Garc��a Trucking Service

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 764 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 75
764
García Trucking Service, Inc. and Unión De Tron-
quistas De Puerto Rico, Local 901 IBT AFL–
CIO. Case 24–CA–9663
July 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On May 5, 2004, Administrative Law Judge William
N. Cates 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 decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, García Trucking Service,
Inc., Carolina, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified below.
1. Substitute the following for paragraph 2(b) of the
judge’s Order and reletter the subsequent paragraphs
accordingly:
“(b) Provide the Union with relevant information in its
possession relating to subcontracting that the Union re-
quested in its letters of May 8 and 29, 2003.

1 We find that the Respondent unlawfully failed and refused to pro-
vide the Union with requested relevant information regarding both unit
employees and subcontracting. The Respondent asserted that the re-
quested subcontracting information was unavailable. The judge found
that there was no evidence indicating that the subcontracting informa-
tion was not available (i.e., in the Respondent’s possession) at the time
it was initially requested. Moreover, even if the Respondent had dem-
onstrated that it did not have possession of the requested information at
the time it was requested, or that it subsequently lost possession of the
information, the Respondent made no effort to obtain the information
from the subcontractors themselves. Cf. Pittston Coal Group, Inc., 334
NLRB 690, 692–693 (2001). To provide the Respondent with more
specific guidance regarding its obligation to provide relevant requested
information to the Union, we modify the judge’s Order. We modify the
judge’s Order to specify that, with regard to the subcontracting infor-
mation, the Respondent must provide the information in its possession,
make a reasonable effort to secure any unavailable information, and, if
any information remains unavailable, explain and document the reasons
for its continued unavailability.
Member Meisberg notes that this case involves information requests
that predated the Union’s invocation of the contractual griev-
ance/arbitration mechanism. Consequently, Member Meisberg notes
that this case does not implicate Board precedent concerning deferral of
information requests in the situation in which the requests postdate a
party’s invocation of the contractual grievance/arbitration procedure.
“(c) Make a reasonable effort to secure any unavail-
able information requested in the Union’s May 8 and 29,
2003 letters and, if that information remains unavailable,
explain and document the reasons for its continued un-
availability.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT refuse to bargain with Unión de Tron-
quistas de Puerto Rico, Local 901 IBT AFL–CIO by fail-
ing to provide the Union with the names and addresses of
newly hired employees in the appropriate unit, and WE
WILL provide that information.
WE WILL NOT refuse to bargain with the Union by fail-
ing to provide the Union with the information relating to
subcontracting that the Union requested on May 8 and
29, 2003, and WE WILL provide that information which is
in our possession; make a reasonable effort to secure any
unavailable information requested in the Union’s May 8
and 29, 2003 letters; and, if that information remains
unavailable, explain and document the reasons for its
continued unavailability.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
GARCÍA TRUCKING SERVICE, INC.
Vanessa García, Esq., for the General Counsel.
Ruperto J. Robles, Esq., for the Respondent.
Mr. Jose Budet, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard this
case in trial in San Juan, Puerto Rico, on March 17, 2004. The
GARCIA TRUCKING SERVICE 765
case originates from a charge, filed by the Union on August 5,
2003, against the Company.1 The prosecution of this case was
formalized on November 25, when the Acting Regional Direc-
tor for Region 24 of the National Labor Relations Board (the
Board), acting in the name of the Board’s General Counsel,
issued a complaint and notice of hearing (complaint) against the
Company.
The complaint alleges the Company violated Section 8(a)(5)
and (1) of the Act when, in April, May, and August it failed and
refused to furnish the Union certain information the Union had
requested in writing. It is alleged the requested information is
necessary and relevant to the Union for the purposes of enforc-
ing the provisions of the collective-bargaining agreement in
effect between the parties and for the performance of the Un-
ion’s duties as the exclusive bargaining representative for an
appropriate unit of employees (unit).2
The Company, at the hearing, stipulated the Board’s jurisdic-
tion is properly invoked3 and that the Union4 is a labor organiza-
tion within the meaning of Section 2(5) of the Act. The Com-
pany denies that its failure to provide the requested information
violated the Act. The Company asserts in its timely filed answer
to the complaint that the information sought was made available
to the Union or was not available and that the information is not
necessary for the Union to perform its duties. At trial, the Com-
pany presented testimony only that the information sought was
not available.
