Food & Commercial Workers Local 1439 92 (Layman's Market)

National Labor Relations Board - Board Decisions

Feb 3, 1984

268 N.L.R.B. 780 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Food and Commercial Workers Union Local
1439, Chartered by United Food and Commer-
cial Workers International Union, AFL-CIO,
CLC and Layman's Inc., d/b/a Layman's
Market. Cases 19-CB-4079 and 19-CB-4265
3 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 27 April 1982 Administrative Law Judge Jay
R. Pollack issued the attached decision. The Re-
spondent and the Charging Party filed exceptions
and supporting briefs, and the General Counsel
filed a brief in support of the judge's Decision.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,1 and
conclusions and to adopt the recommended Order
as modified.
The judge found, and we agree, that the Re-
spondent violated Section 8(b)(3) of the Act by re-
fusing to meet with the Employer's representatives
from March until July 1981,2 for the purpose of
negotiating collective-bargaining agreements for
the Employer's meat and grocery department units.
The judge also found, however, that the Respond-
ent violated Section 8(b)(3) of the Act by refusing
to furnish information to the Employer pertaining
to existing trust funds covering the employees
whose continuing participation in the funds was
proposed by the Respondent in the collective-bar-
gaining negotiations. The judge reasoned that the
requested information was relevant to the Employ-
er's bargaining posture in the collective-bargaining
negotiations and that, pursuant to Hospital Employ-
ees (Sinai Hospital),3 the Respondent had an affirm-
ative duty to request directly from the trust admin-
istrator that this information be provided to the
Employer rather than merely direct the Employer
to write the trust administrator for this information.
We find merit in theRespondent's exception to this
finding.
On 24 August the parties declared themselves at
an impasse over negotiations for new collective-
bargaining agreements concerning the grocery and
meat department units. On 27 August Gary Lo-
fland, the Employer's attorney, wrote the Respond-
' We correct the following inadvertent error in the judge's decision: at
sec. IlI,B, par. 1, the grocery department unit's collective-bargaining
agreement expired in April 1980, not March 1980.
2 All dates are in 1981 unless otherwise noted.
s 248 NLRB 631 (1980).
268 NLRB No. 113
ent's secretary-treasurer, Don Zachary, requesting
information including, inter alia, financial reports
for the health and pension plans the Respondent
was seeking.4 On 28 August Lofland wrote Za-
chary asking for "names of employees who have
vested pensions, and names, credits and amounts of
credits of other employees." On 11 September, Lo-
fland wrote Zachary asking for ". . . the current
amount of unfunded liability of the pension plan for
the Employer." 5
Sean Harrigan, the Respondent's president, was a
trustee of three of the four funds.6 As a trustee,
Harrigan was provided with information by the ad-
ministrator at each trustee meeting which outlined
the trust's financial condition. Nevertheless, on 17
September, pursuant to Harrigan's orders, Zachary
responded to Lofland's letters by stating that all
pertinent information requested could be obtained
by contacting directly the administrator of the four
funds, Steve Sherman. The letter also included
Sherman's address and telephone number.
Two months later, 19 November, Lofland wrote
Sherman and requested the same information that
he had requested from the Respondent in his 28
August and 11 September letters. By letter dated 8
December, the administrator responded to Lof-
land's inquiries about the unfunded liability of the
Retail Clerks Pension Trust. The letter identified
the entire fund's unfunded vested liability as of 30
September 1979 and 30 September 1980 and stated
that the administrator would calculate the Employ-
er's withdrawal liability for a $40 fee.7 On 10 De-
cember,8 the administrator wrote to Lofland con-
cerning the Meat Industry Pension Trust. The
letter stated that because the fund's assets exceeded
its liabilities no withdrawal liability would be im-
posed on any employer who withdrew from the
Trust. After another 2 months had passed, on 15
February 1982, Lofland wrote the administrator
again requesting essentially the same information
requested in his 19 November letter, plus the Em-
ployer's current withdrawal liability and the years
4There were four health and pension plans involved herein. The Re-
spondent proposed continuation of the Retail Clerks Health and Welfare
Trust and the Retail Clerks Pension Trust for employees in the Employ-
er's grocery department unit, and the Washington Meat Industry Welfare
Trust and the Washington Meat Industry Pension Trust for employees in
the Employer's meat department unit.
