Bozzuto'S, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1985

275 N.L.R.B. 353 (N.L.R.B. 1985)

BOZZUTO'S, INC
Bozzuto 's, Inc. and Teamsters Local Union No. 677,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Cases 39-CA-2085-2 and 39-CA-
2085-4
30 April 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 September 1984 Administrative Law
Judge Marion C. Ladwig issued the attached deci-.
sion. The Respondent filed exceptions and a - sup-
porting brief, and the General Counsel filed an an-
swering brief.
The Board has considered the decision and
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 as modified and • to adopt the recom-
mended Order as modified.
On 2 April 1984 the Union requested a list con-
taining unit members' names, addresses, job classifi-
cations, and other information. The Respondent
provided unit members' names, classifications,'*and
some other information, but refused to supply ad-
dresses. We agree with the judge that the Respond-
ent violated the Act by refusing to provide the
Union with the unit members' addresses.
A union has a statutory right to receive unit
members' names and addresses. This information is
"presumptively relevant to the [u]nion's role as
bargaining agent" and "no showing of particular-
ized need [is] necessary." Georgetown Holiday Inn,
235 NLRB 485, 486 (1978). Although a union may
relinquish a statutory right, the law requires ' that -
the waiver of a statutory right be clear and unmis-
i In adopting the judge's finding that the Respondent 's overtime pro-
gram violated Sec 8(a)(5) of the Act, we find it unnecessary to adopt the
judge's suggestion that the Respondent attempted to conceal the overtime
work from the Union Rather, -we find that the ,Union did not know or
have reason to know about the overtime work until January 1984 We
reject the Respondent 's claim that the Union was on notice about the
weekend overtime work through Steward Pronovost We agree with the
judge that Pronovost had insufficient contact with employees working
overtime and had no reason to suspect they were being paid improperly
unless someone complained
In agreeing that the repacking of damaged goods was unit work, we
stress that unit employee Coley routinely did the work and the Respond-
ent applied the collective-bargaining agreement to the overtime work in
all regards except wages
3 In the absence of exceptions , Member Dennis adopts , pro forma, the
judge's conclusion that Sec 10(b) of the Act bars the 8 (a)(5) charge con-
cerning the cleaning , painting , and sealing work
353
takable. See. Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983).
The Respondent does not deny the relevance of
the requested addresses, but instead argues that the
following contractual provision3 limited the infor-
mation to ' which the Union is entitled and thus
waived the Union's right to the addresses: "Seniori-
ty' lists showing each employee's name, job classifi-
cation, and seniority date shall be prepared and
given to the Union from time to time on request."
We do not agree. The provision specifies what in-
formation to include in a seniority list. The clause
does not provide that other information need not
be disclosed -to the Union, and the Respondent
points to no- other contractual provision that ad-
dresses the Union's right to receive information.4
We find that the contract does not clearly and un-
mistakably waive the Union's right to a list of unit
members' addresses. , Accordingly, we conclude
that the Respondent's failure to provide the re-
quested information violated Section 8(a)(5) and (1)
of the Act.5
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 2 and
renumber the subsequent paragraphs. -
"2. By refusing to furnish the Union with unit
members' names and addresses, the Company en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Bozzuto's , Inc., -Cheshire, Connecticut,
its officers , agents, successors , and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(b) and re-
letter the subsequent paragraph.
"(b) Refusing to furnish the Union with unit
members' names and addresses."
2. Substitute the attached notice for that of the
administrative law judge. •
3 Although the contract had expired , the parties stipulated that they
continued to operate under this provision.
* Although the Union's request mentions a "seniority list," it is clear
the Union's request was not limited to the information specified in the
contractual provision •
5 We conform to the judge's Conclusions of Law , recommended
Order, and notice with his findings
275 NLRB No. 56
354 DECISIONS OF 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 violated 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 representa-
tives of their own choice
To act together for other_mutual aid or pro-
tection
To choose not to engage. in. any of these
protected concerted activities...
,WE WILL ' NOT refuse to bargain with Teamsters
Local Union No. 677, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America 'by dealing directly with per-
ishable section employees and paying them less
than the contractual-wage rates for overtime work.
