Montgomery Ward & Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Montgomery Ward & Co., Incorporated and Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO. Case 7-CA- 13895 January 31, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge duly filed on March 22, 1977, by Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Montgomery Ward & Co., Incorporated, herein called Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on April 26, 1977, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that commencing in or about late December 1976, and continuing at all times thereafter until March 24, 1977, Respondent has refused to bargain collectively with the Union as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropri- ate by refusing to voluntarily provide the Union with certain information that the Union requested on December 20, 1976, and January 7, March 6, and March 17, 1977, which was relevant to the Union's duty and function of acting as the employees' collective-bargaining representative. Respondent filed an answer to the complaint on May 20, 1977, admitting in part and denying in part the allegations therein, and submitting an affirmative defense. On July 7, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. On September 1, 1977, Respondent filed both a response to the Notice To Show Cause and its own Motion To Dismiss. Thereafter, the Charging Party Union filed a brief in opposition to the Respondent's Motion to Dismiss. I Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 2 We note that the facts on which Respondent relies in its motion are unverified, unaccompanied by any documentary evidence, and contested by the Charging Party Union in its response to Respondent's motion. 234 NLRB No. 88 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this case, the Board makes the following: Rulings on Motion To Dismiss and Motion for Summary Judgment In its answer, Respondent admits all of the factual allegations of the complaint except that relating to the relevancy of the information requested by the Union, which it denies. The Union had requested the information in order to process and evaluate proper- ly a grievance and prepare for arbitration thereon. The grievance concerned whether compensation was due to employees during a power outage which forced the closing of Respondent's Gratiot Avenue, Detroit, store on March 5, 6, and 10, 1976. However, before we consider the alleged 8(a)(5) violation on its merits, we must first rule on Respondent's Motion To Dismiss. Respondent's motion presents the following ques- tion: Should the Board, pursuant to its Spielberg doctrine,' defer to an arbitrator's ruling relating to a union's claim that an employer refused to furnish certain information which the union had requested in order to properly prepare for arbitration? In its motion, Respondent asserts that its duty to provide information to the Union during the contractually established arbitration proceeding is a procedural issue attendant to the arbitration process, and was properly argued by both parties and submitted to the arbitrator. Moreover, Respondent states, the arbitra- tor resolved the issue by determining that the requested information was relevant to the grievance before him, and by issuing a subpena for the production of such information.2 Accordingly, Re- spondent maintains, the Board should defer to the arbitrator's ruling to the extent that he determined that Respondent was under an obligation to provide the Union with the information it requested. We agree with Respondent that, in this case, the issue regarding its duty to provide the Union with the requested information was a procedural matter atten- dant to the arbitration process. In that respect, the arbitrator issued a subpena for the requested infor- mation. Subsequently, as Respondent states in its motion, the hearing was postponed for a time sufficient to allow the Union to examine the informa- tion thereafter produced by Respondent. Moreover, according to Respondent's motion, the sole grievance Nonetheless, in light of our ruling on Respondent's motion, we find it unnecessary to address the discrepancies between the parties' recitation of the pertinent facts. 588 MONTGOMERY WARD & CO. which the parties had agreed to submit to arbitration related to the compensation matter. Thus, the issue of Respondent's refusal to provide the requested information was not itself subject to the grievance- arbitration provisions of the collective-bargaining agreement and was not presented to or considered by the arbitrator as a violation of the parties' contract. In situations such as this, where the parties and an arbitrator treat a union's unfulfilled request for information as a procedural matter attendant to the arbitration process rather than a separate grievance subject to arbitration, the Spielberg doctrine is inapplicable.3 Further, an unwarranted delay in complying with the Union's request for relevant information (as opposed to a complete failure to comply with such a request) may be sufficient in itself to establish a violation of Section 8(a)(5). 