Maywood Do-Nut Co., Inc.

MAYWOOD DO-NUT CO, INC. 507 Maywood Do-Nut Co., Inc. and Local 27, Bakery, Confectionery & Tobacco Workers' Internation- al Union of America, AFL-CIO. Case 21-CA- 18569 June 12, 1981 DECISION AND ORDER On the basis of a charge filed by Local 37, Bakery, Confectionery & Tobacco Workers' Inter- national Union of America, AFL-CIO, hereafter referred to as the Union, on January 10, 1980, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint against Maywood Do-Nut Co., Inc., hereafter referred to as Respondent, on March 19, 1980. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by fail- ing to honor the Union's request, on and after De- cember 11, 1979, to furnish certain detailed wage, benefit, and job description information for each employee in the certified bargaining unit. Respond- ent filed an answer to the complaint on April 1, 1980, in which it admitted certain of the allega- tions, but denied the commission of any unfair labor practices. On October 29, 1980, the parties entered into a stipulation to transfer this proceeding to the Board wherein they agreed thatcertain documents would constitute the entire record herein, waived all im- mediate proceedings before an administrative law judge, and submitted this case directly to the Board for it to make findings of fact and conclusions of law and to issue its Decision and Order. On Febru- ary 5, 1981, the Board approved the stipulation and set a date for the parties to file their briefs. There- after briefs were timely filed by Respondent and the General Counsel. The Board has considered the entire record herein, as stipulated to by the parties, as well as the briefs, and makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Maywood Do-Nut Co., Inc., is a California cor- poration engaged in the manufacturing and whole- saling of bakery products at its facility located in Huntington Park, California. Respondent annually sells and ships goods and products valued in excess of $50,000 to customers located within the State of California, each of which, in turn, annually pur- chases and receives goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. The parties stipulat- ed, and we find, that Respondent is, and at all times material herein has been, an employer en- 256 NLRB No. 72 gaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR ABOR PRACTICES A. Facts The parties have agreed, by stipulation, that all the production and maintenance employees, includ- ing shipping and receiving employees and truck- drivers, employed by Respondent at its Huntington Park, California, facility, excluding office clerical employees, professional employees, guards and su- pervisors as defined in the Act, constitute an ap- propriate unit for collective bargaining within the meaning of Section 9(b) of the Act. On July 26, 1977, a majority of the employees in this unit selected, in a Board-conducted election, the Union as their collective-bargaining representa- tive. On September 17, 1977, the Regional Director for Region 21 certified the Union as the exclusive collective-bargaining representative. On December 5, 1979, Administrative Law Judge Bernard J. Seff issued a Decision in which he found that Respond- ent had violated Section 8(a)(5) and (1) of the Act by engaging in dilatory and surface bargaining by failing to meet with the Union at reasonable times and places, by refusing to present counterproposals, and by utilizing negotiators with no authority to make bargaining concessions. Shortly thereafter, on December 11, 1979, the Union requested that Re- spondent furnish it with certain information con- cerning each unit member: Name and address, se- niority date, wage rate, earnings for the last 2- month period, description of fringe benefits, vaca- tion benefits, holiday benefits and holidays ob- served, job title, job description, and any other benefits of employment. The instant complaint issued on March 19, 1980, following the Union's charge that since December 11, 1979, Respondent has failed to comply with this request for informa- tion. Respondent filed exceptions to the Administra- tive Law Judge's Decision, contending that the Union was not the collective-bargaining representa- tive of a majority of the employees in the agreed- upon unit. On March 17, 1980, the Board issued its Decision and Order, 248 NLRB 529, in which it af- firmed the rulings, findings, and conclusions of the Administrative Law Judge and adopted his recom- MAYWOOD DO-NUT CO., INC. 507 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended Order. Upon Respondent's refusal to comply with the bargaining order, the Board has sought enforcement of its Order in the United States Court of Appeals for the Ninth Circuit. B. Contentions of the Parties Respondent argues that its continued refusal to bargain pending the outcome of the case presently before the Ninth Circuit Court of Appeals does not constitute an additional violation of Section 8(a)(5). Respondent would have the Board either dismiss the instant complaint or remand it to the Regional Director until the court renders its judgment. In accord with its position in the pending en- forcement proceeding, Respondent claims a con- tinuing good-faith doubt as to the Union's majority status. Further, Respondent argues that the instant 8(a)(5) complaint unfairly subjects it to a multiplic- ity of suits based on a single issue which will not fully be resolved until the court renders a decision in 248 NLRB 529. Dismissal of the instant com- plaint is thus warranted in order to avoid "harrass- ment" of Respondent. The General Counsel asserts that Respondent has an obligation to provide information needed by a bargaining representative for the proper perform- ance of its duties.' Since the information sought here by the Union concerns the terms and condi- tions of employment of bargaining unit employees, no special showing of relevance or necessity is re- quired.2 With respect to Respondent's