Teamsters Local 921 (San Francisco Newspaper)

901 309 NLRB No. 145 TEAMSTERS LOCAL 921 (SAN FRANCISCO NEWSPAPER) 1 In that case, the Board dismissed the case as moot after the re- fusal to furnish information was resolved by the arbitrator. There, the parties had agreed to arbitrate the grievance; they selected an ar- bitrator; the respondent agreed to comply with the arbitrator’s ruling; and, the respondent furnished the information in compliance with the arbitrator’s ruling prior to the hearing before the trial examiner. Ac- cordingly, the Board found that under those circumstances, a reme- dial order was not necessary, but did not pass on the trial examiner’s finding that there had not been a violation of Sec. 8(a)(5) and (1). 2 The Employer sought records of Micheletti’s earnings as an inde- pendent contractor during the backpay period and in the years pre- ceding his discharge (1988–1990). 3 Jewish Federation Council, 306 NLRB 507 (1992). 4 Interstate Food Processing Corp., 283 NLRB 303, 306 (1987). Newspaper and Periodical Drivers Local 921, Inter- national Brotherhood of Teamsters, AFL–CIO and San Francisco Printing Company d/b/a San Francisco Newspaper Agency. Case 20– CB–8780 December 16, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH On August 12, 1992, Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel filed exceptions and a supporting brief, the Respondent filed cross-exceptions, a supporting brief, and an answer to the General Counsel’s exceptions, and the General Counsel filed an answering brief to the Respondent’s cross-exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions only to the extent consistent with this Deci- sion and Order. The complaint alleged that the Respondent violated Section 8(b)(3) of the Act by refusing to furnish the Employer with certain requested information in a time- ly manner. The Employer requested this information from the Respondent in order to comply with an arbi- trator’s award of backpay to employee Anthony Micheletti. The judge, however, dismissed the com- plaint as moot, relying on Sinclair Refining Co., 145 NLRB 732 (1963).1 He reasoned that the arbitrator re- tained jurisdiction over compliance with his decision in favor of Micheletti, and that the information had been supplied to the Employer prior to the unfair labor prac- tice hearing, in compliance with the arbitrator’s rul- ings. The General Counsel excepted to the judge’s dismis- sal, arguing, inter alia, that Sinclair is distinguishable because in that case the complaint alleged a refusal to furnish information as the violation of the Act, but here, the alleged violation is the delay in furnishing the information. We find merit in these exceptions. The facts are not in dispute. In an arbitration pro- ceeding between the Respondent and the Employer over the suspension and discharge of Micheletti, the arbitrator ruled in favor of Micheletti and awarded him reinstatement and backpay. In an attempt to comply with the backpay portion of the arbitrator’s award, in February 1991, the Employer requested information from the Respondent regarding Micheletti’s earnings during the backpay period (a period from sometime in 1990 through March 1991). On March 8, 1991, the Re- spondent furnished the Employer with records of Micheletti’s earnings and expenses in 1990. On April 26, 1991, the Employer requested a statement of Micheletti’s earnings between January and March 1991. The Respondent furnished this information on April 30, 1991; this statement, however, did not in- clude earnings from Micheletti’s work as an independ- ent contractor (i.e., chauffeur). On May 15, 1991, the Employer requested information regarding Micheletti’s earnings as an independent contractor.2 At this point, a dispute arose between the parties over whether Micheletti’s earnings as an independent contractor should be used to reduce the Employer’s backpay calculation. The Respondent argued that be- cause Micheletti worked as an independent contractor before his discharge, such earnings should not mitigate the backpay amount. The Employer contended that it required a statement of Micheletti’s earnings as an independent contractor in order to determine whether such earnings increased as a result of time freed for independent contractor work caused by the discharge, and thus whether such earnings should be deducted from the backpay award. Between June 6 and September 23, 1991, the parties communicated back and forth over this issue. During this time, the Respondent supplied, in pieces, some of the requested information. The parties also agreed to bring the dispute back to the arbitrator for resolution. Subsequently, the arbitration was scheduled but later indefinitely postponed by the arbitrator. The Respond- ent ultimately supplied all the requested information on September 23, 1991. At the outset, we note, as did the judge, that the ex- istence of an arbitration proceeding does not relieve a party from its duty to furnish relevant information re- quested by the other party.3 Rather, when a request for relevant information is made, the nonrequesting party must either supply the information or adequately ex- plain why it is unable to comply.4 In addition, the Board finds that an unreasonable delay in furnishing requested information is as much a violation of the Act 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Bundy Corp., 292 NLRB 671 (1989); Operating Engineers Local 12, 237 NLRB 1556, 1558–1559 (1978). 