I have studied the whole record, the parties’ briefs, and the
authorities they rely on. Based on more detailed findings and
analysis below, I conclude and find the Company violated the
Act substantially as alleged in the complaint.
FINDINGS OF FACT5
I. OVERVIEW
The Company and the Union were parties to a collective-
bargaining agreement that expired on November 18, 2001, but
which was extended until December 31, 2001. Following a
strike, the parties agreed to a new collective-bargaining agree-
ment effective on July 15, 2002, that “put into effect” the ex-

1 All dates are in 2003 unless otherwise indicated.
2 The appropriate unit is:
INCLUDED: All service and maintenance employees including
chauffeurs, chauffeur’s assistants and warehouse employees employed
by the Employer at its facilities in Carolina, Puerto Rico.
EXCLUDED: All other employees, clerical office employees, mes-
sengers, supervisors, guards, and confidential employees as defined in
the Act.
3 The Company, García Trucking Service, Inc., is a Puerto Rico cor-
poration engaged in the transportation of goods and moving services
from its facility in Carolina, Puerto Rico. The Company annually pur-
chases and receives goods and materials valued in excess of $50,000
directly from points located outside the Commonwealth of Puerto Rico.
The Company admits and I find it is an employer engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act.
4 The Company admits, and I find that Unión de Tronquistas de
Puerto Rico, the Union, is a labor organization within the meaning of
Sec. 2(5) of the Act.
5 The essential facts are not significantly disputed. Unless I note oth-
erwise, my findings are based on admitted or stipulated facts, documen-
tary exhibits, or undisputed and credible testimony.
pired agreement with certain modifications. This current
agreement expires on June 14, 2007. Two provisions of the
current agreement are relevant to this proceeding. Article V of
the agreement contains a union-security clause providing that
all employees will begin paying dues following their 31 superst
day of employment. Article XXI provides that the Company
will not subcontract unless a “minimum [number] of [unit]
employees [are] working on their jobs,” thereafter specified as
4 in the warehouse area, 15 in the moving area, and 15 in the
truck driving area, a minimum total of 34 employees.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Union Representative Jose Budet is responsible for admini-
stration of the collective-bargaining agreement between the
Union and the Company. In late 2002 and in 2003, after the
new contract went into effect, documents sent to the Union by
the Company reflected that dues were being deducted for fewer
than 34 employees. Shop Steward Heriberto Garcia observed
that individuals who were not union members were performing
unit work. Budet spoke with shop stewards and employees. In
these conversations he confirmed that individuals for whom
dues were not being remitted to the Union were performing unit
work. He also learned that the Company was subcontracting
work while “leaving without work at their homes members of
the bargaining unit.”
Following his receipt of the foregoing information relating to
suspected breaches of the collective-bargaining agreement,
Union Representative Budet, on April 30, sent to the Company,
by facsimile copy, a letter stating that “the company has new
employees whom have complied with the probationary period
as set forth in the collective bargaining agreement” and request-
ing that the Company “[p]lease send us the name[s] and postal
addresses” in order to have the new employees comply with the
collective-bargaining agreement.
No response was received. On May 8, the Union, by letter
signed by Budet, repeated its request. No response was re-
ceived. On August 14, Budet wrote the Company stating that he
had requested, “two times, in writing, the names and postal
addresses of the employees who are not paying dues and who
have complied with the 31 days.” The letter, noting that since
the Union had not received either the dues of the new employ-
ees or their addresses, the Union was requesting that the Com-
pany “comply with Article V.”
On August 18, the Company replied to this communication
stating that dues deductions were being made for all employees
“who have signed the card to authorize said deduction.” The
letter does not address or respond to the Union’s prior requests
that the Company provide the names and addresses of its new
employees.
Regarding subcontracting, by letter dated May 8, Budet
wrote the Company on behalf of the Union requesting informa-
tion for the “purpose of preparing” grievances. The letter re-
quested that the Company provide “each time when the com-
pany subcontracted the travel work of the truck drivers and of
the movers of the contracting unit from July 15, 2002, to the
present,” in each instance “the reason why the company did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766
assign the work to the contracting unit,” the amount of pay-
ments to the subcontractors together with the “invoices of these
subcontracts,” and “the weights of the subcontracted moves,” a
factor relating to compensation of the movers.