WE WILL NOT refuse to furnish the Union with
unit members' names and addresses.
WE WILL, NOT- in any like or related manner
interfere with, restrain, or coerce you-in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Mark Brundage, Antonio Giner
Jr., Henry Landry, and William Marshall Jr. whole
for the unpaid portion of the contractual wage
rates for weekend work, plus interest.,
WE WILL, on request, furnish the Union with the
names , and addressss of all employees in the bar-
gaining unit it represents.
BOZZUTO'S, INC.
DECISION'
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative - Law Judge.
These cases were tried at Hartford, Connecticut, June
27, 1984.1 The charges were filed by the Union March
12 (amended May 1) and May 1 (amended May 30), the
complaints, were issued May 30 and June 11, and the
order consolidating cases was issued June 13.
In November and December the Company was paying
the below scale rate of $7 an hour, without overtime pre-
mium pay, to a total of 12 bargaining unit employees (all
of them nonunion except one) who had volunteered to
All dates are from November 1983 until June 1984 unless otherwise
indicated
do the work on weekends at the cut rate: Upon hearing
in January that a complaint was being filed, by the one
union member, alerting the _ Union,' the Company "felt
that we should stop it at the time, so we haven't started
it back again." -
The primary issues are whether the Company, the Re-
spondent, unlawfully refused to bargain with the Union
in violation of Section 8(a)(5) and (1) by bypassing the
Union, dealing directly with its employees, and unilater-
ally changing the payment structure without giving prior
notice to the Union and 'affording it an opportunity to
bargain and later • refusing to supply the Union with ad-
dresses of bargaining unit employees, and whether the
first charge is barred by Section 10(c) of the -National
Labor Relations Act. `
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Company, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The Company, a Connecticut corporation, wholesales
groceries at its facility in Cheshire, Connecticut, where it
annually receives goods valued over, $50,000 directly
from outside the State. The Company admits and I find
that it is an employer engaged in commerce within the
meaning ,of Section 2(2), (6), and (7) of the Act and that
the Union is a labor organization within the 'meaning of
Section 2(5) of the.Act. -
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
-The Company recognizes the Union as the exclusive
representative of the employees in the following bargain-
ing unit at the Company 's Cheshire warehouse.
All truckdrivers , fleet mechanics , jockeys , fleet utili-
ty workers , forklift operators, and warehousemen, but
excluding office and warehouse clerical personnel,
'professional employees , working foremen , warehouse
maintenance personnel , guards and supervisors as de-
fined in the Act. [Emphasis added.]
Negotiations to reach a collective -bargaining agree-
ment to succeed the one expiring January 31 , 1983, failed
and the Union went on strike the next day . The strike
was unsuccessful and the strike ended February 22, 1983,
when the remaining striking employees returned to
work . The Union filed a charge against the Company in
Case 39-CA-1517, alleging that the Company had not
bargained in good faith and had committed other viola-
tions of the Act. Judge Mclnerny's decision , JD-70-84
(G C. Exh . 2), dated March 12 , is now pending before
the Board on exceptions.
For purposes of the present proceeding, the parties
have stipulated that the Company and Union are operat-
ing under the expired agreement (Jt. Exh . 1), except that
articles V and VIII of the Company 's last offer (Jt. Exh.
BOZZUTO'S, INC. -
2) have been implemented, amending the hours and
wages (Tr. 6, 173).
B. The Company's Unilateral $7-an-Hour Program
1. Bargaining unit work not defined
The recognized bargaining unit includes "forklift oper-
ators" and "warehousemen" and excludes "warehouse
clerical personnel".and "warehouse maintenance person-
nel." The collective-bargaining agreement does not,
however, define what work is to be performed by bar-
gaining unit forklift operators and warehousemen and
what work is to be performed by nonunit warehouse
clerks and, maintenance personnel. The result has been
that some of the same work has been done both- by bar-
gaining unit and nonunit personnel. -
As an example, the Company has two nonunit damage
(or recouping) clerks. They are Steve Ronalter, who
works in the grocery section from 1 to 9 p. m., and
Morris Gray, who works in the perishable section from
noon to 8 p.m. Each of them does repacking as well as
other duties. (Tr. 98, 109, 132, 156-158, 163.) But bar-
gaining unit employees also do repacking of damaged
merchandise. For many years, repacking has been a part
of warehouseman Alan Coley's regular job (Tr. 88, 93,
95-97, 132, 161-163). Coley works from 6 a.m. to 2 p.m.,
and "if there is damage to be done, that is what he does,
mostly" (Tr. 96). If "he finds something damaged in the
aisle or if somebody drops something, he fixes it," and he
also repacks "damage that comes from the trucks" (Tr.