I Lofland requested this information to determine the solvency of the
Respondent's plans and whether it was economically feasible for the Em-
ployer to withdraw from the pension funds and push for the Employer's
own independent pension plan during negotiations.
6 Harrigan was not a trustee of the Washington Meat Industry Pension
Trust. He became a trustee of the Meat Industry Welfare Trust in July
1980 and of the Retail Clerks funds in February or March 1981.
I It was common practice for the fund to charge for these detailed
computations.
s The judge inadvertently stated that this letter was written on 8 De-
cember.
780
FOOD & COMMERCIAL WORKERS LOCAL 1439 (LAYMAN'S MARKET)
of vested service of employees whose pensions had
vested. Having received no response, on 3 March
1982, Lofland wrote the administrator seeking the
requested information or an explanation why it was
being withheld. On 11 March 1982 the administra-
tor sent separate letters for each fund. In these let-
ters, the administrator answered all of Lofland's re-
quests except for the current unfunded liability
(which had been answered previously in his 8 and
10 December letters) and the Employer's current
withdrawal liability, which the administrator had
previously indicated would be computed for a fee
of $40.
As stated previously, the judge found that the
Respondent had an affirmative duty to demand that
the trust administrator provide the Employer with
the requested information and its failure to do so
constituted a violation of Section 8(b)(3) of the
Act. In so finding, the judge inferred from the cir-
cumstances that Harrigan's intent in asking the Em-
ployer to make its request for information directly
to the trust administrator was to delay delivery of
the information to the Employer, a tactic consistent
with Harrigan's other dilatory actions found herein
to violate Section 8(b)(3) of the Act. Moreover, the
judge found that the Employer did not have the
same access to information from the funds as did
the Union since Harrigan was a trustee of three out
of four funds under discussion and the Employer
had no similar representative.
In NLRB v. Amax Coal Co.,9 the Supreme Court
held that trustees of jointly administered trust funds
are not agents of their respective parties but are fi-
duciaries "whose duty to the trust beneficiaries
must overcome any loyalty to the interest of the
party that appointed [them]." In Sinai Hospital,
supra at 633, relied on by the judge here, a union's
collective-bargaining representative, who was also
trustee of a health and welfare trust fund from
which the employer with whom the union was en-
gaged in collective bargaining requested relevant
information, collaborated with the other union
trustees to block the employer's information re-
quest. We held in that case that the union repre-
sentative violated Section 8(b)(3) of the Act as a
trustee of the fund by intentionally preventing the
employer's access to the requested information and
that the union representative thereby violated his
"affirmative obligation to make a reasonable effort
to obtain the information, or to investigate reasona-
ble alternative means for obtaining it, or to truth-
fully explain or document the reasons for its un-
availability . .." Our decision there predated the
Court's decision in Amax, and therefore our hold-
ing in Sinai must be modified accordingly. We con-
9 453 U.S. 322 (1981).
clude that our decision in Sinai continues to be
valid only where a collective-bargaining represent-
ative demonstrates that it is in de facto control of a
nominally independent trust fund.I o
That is not the case here, however. First, the
union trustee took no action to prevent the Em-
ployer from gaining access to the requested infor-
mation, and indeed cooperated with the Employer
to the extent of providing the Employer with the
means of obtaining the information sought. Second,
while it is true that the trustee possessed informa-
tion about the fund as a matter of course, he did
not possess the specific information which the Em-
ployer requested herein. Furthermore, we find no
reason for imposing additional burdens on the
Union's collective-bargaining representative since
he would have had to secure it from the adminis-
trator, which the Employer could do equally well,
and there is no evidence that the Union's collec-
tive-bargaining representative had any more expe-
ditious or effective access to the information than
the Employer. Accordingly, we shall dismiss this
allegation.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
5 and 6 of the judge.
"5. By refusing to meet and confer with the Em-
ployer concerning succeeding bargaining agree-
ments during the period from March to July 1981,
the Respondent violated Section 8(b)(3) of the Act.