4 This issue was not presented to the arbitrator, nor could it in any event have been decided by him. It is neither a matter of contract interpretation nor a procedural matter attendant to the arbitration process. Rather, the issue regarding Respondent's delay can be resolved only by reference to the rights established by the Act.5 Accordingly, we do not regard the arbitrator's ruling as controlling, and we shall deny Respondent's Motion To Dismiss. 6 We return now to the merits of the 8(a)(5) allegation. The question presented by the General Counsel's Motion for Summary Judgment is whether Respondent violated the Act by failing to furnish in timely fashion certain information which the Union requested in order to prepare for an arbitration proceeding. It is well settled that the duty of an employer to bargain in good faith under Section 8(a)(5) of the Act includes the obligation to provide 3 See The Kroger Company. 226 NLRB 512 (1976). In that case, The Board noted that the arbitrator, as in the instant case, did not consider the employer's refusal to furnish information as a substantive issue under arbitration; rather, the arbitrator treated the union's request for information as a "matter of compliance" with the terms of the award. 4 Ellsworth Sheet Metal, Inc., 232 NLRB 109 (1977). s Member Penello does not agree that the issue of whether an employer unreasonably delays compliance with a union's request for relevant information could not "in any event" be decided by an arbitrator. In that regard, he does not see why a union cannot file such a grievance against an employer under a collective-bargaining provision which requires the employer to furnish relevant information in a timely fashion. In fact, the provision need not state that the employer must comply with such requests in any particular time period, for the law will insert a "reasonableness" time limit into such clauses. By arbitrating this matter, the parties can seek to clarify their nghts and obligations under the contract. Otherwise, an employer could easily defeat the intent of the parties in their collective- bargaining agreement by delaying compliance with such requests until immediately prior to or during an arbitral proceeding, as was the case here. Also, Member Penello does not agree with the majority's observation that an employer's delay in complying with requests for information "can be resolved only by reference to the rights established by the Act." (Emphasis supplied.) As stated above, this matter can also be resolved by the parties in an arbitration proceeding. s We also note that the procedural dispute between the parties (refusal to furnish information relevant to contract administration and enforcement) "may itself be viewed as an obstruction to the grievance and arbitration process." A. O. Smith Corporation, 223 NLRB 838, 843, fn. 14 (1976). This its employees' collective-bargaining representative with information relevant and reasonably necessary to the intelligent performance of its function as bargaining agent.7 This obligation to furnish infor- mation extends beyond the period of contract negoti- ations and applies to labor-management relations during the term of an agreement, including evalu- ation of grievances 8 and preparation for arbitration.9 Thus, Respondent was under an obligation to furnish information to the Union in order to assist it in properly preparing for arbitration if the information requested was relevant to the grievance scheduled for arbitration. The Union's grievance pertained to whether com- pensation was due to the Employer's employees at its Gratiot Avenue, Detroit, Michigan, store on March 5, 6, and 10, 1976. The information which the Union requested related to (1) wage and time records of all employees at the Employer's Gratiot Avenue store on March 5, 6, and 10, 1976, and (2) posted work schedules for four particular grievants at the same store on March 10, 1976. Thus, the requested information was clearly relevant to the grievance. Moreover, the request pertained to wage and em- ployment data of in-unit employees. The Board has consistently held that such information is presump- tively relevant.' 