97). Other bargaining unit employees also do repacking.
As Henry Roland Landry (a forklift operator in the per:
ishable section on the 6 -a.m. shift) credibly testified, he
has seen other bargaining unit employees do repacking of
damaged goods on their regular shift. And although he is
not required to do it as a forklift operator, he has done
repacking himself as part of his regular bargaining unit
work because "Someone's got to do it." (Tr. 92-93.)
Thus, repacking of damaged goods has been bargain-
ing unit work for many years, although nonunit ware'-
house clerks have also done repacking during the hours
they are on duty.
Another type of work that is not designated as bar-
gaining unit or nonunit work in the collective-bargaining
agreement is the semiannual cleaning, painting, and seal-
ing of the warehouse - floor. This work involves first
cleaning the individual slots where the pallets of goods
are stacked, painting lines on the floor, and applying a
sealer to protect the lines and keep down the dust. Then
after all the slots are sealed, over a period_ of 8 or 10
weekends, the warehouse aisles are done on I weekend.
This requires six or seven employees to wash the floor
and paint the lines on a Friday night after work and
seven employees to apply the sealer on Saturday. (Tr.
125-126, 128.) (According to Grocery Shipping Manager
Serge Chevalier, in 1983 there were "at least • three or
four" persons in building maintenance (including the car-
penter supervisor) and a supervisor and four housekeep-
ing employees, who- do not perform this type of work
(Tr. 130-132).)
The Company contends in its brief that "warehouse
maintenance personnel" are excluded from the contrac-
355
tual definition of the bargaining unit, that this semiannual
work is "primarily of a maintenance" nature,'and that it
is "accordingly nonbargaining unit" work. I disagree.
First, the collective-bargaining agreement does not
define the work of the "warehouse maintenance person-
nel"; it merely excludes them from the bargaining unit.
Second, there is nothing in the agreement that excludes
work "primarily of a maintenance" nature from bargain-
ing unit work and nothing in the agreement that pre-
cludes the Company from assigning this work to bargain-
ing unit warehousemen or forklift operators. Third, for
years this semiannual work has been assigned to bargain-
ing unit employees who have' volunteered to do it at a
cut rate, without the contractual overtime premium pay.
Before 1980 most of this type work was-done by build-
ing maintenance personnel, but on an irregular basis (Tr.
106). In 1981, when the Company held a food carnival
on the warehouse grounds (for manufacturers' represent-
atives and supermarket owners in a promotional cam-
paign), it decided' to "shape up" the building, paint the
outside and part of the inside, and seal the warehouse
floor. That was when the $7 program began. The Com-
pany assigned the work to volunteers who would work
for that below-scale rate, without overtime pay. (Tr.
101-102.) Since then, until- the program was abruptly
halted in January 1984, the Company on a regular basis,
twice each year, assigned the work of cleaning, painting,
and sealing the warehouse floor to bargaining unit em-
ployees. Thus, work that was once done mostly by non-
unit maintenance personnel on an irregular basis has in
recent years been done regularly by bargaining unit em-
ployees. -
When assigned to bargaining unit volunteers, the work
is done in the same warehouse,-where they normally
work, under the same. warehouse supervision, and under
the terms of the-collective-bargaining agreement-except
for the-pay. Shipping Manager Chevalier, who with the
permission of Warehousing and Transportation Director
Michael Carangelo started the' $7-an-hour program in
1981 (Tr. 137), in effect admitted that the employees-
were working under the agreement. He testified on
cross-examination (Tr. 139):
Q. While these employees were working for $7
an hour, if they • asked for a steward, would you
give them one?