No response was received to the foregoing request. By letter
dated May 29, the Union repeated its request. No response was
received. The Union, on August 5, filed the charge herein. Ad-
ditionally, the Union filed multiple grievances relating to the
contractual violations that it contended had occurred as a result
of the Company’s conduct including one grievance on August
22, and two grievances on August 26.
In December, Budet and the Union’s attorney met with
Company Vice President of Operations Jose García. The dis-
cussion related chiefly to a framework for resolving the griev-
ances that were pending. In the course of the discussion, the
Union’s information requests were mentioned, and Vice Presi-
dent García stated, “[T]hat it would be hard for him to get that
information.” García gave no explanation regarding why it
would be difficult for him to obtain the information. García and
Budet met again in January 2004 regarding the pending griev-
ances, and García, again without stating any reason, repeated
that it would be difficult to provide the information. Budet testi-
fied that he understood that García was referring to the infor-
mation relating to subcontracting rather than the names and
addresses of newly hired employees.
Vice President of Operations García, who has held that posi-
tion for over 8 years, testified that the former controller of the
Company embezzled funds and, when his embezzlement was
discovered and he was dismissed, that he “seized a great deal of
. . . documents, including corporate and personal documents.”
García testified that legal proceedings have been instituted
against the former controller. García was unable to recall, and
did not provide, the specific employment dates for the former
controller who began working for the Company “a year, year
and a half ago.” The dismissal occurred “towards the end of
2003.”
García further testified that, upon the dismissal of the former
controller, the Company assigned its general manager to attempt
to “assemble the jigsaw puzzle that he [the former controller] left
behind.” It would appear that these efforts were unsuccessful
because, according to García, the Company “no longer [had] any
need for his [the General Manager’s] services” as of 2 months
ago, which would have been in late January 2004.
García acknowledged meeting with the Union in December
2003. Although the alleged embezzlement had been discovered,
and, presumably, the disappearance of “a great deal of . . .
documents,” the Company informed the Union only that it was
having trouble obtaining the information requested by the Un-
ion. García admitted that he did not “go into the specifics.”
García was asked by company counsel, “Has the Company
searched for these documents . . . [that the] General Counsel is
referring to in these action[s],” Garcia answered, “The Com-
pany is taking all necessary steps to obtain the documents that
the Board is requesting.” [Emphasis added.] When asked
whether the Company was denying the Union “these docu-
ments,” García responded that he did not “have them on hand.”
He further testified that, when he found the information, he
would provide it.
B. Analysis and Concluding Findings
The complaint alleges that the failure of the Company to
provide the foregoing requested information violated Section
8(a)(5) and (1) of the Act.
The Government argues that the subcontracting information
sought by the Union, is necessary and relevant for the Union to
represent aggrieved unit members before arbitration. Specifi-
cally the Government argues the information is relevant and
necessary in as much as the Union has grievances pending arbi-
tration due to the alleged subcontracting of bargaining unit
work, the hiring of new employees, and the lack of compliance
with terms of the collective-bargaining agreement on minimum
guarantees. The Government argues it is without question the
Union is entitled to the names, addresses, and hire dates of
newly hired employees so that the Union may police the union
security provision contained in the party’s collective-bargaining
agreement.
The Company’s answer affirmatively pleads that information
was provided or was not available and that the information is
not necessary to the Union. The Company presented no evi-
dence that any information was ever provided to the Union.
Vice President García effectively conceded the relevance of the
information sought when he testified that the Company “is
taking all necessary steps to obtain the documents” and that he
would provide the information when he found it. The Company
in its post-trial brief appears to acknowledge that the requested
information is necessary and relevant and that the Company has
not provided any of the requested information.
Notwithstanding the apparent admissions by the Company
that the requested information is relevant and necessary for the
Union to fulfill its representational and collective-bargaining
obligations, I shall nonetheless discuss the Union’s requests and
the Company’s actions related thereto. There is no evidence
that any steps were taken to provide the Union with the names
and addresses of newly hired employees when that information
was initially requested on April 30, when it was requested a
second time on May 8, or when the Company was reminded of
those requests in the Union’s letter of August 14. I find it in-
conceivable that the Company cannot provide the Union with
the names and addresses of its newly hired employees. Vice
President Garcia’s testimony does not establish that the names
and address of those employees were not available when they
were initially requested. The Company presented no evidence
that the foregoing information is not currently available. Re-
gardless of the asserted disarray of the Company’s records as a
result of the alleged embezzlement, a payroll has been main-
tained and that payroll would reflect the names and addresses
of the newly hired employees. The names and addresses of unit
employees are presumptively relevant.
