purposes of collective bargaining and must be furnished on request.5 See, e.g., Metro Health Foundation, Inc., supra.; Honda of Hayward, 314 NLRB at 443, 450, 452 (workers’ compensation carrier; health care plan administrator; company policy with re- spect to use of proprietary information; IRS form 5500); Maple View Manor, Inc., 320 NLRB 1149, 1150 (1996) (merit pay evaluations); Hamilton Rehabilitation & Healthcare Center, 325 NLRB 1217 (1998) (total assets of 401(k) plan, its performance records, all actuarial in- formation and summary plan descriptions, and number and names of each participant); Polymers, Inc., 319 NLRB 26, 27 (1995) (EEO-1 reports). However, we find that the General Counsel has failed to establish that certain information sought in the Un- ion’s information request is presumptively relevant. Paragraph 15 seeks a list of all local, State, and Federal laws, statutes, ordinances, or regulations that the Re- spondent believes govern its business operations; para- graph 16 seeks a list of all notices required by State or Federal law to be posted in the workplace; and paragraph 17 seeks a copy of all company policies that relate to any of these laws. In Living & Learning Centers, Inc., 251 NLRB 284, 285 fn. 2 (1980), enfd. 652 F.2d 209 (1st Cir. 1981), the copy of the attendance record of any employee who has been late, tardy, or absent, and has not been disciplined. As with other requests in this section, we construe this request to pertain only to unit employees, and note that to the extent that the Respondent does not keep records concerning employees who were not disciplined, it is not obligated to produce such information. 5 Par. 102 seeks a list of all employees hired within the last 5 years, and certain information concerning them. The General Counsel sug- gests that the information provided should be limited to current em- ployees, dating from the date of the election on August 23, 2001. We agree that the information should be so limited. Further, the Respon- dent need not provide information in response to par. 106 to the extent that it is duplicative of information provided in response to other para- graphs of the request. Board found a request for a list of all State agencies and statutes governing an employer’s operations “as a day care center” to be presumptively relevant. Such agencies and statutes obviously concern the health and safety mat- ters that are peculiar to such an institution. The employ- ees working there have a presumptive interest in such matters. By contrast, there is no such limitation here. The Respondent is a manufacturer of food products, and the request is not confined to this particular kind of busi- ness. Thus, we find that the requests in paragraphs 15, 16, and 17, are not presumptively relevant, and that the General Counsel has failed to establish such relevance.6 Paragraphs 18–20, 71, and 100 seek information con- cerning citations, indictments, criminal complaints, civil lawsuits, or charges involving discrimination filed against the Respondent in the last 5 years, including a list 6 Because we find that the General Counsel has not established the presumptive relevance of these paragraphs of the information request, we do not find that the Respondent unlawfully failed to comply with the request. We do not base our denial of summary judgment as to these paragraphs on any finding that the Union’s request was over- broad. As our colleague notes, only where an information request is shown to include relevant and necessary information is overbreadth not a defense to a blanket refusal to comply. Here, the General Counsel has not established presumptive relevant and thus we do not find that the Respondent was under an obligation to request clarification or provide some information. Member Liebman dissents with respect to the majority’s failure to order the Respondent to provide the additional information requested in pars. 15 (all local, State, and Federal laws governing the operation of the business), 16 (notices required by law to be posted in the work- place), and 17 (company policies relating to the laws referred to above). With respect to pars. 15 and 17, Member Liebman is not persuaded by her colleagues’ attempt to distinguish Living & Learning Centers, which held presumptively relevant a similar request for “a listing of all state agencies and statutes which govern operations at Living and Learning, Inc., as a day care center.” Unlike the majority, Member Liebman does not read the Board’s decision in Living and Learning Centers as restricted to “day care centers.” That phrase merely de- scribed the kind of business in which that particular employer was engaged and was not a limitation on the Board’s holding. Further, the interest that the majority acknowledges that employees working in a day care center have in matters of health and safety applies with equal force to the employees of the Respondent who are engaged in the manufacture of food products. Finally, even if the information sought in pars. 15 and 17 is broader than the information requested in Living & Learning Centers, the Respondent’s blanket refusal to comply with the Union’s request still would not be