A. Yes, I'would.•-- -
Q. If they wanted to file a grievance, would you
assist them in seeing Mr. Carangelo?
A. Of course.
Q. Now, if these employees were injured while
working $7 an hour, would you fill out an injury
accident report pursuant to the contractual - provi-'
-sion?
A. Yes.
Similarly Grocery Night Supervisor Eugene Callahan,
who worked under this $7-an-hour program as a ware-
houseman before becoming a supervisor, testified that
when doing so, he considered himself still- a member of
the bargaining unit and entitled to ask for a steward and
to file a grievance if he-had reason to (Tr. 151-152).
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This was not a situation in which a bargaining unit em-
ployee "moonlights" on an unrelated job outside the
coverage of the collective-bargaining agreement , for ex-
ample working under different, supervision in the office
or working as a construction employee or security guard
at the warehouse for a different employer. These bar-
gaining unit employees were assigned as a group to per-
form the floor sealing work, in the same location where
they normally work, under the same warehouse supervi-
sion , and covered at least in part. by the collective-bar-
gaining agreement.
Under these circumstances, I find that the floor sealing
work was no longer nonnunit work, but that it was bar-
gaining unit work, regularly assigned to bargaining unit
employees who volunteered to do it at the cut rate. -
2. Secret dealing with nonunion employees
From November 1 (6 months before the amended
charge in Case 39-CA-2085-2 was filed) until early Jan-
uary, the Company assigned different types.of warehouse
work on weekends to a total of 12 bargaining unit em-
ployees (Jt..Exh. 6) at the $7 rate, without paying them
time and a half or double time for work after 40 hours or
on the sixth and seventh day of the week.
The Company assigned this overtime work to non-
union employees: either to employees who had with-
drawn their membership from the Union after the Febru-
ary 1, 1983 strike or to nonunion employees hired since
that date. The only exception was forklift operator
Henry Landry, the union member who later filed a
grievance, calling this secret dealing to the Union's atten-
tion.
Eight of the nonunion employees were bargaining unit
employees in•the grocery section of the warehouse. They
were Albert Chabot, Robert Derby Jr., Thomas Derby,
Michael Dunn, Daniel Mulligan , Thomas Savage , Daniel
Tegolini, and Bruce Thibodeau. Five of them (Robert
Derby, Dunn, Mulligan , Tegolim, and Thibodeau) testi-
fied that they did the cleaning , painting, and sealing of
the warehouse floor.
The other four employees were bargaining unit em-
ployees in the perishable section of the warehouse. They
were Mark Brundage , Antonio Giner Jr., Henry Landry,
and William Marshall Jr. (Jt. Exh. 6). Brundage and
Marshall did not testify. Produce selector Giner, on the 6
p.m. night shift, credibly testified that he did not do any
of the floor-sealing work. His assigned work, in the same
produce department where he regularly worked, includ-
ed the repacking of damaged goods (regular bargaining
unit work). (Tr. 78-79.) Freezer operator Landry, on the
6 a.m. day shift, credibly testified that he did "a little bit
of everything." His assigned work included cleaning and
painting the warehouse floor, his regular work of operat-
ing the forklift, and also other bargaining unit work: un-
loading trucks, putting away goods as they were re-
ceived, and repacking damaged goods in the freezer. (Tr.
83, 87.)
About 2 weeks before Landry began doing this extra
work, he heard from nonunion 'produce forklift operator
Brundage about this $7-an-hour work. Landry asked Per-
ishable Shipping Manager Peter Lanza if he could also
do it, explaining to Lanza that his. wife was sick and he
needed the extra money. Lanza agreed and assigned him
the weekend work. (Tr 84-85.)
Sometime in January Landry complained to the Union
that he was not only doing maintenance work, but also
his regular work at the $7-an-hour sate. This was when
the Company abruptly halted all the $7-an-hour work in-
cluding the floor-sealing work; which was only about a
third finished (Tr. 129, 158). Shipping Manager Cheva-
lier testified that "when we heard about a complaint"
coming up, "we felt that we should stop it at the time, so
we haven't started it back again" (Tr. 108).