"6. The unfair labor practice of the Respondent
as described above affects commerce within the
meaning of 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, United Food and Commercial Workers
Union Local 1439, chartered by United Food and
Commercial Workers International Union, AFL-
CIO, CLC, Spokane, Washington, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Delete paragraph l(b) and reletter the subse-
quent paragraphs accordingly.
2. Delete paragraph 2(a) and reletter the subse-
quent paragraphs accordingly.
3. Substitute the attached notice for that of the
administrative law judge.
L0 For the same reasons, however, Teamsters Local 959 (Frontier Trans-
portation Co.), 244 NLRB 19 (1979), is hereby overruled.
781
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to meet and confer with
Layman's, Inc., d/b/a Layman's Market, for pur-
poses of negotiating succeeding collective-bargain-
ing agreements in both the meat and grocery de-
partment units described below.
WE WILL NOT in any like or related manner
refuse to bargain collectively with Layman's
Market.
The appropriate bargaining units are:
1. The meat department unit:
All journeymen meat cutters, meat wrappers
and apprentice meat cutters, excluding guards
and supervisory employees within the meaning
of Section 2(11) of the Act.
2. The grocery department unit:
All employees of Layman's Market handling or
selling merchandise, excluding meat department
employees, guards, and supervisory employees
within the meaning of Section 2(11) of the Act.
UNITED FOOD AND COMMERCIAL
WORKERS UNION LOCAL 1439,
CHARTERED BY UNITED FOOD AND
COMMERCIAL WORKERS INTERNA-
TIONAL UNION, AFL-CIO, CLC
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: I heard
these cases in trial at Yakima, Washington, on March 16,
1982. Pursuant to a charge filed in Case 19-CB-4079
against United Food and Commercial Workers Union
Local 1439, chartered by United Food and Commercial
Workers International Union, AFL-CIO, CLC (the Re-
spondent), on March 19, 1981, by Layman's, Inc., d/b/a
Layman's Market (the Employer), the Acting Regional
Director for Region 19 of the National Labor Relations
Board issued a complaint and notice of hearing on May
12, 1981. On September 3, 1981, the Employer filed a
charge in Case 19-CB-4265. Thereafter on November
12, the Acting Regional Director issued an order consoli-
dating cases, and consolidated complaint and notice of
hearing. The consolidated complaint was again amended
on March 3, 1982. The consolidated complaint, as
amended at the hearing, alleges that the Respondent
committed certain violations of Section 8(b)(3) of the
National Labor Relations Act.
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Based on
the entire record, and from my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
The Employer is a Washington corporation, with its
principal place of business located in Union Gap, Wash-
ington, where it is engaged in the operation of a retail
grocery store. During the 12 months preceding issuance
of the complaint, the Employer had gross sales in excess
of $500,000 and purchased and received goods valued in
excess of $50,000 which originated from outside the
State of Washington. Accordingly, the Employer is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The Employer has had a series of collective-bargaining
agreements with predecessor unions of the Respondent
since 1960, covering its grocery department employees
and its meat department employees. The last agreement
covering the grocery department employees, between
the Respondent and Retail Clerks Local 1612, was effec-
tive by its terms from April 15, 1977, until April 15,
1980. The last agreement covering the meat department
employees, between the Respondent and Meatcutters
Union Local 529, was effective by its terms from Octo-
ber 1, 1977, to October 5, 1980. On March 18, 1980, the
Respondent merged with Retail Clerks Local 1612 and
Meatcutters Union Local 529 and became the collective-
bargaining representative for the Employer's employees
in both the grocery and meat department units. '
The instant case arises out of negotiations for succeed-
ing agreements to the contracts which expired in 1980.
The complaint alleges that the Respondent violated Sec-
tion 8(b)(3) of the Act by refusing to bargain with the
Employer in either the grocery or meat department units
during the time period of March through July 1981. Fur-
ther the General Counsel alleges that the Respondent
violated Section 8(bX3) by refusing to furnish the Em-
ployer certain information, pertaining to the trust funds
provided for in the agreements, allegedly necessary and
The parties stipulated that the Union is the exclusive representative,
within the meaning of Sec. 9(a), of the employees in each of the follow-
ing units appropriate for purposes of collective bargaining:
I. The meat department unit:
All journeymen meat cutters, meat wrappers and apprentice meat-
cutters, excluding guards and supervisory employees within the
meaning of Section 2( 11) of the Act.
