Stecher's Supermarket, Inc.

STECHER'S SUPERMARKET, INC. Stecher's Supermarket, Inc. and United Food & Commercial Workers Union, Local 655. Case 14-CA- 15404 September 30, 1983 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon an unfair labor practice charge filed on August 19, 1981,' by United Food & Commercial Workers Union, Local 655 (herein called the Union), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a complaint on October 30, 1981, against Stecher's Supermarket, Inc. (herein called Respondent), alleging that Respondent had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaninhg of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on Respondent and the Union. Thereafter, Respondent filed a timely answer denying the com- mission of any unfair labor practices. On March 8, 1982, the parties jointly moved the Board to transfer the instant proceeding to the Board without benefit of a hearing before an ad- ministrative law judge, and submitted therewith a proposed record of the formal papers and the par- ties' stipulation of the facts, with attached exhibits. On June 15, 1982, the Associate Executive Secre- tary of the Board, by direction of the Board, issued an order granting the motion, approving the stipu- lation, and transferring the proceeding to the Board. Thereafter, the General Counsel filed a brief. No brief was filed by Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this case, the Board makes the following findings: I. JURISDICTION The parties stipulate, and we find, the following: Respondent is a corporation duly organized under the laws of the State of Missouri and main- tains its principal office and places of business in St. Louis County, Missouri. The facility involved in this proceeding is located at 4221 Reavis Bar- racks Road in St. Louis, Missouri (herein called the i The parties stipulated that the unfair labor practice charge was filed on August 19, 1981; however, all relevant submitted documentation indi- cates that the charge was filed on October 5, 1981. 264 NLRB No. 102 Reavis Barracks store). Respondent is engaged in the business of operating retail grocery stores. During the past 12 months, which is a representa- tive period, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $500,000 and purchased and received goods and materials valued in excess of $10,000 which were shipped directly to its St. Louis County, Missouri, facilities from points located out- side the State of Missouri. Respondent is now and has been at all material times herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that United Food & Commercial Workers Union, Local 655, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issue presented is whether Respondent vio- lated Section 8(a)(5) and (1) of the Act by failing to furnish the Union with employment records, in- cluding the names of all persons on Respondent's payroll. Based upon the following stipulated facts, and for the reasons set forth below, we find Re- spondent's activity to be violative of Section 8(a)(5) and (1) of the Act. A. Facts The Union has represented a unit2 of Respond- ent's employees since 1969. and the parties have en- tered a series of collective-bargaining agreements, the most recent of which expired on May 8, 1982. The collective-bargaining agreement in effect at the time the instant charge was filed provided, inter alia: ARTICLE 17. HEALTH AND WELFARE 17.1. The Employer shall pay forty (40) cents per hour for all hours worked at straight time, including vacations and holidays with a maximum of forty (40) hours per week for all employees covered by this Agreement, into 2 The unit is set forth in the collective-bargaining agreement between Respondent and the Union entitled "Agreement between Food Industry and Retail Store Employees Local 655, AFL-CIO-CLC," effective May 6, 1979, through May 8, 1982 The parties stipulate, and we find, that this unit is appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act, and that the Union is the exclusive bar- gaining representative of the employees in said unit 761 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Retail Store Employee's Union, Local No. 655 Welfare Fund. 17.6. The Employer agrees, upon reasonable notice, to allow records to be checked where necessary for Health and Welfare contribu- tions. ARTICLE 18. PENSIONS 18.1. Subject to the terms of this Article, from the effective date of this Agreement the Employer shall pay thirty-six (36¢) cents per hour for all hours worked at straight time, in- cluding vacations and holidays with a maxi- mum for [sic] forty (40) hours for all employ- ees covered by this Agreement, into the Em- ployer-Union Pension Fund, which shall be jointly administered by the Union and the Em- ployer as provided in an agreement establish- ing such Pension Fund. 18.11. The Employer agrees, upon reason- able notice, to allow records to be checked where necessary for Pension contributions. By letter dated May 18, 1981, Respondent was notified of the Union's desire to audit the Employ- er's records as they related to pension and welfare fund contributions. Because the Union's auditor in- formed the Union that the records submitted by Respondent were incomplete, the Union, by letter dated June 25, specifically requested Missouri Em- ployment Security Payroll Tax Returns3 and copies of canceled checks paid to the Division of Employment Security for all quarters of 1979 and 1980, as well as computerized payroll registers or journals giving details by employee of the total and type of hours of which wages were paid for the second, third, and fourth quarters of 1980 and the first quarter of 1981. By letter dated September 16, 1981, the Union informed Respondent that the records it submitted omitted large numbers of names and that its computer printout was disassem- bled in such a way that the Union's auditor could not determine whether Respondent had produced its entire payroll. Respondent replied by letter dated September 21 that it believed it had complied with the Union's request. By letter dated Sepember 24, the Union reiterated its request for information and stated that Respondent's compliance had been inadequate. By