On February 27 Landry filed a written grievance (R.
Exh. 1), complaining that on the 5 weekends before
Christmas, when he was doing maintenance' work
(sweeping, washing, and painting floor lines) in the per-
ishable section at a rate of $7 an hour on a separate time-
card, he found that he was also doing his regular work
(driving the forklift and receiving trucks on the dock)
for which he should have been paid at premium rates of
time and a half or double time.
After learning in early March that Landry had with-
drawn the grievance, Business Representative George
Lamontagne- filed the charge in Case 39-CA-2085-2, al-
leging that the Company had coerced and intimidated
Landry by forcing him to withdraw the grievance (G.C.
Exh. 1A). Lamontagne also conferred with Union Stew-
ard Michael Bates about employees being paid $7 an
hour (Tr. 12), and Bates filed a grievance (which is not
in evidence). Lamontagne continued to investigate the
matter (Jt. Exh. 4b) and on May 1 filed the amended
charge, alleging the unilateral changing of premium and
overtime pay and direct dealing with bargaining unit em-
ployees. (None of the parties seeks deferral of this pro-
ceeding to arbitration.)
3. The 10(b) defense
The Company contends that the allegations that it un-
lawfully refused to bargain by dealing directly with its
employees and making unilateral changes are completely
barred by the 6-month limitations period in Section 10(b)
of the Act. It contends that the Union "has known or
should have known of the practice since 1981."
I agree with the Company insofar as the Company
was assigning bargaining unit volunteers to clean, paint,
and seal the warehouse floor. When these assignments
were first made before the 1981 food carnival, the Union
was placed on notice that the Company was paying vol-
unteers the flat rate'of $7 an hour, without overtime pre-
mium pay, because one of the bargaining unit employees
assigned was Union Steward Robert Grandpre (Tr. 33,
103).. Despite this notice, the Union failed to protest, to
request negotiations on the matter, or to file a charge.
After 1981 the Company continued the $7-an-hour pro-
gram, assigning this maintenance work to bargaining unit
employees volunteering to do it at the cut rate. Under
these circumstances, any refusal to bargain occurred in
1981 when the Company began the practice, not within 6
months before the Union's May 1, 1984 amended charge.
I therefore find that this part of the refusal-to-bargain al-
legations is barred by Section 10(b) of the Act.
BOZZUTO 'S, INC.
I find, however , that the statute of limitations does not
bar the refusal -to-bargain allegations concerning the
Company's direct dealing from November. 1 until Janu-
ary with bargaining unit employees in the perishable sec-
tion , paying them the $7 -an-hour cut rate , without premi-
um pay, to perform weekend overtime work that includ-
ed regular bargaining unit work. -
Produce selector Giner 's $7-an -hour work included re-'
packing damaged goods , which has been bargaining unit
work many years at the warehouse , as discussed above.
Freezer forklift operator Landry's weekend work includ-
ed his regular work of operating the forklift as well as
other bargaining unit work , unloading trucks , putting
away incoming goods, and repacking damaged goods in
the freezer.
The Company was assigning the $7-an-hour work se-
cretly to nonunion perishable section employees Brun-
dage, Giner , and Marshall . The Company never posted
any notice about the availability of the $7-an-hour work
and never put anything in- writing about the terms and
conditions-of this work . "It never notified the Union that
it was permitting perishable section employees to volun-
teer to do work that included bargaining unit work for
$7 an hour. The secret dealing was not disclosed to the
Union until union member Landry heard about the $7-
an-hour work from Brundage , requested some of the
work because of illness in the family , , found that he was
being assigned bargaining unit ' work at the low wage
rate, and reported the matter to the Union.
The Union's notice in 1981 that the Company was as-
signing floor sealing work to bargaining unit employees
who volunteered to do that maintenance work for $7 an
hour was not notice that the Company was extending
this $7-an-hour program to regular bargaining unit work
on the weekends . - - • ' . .
