Tony's Meats, Inc.

TONY'S MEATS, INC. 625 Tony's Meats, Inc. and Meatcutters District Union 427, Amalgamated Meatcutters & Butcher Work- men of North America, AFL-CIO. Case 8-CA-8005 June 17, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 29, 1974, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. 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. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Tony's Meats, Inc., Lorain, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent Employer has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE inafter referred to as the Board, against Tony's Meats, Inc., hereinafter referred to as Respondent or the Company, alleging violations of Section 8(a)(1), (3), and (5), and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices.I All parties were represented by counsel, and were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of the hearing, timely briefs were submitted by counsel for all the parties. Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Tony's Meats, Inc., is an Ohio corporation engaged in the retail sale of food products at its place of business in Lorain, Ohio. Annually the Respondent derives in excess of $500,000 from the retail sale of food products, and receives goods valued in excess of $25,000 at its place of business in Lorain, Ohio, directly from points located outside the State of Ohio. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Meatcutters District Union 427, Amalgamat- ed Meatcutters & Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Whether in refusing to furnish the Union with financial information upon request in order to substantiate the Respondent's claim that it was financially unable to meet the Union's wage demand, the Respondent violated Section 8(a)(1) and (5) of the Act. WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on February 28, 1974, at Elyria, Ohio, and is based upon a charge and an amended charge filed on November 14 and December 17, 1973 , respective- ly, by Meatcutters District Union 427, Amalgamated Meatcutters & Butcher Workmen of North America, AFL-CIO, hereinafter referred to as the Union, upon a complaint issued on January 7, 1974, by the General Counsel for the National Labor Relations Board, here- At the opening of the hearing the 8(a)(3) allegations of the complaint were settled by the parties, leaving the 8(a)(l) and (5) allegations to be tried. B. The Facts On September 29, 1972, pursuant to a Board-conducted election, the Union was certified as the exclusive bargain- ing representative of the Respondent's store employees. The unit, which I find to be an appropriate unit, consists of: All selling and nonselling employees employed at the 211 NLRB No. 88 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's Lorain, Ohio, store, excluding all office clerical employees, professional employees , guards and supervisors as defined in the Act. Thereafter, commencing toward the latter part of 1972, the parties engaged in a series of contract negotiations. After several such sessions, on February 9, 1973, the Union called a strike, which strike lasted until the following September 5, 1973. The bargaining sessions continued during the strike , and for a period after the termination of the strike. On December 3, 1973, the parties again met, with Business Representatives Frank Cinino and Paul Gauntner representing the Union, and Anthony Marinik, company president, and David L. Daley, attorney, representing the Company. During the 1101 - 1 /2 hour meeting, the negotia- tions were carried on almost entirely by Cinino and Daley. Daley opened the session by discussing with the union representatives the general economic position of the Company, asserting that the Company had lost between $25,000 and $40,000 worth of business per month during the 6-month period of the strike, and alluding to the uncertainty as to the supply as well as price of meat on the national scene and the fact that the Company had to pay top dollar for meat and lose money in selling it in order to stay in business . At some point, Daley made a company proposal concerning jury duty pay and funeral leave pay, which amounted to approximately a 15-cent-per-hour wage increase. According to the testimony of Marinik and Gauntner, both of whom I found credible, Daley indicated that this proposal was the best that it could make. When Cinino asked Daley what the Company was going to do about the Union's proposals relative to health and welfare contributions and pension contributions, Daley replied that the Company "can't do anything else and that during the 6 or 7 months strike there they had lost around $45,000 a month in business." In rejecting the Union's proposal, Daley indicated that that was the best proposal the Company could make at that time. At this point, according to Gauntner, Cinino asked to look at the Company's books to substantiate the loss, which request was refused by Daley. Cinino said that he needed proof of the loss, and that if the Union could see the books he could be in a position to tell the employees that he had seen the books , had verified the loss, and that that was all the Company could afford at the time. Daley refused. Cinino then asked Daley whether he would permit a CPA or neutral party to look at the books to verify the loss, to which Daley replied that Marinik was telling the truth and that he could see no reason for showing the company books. Although Gauntner testified on the stand, in reply to Daley's question, that something may have been said by Cinino to the effect that "auditors could find money in the books," Gauntner was firm in his testimony 7 Cinmo was in Puerto Rico at the time of this hearing and was, therefore, not available to testify. 3 The "financial records" referred to are (a) an affidavit of Mannik providing, in addition to nonmonetary information, the monthly gross revenue of the Respondent from January 1973 through September 1973, and (b) copies of Respondent's payroll records from August 1973 through October 1973 . Both documents had previously been submitted to the Board in connection with the Section 8(a)(3) aspects of the case. 4 Even President Mannik, on cross-examination, admitted that this was that such was not the reason Cinino wanted him to look at the company records, that the reason expressed to Daley was "that if they could see if the Company made this loss ... they would be able to go back to the people and say that this is all that the Company could offer." 