The Union, when requesting the information regarding sub-
contracting, stated that it was being requested for the preparation
of grievances, and the record establishes that grievances have
been filed. Although information unrelated to unit employees is
not presumptively relevant, information relating to subcontract-
ing which impacts the working conditions of unit employees is
relevant. See Phoenix Coca-Cola Bottling Co., 337 NLRB 1239
(2002), and Pratt & Lambert, Inc., 319 NLRB 529, 533 (1995).
There is no evidence that the requested documents relating to
GARCIA TRUCKING SERVICE 767
subcontracting were not available when they were initially re-
quested in May. Vice President Garcia’s testimony that the Com-
pany “is taking all necessary steps to obtain the documents” sug-
gests that no such steps were taken when the Union made its
initial request. The discovery of the alleged embezzlement and
alleged seizure of documents by the former controller when he
was dismissed did not occur until “towards the end of 2003.”
Garcia’s testimony that the former controller seized “corporate
and personal documents” does not clearly establish that those
documents included the requested records relating to subcontract-
ing. Garcia did not deny that subcontractors had been hired and
that such records had existed. Even if I assume that some or all of
the requested documents were taken by the former controller, an
employer’s duty to supply information extends to situations in
which the “information likely can be obtained from a third party
with whom the employer has a business relationship that is di-
rectly implicated in the alleged breach of the collective-
bargaining agreement.” Fireman & Oilers Local 288, 302 NLRB
1008, 1009 (1991), citing United Graphics (Diversey Wyan-
dotte), 281 NLRB 463, 466 (1986). The Company presented no
evidence that it has sought or is seeking to obtain the information
from the subcontractors that it hired. In my opinion the Company
has “failed to demonstrate that such information is unavailable.”
United Graphics, supra at 466.
I find that the information requested by the Union relating to
the names and addresses of newly hired unit employees and
subcontracting is relevant and necessary to the Union in enforc-
ing the collective-bargaining agreement to which the Company
and the Union are parties. I specifically reject the Company’s
“no violation of the Act defense,” as outlined in its posttrial
brief, that the requested subcontracting documents have “either
disappeared or were disposed of by previous Company repre-
sentatives” and thus it cannot be ordered to produce what it
does not have or be found to violate the Act by its nonproduc-
tion. In this respect the Company failed to demonstrate it could
not have reconstructed the requested subcontracting informa-
tion with assistance from its third party subcontractors. I find
that the failure and refusal of the Company to provide the Un-
ion with the foregoing relevant information violated Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to provide the Union with requested
relevant information relating to unit employees and subcon-
tracting, the Company has 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.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Company, having unlawfully failed to provide the Union
with the names and addresses of newly hired unit employees,
relevant information that the Union initially requested on April
30, 2003, and with the relevant information relating to subcon-
tracting as requested in the Union’s letters of May 8 and 29,
2003, it must provide the foregoing relevant information.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Company, García Trucking Service, Inc., Carolina,
Puerto Rico, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Unión de Tronquistas de Puerto
Rico as the exclusive representative of all employees in the unit
by failing to provide the Union with the relevant information it
requested regarding the names and addresses of newly hired
unit employees and subcontracting.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Provide the Union with the relevant information of the
names and addresses of newly hired unit employees as initially
requested by the Union on April 30, 2003.
(b) Provide the Union with the relevant information relating
to subcontracting that the Union requested in its letters of May
8 and 29, 2003.
(c) Within 14 days after service by the Region, post at its fa-
cility in Carolina, Puerto Rico, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 24, after being signed by
the Company’s authorized representative, shall be posted both
in English and Spanish by the Company immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Com-
pany to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pend-
ency of these proceedings, the Company has gone out of busi-
ness or closed the facility involved in these proceedings, the
Company shall duplicate and mail, at its own expense, a copy
of the notice both in English and Spanish to all current employ-
ees and former employees employed by the Company at any
time since April 30, 2003.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 24 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Company has taken to comply.

6 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.
7 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”