6 Jewish Federation Council, supra; D. J. Electrical Contracting, 303 NLRB 820 (1991). 7 The Respondent, although admitting at the hearing that the infor- mation requested was relevant to determine the amount of backpay due to Micheletti, argued that the information was in the hands of a third party and therefore equally accessible to the Employer. The judge, however, expressly rejected this argument. He found that in the absence of any evidence that the Respondent had difficulty ob- taining the information, it had an affirmative obligation, as the ex- clusive collective-bargaining representative of the bargaining unit employees and as Micheletti’s representative at the arbitration, to ob- tain and furnish the information to the Employer. We agree. 8 We find Sinclair, supra, distinguishable. As we stated previously, in that case the complaint alleged the refusal to furnish the informa- tion as the violation of the Act. Because the information had been already furnished at the time of the hearing in that matter, the Board found that a remedial order would not effectuate the policies of the Act under those circumstances. Here, the violation alleged and found is the delay in providing the information. 9 Interstate Food Processing, supra, 283 NLRB at 306. 10 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 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.’’ as an out-and-out refusal to supply such information.5 Thus, subsequent compliance with a request for infor- mation does not cure the unlawful refusal to supply the information in a timely manner and belated compliance with a request for such information does not render moot a complaint of an unlawful refusal timely to sup- ply the requested information.6 Here, the judge expressly found that the Respondent delayed furnishing the requested information to the Employer because of the Respondent’s contention at the time of the request that the information was not relevant to the issue of backpay. In addition, we note that the Respondent has proffered no adequate expla- nation for its failure to provide the information in a timely manner.7 Therefore, by delaying the furnishing of the requested information for more than 4 months, and in the absence of any explanation for its failure to comply with the request, we find that the Respondent violated Section 8(b)(3) of the Act. We further find, unlike the judge, that the complaint has not been rendered moot. The Respondent’s belated compliance with the Employer’s information request did not cure its unlawful delay and a cease-and-desist remedy remains appropriate to vindicate the policies of the Act.8 Accordingly, we shall issue the following amended conclusions of law, remedy, and Order. AMENDED CONCLUSIONS OF LAW Substitute the following for the judge’s Conclusion of Law 3. ‘‘3. By failing and refusing to furnish the Employer in a timely manner with certain requested information, the Respondent engaged in unfair labor practices with- in the meaning of Section 8(b)(3) of the Act.’’ REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom. We shall not order the Respond- ent to furnish the requested information because the in- formation already has been given the Employer. Con- sequently, a cease-and-desist order will suffice to rem- edy the violation found.9 ORDER The National Labor Relations Board orders that the Respondent, Newspaper and Periodical Drivers, Local 921, International Brotherhood of Teamsters, AFL– CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with the Employer by failing timely to furnish it requested information relevant to its compliance with an arbitra- tor’s award of backpay to Anthony Micheletti. (b) In any like or related manner restraining or co- ercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post in conspicuous places, in the Newspaper and Periodical Drivers, Local 921, International Broth- erhood of Teamsters, AFL–CIO business office, meet- ing halls, and places where notices to its members are customarily posted, copies of the attached notice marked ‘‘Appendix.’’10 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized represent- ative, shall be posted immediately upon receipt and maintained for 60 consecutive days thereafter. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX 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 the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain in good faith with San Francisco Printing Company d/b/a San 903 TEAMSTERS LOCAL 921 (SAN FRANCISCO NEWSPAPER) Francisco Newspaper Agency by failing timely to fur- nish it with requested information relevant to its com- pliance with the arbitrator’s award of backpay to An- thony Micheletti. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. NEWSPAPER AND PERIODICAL DRIVERS, LOCAL 921, INTERNATIONAL BROTHER- HOOOD OF TEAMSTERS, AFL–CIO Mary Vail Esq., for the General Counsel. Andrew H. Baker, Esq. (Beeson, Tayer, & Bodine), of San Francisco, California, for the Respondent. Nick C. Geannacopulos, Esq. (Seyfarth, Shaw, Fairweather & Geraldson), of San Francisco, California, for the Em- ployer. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at San Francisco, California, on May 19, 1992. On September 10, 1991, San Francisco Printing Co. d/b/a San Francisco Newspaper Agency (the Employer) filed the charge alleging that Teamsters Union Local 921 (Respondent or the Union) committed certain violations of Section 8(b)(3) of the National Labor Relations Act (the Act). On October 31, 1991, the Regional Director for Region 20 of the Na- tional Labor Relations Board issued a complaint and notice of hearing against Respondent, alleging that the Union vio- lated Section 8(b)(3) of the Act by refusing to furnish, in a timely manner, certain requested information to the Em- ployer. Respondent filed timely answers to the complaint, de- nying all wrongdoing. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs of the parties, I make the following FINDINGS OF FACT I. JURISDICTION The Employer is a Nevada corporation, with an office and place of business in San Francisco, California, where it has been engaged in the publication, circulation and distribution of daily newspapers. During calendar year 1990, the Em- ployer derived revenues in excess of $200,000. Further, the Employer held membership in and/or subscribed to various interstate news services, published nationally syndicated fea- tures and advertised nationally sold products. Accordingly, Respondent admits and I find that the Employer is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that at all times material, Respondent has been a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The Facts Respondent represents a bargaining unit of drivers em- ployed by the Employer. In 1990, employee Anthony Micheletti, a driver represented by the Respondent was sus- pended and discharged. A grievance was filed under the col- lective-bargaining agreement. Respondent processed the grievance to arbitration. In February 1991, the arbitrator found in favor of Micheletti and ordered reinstatement and backpay. The arbitrator retained jurisdiction over compliance with his decision. Upon receipt of the arbitrator’s award the Employer of- fered reinstatement to Micheletti. Micheletti returned to work on March 11, 1991. Maryann Kelly, labor relations manager for the Employer, sought information from the Union con- cerning Micheletti’s earnings during the backpay period. In February, Kelly spoke with Ben Papapietro, Respondent’s secretary-treasurer and asked for the records of Micheletti’s earnings during the backpay period. On March 8, Kelly re- ceived records from the Union, showing Micheletti’s earn- ings and expenses for 1990. On April 26, 1991, Kelly re- quested a statement of earnings of Micheletti for the period January 1991 through March 1991. On April 30, Kelly re- ceived a letter from the Union’s attorney forwarding informa- tion from Micheletti’s accountant showing Micheletti’s earn- ings and expenses during the backpay period. The account- ant’s letter only showed earnings as an employee and did not include earnings as an independent contractor. On May 15, Kelly sought information concerning Micheletti’s earnings for work performed as an independent contractor—chauffeur. Micheletti had worked as a chauffeur before his discharge. The Union contended that since Micheletti had previously worked as chauffeur those earnings should not mitigate damages. Kelly desired the information to ascertain whether Micheletti’s earnings increased during the backpay period. Kelly took the position that an increase in Micheletti’s earnings would be as a result of the time freed for such work by the discharge and, therefore, that such interim earnings should be deducted from gross backpay. On June 6, the Union’s attorney provided a copy of Micheletti’s IRS form 1099 for the year 1989. The Union maintained that Micheletti worked as a chauffeur prior to his discharge and, therefore, his earnings as a chauffeur could not be used as interim earnings. The letter also stated that if backpay could not be resolved, the Union would request that the arbitrator schedule a backpay hearing. Approximately 2 weeks later, Jack Ford, union business agent, called Kelly. Kelly told Ford that she had not yet re- ceived the information concerning Micheletti’s earnings as an independent contractor for 1991. Further she indicated that she wanted to establish an average of Micheletti’s earnings as an independent contractor for the years preceding his dis- charge. Ford said the information was irrelevant and that he would not give the information. Ford suggested that the par- ties bring the dispute to the arbitrator. By letter dated June 21, the arbitrator scheduled a hearing for September 10. On August 2, the arbitrator, at the request of the Employer, issued a subpoena to Micheletti for the re- quested information. On August 15, the Union’s attorney filed a motion to quash the subpoena. In a conference call, the arbitrator changed the return date for the subpoena from 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD August 16 to September 10. On September 6, the Employer received some of the requested information concerning Micheletti’s earnings for 1988–1990. On September 9, the arbitrator granted the Employer’s request for a continuance to review the supoenaed documents. The arbitration has been postponed indefinitely. On September 23, the Union supplied the Employer with the remainder of the requested informa- tion. The General Counsel’s complaint alleges no violation after September 1991. Analysis and Conclusions It is well settled that a union’s duty to bargain in good faith by