In its defense , however, the Company revealed at the
trial that it had further extended its $7 -an-hour program
to other types of work in the grocery section . In its brief
it argues that the Union "knew or should have known"
before November 1 that bargaining unit employees were
performing extra work at the noncontract rate because
"for over a year three different employees worked at-
least two hours a night along with steward George , Pron-
ovost."
The Company 's evidence revealed that - it did extend
the $7 -an-hour program in 1982, assigning one grocery
section volunteer at a time to work 2 hours a night
beyond the 3:30 p.m. shift , doing work usually per-
formed by damage clerks and housekeeping employees.
But, as the General Counsel contends in its brief, the
Company "made every attempt to conceal" his addition-
al $7-an-hour work from the Union . The Company had
"an understanding" with the grocery selector doing the
extra work that the whole shift had to be over first,
before the employee would clock - out and clock back in
on a separate timecard (Tr. 115). There was a union
steward on duty , but he regularly worked an houroro
two beyond the selectors ' shift, loading trucks on the
dock . He would have no reason to be present when the
late working selector clocked out and back in. -(The
Company goes outside the record in claiming that the
steward saw the selectors punch out and punch back in.)
357
- The Company argues in its brief that "it would have
been obvious to Mr . Pronovost as steward that these em-
ployees were performing work outside their regular
duties." Even if the steward : had looked inside and no-
ticed the selector 's work, the type ' of work the selector
was doing after the others left would have made no dif-
ference as long as he was being paid the, contract rate
and nobody was complaining . The Company also argues
that the collective -bargaining agreement requires the
equal distribution of overtime and "Mr . Pronovost seeing
one selector working late on a continuous basis would
have questioned this had he not, known what was going
on." To the contrary , the steward himself was regularly
working beyond the selectors ' shift on straight time, and
there was no reason for him not - to assume that the selec-
tor was likewise. working at the contract rate on straight
time . (In view of the failure of the General Counsel to
offer to amend the complaint to allege a further - refusal
to bargain in 1982 when the Company extended the $7-
an-hour program to other types of grocery section work,
I do not rule on the legality of this unilateral action.)
- It is well established - that the 6 -month limitation period
in Section 10(b) "does not begin to run until the ag-
grieved party knew or should have known that his statu-
tory rights were violated ." Metromedia, Inc. v. NLRB,
586 F.2d 1182; 1189 (8th 'Cir. 1978). Having found that
the Company concealed the information from the Union,
I reject the Company 's contention that the Union knew
or should have known before November 1 that the $7-
an-hour rate . was being paid the four perishable section
employees . I therefore find that this part of the refusal to
bargain allegations is, not barred by Section 10(b) of the
Act. (Of course ; if it develops in compliance that the two
perishable section employees who did . not testify,
produce forklift operator Brundage and produce selector
Marshall, did only floor sealing work on the weekends,
Section 10(b) would bar any remedy for that work.)
4. Refusal-to-bargain finding
In 1981 the Union was placed on notice that the Com-
pany had , unilaterally established a practice of paying
bargaining unit . volunteers a, below -scale rate of $7 an
hour, without overtime premium pay, ' to' perform floor
sealing maintenance work on weekends.
In January - 1984 the Union first learned that the Com-
pany had extended this $7-an-hour weekend program and
had, until -early that month, paid that cut rate to a bar-
gaining unit 'employee in ' the perishable" section of the
warehouse - for -weekend .overtime work that included
regular bargaining- unit work . An investigation revealed
-that the Company had also secretly paid three other per-'
ishable- section employees this -$7-an-hour rate, on sepa-
rate timecards , - without, . premium pay for the overtime
(Jt. Exh . 6). r
The complaint in Case 39-CA-2085-2, as amended
May 1, alleges that the Company from November 1 by-
passed - the Union , -dealt directly with its employees, and
unilaterally changed- - the payment structure without
giving prior notice to the Union and affording it an op-
portunity to, bargain , -in violation of Section 8(a)(5) and
(1). The, evidence clearly - supports .. these allegations, as
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied to the Company' s secret dealing with perishable
section employees and paying them the $7-an-hour rate
for weekend overtime work that included bargaining unit
work. I therefore find that from November 1 until early
January, the Company; unlawfully refused to bargain
with the Union, violating Section 8(a)(5) and (1) of the
Act. -
- C. Refusal to Furnish Addresses.