0 In its response to the Notice To Show Cause, Respondent did not dispute the rele- vance of the information requested. Thus, we find that the information requested by the Union was relevant and reasonably necessary to the intelligent performance of the Union's function as bargaining agent. Respondent took approximately 3 months before it finally complied with the Union's request for rele- consideration "caution(s] against our abstention on.a claim that a respon- dent has sought. by prohibited means, to inhibit or preclude access to the grievance procedures." Joseph T. Ryerson d Sons, Inc., 199 NLRB 461, 462 (1972). Moreover, in relying on deferral pursuant to Spielberg in its motion, Respondent had the burden of proving facts sufficient to establish the applicability of the doctrine enunciated therein. See Keller-Crescent Coropa- ny, a Division of Mosler, 217 NLRB 685, 686 (1975). Nonetheless, Respondent has failed to show (by documentary evidence, affidavits, or otherwise) that the arbitrator had in fact considered the issue of its refusal to furnish the requested information, and ruled thereon. Therefore, Respon- dent cannot expect the Board to defer to an arbitrator's ruling or award which is not in evidence. Finally, Respondent urges our abstention on the basis of the Supreme Court's decision in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964). However, Wiley relates to abstention by the courts in procedural matters arising out of an arguably arbitral claim. On the other hand, in N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967), the Supreme Court stated that 'It ]he relationship of the Board to the arbitration process is of a quite different order." Id at 436 (emphasis supplied). The Court specifically found that the Board's order regarding the employer's statutory obligation to furnish information, "flar from intruding upon the preserve of the arbitrator ... was in aid of the arbitral process." Id at 438. 7 See, e.g., N.LRKB. v. Acme Industrial Co., supra at 435-436; Trustees of Boston University, 210 NLRB 330, 333 (1974). 8 See N. L R.B. v. Acme Industrial Co., supra at 436. 9 See The Kroger Company, supra. i0 See, e.g., Curtis-Wright Corporation, 145 NLRB 152, 157(1963). 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vant information. Such a delay evinces a failure to bargain in good faith within the meaning of Section 8(a)(5) of the Act."' Nevertheless, Respondent as- serts that it did not violate the Act as alleged by submitting to the arbitrator the procedural issue of whether the information requested by the Union was relevant and whether Respondent had a duty to furnish it. Respondent claims that its action was justified by the policy enunciated in the Board's Collyer doctrine, 12 which provides that "when the parties have contractually committed themselves to mutually agreeable procedures for resolving their disputes during the period of the contract, [the Board is] of the view that those procedures should be afforded full opportunity to function."13 However, that argument fails for two reasons. First, according to its motion, Respondent did not inform the Union that it would not voluntarily produce the requested information until 7 days prior to the arbitration hearing, almost 3 full months after the Union first made its request. Respondent's delay in responding to the Union's request for such information and its concomitant delay in ultimately furnishing the information cannot be excused merely because of the existence of a collective-bargaining agreement between the parties which provides for arbitration. The Board has held that, when presented with a request for information by a union relating to the union's enforcement or administration of the parties' collective-bargaining agreement, an employ- er must either promptly supply the information or adequately set forth reasons why it refuses to comply with the request.' 4 Second, as Respondent admits in its motion, the collective-bargaining agreement was silent regarding Respondent's contractual obligation to provide the Union with information which the Union requested in connection with the pending grievance. Thus, the Union was not apparently obligated under the contract to arbitrate Respondent's refusal to furnish the requested information. Accordingly, Respondent cannot justify its refusal on the grounds that it was seeking a determination from an arbitrator regarding the Union's request for information and the Employ- er's obligation to furnish such informational In these circumstances, we conclude that Respondent violat- ed Section 8(a)(5) and (1) of the Act by refusing to furnish the requested information to the Union in a timely fashion. Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. "I See Ellsworth Sheet Metal, Inc., 232 NLRB 109 (1977) (3 months' delay); The Colonial Press, Inc., 204 NLRB 852, 861 (1973) (2 months' delay); Ohio Medical Products, Division of Air Reduction Company, Inc., 194 NLRB 1, 6 (1971) (1-1/2 months' delay). 12 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837(1971). 13 Id. at 842-843. Upon the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation, maintains its principal office and place of business at 619 West Chicago Avenue, Chicago, Illinois. It is engaged in the retail sale and distribution of various types of hard and soft manufactured goods, merchandise, and related products. Respondent's retail outlet located at 14455 Gratiot Avenue, Detroit, Michigan, is the only facility involved in this proceeding. During the calendar year ending December 31, 1976, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, sold and distribut- ed at its stores in Michigan certain products the gross value of which exceeded $500,000, and shipped and transported products valued in excess of $100,000 to its Gratiot Avenue store directly from suppliers located outside the State of Michigan. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IlI. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by the Employer at its retail stores located at 13551 Michigan Avenue, Dearborn, Michigan; 13665 Eureka Road, Southgate, Michi- gan; 16700 Southfield Road, Allen Park, Michi- gan; 15400 Grand River Avenue, Detroit, Michi- 't See Ellsworth Sheet Metal, Inc., supra' The Kroger Company, supra, text therein at fn. II1; Building Construction Employers Association of Lincoln. Nebraska and M. W Anderson Construction Co., 185 NLRB 34, 38 (1970). 15 See W. A. Sheaffer Pen Company, a Division of Textron, Inc., 214 NLRB 15, 23-24 (1974). Cf. Worcester Polytechnic Institute, 213 NLRB 306, 308, fn. 3, 309(1974); American Standard Inc., 203 NLRB 1132 (1973). 590 MONTGOMERY WARD & CO. gan; and 14455 Gratiot Avenue, Detroit, Michi- gan; but excluding store managers, assistant managers, secretaries to the store managers, assistant store managers, store detectives, depart- ment managers, assistant department managers, personnel clerks, guards, professional employees and supervisors as defined in the Act. B. Recognition of the Union At all times since 1968 and continuing to date, the Union has been and is now the duly designated exclusive representative of all employees in the aforementioned appropriate unit for the purpose of collective bargaining with the Employer within the meaning of Section 9(a) of the Act. C. Request and Refusal To Bargain Commencing on or about December 20, 1976, and at all times thereafter until March 24, 1977, Respon- dent has refused to voluntarily furnish the Union with information that the Union requested in order to process and evaluate an existing grievance as well as to prepare for an arbitration hearing which occurred on or about March 24, 1977. The informa- tion requested was and is relevant to the Union's duty and function of acting as the collective-bargain- ing representative of the employees in the aforemen- tioned appropriate unit. Accordingly, we find that, by its refusal to furnish in a timely fashion the information requested by the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traff- ic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Montgomery Ward & Co., Incorporated, is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed by the Employer at its retail stores located at 13551 Michigan Avenue, Dearborn, Michigan; 13665 Eureka Road, Southgate, Michigan; 16700 Southfield Road, Allen Park, Michigan; 15400 Grand River Avenue, Detroit, Michigan; and 14455 Gratiot Avenue, Detroit, Michigan; but excluding store managers, assistant managers, secretaries to the store managers, assistant store managers, store detec- tives, department managers, assistant department managers, personnel clerks, guards, professional em- ployees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing on or about December 20, 1976, and continuing to refuse until March 24, 1977, to furnish the Union with certain relevant information that the Union requested in order to process and evaluate an existing grievance as well as to prepare for an arbitration hearing on March 24, 1977, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Montgomery Ward & Co., Incorporated, Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO, by refusing to furnish the aforesaid labor organiza- tion with relevant information that it requests in order to process and evaluate grievances as well as to prepare for arbitration. (b) In any like or related manner engaging in conduct in derogation of its statutory duty to bargain in good faith, and in any like or related manner interfering with, restraining, or coercing employees in 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its stores at 13551 Michigan Avenue, Dearborn, Michigan, 13665 Eureka Road, Southgate, Michigan, 16700 Southfield Road, Allen Park, Mich- igan, 15400 Grand River Avenue, Detroit, Michigan, and 14455 Gratiot Avenue, Detroit, Michigan, copies of the attached notice marked "Appendix." 1 6 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the Respondent's MotionTo Dismiss be, and it hereby is, denied. 16 In the event that 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with Retail Store Employees Union, Local 876, Retail Clerks International Associa- tion, AFL-CIO, by refusing to furnish the afore- said labor organization with relevant information that it requests in order to process and evaluate grievances as well as to prepare for arbitration. WE WILL NOT in any like or related manner engage in conduct in derogation of our statutory duty to bargain in good faith, and in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaran- teed them by Section 7 of the National Labor Relations Act. MONTGOMERY WARD & Co., INCORPORATED 592