justified. “[A]n employer may not simply refuse to comply with a[n] . . . overbroad information request, but must request clarification or comply with the request to the extent that it encompasses necessary and relevant information.” Superior Protection, supra, 341 NLRB at 269. With respect to the information sought in par. 16, it is well estab- lished that the NLRA should not be construed in isolation, but must be considered in light of other relevant statutory schemes. See Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942). Employment-related information that State and Federal laws require an employer to disclose to bargaining unit employees clearly relate to their working conditions. Therefore, such information is presumptively relevant and necessary for collective bargaining. MISSION FOODS 791 of all employees who were involved in the charges, and the names of all employees who have been charged or convicted of any criminal offense. In prior cases, the Board has held that information concerning certain types of lawsuits is not presumptively relevant. See, e.g., Ma- ple View Manor, 320 NLRB at 1151 (sexual harassment or discrimination charges not presumptively relevant); Polymers, Inc., 319 NLRB 26, 27 (1995) (charges and complaint filed against company by employees not pre- sumptively relevant). With respect to information about other types of citations, indictments, criminal complaints, civil lawsuits, or charges, although it may be possible to establish a reason why such information is relevant, the Board has not found that it is presumptively so. See, e.g., Honda of Hayward, 314 NLRB at 452 (probable relevance of lawsuits filed against employees by third parties was established by the General Counsel). In the present case, we find that the General Counsel has failed to establish that the information sought in paragraphs 18– 20, 71, and 100 is presumptively relevant. Paragraph 43 seeks the name of each supervisor, man- ager, or other person who was involved in each merit pay evaluation. Information concerning merit pay systems and evaluations that lead to merit pay is presumptively relevant. See, e.g., Maple View Manor, 320 NLRB at 1150–1151. However, the General Counsel has not es- tablished that the names of the individuals involved with such evaluations are presumptively relevant. Further, paragraph 91 requests a copy of any employment appli- cation form currently used by the employer, and para- graph 99 requests copies of all materials that have been posted on company bulletin boards during the last year. The Board has not passed on whether employment appli- cation forms or material posted on bulletin boards are presumptively relevant, and thus we find it inappropriate to grant summary judgment.7 7 Member Liebman finds it unnecessary to pass on the issue whether the employment application form requested in par. 91 is presumptively relevant. She observes that, as the General Counsel points out, the Respondent has failed to raise any specific issue of material fact regard- ing the Union’s broad request in par. 101 for “company policies or procedures related to the hiring process.” In Member Liebman’s view, the Respondent’s obligation to provide the more extensive information specified in par. 101 encompasses the limited information requested in par. 91. Member Liebman dissents with respect to the majority’s failure to order the Respondent to provide the information requested in par. 99, i.e., “[c]opies of all materials which have been posted on . . . bulletin boards during the last year.” It has long been held that “bulletin board use [is] among those ‘conditions of employment’ which the Act re- quires to be the subjects of collective bargaining.” NLRB v. Proof Co., 242 F.2d 560, 562 (7th Cir. 1957). Further, although there is no statu- tory right of employees or a union to use an employer’s bulletin board, “where, by policy or practice, the company permits employee access to bulletin boards for any purpose, section 7 of the Act . . . secures the Accordingly, we deny the General Counsel’s motion on the information requests in paragraphs 15–16, 18–20, 43, 71, 91, and 99–100, and remand these issues to the Regional Director for further appropriate action. 5. Proprietary, confidential, or privileged The Respondent contends that some of the information sought by the Union is proprietary, confidential, or privi- leged. Specifically, the Respondent alleges that the in- formation requested in paragraphs 27, 46–47, 53–54, 63, 65, 67, 72, and 93–94 are confidential or privileged, and therefore should not be produced. In addition, the Re- spondent notes that in paragraph 1, the Union seeks the employees’ social security numbers, which the Respon- dent is under no obligation to disclose, citing Excel Fire Protection, 308 NLRB 241 (1992). Finally, the Respon- dent contends that a hearing is necessary to balance the Union’s need for the information against the confidenti- ality interests of the Respondent and its employees, cit- ing Detroit Edison v. NLRB, 440 U.S. 301 (1979). The Board has held that employee social security numbers are not presumptively relevant and that the Un- ion must therefore demonstrate the relevance of such information. See, e.g., Metro Health Foundation, Inc., 338 NLRB at 803 fn. 2, and cases cited therein. The Union has not provided any reason why it needs the em- ployees’ social security numbers. Accordingly, we deny the motion for summary judgment with respect to the Respondent’s alleged failure to provide this information, and remand this issue to the Regional Director for further appropriate action. With respect to the other information that the Respon- dent contends is confidential or privileged, it is well set- tled that in certain situations, confidentiality claims may justify a refusal to provide information. See, e.g., Crit- tenton Hospital, 342 NLRB 686, 696–697 (2004). In that case, the Board recognized that when a confidential- ity claim has been raised, the trier of fact must balance the union’s need for the information sought against the legitimate confidentiality interests of the employer. Id. However, the confidentiality claim must be timely raised and proven before the balancing test is triggered, and a blanket claim of confidentiality will not satisfy the re- spondent’s burden of proof. Id. In addition, it is well settled that “[a]n employer is not relieved of its obligation to turn over relevant informa- tion simply by invoking concerns about confidentiality, employees’ right to post union materials.” Union Carbide Corp. v. NLRB, 714 F.2d 657, 660 (6th Cir. 1983) (emphasis added). Accord- ingly, Member Liebman would find that the information sought in par. 99, which is necessary to determine whether such a practice existed at the Respondent’s facilities, is presumptively relevant for purposes of collective bargaining. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792 but must offer to accommodate both its concern and its bargaining obligations, as is often done by making an offer to release information conditionally or by placing restrictions on the use of that information.” U.S. Testing Co. v. NLRB, 160 F.3d 14, 20 (D.C. Cir. 1998). Here, the Respondent has only asserted a blanket claim of con- fidentiality, and has not established why particular in- formation would trigger specific confidentiality con- cerns. In addition, the Respondent has not made any offer to accommodate the Union’s legitimate interest in relevant information. Accordingly, with the exception of employees’ social security numbers, we find that the assertion that the information request seeks information that is confidential does not excuse the Respondent’s failure to comply with the request. 6. Conclusion Accordingly, we grant the Motion for Summary Judg- ment and order the Respondent to bargain with the Union and to furnish the Union with the information it re- quested, with the exception of employee social security numbers; a list of all local, State, and Federal laws, stat- utes, ordinances, or regulations that the Respondent be- lieves govern its business operations; a copy of all com- pany policies that relate to any of these laws; a list of all notices required by State or Federal law to be posted in the workplace; information concerning citations, indict- ments, criminal complaints, civil lawsuits, or charges involving discrimination filed against the Respondent in the last 5 years, including a list of all employees who were involved in the charges, and the names of all em- ployees who have been charged or convicted of any criminal offense; a list of the name of each supervisor, manager, or other person who was involved in each merit pay evaluation; employment application forms; and cop- ies of all materials that have been posted on company bulletin boards. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Arizona cor- poration, with an office and place of business located at 5860 South Ash Avenue, Tempe, Arizona (the Respon- dent’s facility), has been engaged in the manufacture of food products such as tortillas and chips. During the 12-month period ending February 16, 2005, the Respondent, in conducting its business operations described above, purchased and received at its facility goods valued in excess of $50,000 directly from points outside the State of Arizona. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that United Food and Commercial Workers Union, Local 99 (the Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held August 23, 2001, the Un- ion was certified on November 22, 2004, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time TQ techs, sanitation techs, receivers, customer service reps, mechanics, pro- duction operators, production packers, production sweepers, production ingredients, production maseca dumpers employed by the Respondent at its facilities located at 5860 South Ash Avenue, Tempe, Arizona, and all full-time and regular part-time warehousemen employed by the Respondent at its facilities located at 840 West Carver Road, Tempe, Arizona; but excluding all other employees, office clericals, guards, and super- visors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On or about February 11, 2005, the Union, by letter to the Respondent and its counsel, requested that the Re- spondent recognize and bargain with it as the exclusive collective-bargaining representative of the certified unit. Since on or about February 11, 2005, the Respondent has failed and refused to bargain with the Union. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. On or about December 2, 2004, the Union, by letter, requested that the Respondent furnish it with specific information. The information requested by the Union, except as de- scribed above, is necessary for, and relevant to, the Un- ion’s performance of its duties as the exclusive collec- tive-bargaining representative of the unit. Since on or about December 2, 2004, the Respondent has failed and refused to furnish the Union with the in- formation requested by the Union. CONCLUSION OF LAW By refusing since December 2, 2004 to furnish the Un- ion with requested information, and by refusing since February 11, 2005, to bargain with the Union as the ex- clusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the MISSION FOODS 793 meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. We also shall order the Respon- dent to furnish the Union the information requested, with the exception of employee social security numbers; a list of all local, State, and Federal laws, statutes, ordinances, or regulations that the Respondent believes govern its business operations; a copy of all company policies that relate to any of these laws; a list of all notices required by State or Federal law to be posted in the workplace; information concerning citations, indictments, criminal complaints, civil lawsuits, or charges involving discrimi- nation filed against the Respondent in the last 5 years, including a list of all employees who were involved in the charges, and the names of all employees who have been charged or convicted of any criminal offense; a list of the name of each supervisor, manager, or other person who was involved in each merit pay evaluation; em- ployment application forms; and copies of all materials that have been posted on company bulletin boards. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Gruma Corporation d/b/a Mission Foods, Tempe, Arizona, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with United Food and Com- mercial Workers Union, Local 99, as the exclusive bar- gaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bar- gaining representative of the unit employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time TQ techs, sanitation techs, receivers, customer service reps, mechanics, pro- duction operators, production packers, production sweepers, production ingredients, production maseca dumpers employed by the Respondent at its facilities located at 5860 South Ash Avenue, Tempe, Arizona, and all full-time and regular part-time warehousemen employed by the Respondent at its facilities located at 840 West Carver Road, Tempe, Arizona; but excluding all other employees, office clericals, guards, and super- visors as defined in the Act. (b) Furnish the Union with the information requested by the Union in its letter dated December 2, 2004, with the exception of employee social security numbers; a list of all local, State, and Federal laws, statutes, ordinances, or regulations that the Respondent believes govern its business operations; a copy of all company policies that relate to any of these laws; a list of all notices required by State or Federal law to be posted in the workplace; information concerning citations, indictments, criminal complaints, civil lawsuits, or charges involving discrimi- nation filed against the Respondent in the last 5 years, including a list of all employees who were involved in the charges, and the names of all employees who have been charged or convicted of any criminal offense; a list of the name of each supervisor, manager, or other person who was involved in each merit pay evaluation; em- ployment application forms; and copies of all materials that have been posted on company bulletin boards. (c) Within 14 days after service by the Region, post at its facilities in Tempe, Arizona, copies of the attached notice marked “Appendix B.”8 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event 8 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794 that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 2, 2004. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MISSION FOODS 795 APPENDIX A December 2, 2004 FACSIMILE & US MAIL Mr. Paul De La 0 Mission Foods 5860 South Ash Avenue Tempe, AZ 85283 Dear Sir: In order to prepare for collective bargaining, the Union hereby requests the following information. 1. A list of all workers currently employed in the bargaining unit, including their full names, dates of hire, rates of pay, job classification, last known address, telephone number, and Social Security number. 2. A copy of all current personnel policies, practices or procedures, and a full description of any unwritten policies, practices or procedures. 