About 100 of the 120 employees participated in the
February 1, 1983 strike. Since that time; about 20 of the
employees have withdrawn from union membership and
about 60 or 70 new employees have not joined the Union
or paid' dues. Although the parties have stipulated for
purposes of this proceeding that the Company and Union
are (with certain exceptions) operating under the collec-
tive-bargaining agreement that - expired January 31, 1983,
the-Union has not requested that the Company enforce
the union-shop provision.
It was under these circumstances that-the Union, • on
April'-2, made a written request for a current seniority
list, including employee addresses. The Company fur-
nished a new list containing-the names of 167 current
employees (Jt. Exh. 3), but refused to include the ad-
dresses.
As in NLRB v. Pearl Bookbinding Co., 517 F.2d 1108,
1113 (5th Cir. 1975), enfg. Pearl Bookbinding Co., 213
NLRB 532, 534 (1974), "The Company does not dispute
that the union must . be able to communicate with( the
bargaining 'unit employees in order to bargain for them."
The Union sought the addresses to enable it to inform all
the bargaining unit employees "what was going on," to
mail them the Union's newsletter, to get information
from them,,and to send the nonunion employees•authori-
zation cards, inviting' them to become union, members
-(Tr. 24).
In-its brief, however, the Company contends that it is
"under no obligation to give the- Union a written list of
employee addresses" because these is no contractual re-
quirement that the seniority list include addresses and the
Union has acquiesced in the Company's previous refusals
to supply written lists of addresses. The Company. points
out that the seniority list it furnished provided the Union
"with the exact information required" in the collective-
bargaining ' agreement (which reads, "Seniority lists
showing each employee's name, job classification, and se-
niority date shall be prepared and ' given 'to the Union
from time to time on request. The Union shall be notified
of changes as they occur"): It then aigues that "The
NLRB recognizes that a• union may waive its statutory
right to information" and "that waiver may be accom-
plished through acceptance and acquiescence taken by a
party, with respect contract language 'or negotiated
items." -
I find it clear that this waiver defense has no merit. As
held in Standard Oil Co. v. NLRB, 399 F.2d 639, 642 (9th
Cir. 1968): '
The fact that [the Company] had not contracted to
furnish the information is not controlling. -If it were,
an employer could always keep itself in a position
to assert that defense,,by merely refusing-to make a
contract about furnishing the kind of information in
question.
Moreover, the Company's brief refers only. to written
lists of addresses and ignores the undisputed evidence
that the Company has furnished employee addresses to
the Union orally (Tr. 35). Thus, before the strike when
the union-security .provisions in the agreement were
being enforced and the employees were union members,
the Union was -able to obtain addresses of new employ-
ees orally from the Company. The Union certainly did
not waive any right to receive this information.
I therefore reject the Company's arguments that the
Union waived the right to receive the employee address-
es.
As an- apparent afterthought, the Company contends in
a footnote that it "is confronted with" Connecticut Gen-
eral Statute Section 31-128f, Employee's consent required
for disclosure, which it claims precludes disclosure of per-
sonnel information without-permission of an employee
unless required by a collective-bargaining agreement. I
consider this to be a frivolous contention. The Company
cites no authority for arguing that furnishing the address-
es at the Union's request would violate that State law,
and the Company obviously did not regard that statute
applicable when -it previously furnished employer ad-
dresses orally at the Union's request. Moreover, the stat-
ute on its face provides that the disclosure of 'Individual
identifiable information contained in the, personnel file" is
permitted if made "to comply with federal ... regula-
tions."
Finally, in a footnote at the end of its lengthy argu-
ment of the waiver contentions, the Company's brief
adds what appears to be another afterthought. The foot-
note, in response to the General Counsel's position "that
the Union needed the information to administer the col-
lective-bargaining agreement and reach new employees,"
asserts that the contractual bulletin board, the stewards'
soliciting new members, and the business representatives'
access to employees-"All of these factors are still avail-
able to the Union . . . and Local 677 can administer the
contract as it has in the past without addresses." To the
contrary, the Union did have the addresses in the past,
and I find that these are not adequate alternative means
of communication.