2. The grocery department unit:
All employees of Layman's Market handling or selling merchan-
dise, excluding meat department employees, guards, and supervisory
employees within the meaning of Section 2(11) of the Act.
782
FOOD & COMMERCIAL WORKERS LOCAL 1439 (LAYMAN'S MARKET)
relevant for collective-bargaining purposes. The Re-
spondent denies the commission of any unfair labor prac-
tices. Further, the Respondent alleges that the informa-
tion it refused to furnish the Employer was equally avail-
able to the Employer from the trust funds.
B. The Bargaining
As discussed above, the collective-bargaining agree-
ment covering the Employer's grocery employees unit
expired in March 1980. In April 1980, Charles Fields, a
business representative for the Respondent, gave Grace
Layman, the Employer's secretary-treasurer, a proposed
interim agreement. The purpose of the interim agreement
was that the Employer and the Union agreed that the
Employer would execute a contract with the same terms
as the collective-bargaining agreement between the Re-
spondent and Allied Employers (a multiemployer bar-
gaining association which represents the major grocery
markets in the area), which agreement was still under ne-
gotiation. Layman told Fields that she would not sign
the interim agreement. Layman further told Fields that
she did not believe her small store would live with the
terms of the "Allied Agreement." In September 1980,
Fields again visited Layman at her store and informed
her that the negotiations with Allied were almost
wrapped up. Fields gave Layman a copy of Allied's and
the Respondent's last offers. On September 24, Fields
gave Layman a copy of Allied's last and final offers. The
next day, Layman called Fields and asked Fields to set
up a meeting with Sean Harrigan, the Respondent's
president, to begin negotiations on a contract. Fields said
he would see what he could do. Several days later,
Fields called Layman and arranged to meet with her on
October 10.
On October 10, Fields met with Layman at her store
and discussed several concerns raised by Layman about
the application of the Allied Agreement to her store.
Fields answered Layman's questions by saying, "I'll get
with Sean." Layman asked Fields whether or not he was
negotiating and Fields answered, "Sean sent me out to
see what was bothering you." Layman demanded to
speak with Harrigan and Fields answered that he would
call Layman back that afternoon. Later that afternoon,
Fields called Layman and told her that Harrigan had
said that the Respondent would not deviate from the
Allied Agreement. Layman told Fields that her store
was a "small, little, one-man store" and that Harrigan
owed her a response to questions she had raised about
the agreement. Fields said he would contact Harrigan for
Layman. Shortly thereafter, Harrigan called Layman and
asked to meet with her. Harrigan and Layman agreed to
meet on October 16.
On October 16, Harrigan, Layman and Stan Layman,
Grace's husband, met at a Sambo's restaurant in Yakima,
Washington. Layman asked Harrigan questions about the
health and welfare and pension programs in the contract.
However, Harrigan answered that those areas could not
be negotiated. Layman then raised a question about her
rules for the conduct of employees handling cash and
asked whether the contract could be modified to accom-
modate her rules. Harrigan answered that disciplinary
matters had to be handled by the Respondent. Layman
asked whether or not Harrigan was negotiating with her
and he answered that it was difficult for him to negotiate
with every little store. Layman told Harrigan that, as a
small store, she could not live with the Allied Agree-
ment. Harrigan answered that five or six other little
stores did. Layman said that she knew that those stores
did not closely abide by the contract. Layman said she
would only sign a contract that she could live with. At
the close of this meeting, Harrigan agreed to look at
Layman's rules for employees and Layman said she
would mail the rules to Harrigan. Layman mailed a copy
of her rules for employee conduct to Harrigan on No-
vember 3.
In February 1981, Dick Vaughn, a field representative,
delivered a copy of the Allied meat department agree-
ment to Layman. Layman told Vaughn that she would
read the agreement but was not going to sign it. Vaughn
laughed and said he knew that Layman was not going to
sign it. On March 11, Harrigan wrote Layman requesting
that she sign a grocery agreement and a meat agreement
by March 20, 1981. On March 17, Layman wrote Harri-
gan requesting that he meet and discuss a new contract.
