Teamsters Local Union No. 688

• 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America, AFL -CIO' and Coca-Cola Bottling Company of St. Louis, a division of Johnston Coca-Cola Bottling Group, Inc. Case 14—CB- 7396 March 9, 1991 DECISION AND ORDER BY MEMBERS CRACRAFr, DEVANEY, AND Ovurr On September 14, 1990, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has de- cided to affirm the judge's rulings, findings,2 and con- clusions and to adopt the recommended Order. ORDER The National Tabor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Teamsters Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL—CIO, St. Louis, Missouri, its officers, agents, and representatives, shall take the action set forth in the Order. On November I, 1987, the Teamsters International Union was readmitted to the AFL—CIO. Accordingly, the caption has been amended to reflect that change. 2 in adopting the judge's conclusion that the Respondent violated Sec. 8(b)(3) of the Act by its continued refusal since about March 29, 1990, to fur- nish the Employer with either a copy of its new contract with Pepsi Cola Bot- tling Company or a draft or working pnpers thereof, we do not rely on the judge's finding that such information is "inherently !relevant as it deals with the terms and conditions of employees in a similar if not closely similar or virtually identical type of business." Instead, we find the requested informa- tion relevant based on record evidence indicating that during the negotiations for a new collective-bargaining agreement, both the Employer and the Re- spondent, by referring to various terms contained in the Respondent's contract with Pepsi Bottling Company, placed the terms of this contract in issue. Member Oviatt agrees that the information requered by the Employer from the Respondent Union was not "inherently relevant" or presumptively rel- evant. Indeed, the fact that a party alludes during negotiations to ciintracts cov- ering nonunit employees does not make those contracts or information regard- ing those nonunit employees relevant to the point where that party must tum over the contracts on request Heft, however, after considerable discussion by the parties regarding the contract covering Pepsi-Cola employees, the Re- spondent asked whether the Employer would accept the entire Pepsi agree- ment. At that point in the negotiations, the Pepsi contract became relevant to the negotiations and the Respondent was obligated to furnish it. Tina R. O'Brien, Esq., for the General Counsel. Clyde Craig, Esq., of St. Louis, Missouri, for the Respond- ent. Ronald G. Ingham, Esq., of Chattanooga, Tennessee, for the Charging Party. 302 NLRB No. 46 DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me at St. Louis, Missouri, on July 11, 1990. The complaint was filed by the Regional Director of Region 14 of the National Labor Relations Board (the Board) on June 13, 1990, and is based on a charge filed by Coca- Cola Bottling Company of St. Louis, Inc. (the Charging Party or the Employer) on May 16, 1990. The complaint al- leges that Teamsters Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL—C10 (the Respond- ent or the Union) violated Section 8(b)(3) of the National Labor Relations Act (the Act) by failing and refusing since on or about March 29, 1990, to furnish to the Employer in- formation necessary and relevant to the collective-bargaining process. Respondent has by its answer filed on June 15, 1990, denied the commission of the alleged violation of the Act. On the entire record, including my observations of the de- meanor of the witnesses, a review of the documentary evi- dence, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION The complaint alleges, Respondent admits, and I find that the employer is and has been at all times material, a corpora- tion duly organized and existing by virtue of the laws of the State of Delaware, with an office and place of business in St. Louis, Missouri, where it has been engaged in the pro- duction and nonretail sale and distribution of soft drink bev- erages, that during the 12-month period ending May 31, 1990, the Employer in the course and conduct of its business operations, purchased and received at its St. Louis, Missouri facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Missouri and that the Employer is now and has been at all times mate- rial, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that at all times material, Respondent has been and is now a labor organization within the meaning of Section 2(5) of the Act. THE APPROPRIATE UNIT The complaint alleges, Respondent admits, and I find that at all times material, the drivers constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I further find as alleged in the complaint and admitted by Respondent that at all times material Respondent by virtue of Section 9(a) of the Act, has been and is the exclusive rep- resentative of the unit for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment. abc are St. wit Err (Pc are cot 19' 15 20 thr lei Ct Ui thi se cc Pr in Cr in, Ct it g; si a TEAMSTERS LOCAL 688 (COCA-COLA BOTTLING) 313 IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The facts in this case are virtually undisputed. As noted above, the drivers employed by the Charging Party Employer are represented by the Union. The Employer purchased the St. Louis facility in 1986 and negotiated its initial contract with the Union in 1987 which expired on May 31, 1990. The Employer competes with