letter dated September 29, Re- 3 The Union requested that wages paid to nonunit employees be de- leted. spondent asserted that it had produced all records relating to employees covered by the Union's con- tract pursuant to the request. The parties stipulated that the records produced by Respondent consisted of a collection of disassembled computer printouts which did not comprise a complete and continuous record of all employees on Respondent's payroll. They further stipulated that the records submitted by Respondent failed to include the names of all of the persons on the payroll so that the auditor could not determine whether a person on whose behalf contributions may not have been made was a person in or out of the bargaining unit and was or was not a person on whose behalf contributions were due under the collective-bargaining agree- ment. B. Contentions of the Parties The General Counsel contends that Respondent violated Section 8(a)(5) and (I) of the Act by its re- fusal to provide the Union with sufficient employ- ment records to enable the Union to enforce its contract. The General Counsel argues that the records sought by the Union were standard, rou- tine information and that Respondent has offered no justification for its refusal to comply with the Union's request and/or for its inadequate response. The General Counsel asserts not only that such in- formation must be provided to the Union under the terms of the collective-bargaining agreement, but also that Section 8(a)(5) requires Respondent to submit such information which is necessary for and relevant to the Union's ability to police and en- force its contract. Respondent filed no brief in opposition to the General Counsel's contentions. In its answer to the complaint, Respondent generally denies that it has refused to supply the requested information but raises no affirmative defenses. C. Discussion of Law and Conclusions It is well settled that an employer has a duty to provide upon request such information as may be relevant and reasonably necessary to the Union in the performance of its duty as collective-bargaining representative. Vertol Division, Boeing Company, 182 NLRB 421 (1970); N.L.R.B. v. Whitin Machine Works, 217 F.2d 593 (4th Cir. 1954), cert. denied 349 U.S. 905 (1955). The test of the union's need for such information is simply a show of "probabil- ity that the desired information was relevant, and that it would be of use to the union in carrying out its duties and responsibilities." N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 437 (1967). Here, the Union sought payroll information to determine whether Respondent was in compliance 762 STECHER'S SUPERMARKET, INC. with the requirement of its fund contributions under the collective-bargaining agreement. Howev- er, the form in which Respondent submitted the in- formation made it impossible for the Union to de- termine whether Respondent was making proper contributions on behalf of known union members, and generally to verify that contributions were made on behalf of all unit employees. Such infor- mation is essential to the Union's enforcing of the collective-bargaining agreement and is a fortiori necessary and relevant to the performance of its duties as the exclusive collective-bargaining repre- sentative of the unit employees. Under these cir- cumstances, we find that Respondent, by failing to provide to the Union, pursuant to its request, com- prehensible information concerning Respondent's fund contributions on behalf of unit employees, violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Stecher's Supermarket, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. United Food & Commercial Workers Union, Local 655, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times material herein, the Union has been the exclusive representative for purposes of collective bargaining of the employees in the ap- propriate unit which is set forth in the collective- bargaining agreement between Respondent and the Union entitled "Agreement between Food Industry and Retail Store Employees Local 655, AFL-CIO- CLC," effective May 6, 1979, through May 8, 1982. 4. By refusing to furnish the Union with informa- tion in a comprehensible form which would allow the Union to determine that proper contributions were made on behalf of all unit employees pursuant to the collective-bargaining agreement, Respondent has refused to bargain with the Union and thereby has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and Section 2(6) and (7) of the Act. 5. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) 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, Stecher's Supermarket, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to furnish United Food & Commer- cial Workers Union, Local 655, AFL-CIO-CLC, with payroll data information concerning employ- ees which is relevant to the Union's ensuring that proper health and welfare fund contributions have been made on behalf of unit employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) Furnish the Union with information in a form sufficiently comprehensible to enable the Union to determine that proper contributions were made on behalf of all unit employees pursuant to the collec- tive-bargaining agreement. (b) Post at its St. Louis, Missouri, facilities copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, 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 Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Board" 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 Goernment WE WILL NOT refuse to furnish United Food & Commercial Workers Union, Local 655, AFL-CIO-CLC, with the payroll data infor- mation concerning employees which is rele- vant to the Union's ensuring that proper health 763 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and welfare contributions have been made on behalf of unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL furnish the Union with informa- tion in a form sufficiently comprehensible to enable the Union to determine that proper contributions were made on behalf of all unit employees pursuant to the collective-bargain- ing agreement. STECHER'S SUPERMARKET, INC. 764