On March 23, Layman again wrote Harrigan requesting
that they meet to discuss a new contract. With her
March 23 letter Layman enclosed proposed changes for
both the grocery and meat agreements. Harrigan did not
respond to Layman's March 17 and 23 letters. Rather, on
April 9, 1981, the Respondent filed a charge with Region
19 alleging that the Employer had refused to bargain in
good faith by refusing to sign agreements identical to the
Allied grocery and meat agreements. The Regional Di-
rector dismissed the charge and on June 26, 1981, the
General Counsel sustained that dismissal. Thereafter on
July 9, Harrigan wrote Layman requesting that negotia-
tions commence for new grocery and meat agreements.
According to Harrigan, the Respondent did not bargain
with the Employer between March and July 1981, be-
cause he believed that the Employer had adopted the
Allied Agreements by its conduct in abiding by the
terms of those agreements.'
On August 11, Grace Layman, her husband Stan, son
Curt, and attorney Gary Lofland met with Don Za-
chary, Respondent's secretary-treasurer and Ron Kor-
vink, an International union representative. The parties
discussed the Respondent's proposals for the grocery and
meat agreements. On August 24, the parties met again
and discussed the Employer's proposals. The parties de-
clared themselves at impasse and have not held another
negotiation session. Layman sought a mediator from the
Federal Mediation and Conciliation Service but, because
of the smallness of the unit and that agency's budgetary
problem, no mediator has yet been assigned to the
matter.
On August 27, 1981, Lofland, on behalf of the Em-
ployer, wrote Zachary seeking certain information in-
cluding, inter alia, "financial reports for 1979, 1980, 1981
2 The Employer paid the new wage rates contained in the Allied
Agreements but did not pay such rates retroactively as required by the
Allied Agreements. The Employer also continued to make trust fund
payments. However, the record does not indicate whether any increase in
payments was made after the Allied Agreements went into effect.
783
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the Health Plan and Pension you are urging." On
August 28, Lofland wrote Zachary asking for "Names of
employees who have vested pension [and] names, credits
and amounts of credits of other employees." On Septem-
ber 11, Lofland wrote Zachary stating, "Please provide
the current amount of unfunded liability of the pension
plan for the [Employer]." On September 17, Zachary re-
sponded to Lofland's three letters mentioned above. The
pertinent portions of the response read as follows:
. . . The financial reports for both the health plans
and pension plans must be requested by you directly
from the plans' administrator, Mr. Steve Sherman,
Administrator, United Administrators, Inc., 500
Fourth and Battery Building, Seattle, WA 98121,
telephone (206) 223-6200. He can provide you with
the Retail Clerks Health and Welfare Trust, Retail
Clerks Pension Trust, Washington Meat Industry
Pension Trust.
. . .The following is in response to your letter of
August 28, 1981: The names of vested employees
and names, credits, and amounts of credits of other
employees must come from your direct request to
the administrator of both the Retail Clerks Pension
Trust and the Washington Meat Industry Pension
Trust, which is Mr. Steve Sherman, address as indi-
cated above.
The following is in response to your letter of
September 11, 1981: The current amount of unfund-
ed liability of the pension plans must be obtained by
you directly from Mr. Steve Sherman at the above
address.
After receiving Zachary's letter on November 19, Lo-
fland wrote the administrator and requested the follow-
ing information regarding both the Retail Clerks Pension
Trust and Meat Industry Pension Trust:
(1) The names of all current employees of Lay-
man's Market who have vested pensions.
(2) If employees are not vested, the name and
amount of credits those employees have earned.
(3) The current amount of unfunded liability of
Layman's.