3. A copy of all current work rules, and a full description of any unwritten work rules, 4. A copy of each current job description for all positions within the bargaining unit. 5. A copy of any company wage or salary plan. 6. Copies of all disciplinary notices, warnings or other records of disciplinary actions taken against any member of the bargaining unit for the past year. United Food and Commercial Workers Union Local 2401 N. Central Avenue 2nd Floor Phoenix AZ 85004-1331 (602) 254-0099, (800) 997--0099, Fax (602) 251-0459 508 S. Plumer Tucson, AZ 6 5 719-70 (520) 884-9716 , (800)997-0099. Fax (520) 884-9023 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796 7. A copy of all reports ofoccupational injuries and illnesses,including copies of the OSHA 200 lags for the past five years. 8. A copy of all job accident reports for the last five years. 9 . The name and address of the company’s current workers’compensation carrier. 10 . A copy of all workers’ compensation claims, along with s copy of any document showing any resolution of such claims, whether by settlement or litigation, for the last five years. 11. A copy of any company manual regarding the handling or administrationof workers’ compensation claims. 12. A copy of any attendance policy or program. 13. A copy of the .attendance record of any employee inthe bargaining unit who has been warned either orally or in writing, suspended, terminated, or. otherwise disciplined because of an attendance problem. 14. A. copy of the attendance record of anyemployee who has been late, tardy or absent who has notbeen warned either orally or in writingorotherwise disciplined. 15 . A list of all local state and federal laws, statutes, ordinances or regulations which the employer believes govern the operation of the business. 16 . A list of all notices required by any state or federal law posted in the workplace. 17. A copy of all company policies which concern, mention or relate to any of the laws, statutes, ordinances or regulations referred to above. 18. Copies of all citations, indictments, criminal charges, civil complaints, informa- tion or other documents reflecting any charges by any public agency or authority under any criminal or civil statute against the company for the last five years. For each such December 2, 2004 Page2 MISSION FOODS 797 document, please provide a complete copy of the document reflecting the charges, and any document which reflects the disposition of such charges. 19 . A list of•all employees who were involved In the charges or citations mentioned above, For any employee who is accused or alleged to have. en- gaged in any of the alleged wrongdoing, please provide the nature of the al- leged wrongdoing and the nature of any discipline, if any, which was imposed upon said employee. 20 . The names of all company employees who to the company’s knowledge have been charged with or convicted of any criminal offense, no matter how minor (whether misdemeanor, infraction, felony or otherwise). For each such employee, provide the name of the employee. the data upon which the em- ployee was charged or convicted of said offense, the results of any criminal proceeding, and the disciplinary action, If any, taken by the company against said employee. 21. A copy of the Summary Plan Description, as well as the Plan, for the em- ployer’s current health care plan. 22. A copy of the IRS Form 5504 for the most recent tax year for the com- pany’s health care plan. 23 A copy of any rules, regulations, procedures, administrative manual or other policies or procedures which affect or relate to the company’s health care plan. 24. A cost breakdown of the employer’s current health care plan. 25. The name, address and principal contact of the office which administers the health care plan. 26 . The name and address of the ‘administrator’ of the employer’s health care plan, as that term is defined in the Employee Retirement Income Security Act. 27. Copies of all claims for coverage under the plan made by employees during the last five years, as well as copies of any correspondence or other documents with respect to the processing of those claims and the payments of those claims. December 2, 2004 Page 3 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798 28. A copy of any contract with any health care provider, Insurer, or health care plan. 29. Copies of all sick leave and attendance records of all employees. 30. A copy of any current profit-sharing plan, stock Investment plan, 401(k) plan or similar plan affecting any employee, including a copy of the current Summary Plan Description and the plan itself. 31. A copy of the IRS Form 5500 for any such plan for the most re- cent tax year. 32. A copy of the financial statement for each such plan for the last five years. 33. A copy of any and all actuarial studies with respect to each such plan. 34. Any document which shows the current assets of each such plan, Including a description of those assets. 35. A list of the amount contributed by the employer to any such plan, the dates of the contribution and the nature of the contribution (Whether cash, stock or otherwise) for the last five years. 36. A copy of all policies or procedures relating to employee trans- fers, whether from one department to another or from one work location to another. 3 7 . A list dell employees who have transferred from one department to another or from one location to any other location with the date of transfer, the department or location from which transferred, the depart- ment or location to which transferred, the job classification from which the employee was transferred, and the job classification to which the employee transferred. in addition, please provide the reason or reasons for the transfer. 38. If any employee who has requested a transfer has been denied the right to transfer, please provide the employee’s name, the date the per- son requested the transfer, the date the person was denied the right to transfer, and the reason or reasons for such denial. December 2, 2004 Page 4 MISSION FOODS 799 39. A list of all employees who have received any merit pay increases or decreases. For each such employee, please give the Herne of the employee, the date that the merit raise or decrease was given, the amount of the increase or decrease, the name of the supervisor Involved in the decision, and the rea- son for the increase or decrease. 40. Please provide a copy of all documents or evaluations which were used by the employer in the course of ail merit increases, including the specific criteria by which merit pay decisions were made. 41. A copy of any merit pay plan. 42. If any employee has been denied merit pay, please give the name of the employee, the date upon which the employee was denied any merit pay, and the reason for the denial. 43. List the name of each supervisor, manager, or other person who was Involved in each merit pay evaluation. 44. Copies of any wage surveys conducted by or on behalf of the em- ployer. 45. A statement of all company policies or procedures with respect to leaves of absence, including any family leave policy. 46. A list of all employees who have taken leaves of absence for any period of time for any purpose. For each employee, provide the name of the employee, the date the leave began, the date the leave ended, and the reason for the leave. 47. With respect to any employee who has been denied any leave of absence, provide the name of the employee, the date the employee was denied leave, and the reason or reasons that the employee was denied such leave. 48. Copies of all disability plans or programs, including copies of all dis- ability policies maintained by the company. 49. Copies of all material safety data sheets maintained by the employer. December 2, 2004 Page .5 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800 50. A list of all chemicals .or compounds which are used, stored or sold at the facility, including a description of the Ingredients of such chemical or compound, as well as the generic name of all such chemicals or compounds. 51. The location in the facility where such chemicals or compounds are stored. 52. A copy of any company emergency response plan or program, including a copy of any contract with any outside vendor or supplier who provides emergency response in the case of any chemical or toxic accident. 53. A description and list of all proprietary information which the employer considers to be confidential. 54. A fist of all individuals to whom such proprietary information is nor- mally distributed. 55. A statement of any company policy with respect to the use or disclosure of proprietary Information. 56 . Copies of descriptions of all proprietary information to which bargain- ing unit members have access. 57. The name of any employee disciplined for misuse or disclosure or other action relating to proprietary information, including the name of the em- ployee, the date such disciplinary action was taken, the nature of the disci December 2, 2004 Page 6 58. A list of all bonuses, prizes or rewards or other cash or other gifts given to employees. This list should Include those that were available to but were not given to employees. 59. A statement of any company policy or program regarding bonuses, prizes, rewards or unusual cash or other gifts. 60. A copy of all company life Insurance plans or programs covering any employee, including a cost breakdown or cost analysis of such plan. MISSION FOODS 801 6 1 . A list of ail company employees with their age and sex. 62. A copy of any company policy or procedure with respect to drug or alcohol abuse. 63. The names of alt employees who are known to the employer to have had any drug or alcohol problem, including the employee’s name, classification, work location. the nature of the drug or alcohol problem, and any action taken by the company with respect to such drug or al- cohol problem. 64. A full description of any impact that the employer believes drug or alcohol abuse has had In the workplace, including a de- scription of each known incident of such abuse; and its specific im- pact upon the workplace. 65. A list of any equipment for which the use of operation of which may be affected by drug or alcohol abuse; the classifications of employees who operate that equipment, and any information with respect to incidents of.drug or alcohol abuse by employees who have operated or maintained that equipment. 66 . Copies of any reports or studies with respect to use or abuse of drugs or alcohol by employees. 67. Copies of the results of any drug or alcohol tests conducted on employees. 68. If the employer has required any employee to take a drug or alcohol test, provide the name of the employees who were tested, a copy of the test results, and any action taken by the company with respect to such employee. If any employee has declined or refused to take such a drug or alcohol test, provide the name of the em- ployee, the circumstances under which the test was requested, and any action taken. 69 . A copy of any company policy or program relating to discrimination or sexual harassment. 70 . Copies of any company policy or procedure concerning af- firmative action or discrimination or harassment with respect to race, national origin, sex, sexual orientation, age or religion. December 2, 2004 Page 7 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802 71. Copies of all charges or complaints received from any state or federal admin- istrative agency or any court suit concerning discrimination or harassment based on race, national origin, sex, sexual orientation, age, disability or religion. With respect to any such complaint, charge or lawsuit, provide not only a copy of the complaint, charge or lawsuit but also a copy of any document showing the resolution or conclusion of that liti- gation, complaint or charge. 72. Copies of any internal investigation reports with respect to any complaints, charges or allegations concerning discrimination or harassment based on race, national origin, sex, sexual orientation, age, disability or religion. 73. Copies of all EEO-1 reports. 74. A statement of any policies or procedures with respect to grooming, clothes, weight or height or any other personal affects. 75. A list of all employees who have been disciplined, discharged, warned or other- wise counseled regarding grooming, clothing, weight or height or other personal ap- pearance matters. For each such person, provide the date of the occurrence, the reason for the occurrence, and any company action which was taken with respect to groom- ing, clothes, weight or height or any other personal appearance matter. 76. A list of all company uniforms or special clothing which the employees are re- quired to wear, including a description of the uniforms or special clothing, the classi- fication of employees which are required to wear these uniforms or special clothing, and a description of the circumstances under which they are to be worn. 77. A statement of all company policies regarding smoking. 78. A copy of all company policies or procedures with respect to discipline, including any company work rule, house rule, or other rule or regulation which may have disci- plinary consequences for any employee for any worker employed in the bargaining unit. 79. A list of all employees who have been disciplined, including oral or written warn- ings, suspensions or terminations, specifying the date of the discipline, the nature of the discipline, and the reason December 2, 2004 Page 8 MISSION FOODS 803 such discipline was imposed, 80. A list of all employees who have engaged In conduct for which the com- pany has considered imposing discipline, but has not actually Imposed such discipline, including the name of the employee, the date of the Incidents, the nature of the discipline considered, and the reason discipline was not im- posed. 81. Copies of all employee evaluations. 82. Identify any employee with whom the company has any oral or written agreement or contract, and provide a copy of such agreement if it is in writing or, If oral, a description of the agreement, Including all of its terms end condi- tions. 83. A statement of all company policies.or procedures with respect to promo- tions. 84. A list of all employees who have been promoted, either within classifica- tions in the bargaining unit, or from classifications within the bargaining unit, to positions outside the bargaining unit. For each such person, provide the job classification, the classification to which promoted, the date of the promotion, the pay rate when promoted, the pay rate of the promotion, and the reason or reasons for the promotion. 85. With respect to alt positions which have been filled by hiring from the outside, state the date an opening occurred, the nature of the position, the pay rate, any steps taken by the company to publicize the opening to persons al- ready in the employ of the company, and the reason or reasons individuals. were hired from the outside rather than promoting Individuals from within. 86. With respect to all employees who have been denied a promotion, pro- vide the name of the employee, the date of the denial of the promotion, and the reason or reasons given that the person was denied such promotion. 87. A-statement of any and all company policies or programs relating to training. 88. The names of all employees who have been involved in any training pro- gram during the last five years, with the date or dates of December 2, 2004 Page 9 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804 such training program, a description of the training program, and the name of the individuals conducting the training program. 89 . A list of the names of all employees who have been asked to be trained but have been denied any training during the last five years, with the dates of the denial and the reason for the denial. 