furnishing requested information to an employer for the purpose of collective bargaining is commensurate with the similar duty imposed by the Act upon employers. Team- sters Local 959 (Frontier Transportation Co.), 244 NLRB 19 (1979); Machinists Local 78 (Square D Co.), 224 NLRB 111 (1976); Graphic Communications Local 13 (Oakland Press Co.), 223 NLRB 994 (1977), enfd. 598 F.2d 267 (D.C. Cir. 1979). It is well settled that an employer has a statutory duty to provide a union, upon request, with relevant information the union needs for the proper performance of its duties as a col- lective-bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). In determining whether an em- ployer is obligated to supply particular information, the ques- tion is only whether there is a ‘‘probability that the desired information [is] relevant, and that it would be of use to the union in carrying out its statutory duties and responsibil- ities.’’ NLRB v. Acme Industrial Co., supra at 437. As the Supreme Court has stated, the disclosure obligation is meas- ured by a liberal ‘‘discovery-type standard,’’ not a trial-type standard, of relevance. Id. Respondent admits that the infor- mation requested was relevant to determine the amount of backpay due Micheletti under the arbitrator’s award. Respondent argues that the information was in the hands of a third party and therefore, equally accessible to the Em- ployer. Respondent contends that it requested the information from Micheletti and furnished the information in due course. See Food & Commercial Workers Local 1439 (Layman’s Market), 268 NLRB 780 (1984). See American Commercial Lines, 291 NLRB 1066, 1085 (1988). I do not find that argu- ment persuasive. The Union is the exclusive representative of the employees in the bargaining unit and under Section 8(a)(5) the Employer cannot bargain directly with an em- ployee. General Electric Co., 150 NLRB 192 (1964), enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970). The Union represented Micheletti in the arbitration and the postarbitration dispute concerning backpay. I find that the Employer acted properly in requesting the information from the Union rather than from Micheletti, the grievant, or the in- terim employer, a disinterested third party. Under the cir- cumstances, the Union had an affirmative obligation to ob- tain the information and furnish the information to the Em- ployer. There was no evidence that Respondent had difficulty obtaining the information from Micheletti. Rather it appears the delay was caused by the Union’s position that the infor- mation was not relevant to the issue of backpay. The Union contends that the Employer should have sub- poenaed the material from Micheletti since the arbitrator had retained jurisdiction for backpay purposes. In Acme, supra, the Supreme Court held that an employer was obligated to comply with a request for information to determine whether to pursue a grievance. The existence of an arbitration procedure does not relieve an employer or union from its duty to furnish the other party with information necessary to determine whether to process a grievance to arbitration. Jewish Federation Council, 306 NLRB 507 (1992). The duty to supply the requested infor- mation does not terminate when the grievance is taken to ar- bitration. Id. In International Harvester Co., 241 NLRB 600 (1979), the Board held that a bargaining agreement which vested an arbitrator of a grievance with authority to order disclosure of information did not require deferral of the un- fair labor practice charges. However, in Sinclair Refining Co., 145 NLRB 732 (1963), the Board dismissed the case as moot after the refusal to fur- nish information was resolved by an arbitrator. In that case the circumstances were that the parties had agreed to arbi- trate the grievances; the parties had selected the arbitrator; the Respondent had expressed its willingness to supply any data the arbitrator ruled was necessary; the Respondent did furnish data in accord with the rulings of the arbitrator; and the arbitration hearings were completed before the case was heard by the trial examiner. Thus, the Board found that no remedial order was necessary under the circumstances. In the instant case the discharge of Micheletti was before an agreed-upon arbitrator. The arbitrator retained jurisdiction over compliance with the decision. The dispute over backpay and the request for information occurred while the arbitrator had jurisdiction. The Respondent complied with the rulings of the arbitrator. The information was supplied prior to the hearing before me. While the arbitration has not yet been completed, the delay is not due to the information request at issue here. Thus, I find Sinclair Refining to be controlling precedent and would dismiss the complaint as moot. The International Harvester case is distinguishable because in that case neither the dispute nor the refusal to furnish infor- mation had gone to an arbitrator. Here we are dealing with an issue that has been resolved by arbitration rather than a question of prearbitration deferral. CONCLUSIONS OF LAW 1. San Francisco Newspaper Agency is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent, Local 921, International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(b)(3) of the Act as alleged in the complaint. [Recommended Order for dismissal omitted from publica- tion.]