On December 8, 1981, the administrator wrote Lofland
two letters, one for each trust fund, purporting to answer
his request for information. The letter concerning the
Retail Clerks Pension Trust indicated the Fund's unfund-
ed liability but did not indicate the Employer's with-
drawal liability. The administrator offered to calculate
that information for a $40 charge. The letter concerning
the Meat Industry Pension Trust indicated that no liabil-
ity would be imposed on any employer who withdrew
from the Trust. On February 15, 1982, Lofland wrote
the administrator again requesting the following informa-
tion:
(1) Names of all employees of Layman's, Inc.
who have vested pensions
(2) Amount or years of vested interest
(3) If employees are not vested, the names and
credits those employees have earned
(4) The current unfunded liability of the trust
(5) The employer's current withdrawal liability
On March 3, Lofland, having received no response to his
letter of February 15, again wrote the administrator seek-
ing the above information or an explanation for the re-
fusal to provide the same. On March II1, the administra-
tor sent two letters, one for each Fund, answering items
(1), (2), and (3) of Lofland's February 15 letter.
Lofland testified that the information regarding the
pension funds was needed to determine whether the Em-
ployer would press its demands for a different pension
plan. Harrigan testified that he told Zachary to notify
Lofland that the information was available from the ad-
ministrator. Harrigan as a trustee of the Retail Clerks
Pension Trust has access to and is provided information
from the trust administrator at each trustee meeting out-
lining the financial condition of the Trust. While the
trustees have apparently delegated certain responsibilities
to the administrator of the funds, there is no contention
that the information requested by the Employer was not
available to Harrigan as a trustee or as an official of a
participating labor organization. It was stipulated that
Harrigan is not a trustee of the Meat Industry Pension
Trust, although he is a trustee of the other three funds
provided for in the agreements. According to Harrigan,
the administrator normally charges a $40 fee to employ-
ers who request the calculation of their withdrawal li-
ability.
C. Analysis and Conclusions
1. The refusal to meet and bargain
Section 8(b)(3) of the Act provides: "It shall be an
unfair labor practice for a labor organization or its
agents-(3) to refuse to bargain collectively with an em-
ployer, provided it is the representative of its employees
subject to the Provisions of Section 9(a)." Section 8(b)(3)
must be read in conjunction with Section 8(d):
For the purposes of this section, to bargain col-
lectively is the performance of the mutual obliga-
tion of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotia-
tion of an agreement or any question arising there-
under, and the execution of a written contract in-
corporating any agreement reached if requested by
either party, but such obligation does not compel
either party to agree to a proposal or require the
making of a concession .. ..
As noted by the Supreme Court, it was the intent of
Congress when enacting Section 8(b)(3) to condemn in
union agents those bargaining attitudes "that had been
condemned in management" by the previously enacted
Section 8(a)(5). NLRB v. Insurance Agents, 361 U.S. 477,
487 (1960).
As can be readily seen, the Respondent refused to
meet and confer with the Employer from March until
July 1981, when the dismissal of the Respondent's unfair
784
FOOD & COMMERCIAL WORKERS LOCAL 1439 (LAYMAN'S MARKET)
labor practice charge was upheld. The Respondent's po-
sition that the Employer had adopted the contract is not
supported by the evidence. Rather, the uncontradicted
testimony of Layman shows that she consistently in-
formed Fields and Harrigan that she would not agree to
the Allied Agreements and that she wished to negotiate
terms by which she could "live." The Respondent's mis-
taken belief that the Employer had adopted the contracts
cannot privilege its failure to meet its obligations under
Section 8(d).3 Finally, I find Respondent's subsequent
willingness to meet with the Employer during August
does not dissipate the unfair labor practices nor does it
make unnecessary a remedial order.
2. The refusal to furnish information
It is well established that a union's duty to bargain in
good faith by furnishing requested information to an em-
ployer for the purpose of collective bargaining is com-
mensurate with the similar duty imposed by the Act
upon employers. Teamsters Local 959 (Frontier Transpor-
tation Co.), 244 NLRB 19 (1979); Tool & Die Makers
Local 78 (Square D Co.), 224 NLRB 111 (1976); Printing
& Graphic Communications Local 13 (Oakland Press), 223
NLRB 994 (1977), enfd. 598 F.2d 267 (D.C. Cir. 1979).
There can be no doubt the information requested con-
cerning the pension funds was relevant to the Employ-
er's determination of what position to take during bar-
gaining with regard to the funds. The Respondent does
not contend that the Employer was not entitled to the
requested information. Rather, the Respondent contends
that the requested information was equally available to
the Employer on request from the administrator of the
funds.