90. Copies of all manuals, directives, policies, service manuals, mainte- nance manuals, and other materials related to employee training. 91. A copy of any employment application form currently in use by the employer. 92. A description of all medical tests required of applicants and em- ployees. 93. A list of all employees who have been provided accommodation for any physical or mental disability or handicap. For each such person, provide the person’s name, a description of the disability, a description of the accommodation provided, and a statement of the estimated cost to the company of accommodating that individual. 94. A list of all employees who have not been provided accommoda- tion for any physical or mental disability or handicap. For each such person, provide the person’s name, a description of the disability, a de- scription of the reason why no accommodation was made for the dis- ability, and a statement of the estimated cost to the company had it ac- commodated the disability. 95. A statement of any company polices or procedures regarding im- plementation or administration of any program relating to the Ameri- cans with Disabilities Act or any similar law or policy. 96. A description of all areas of the facility which constitute “non- work areas” for any employee in the bargaining unit, such as break rooms, lunch rooms, locker rooms, etc. 97. Designate the locations where any bulletin board or other area is located where notices are customarily posted to employees and/or customers. December 2, 2004 Page 10 MISSION FOODS 805 98 . Copies of any policies or procedures with respect to the use of such bulletin boards or place where notices are routinely posted. 99. Copies of all materials which have been posted on such bulletin boards during the last year. 100. Copies of all lawsuits filed against the employer in which any parson employed by the employer has been named personally as a defendant during the last five years, including a copy of the complaint and any document showing the disposition of such case, such as settlement or judgment. 101. A statement of any and all company policies or procedures related to the hiring process. 102. A list of all employees hired within the last five years, including their names, dates of hire, classification. rates’ of pay, last known employment immediately before working for this company the source of their hiring (whether an employment agency, walk-in, advertisement, etc.) and the manner in which they were Interviewed and/or hired. 103. With respect to any employee who has been laid off from work, pro- vide the date the person was initially employed, the date or dates the em- ployee was laid off, the name of the employee, and the manner in which the employee was recalled, if at all, in each case. 104. A copy of all company policies and procedures with respect to layoff and recall. 105. A copy of all tests which are given to applicants and employees, in- cluding application forms. If there Is no written test given, provide a de- scription of any other test given. 106. A list of employees disciplined, discharged, or laid off due to Immigra- tion status, social security number, or failure to verify either immigration status or social security number. December 2, 2004 Page 11 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806 107. A copy of all policies and procedures with respect to immigration status and social security numbers. Your immediate attention to this request will be appreciated. APPENDIX B 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with United Food and Commercial Workers Union, Local 99, as the exclusive bargaining representative of the employees in the bar- gaining unit, and WE WILL NOT refuse to furnish the Un- ion information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time TQ techs, sanitation techs, receivers, customer service reps, mechanics, pro- duction operators, production packers, production sweepers, production ingredients, production maseca dumpers employed by us at our facilities located at 5860 South Ash Avenue, Tempe, Arizona, and all full- time and regular part-time warehousemen employed by us at our facilities located at 840 West Carver Road, Tempe, Arizona; but excluding all other employees, of- fice clericals, guards, and supervisors as defined in the Act. WE WILL furnish the Union with the information re- quested in its letter dated December 2, 2004, with the exception of employee social security numbers; a list of all local, State, and Federal laws, statutes, ordinances, or regulations that we believe govern our business opera- tions; a copy of all company policies that relate to any of these laws; a list of all notices required by State or Fed- eral law to be posted in the workplace; information con- cerning citations, indictments, criminal complaints, civil lawsuits, or charges involving discrimination filed against us in the last 5 years, including a list of all em- ployees who were involved in the charges, and the names of all employees who have been charged or convicted of any criminal offense; a list of the name of each supervi- sor, manager, or other person who was involved in each merit pay evaluation; employment application forms. GRUMA CORPORATION D/B/A MISSION FOODS