contention that it is relieved of its bargaining obligation because of a good-faith doubt as to the Union's majority status, the General Counsel points out that this defense was raised before the Board and found to be with- out merit in the prior case of 248 NLRB 529. The General Counsel cites Tiidee Products, Inc., 174 NLRB 705 (1969), for the proposition that pending charges or unfair labor practice proceedings do not relieve a party from its bargaining obligations. C. Discussion and Conclusions We agree with the General Counsel that the in- formation sought by the Union dealing with wage rates and employee benefits is presumptively rele- vant. Respondent has offered nothing to rebut this presumption. We therefore conclude that Respond- ent's refusal to furnish the requested information to the Union, the certified representative of its em- s L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967); NL.R.B. v. Truitt Manufacturing Co., 351 U.S. 149 (1956). 2 Ohio Power Company, 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976); Robert J Weber and Richard K. Weber d/b/a lWeber Veneer & Plywood Company, 161 NLRB 1054 (1966); Curtiss-Wright Corporation. Wright Aeronautical Division, 145 NLRB 152 (1963). ployees, constitutes a violation of Section 8(a)(5) and (1) of the Act. With respect to Respondent's request to dismiss the complaint or, in the alternative, to stay these proceedings pending a determination in 248 NLRB 529 by the United States Court of Appeals for the Ninth Circuit, the request is denied. It is settled law that the pendency of collateral litigation does not suspend a respondent's duty to bargain under Section 8(a)(5).3 IV. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, we shall order it to cease and desist therefrom and, affirmatively, to take certain action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Maywood Do-Nut Co., Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Local 37, Bakery Confectionery & Tobacco Workers' Internation Union of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing the Union's request for certain necessary and relevant information on and after December 11, 1979, Respondent violated Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning 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 Re- lations Board hereby orders that the Respondent, Maywood Do-Nut Co., Inc., Huntington Park, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to Bargain in good faith with the Union by refusing to furnish necessary and relevant requested information, detailed below, concerning employees' wages, benefits, and job descriptions. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- 3 Keller Aluminum Chairs Southern. Inc., and Keller Ladders Southern. Inc.. subsidiaries of Keller Industries, Inc., 173 NLRB 947 (1968), citing in fn. 14 Board and court decisions. See also Great Dane Trailers Inc., 191 NLRB 6 (1971); Porto Kamp Manufacturing Company, Inc., 189 NLRB 899 (1971); and Sec. IO(g) of the Act, which provides: "The commence- ment of proceedings under subsection (e) or ( of this section shall not., unless specifically ordered by the court, operate as a stay of the Board's order." MAYWOOD DO-NUT CO., INC. 509 ercise of the right guaranteed them by Section 7 of the Act. 2. Take the following affirmative action deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively and in good faith with Local 37, Bakery, Confectionery & Tobacco Workers' International Union of America, AFL-CIO, as the exclusive bargaining representa- tive of the employees in the unit set forth below, by furnishing the said labor organization with the following information it has requested with respect to each unit employee: Name and address, seniority date, wage rate, earnings for the last 2-month period, description of fringe benefits, vacation benefits, holiday benefits and holidays observed, job title, job description, and any other benefits of employment. The appropriate bargaining unit is: All production and maintenance employees, in- cluding shipping and receiving employees and truckdrivers employed by Respondent at its fa- cility located at 6174 Maywood Avenue, Hun- tington Park, California, excluding office cleri- cal employees, professional employees, guards, and supervisors as defined in the Act. (b) Post at its Huntington Park, California, facili- ty copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 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 Boars" shall read "Posted Pursu- ant 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 in good faith with Local 37, Bakery, Confectionery & Tobacco Workers' International Union of America, AFL-CIO, as the exclusive bargain- ing representative of the employees in the unit set forth below, by refusing to furnish the said labor organization with necessary and relevant information it has requested with respect to all unit employees of Maywood Do-Nut Co., Inc., as hereinafter set forth in this notice. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, bargain collectively and in good faith with Local 37, Bakery, Con- fectionery & Tobacco Workers' International Union of America, AFL-CIO, as the exclusive bargaining representative of the employees in the unit set forth below, by furnishing the said labor organization with the following informa- tion it has requested with respect to each unit employee: Name and address, seniority date, wage rate, earnings for the last 2-month period, description of fringe benefits, vacation benefits, holiday benefits and holidays ob- served, job title, job description, and any other benefits of employment. The appropriate unit is: All production and maintenance employees, including shipping and receiving employees and truckdrivers employed by us at our fa- cility located at 6174 Maywood Avenue, Huntington Park, California, excluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. MAYWOOD Do-NUT Co., INC. MAYWOOD DO-NUT CO., NC. 509