In Hospital Employees (Sinai Hospital), 248 NLRB 631
(1980), the Board held that a union has an affirmative ob-
ligation to make reasonable efforts to obtain information,
relevant and necessary for collective-bargaining purpose,
to investigate reasonable alternative means for obtaining
such information, or to truthfully explain or document
the reasons for the unavailability of the information. In
that case the Board ordered a union to take the affirma-
tive action of formally requesting from a joint trust fund
certain contribution-related information which the fund
had refused to furnish the employer.
The Respondent argues that the holding in Sinai Hos-
pital does not mandate a finding of a violation herein be-
cause "Respondent made no effort to prevent the Em-
ployer from getting the information" but simply referred
the Employer to the trust administrator. However, I find
that argument unconvincing. Inherent in the approach
taken by Harrigan was a delay in providing the informa-
tion to the Employer. Harrigan's conduct throughout the
bargaining dispute shows no attempt to reach agreement
with the Employer. Under such circumstances, his cava-
lier approach to the Employer's request for information
3 In his post-trial brief, counsel for the General Counsel alleges for the
first time that during negotiations prior to March 1981, the Respondent
violated Sec. 8(b)3) by bargaining with a "take it or leave it" attitude.
As this allegation was not included in the complaint and was not ad-
dressed by the Respondent at trial or in brief, I find that the matter was
not fairly and fully litigated. Thus, I make no finding regarding this con-
tention. See Camay Drilling Co., 254 NLRB 239, 240 fn. 9 (1981).
is consistent with his prior refusal to meet and confer. It
is not unreasonable to expect, consistent with the affirm-
ative obligation announced in Sinai Hospital, that the Re-
spondent take steps to facilitate compliance with the Em-
ployer's request so that the parties can get to real bar-
gaining. It is highly suspicious, but consistent with Harri-
gan's approach herein, that the administrator provided
the Employer with the requested information just days
prior to the instant trial. Based on the above facts and
principles of law, I find that in not affirmatively request-
ing the Employer with the requested relevant informa-
tion, the Respondent violated its duty to bargain under
Section 8(bX3) as interpreted by the Board in its Sinai
Hospital decision.
The Respondent's defense that the requested informa-
tion is equally available to the Employer is rejected. The
Respondent proposed the inclusion of the trust funds in
its proposed bargaining agreements. Further, the Re-
spondent is party to collective-bargaining agreements
with approximately 200 employers, which agreements
provide for contributions to the subject trust funds. Har-
rigan, the Respondent's president, is a trustee of three of
the four funds under the direction of the administrator.
Representatives of affiliated unions also act as trustees of
the funds. The Employer, on the other hand, has no offi-
cial who is a trustee nor is it affiliated with any multiem-
ployer group which has a representative the funds as the
union trustees. As stated in Frontier Transportation, supra,
"It would be clearly inequitable to permit 'informed' bar-
gaining to occur between only respondent and employer-
trustees, while employers who do not happen to be trust-
ees and therefore would have no access to admittedly
relevant information must bargain from a position of
total ignorance." 244 NLRB at 22.
Moreover, the Respondent made no effort to obtain
the information and, thus, is in no position to argue that
its request would be treated no differently from that of
the Employer. The Board in Sinai Hospital, without
reaching agency issues, decided that it would be naive,
as a practical matter, to assume that the union trustees
could not have obtained the requested information had
they so desired. Under all of the circumstances of this
case, it would be naive to assume that the requested in-
formation would not have been expeditiously provided,
had Harrigan desired to facilitate the bargaining process.
Finally, with regard to the calculation of the Employ-
er's withdrawal liability from the Retail Clerks Pension
Trust Fund, it is not inconsistent with the Employer's
right to receive the relevant information from the fund
to require the Employer to tender a reasonable fee, uni-
formly required of all employers seeking such informa-
tion, for administrative costs.4 Thus, it appears that the
Respondent's duty to request such information from the
fund is conditioned on the Employer's tender of the
usual fee.