Pepsi Cola Bottling Company (Pepsi) in the St. Louis Metropolitan area and surrounding areas in Missouri and Illinois. The Employer and the Union commenced bargaining for a successor contract on March 29, 1990, and at the time of the hearing had been involved in 15 negotiation sessions with the final session held on June 20, 1990, as of the date of the hearing. At the negotiations the Employer was represented by its chief spokesman and legal counsel Ronald Ingham, Human Resource Manager Curt Wacker, and others. The Union's chief spokesman was Union Business Representative Kenneth DeGrande who led the Union's bargaining committee. At the initial bargaining session the Employer requested a copy of the current Pepii contract or any working papers which were in the Union's possession. The Union also serves as the collective-bargain- ing representative to Pepsi's drivers and has been a party to collective-bargaining agreements with Pepsi. Human Resources Director Curt Wacker testified at length in partial reliance on bargaining notes of the Employer con- cerning the course of the negotiations. It was stipulated by the parties that if the other members of the Employer's bar- gaining committee had testified at the hearing, they would have given testimony consistent with that of Wacker. Re- spondent's witness, Union Business Representative Kenneth DeGrande, acknowledged on the stand that Wacker's testi- mony was accurate with the exception of emphasis that DeGrande might differ with. Thus the record shows that the Employer made a demand on the Union for the Union's current contract with Pepsi and/or the working papers or draft, if the Union's current contract was not yet in final form as appears to have been contended by DeGrande. According to the testimony of Wacker the Employer's chief spokesman, Ingram expressed the Employor's need to review the contract between Pepsi and the Union if it were to achieve parity in its competition with Pepsi. DeGrande would put a different emphasis on this request and testified that Ingram stated he wanted the• Pepsi contract so that the Employer could "kick their [Pepsi's] ass." Both the Employer's notes and those of the Union show that the Employer wanted to achieve parity with Pepsi and sought to review the contract between Pepsi and the Union to ascertain what provisions thereof might be favor- able to Pepsi and merit adoption by the Employer. It is un- disputed that the Pepsi contract was discussed at every meet- ing and that the Employer was particularly interested in the "Pepsi Express" delivery system which had been described by a Pepsi official as a significant cost saving feature. Dur- ing this period the parties discussed many items. The Union was concerned that the Employer would agree to only certain items in the Pepsi contract and exclude others, such as em- ployment guarantees. The Union also took the position that the Employer already had the expired Pepsi contract which the Employer admittedly had and that the "Pepsi Express" provision in the expired contract was not changed in the new contract. At one point the Union asked the Employer to ac- cept the complete Pepsi contract in its entirety but would not present it with a copy thereof. Ultimately Union Business Representative DeGrande stated he would not tender the con- tract to the Employer without a court order to do so. At the hearing DeGrande testified he was concerned with the legal- ity of providing the Employer with a copy of Pepsi's contact. DeGrande also testified that the Employer did not need the contract because the operations of the Employer and Pepsi were totally different. He subsequently acknowledged there were various similarities between the operations of Pepsi and the Employer. B. Analysis The General Counsel, Charging Party, and Respondent are in agreement that the Board utilizes a liberal discovery stand- ard in reviewing requests for information which requires only, a probability that such information is relevant, citing NLRB v. Acme Industrial Co., 385 U.S. 432, .437 (1967), and that it would be of use to the party seeking the information in carrying out its statutory duties and responsibilities. The Union defends on three grounds: 1. The Employer's request for information, in the context in which it was expressed, would have required Respondent to engage in an illegal conspiracy in re- straint of trade in violation of the federal antitrust laws. 2. The Employer already was in possession of the in- formation which it requested. 3. Respondent was not in possession of the document which the Employer requested. With respect to• the relevance of the information sought I find it to be inherently relevant as it dealt with the terms and conditions of employees in a similar if not closely similar or virtually identical type of business. If in fact Pepsi was being accorded more favorable terms from the Employer's point of view that could significantly reduce operating costs, then this information would certainly be relevant to the Employer's obligations in conducting bargaining with the Union. I find the Respondent's defenses to be without merit. Ini- tially there was no evidence which would give rise to a vio- lation of the Antitrust Act. There is simply no evidence that the disclosure of this contract would have totally eliminated competition between the Employer and Pepsi or otherwise have impaired Pepsi's ability to compete. Assuming arguendo that the Employer's spokesman Ingram had said