Phoenix Coca-Cola Bottling Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 498 Phoenix Coca-Cola Bottling Company and United Industrial Service, Transportation, Professional and Government Workers of North America of the Seafarers International Union of North America, Atlantic, Gulf and Inland Waters Dis- trict, AFL–CIO, Petitioner. Cases 28–CA–16595 and 28–CA–16908 November 5, 2002 ORDER DENYING MOTION FOR RECONSIDERATION BY MEMBERS LIEBMAN, COWEN, AND BARTLETT On August 1, 2002, the National Labor Relations Board issued a Decision and Order in this proceeding finding, in relevant part, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to comply with the Union’s requests for information which was necessary and relevant for it to perform its statutory du- ties as the collective-bargaining agent for certain of the Respondent’s employees.1 On September 14, 2002, the Respondent, Phoenix Coca-Cola Bottling Company, filed a Motion for Reconsideration arguing that (1) the Board failed to properly analyze its discovery defense; (2) the Board misconstrued its posthearing brief; and (3) Chair- man Hurtgen made erroneous conclusions regarding the Respondent’s actions. The General Counsel filed a brief opposing the Respondent’s motion arguing that the Re- spondent failed to state extraordinary circumstances and, in essence, that the Respondent raised nothing in its mo- tion that was not previously considered by the Board. The National Labor Relations Board has considered the matter and finds, in agreement with the General Counsel, that the Respondent’s motion lacks merit. First, we find that the Respondent has failed to present ex- traordinary circumstances warranting reconsideration.2 Second, we find that the Respondent’s motion does not raise any argument not previously considered by the 1 337 NLRB 1239 (2002). Member Bartlett did not participate in the underlying case. Member Cowen dissented in the underlying case, finding that the Union did not meet its burden of demonstrating the relevance of the requested information. Member Cowen agrees with his colleagues, however, that the Respondent has not raised any argu- ments in its motion not previously considered by the Board. 2 Sec. 102.48(d)(1), the Board’s Rules and Regulations. Board. As to the Respondent’s argument that the Board failed to properly analyze its “discovery defense,” the Board considered and expressly rejected that defense in its decision, which stated that “[the] unfair labor practice charges on which Respondent based this defense were withdrawn prior to the hearing,”3 thus mooting this de- fense. Next, we find that Respondent’s argument that the Board misconstrued its posthearing brief similarly lacks merit. The Board’s reliance on the Respondent’s state- ment in its posthearing brief that it could “now reveal information as requested by the Union” was to make the point, acknowledged by the Respondent in its motion, that the discovery defense became a “nonissue” once the unfair labor practice charges were withdrawn. Finally, we find no support for the Respondent’s claim that for- mer Chairman Hurtgen relied on erroneous conclusions when finding that the Respondent persisted in its refusal to provide the requested information after charges were withdrawn. Contrary to the Respondent’s arguments, the information it offered to provide at the commencement of the hearing did not include all of the requested infor- mation that the judge and Board deemed relevant. IT IS ORDERED that the Motion for Reconsideration is denied. MEMBER BARTLETT, concurring. I join in denying the Respondent’s Motion for Recon- sideration for the reasons stated in the majority opinion. I write separately, however, to express my view that this case should never have been litigated before the Board. The issue in the underlying case was whether the Respon- dent Employer violated Section 8(a)(5) of the Act by fail- ing and refusing to provide the Union with requested in- formation. The Union allegedly sought the requested in- formation to determine whether the Respondent had breached the collective-bargaining agreement. Thus, the Union’s information request related to potential violations of the parties’ collective-bargaining agreement. In such circumstances, I would require the dispute over whether the information must be provided to be addressed in the first instance under the dispute resolution procedures which the parties themselves have agreed to, i.e., through arbitration or, in the absence of applicable procedures for 3 337 NLRB 1239, 1239. 338 NLRB No. 57 PHOENIX COCA-COLA BOTTLING CO. 499 arbitrable resolution, Section 301 of the Act.1 In my view, where such contractual procedures are available, the par- 1 See generally my concurring opinion in Baptist Hospital of East Tennessee, 338 NLRB 249 (2002) (Board should sua sponte stay its hand and defer processing of 8(a)(5) breach of contract allegations until after the parties have exhausted the possibility of resolving their con- tractual dispute through their own agreed-upon dispute resolution pro- cedures). ties should be required to utilize them, rather than invok- ing the Board’s procedure, to resolve their dispute.2 2 Thus, I agree with former Chairman Hurtgen’s dissent in Ormet Aluminum Mill Products Corp., 335 NLRB 788, 790–792 (2001), that a request for information related to a grievance that is pending arbitration is more appropriately addressed by the arbitrator rather than the Board. However, I would go further and also require the parties to utilize their contractual procedures where the information request relates to a poten- tial violation of the contract but no grievance has yet been filed.