2 According to Gauntner, Daley then indicated that he had given the financial records to the NLRB , and that that was sufficient information to furnish at that time .3 According to Marinik, whom I credit on this point, Daley offered to make copies of his own copies of the two documents and to give them to Cinino at that time, and that Cinino replied that he had those figures and did not need copies. When Daley indicated to Cinino that the financial books also included other business matters not related to the Respondent's store operations, and that that was not any of the Union's business, Cinino made it clear that he was interested only in the losses in the meat operations of the store. With the Company's refusal to permit an examination of its records, and Cinino's statement that he had nothing to take back to his membership, the meeting adjourned and Cinino and Gauntner left. The long and short of the fact situation as to the December 3 bargaining session is that , in refusing to grant more than what amounts to a 15-cent-an-hour wage increase and at the same time rejecting the Union's proposals concerning health , welfare, and pension plans, the Company, allegedly making its best offer , stressed the tremendous monthly losses it had sustained during the 6- month strike period, in effect, pleading financial inability. When confronted with the Union 's requests, first, to look at its books, and then , to permit a CPA to examine its records, in order to verify the loss and thus to substantiate the Company assertion that it could not offer more, the Company adamantly refused. In this regard, I find the only offer the Company made to the Union concerning "financial records" was the offer to xerox the two documents which it had previously submitted to the Board,4 one, an affidavit containing self-serving assertions of monthly dollars sales for January through September 1973, and the other, weekly employee payroll figures for the period between August 31 and November 2, 1973. It is well recognized that the duty to bargain in good faith includes the duty to substantiate claims, including claims of inability to pay increased wages as well as economic benefits requested by a union during collective- bargaining negotiations,5 and that an employer must, upon request, provide the union with evidence to support its alleged inability claims . This the Respondent here failed to do. The limited information as to sales and employee wages offered by the Respondent did not address itself to reasons asserted by the Respondent for its inability to grant higher wages or the economic benefits requested, and all that the Company offered to give the Union in terms of financial records, and, except for this, Daley offered no financial records which the Union could use to verify how much money the Company was making or losing. Mannik also testified that, to his knowledge, Daley did not offer to validate the data supplied to the Board. I find that the Company offered to do nothing more. S NLR.B. v. Truitt Mfg. Co., 351 U.S. 149 (1956); Stanley Building Specialties Co., 166 NLRB 984. TONY'S MEATS, INC. in no way would enable the Union to intelligently determine whether the Respondent was making its best offer. Under these circumstances, including what I find to have been an honest and bona fide request on the part of the Union, the refusal of the Respondent to furnish the Union with financial records for examination in order to substantiate its claim that it was financially unable to meet the Union's demands, constitutes a refusal to bargain in violation of Section 8(a)(5) of the Act, and I so find. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Tony's Meats, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Meatcutters District Union427,AmalgamatedMeat- cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All selling and nonselling employees employed at Respondent's Lorain, Ohio, store, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 29, 1972, the Union has been, and is now the exclusive representative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing to furnish the Union with financial information in order to substantiate its claim that it was financially unable to meet the Union's wage and other economic demands , the Respondent refused to bargain collectively with the Union in violation of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. IV. THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, 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 It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 627 Respondent, Tony's Meats, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Meatcutters District Union 427, Amalgamated Meatcutters and Butch- er Workmen of North America, AFL-CIO, as the exclusive bargaining representative of all employees in the appropriate unit described above in violation of Section 8(a)(1) and (5) of the Act, by refusing to furnish the Union with financial information in order to substantiate the Respondent's claim that it was financially unable to meet the Union's wage and other economic demands. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, supply the Union with all books and records containing financial information which would tend to substantiate Respondent's claim that it is financially unable to meet the Union's wage demands. (b) Post in conspicuous places at its Lorain, Ohio, store, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 7 Copies of the notice, on forms provided by the Regional Director for Region 8, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that the Board's 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 be changed to 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 with the Union as the exclusive bargaining representative of our employees. WE WILL, upon request, furnish the Union with all books and records containing financial information which would tend to substantiate our claim that we are financially unable to meet the Union's wage and other economic demands. 628 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD TONY'S MEATS, INC. This notice must remain posted for 60 consecutive days (Employer) from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be (Representative) (Title) directed to the Board's Office, Suite 1695 - Anthony J. Celebrezze, Federal Building, 1240 E. 9th Street, Cleve- This is an official notice and must not be defaced by land, Ohio, Telephone 216-522-3715. anyone.