4 Cf. American Telephone d Telegraph Co., 250 NLRB 47 fn. 2 (1980),
enfd 644 F.2d 923 (Ist Cir. 1981).
785
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, United Food and Commercial
Workers Union Local 1439, chartered by United Food
and Commercial Workers International Union, AFL-
CIO, CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
2. The Employer, Layman's Inc., d/b/a Layman's
Market, is an employer within the meaning of Section
2(2) of the Act, and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. The following units are appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act:
(a) The meat department unit:
All journeymen meat cutters, meat wrappers and
apprentice meat cutters, excluding guards and su-
pervisory employees within the meaning of Section
2(11) of the Act.
(b) The grocery department unit:
All employees of Layman's Market handling or
selling merchandise, excluding meat department em-
ployees, guards, and supervisory employees within
the meaning of Section 2(11) of the Act.
4. At all times material, the Respondent has been the
exclusive collective- bargaining representative of the em-
ployees in each of the above-described units within the
meaning of Section 9(a) of the Act.
5. By refusing to meet and confer with the Employer
concerning succeeding bargaining agreements during the
period from March to July 1981, and by failing to make
reasonable efforts to obtain for and provide to the Em-
ployer the requested information pertaining to the trust
funds, the Respondent violated Section 8(b)(3) of the
Act.
6. The unfair labor practices of the Respondent as de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and that it take cer-
tain affirmative action to effectuate the policies of the
Act.
In order to remedy the Respondent's unfair labor prac-
tices and in an attempt to get the parties back to the bar-
gaining table, I will recommend that on the Employer's
tender of the uniform fee the Respondent be required to
request from the Retail Clerks Pension Fund, in writing,
the calculation of the Employer's withdrawal liability.
Further, in order to prevent the Employer from being
required to bargain without the information to which it
is entitled, I shall recommend that, if the Employer
tenders the customary fee, the Employer shall not be re-
quired, if it so desires, to bargain with the Respondent
with respect to its Fund contributions until such time as
the Employer is provided with the requested informa-
tion. See Sinai Hospital, supra at 634-635.
In its post-trial brief, the Employer requests that it be
awarded attorneys' fees pursuant to Tiidee Products, 194
NLRB 1234 (1972). Under Tiidee Products, the Board
may order the payment of certain extraordinary reme-
dies, such as attorneys' fees, if it determines that a party
has engaged in frivolous litigation. However, the Board
has strictly construed the term "frivolous litigation" so as
not to unduly penalize a party for pursuing its rights and
to only award attorneys' fees in extraordinary cases. I
note that neither Sinai Hospital nor Frontier Transporta-
tion was reviewed by a United States Court of Appeals.
The only way Respondent may seek judicial review of
the principles set forth in those cases is to litigate the in-
stant case. Thus, I cannot conclude that the present case
constitutes frivolous litigation as that term has been con-
strued historically.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended
ORDER 6
The Respondent, United Food and Commercial Work-
ers Union Local 1439, chartered by United Food and
Commercial Workers International Union, AFL-CIO,
CLC, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to meet and confer with repre-
sentatives of Layman's Inc., d/b/a Layman's Market, for
purposes of negotiating succeeding collective-bargaining
agreements, both in the meat and grocery department
units described in Conclusion of Law 3.
(b) Refusing to make reasonable efforts to obtain for
and provide to the Employer information relevant to the
trust funds provided for in its proposed collective-bar-
gaining agreements.
(c) In any like or related manner refusing to bargain
collectively with the Employer.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Request, in writing, from the Retail Clerks Pension
Trust Fund the requested information relevant to the
Employer's withdrawal liability pursuant to the manner
and subject to the provisions set forth in the section of
this Decision entitled "The Remedy."
I 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.
786
FOOD & COMMERCIAL WORKERS LOCAL 1439 (LAYMAN'S MARKET)
(b) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."6 Copies of said
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days thereafter in conspicuous places including all
places where notices to members are customarily posted.
* 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 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."
Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Furnish signed copies of said notice to the Region-
al Director for Region 19 for posting by Layman's Inc.,
d/b/a Layman's Market, said Employer being willing, at
all locations where notices to its employees are custom-
arily posted.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
787