he wanted the Pepsi contract to enable the Employer "to kick their [Pepsi's] ass," there was also significant testimony that the Employer had requested the contract contending it need- ed it to achieve parity with Pepsi. There is no evidence that the furnishing of the information. requested by the Employer in this case would have eliminated competition on all sub- jects such as to give rise to an antitrust violation. See Hotel & Restaurant Employees Local 355 (Doral Hotel), 245 NLRB 774 (1979), cited by the General Counsel wherein the Board found that the providing of a union contract with one hotel by the Union to a competitor hotel would not constitute an antitrust violation such as to excuse the Union's refusal to provide it under the provisions of the National Labor Re- lations Act See also Dolly Madison Industries, 182 NLRB 1037 (1970), wherein a "Most Favored Nations" clause was 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD held to be a mandatory subject of bargaining and not viola- tive of antitrust laws. With respect to the Union's contention that the Employer was already in possession of the information because it had the expired contract between Pepsi and the Union, and the contention that the Union was not in possession of the infor- mation, I find both contentions to be without merit as it is readily apparent that the Employer was not required to rely on an expired contract and the Union's assurances that there had been no relevant change in the new contract. It is also apparent that assuming the new contract was not in final printed form, the Union was in possession of either the draft or working papers and could have readily complied with the Employer's request if it had chosen to do so. Accordingly, 1 find that the Respondent Union violated Section 8(b)(3) of the Act by its continuing refusal since or about March 29, 1990, to date to furnish the Employer with its new contract with Pepsi or a draft or working papers.1 CONCLUSIONS OF LAW 1. The Charging Party Employer, Coca-Cola Bottling Company of St. Louis, Inc., is and' has been at all times ma- terial an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Teamsters Local Union No. 688, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL—CIO is a labor organization within- the meaning of Section 2(5) of the Act. 3. By denying the Employer's request for a copy of the Respondent's current contract with Pepsi Cola Bottling Com- pany or a draft or working papers if the contract were not in final form, the Respondent Union violated Section 8(b)(3) of the Act. 4. The above unfair labor practice is an unfair labor prac- tice within the meaning of Section 2(6) and (7) of the Act. THE REMEDY , Having found that Respondent violated Section 8(b)(3) of the Act, I recommend it be ordered to cease and desist and in any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed under Section 7 of the Act, and take affirmative action nec- essary to effectuate the policies of the Act to include the fur- nishing of a copy of its current contract with Pepsi Cola Bot- tling Company or a draft or working papers if the contract is not yet in final form on request by the Employer for use in connection with its bargaining respongibilities. Respondent shall also post the appropriate notice. On these findings of fact and conclusions of law and on the entire record, tissue the following recommended2 ORDER The Respondent Teamsters Local Union No. 688, affiliated with the International Brotherhood of Teamsters, Chauffeurs, 'The negotiation minutes of committee members Lennie Vancil, Ernest Smith, and Gary Tinsley are received as posthearing it. Exhs. 1 through 3. 2 If no exceptions are filed as provided by Sec. 10246 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec- tions to them shall be deemed waived for all purposes. Warehousemen and Helpers of America, AFL—CIO, its offi- cers, agents, and representatives, shall I. Cease and desist from (a) Refusing to bargain in good faith with Coca-Cola Bot- tling Company of St. Louis, a division of Johnston Coca- Cola by failing and refusing to furnish the Employer with a copy of its current contract with Pepsi Cola Bottling Com- pany or a draft or working papers thereof if the contract has not been finalized. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) On request, furnish the Employer a copy of its current contract with Pepsi Cola Bottling Company or a draft or working papers if the contract is not yet finalized. (b) Post at its business office in St. Louis, Missouri, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Re- gion 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 31f 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 Rela- tions Board" shall 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 The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. TEAMSTERS LOCAL 688 (COCA-COLA BOWLING) 315 WE WILL NOT fail or refuse to furnish Coca-Cola Bottling Group of St. Louis, a division of Johnston Coca-Cola Bot- tling Company, Inc., a copy of our current contract with Pepsi Cola Bottling Company or if the contract has not been finalized, a draft or working papers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guranteed you by Section 7 of the Act. WE WILL, on request, furnish the Employer with a copy of the current contract or if it has not been finalized, a draft or working papers. TEAMSTERS LOCAL UNION No. 688, AFFILI- ATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL—CIO