Posting notices on a bulletin board was inadequate to
convey and receive information to and from the large
percentage of new employees (60 or 70 in a bargaining
unit of 167 employees). As held in Prudential Insurance
Co. v. NLRB, 412 F.2d 77, 88 (2d Cir. 1969), bulletin
boards are not adequate to communicate to employees
"any information too lengthy or complex to be read
quickly but which must more appropriately be studied
for a period of time, or to poll [them] or solicit their
opinions about bargaining objectives, contract adminis-
tration, or other related matter."
•- Solicitation of new. members by stewards in the ware-
house during the workday has proved unsuccessful.
None of the 60 or 70 employees hired since the strike
began has joined the Union or attended a union meeting.
Furthermore -since the strike; the Company has isolated
Business Representative Lamontagne from the employ-
BOZZUTO'S, INC.
ees. Before the strike, the Company permitted him to
enter the warehouse, speak-to employees, and hand out
authorization cards. Since the strike, the Company does
not permit him to enter the warehouse; he must wait,in
the office or conference room, and "If I want to speak to
someone in particular, they will bring that person out to
me." (Tr. 43-44.)
I find that a current list of the bargaining unit employ-
ees' names and addresses is relevant and necessary to the
Union's functioning as the exclusive bargaining repre-
sentative of the employees in the unit and that-there is no
adequate alternative means of communication . I therefore
find that the Company's refusal to honor the Union's re-
quest for the list was an unlawful refusal to bargain and
-violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By bypassing the Union, dealing directly- with its
employees, and unilaterally changing the payment struc-
ture for, perishable section employees assigned weekend
overtime work, without giving prior- notice to the Union
and affording it- an opportunity to bargain, the Company
engaged in unfair labor practices affecting - commerce
within the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act. -
2. Section 10(b) bars the allegation that the Company
refused to bargain by assigning bargaining unit employ-
ees on weekends to clean, paint, and seal the warehouse
floor at the below-scale rate of $7 an hour without over-
time premium pay.
3. By refusing since April 2, 1984, to furnish the Union
the current' addresses of employees in the bargaining
unit, the Company violated Section 8(a)(5) and (1) of-the
Act. - '
REMEDY
'Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it-necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having unlawfully refused to bargain
with the Union from November 1, 1983, until early Janu-
ary 1984-by dealing directly with the perishable section
employees, unilaterally reducing the contractual wage
rates and assigning them largelyrovertime weekend work
without premium pay, it must make the employees whole
.for the unpaid portion of the contractual, regular and
overtime wage rates, plus interest-as computed in Florida
Steel Corp., 231 NLRB 651 (1977). .
359
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2 -
ORDER ,
The Respondent, Bozzuto's,, Inc., Cheshire, Connecti-
cut,, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local Union
No. 677, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America by
dealing directly with perishable section employees and
paying them less than the contractual wage rates for
overtime work.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them -by Section 7 o_ f the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Mark Brundage, Antonio Giner Jr., Henry
Landry, and William Marshall Jr. whole for the unpaid
portion of the contractual- regular and overtime wage
rates for weekend work, in the manner set forth in the
remedy section of-this decision.
(b) On request, furnish the Union with the names and
addresses of all employees in the bargaining unit it repre-
sents.
(c) Post at its facility in Cheshire, Connecticut, copies
of the attached notice marked "Appendix."3 Copies-of
the notice, on forms provided by the Officer in Charge
for Subregion 39, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Officer in Charge in writing within 20
days from the date-of this Order what steps the Re-
spondent has taken to comply.
'IT IS FURTHER RECOMMENDED that the complaint is
dismissed. insofar- as it alleges violations of the Act not
specifically found. - -
2 If no exceptions are filed as provided by Sec 102 46 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 objections 'to them shall be deemed waived for all pur-
poses
3 If this Order is enforced by 'a Judgment of a United States Court of
Appeals, the words in the •noticei"reading "Posted by Order of the Na-
tional Labor Relations . Board" shall read "Posted Pursuant to a Judgment
of the,United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " -