Gourmet Award Foods

National Labor Relations Board - Board Decisions

Sep 20, 2000

332 N.L.R.B. 170 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170
Tree of Life, Inc., d/b/a Gourmet Award Foods,
Northeast and Teamsters Local 294, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 3–CA–21569.
September 20, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On March 9, 2000, Administrative Law Judge Bruce
D. Rosenstein issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, the Respondent filed an answering
brief, and the General Counsel filed a reply 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 briefs and has decided to
affirm the judge’s rulings, findings, and conclusions,
except as set forth below, and to adopt the recommended
Order as modified.
The General Counsel and the Charging Party except to
the judge’s conclusion that the Respondent did not vio-
late Section 8(a)(1) and (5) when it failed to apply the
provisions of the parties’ collective-bargaining agree-
ment to temporary employees supplied by Accustaff and
other referral agencies performing unit work at the Re-
spondent’s facility, and his dismissal of the complaint
allegations pertaining to that conduct. On August 25,
2000, the Board issued its decision in M.B. Sturgis, Inc.,
331 NLRB No. 173, which overruled Lee Hospital, 300
NLRB 947 (1990), and clarified Greenhoot, Inc., 205
NLRB 250 (1973). The Board has decided to remand
this issue to the judge for further consideration consistent
with M.B. Sturgis, including a reopening of the record, if
necessary, and the issuance of a supplemental decision
concerning, inter alia, whether the supplied employees
are included in the unit described in the collective-
bargaining agreement.
The judge also found that the Respondent violated
Section 8(a)(1) and (5) by failing and refusing to furnish
the Union requested information that was relevant and
necessary to administer the parties’ collective-bargaining
agreement. No exceptions were filed to the judge’s find-
ings and conclusion regarding this matter, which does
not implicate our decision in M.B. Sturgis. Accordingly,
we sever this uncontested finding from the issues re-
manded, and we adopt the judge’s conclusion and rec-
ommended Order concerning this violation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tree of
Life, Inc., d/b/a Gourmet Award Foods, Northeast, Al-
bany, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
Delete the final paragraph of the Order, which dis-
misses the complaint insofar as it alleges violations not
specifically found.
IT IS FURTHER ORDERED that the issue of whether
the Respondent violated Section 8(a)(1) and (5) by fail-
ing to apply the provisions of its collective-bargaining
agreement to temporary employees supplied by Ac-
custaff and other referral agencies performing unit work
at the Respondent’s Albany, New York facility is sev-
ered from the rest of this proceeding and remanded to the
administrative law judge for appropriate action as noted
above.
IT IS FURTHER ORDERED that the administrative
law judge shall prepare a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.

Alfred M. Norek, Esq., for the General Counsel.
William H. Andrews, Esq., of Jacksonville, Florida, for the
Respondent-Employer.
Bruce C. Bramley, Esq., of Albany, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried before me on November 16, 1999, in Albany,
New York, pursuant to a complaint and notice of hearing (the
complaint) issued by the Regional Director for Region 3 of the
National Labor Relations Board (the Board) on February 2,
1999. Thereafter, the complaint was amended on April 27,
1999, and again on November 2, 1999. The complaint, based
on an original charge filed on October 9, 1998,1 by Teamsters
Local 294, International Brotherhood of Teamsters, AFL–CIO
(the Charging Party or Union) alleges that Tree of Life, Inc.,
d/b/a Gourmet Award Foods, Northeast (the Respondent or
GAF) has engaged in certain violations of Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). The Re-
spondent filed a timely answer to the complaint denying that it
had committed any violations of the Act.
Issues
The complaint alleges that the Respondent failed to apply the
provisions of the parties’ collective-bargaining agreement to
certain temporary employees who performed unit work at the

1 All dates are in 1998 unless otherwise indicated.
332 NLRB No. 24
GOURMET AWARD FOODS, NORTHEAST 171
GAF’s Albany facility. Additionally, the complaint alleges that
the Respondent refused to provide necessary and relevant in-
formation to the Union.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party, and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the wholesale
distribution of specialty food products, with an office and place
of business located in Albany, New York, where it annually
purchased and received goods valued in excess of $50,000
directly from points located outside the State of New York.
The Respondent admits and I find that it is an employer en-
gaged 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.
Accustaff, Inc., J. J. Young, Enterim Personnel, and TSI are
engaged in the business of providing leased or temporary em-
ployees to other employers, including the Respondent.2
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all material times, the Union has been the designated ex-
clusive collective-bargaining representative of the drivers and
warehousemen employed by the Respondent at its Albany facil-
ity. This recognition has been embodied in a series of collec-
tive-bargaining agreements, the most recent of which is effec-
tive from May 1999 to April 2002. The parties’ agreement
relevant here was in effect from April 13, 1996, to April 12,
1999 (GC Exh. 2). The Respondent is a distributor of specialty
and gourmet foods to various retail grocery store chains and
full-service sales outlets. In September 1998, it employed ap-
proximately 100 employees comprised of 70 warehouse work-
ers and 30 drivers. The Respondent’s operation is run around
the clock with three overlapping shifts.
For approximately 5 years before October 1998, the Respon-
dent has employed leased or temporary employees to assist unit
employees with warehouse duties during periods of increased
business that often include the Passover holidays. The Union
did not voice any objections, primarily because the parties’
agreement gives the Respondent the right to schedule part-time
and casual workers as needed, and the temporary workers
rarely were employed more then 30 days.3 Around October 1,
Respondent’s operations manager, Irwin Rodriguez, met with
Union Business Agent Kevin Hunter. Rodriguez informed
Hunter that because of increased business, GAF had contracted
with Accustaff to bring approximately 30 temporary employees
into the warehouse to assist unit employees in their daily work

2 The General Counsel, after the opening of the hearing, made a mo-
tion to remove Accustaff, Inc., Party-in-Interest, from the caption in the
subject complaint. I granted the unopposed motion, and this decision
will only concern the parties noted above.
3 The parties’ agreement contains at art. III, a union-security clause,
requiring employees to join the Union after 30 days of employment.
assignments.4 Hunter apprised Rodriguez that he needed to get
together with the Union to sign up these individuals as it was
anticipated that a number of them would be working in excess
of 30 days.5 Hunter asked Rodriguez to provide the Union with
a list of the temporary employees. Rodriguez faxed a current
seniority list of full-time employees to Hunter but did not pro-
vide a list containing the names of the temporary employees.
On October 8, Rodriguez apprised Hunter that the Respon-
dent could not provide a list of the temporary employees and
that he should do what he had to do. By letter dated October
13, the Union requested Respondent to provide a list of the
names and addresses of all individuals performing driving or
warehouse work at GAF broken down by hours and weeks of
work, commencing October 1. The list sought the names and
addresses of all bargaining unit employees, as well as any and
all additional individuals performing driving or warehouse
work whether those individuals are directly employed by Re-
spondent or by some other related or unrelated enterprise (GC
Exh. 3). The Respondent did not respond to the letter or pro-
vide any information to the Union.
B. The 8(a)(1) and (5) Violations
1. Application of the parties’ agreement
The General Counsel alleges in paragraph 8 of the complaint
that since October 1, Respondent has been party to agreements
with Accustaff and other business entities to provide temporary
employees to Respondent to perform warehouse work at the
Albany facility. Since the temporary employees have per-
formed the same work while being supervised and working side
by side with unit employees, the General Counsel asserts that
Respondent has been a joint employer with Accustaff and the
other business entities of the temporary employees working at
the Albany facility. In paragraph 9 of the complaint, the Gen-
eral Counsel alleges that the Respondent has failed to apply the
provisions of the parties’ agreement to the temporary employ-
ees of Accustaff and the other business entities that perform
unit work at the Albany facility.
The evidence discloses that Accustaff and the other business
entities recruit and hire the temporary employees. The Re-
spondent and the referring agencies agree to a set fee for the
use of the temporary employees, but the agencies determine the
temporary employees’ hourly wages. The agencies provide
workers’ compensation and make all relevant payroll deduc-
tions and contributions. The temporary employees sign a ge-
neric timecard, also used by GAF employees, that is then for-
warded to the referring agencies who compute the hours
worked before issuing a check to the temporary employees.
The Respondent assigns work and directs the temporary em-
4 The number of temporary employees peaked in mid-October 1998.
By March 1999, the complement was substantially reduced but tempo-
rary workers still remained in all of the warehouse departments.
5 The record shows that 55 Accustaff employees were referred to
Respondent between September 28 and January 21, 1999. Of these
employees, 17 were employed in excess of 30 days. One employee,
Charles Cammon, who was a temporary employee from November 17
to February 5, 1999, became a full-time employee on that date and
joined the Union. He remained a full-time employee of GAF until he
resigned on November 10, 1999, to take another job (GC Exh. 4).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172
ployees, establishes labor relations policies, and uses its own
supervisors to exercise day-to-day control over the temporary
employees. Indeed, Respondent acknowledges that no referral
agency supervisory personnel are involved in the daily supervi-
sion of the temporary employees. Moreover, the Respondent
also determines hours and sets the work schedules including
directing the temporary employees to work overtime on Satur-
days. Based on the forgoing, I conclude that the Respondent
and the referring agencies codetermine the temporary employ-
ees’ essential terms and conditions of employment, and there-
fore are joint employers. Capitol EMI Music, 311 NLRB 997,
998 (1993).
The Board has held that employees of a joint employer will
not be combined with employees of a single employer in a sin-
gle unit unless both parties provide consent. See Connecticut
Yankee Atomic Power Co., 317 NLRB 1266 (1995); Brookdale
Hospital Medical Center, 313 NLRB 592 (1993); Flatbush
Manor Care, 313 NLRB 591 (1993); and Greenhoot, Inc., 205
NLRB 250 (1973).
In the subject case, Accustaff and the other business entities
hire the temporary employees and prepare all relevant payroll
deductions and contributions. There is no evidence that Ac-
custaff or the other referring agencies ever consented or agreed
to include the temporary employees in the unit represented by
the Union. Moreover, there is no evidence that the Respondent
and the referring agencies discussed the issue nor is there any
evidence that GAF has provided the requisite consent to include
the temporary employees in the parties’ collective-bargaining
unit.
Under these circumstances, and following Board precedent,
the temporary employees are ineligible to become part of the
Respondent’s bargaining unit. It follows, therefore, that the
Respondent did not fail to apply the provisions of the collec-
tive-bargaining agreement to the temporary employees. Ac-
cordingly, I recommend that the 8(a)(1) and (5) allegations in
paragraph 9 of the complaint be dismissed.6
2. The information request
The General Counsel alleges in paragraph 10 of the com-
plaint that on October 13, the Union requested the Respondent
to provide certain information to the Union (GC Exh. 3). The
request was broken down into two separate parts. First, the
Union requested the names and addresses of all individuals
performing driving or warehouse work that were currently in
the bargaining unit. The same information was requested for
individuals who also performed driving or warehouse work,
regardless of whether those individuals are employed directly

6 The General Counsel argues, principally relying on Sterling Nurs-
ing Home, 316 NLRB 413 (1995), that the Respondent has violated the
Act. In my opinion, the reliance on that case is misplaced for two
reasons. First, the Greenhoot consent issue was not raised in that case.
In fact, Board Member Cohen specifically noted that fact in fn. 1 of the
decision. Second, the evidence in Sterling revealed that the respon-
dent’s bargaining representative repeatedly told the union that “he
would ‘take care of’ or ‘straighten out’ the problem of coverage of the
referral employees under the current bargaining agreement.” Thus, the
implied consent in that case is conspicuously missing in the subject
case.
by GAF or by some other related or unrelated entity or enter-
prise. The evidence discloses that the Respondent did not re-
spond or provide any information to the Union.
In respect to the Union’s request for information regarding
bargaining unit employees, it is well established that an em-
ployer has an obligation to supply requested information that is
reasonably necessary to the exclusive collective-bargaining
representative’s responsibilities. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). The information requested by the Union, as it concerns
bargaining unit employees, is presumptively relevant to collec-
tive bargaining. Harco Laboratories, 271 NLRB 1397 (1984).
The Respondent has not rebutted this presumption. Nor did
they raise issues of relevance or lack of necessity in denying the
Union’s information request. For these reasons, I find that the
Union is entitled to the information regarding bargaining unit
employees and conclude in failing to respond and refusing to
provide the information, Respondent violated Section 8(a)(1)
and (5) of the Act.
With respect to the portion of the information request involv-
ing the temporary employees’, the Union apprised the Respon-
dent that it was necessary to administer the terms and condi-
tions of the existing collective-bargaining agreement, including
the grievance and arbitration procedures contained therein. In
this regard, employees Oliver Preville and Shawn McCumber
credibly testified that prior to the arrival of the temporary em-
ployees around October 1, they both were working 50 to 55
hours a week. After October 1, their work hours were cut to
approximately 45 hours per week. Additionally, prior to Octo-
ber 1, both employees were afforded the opportunity to work
Saturday overtime while after that date, their Saturday overtime
hours were substantially reduced. Both employees testified that
this was because the temporary employees were given the op-
portunity to work Saturday overtime to the exclusion of the unit
employees. Indeed, Preville filed a grievance contesting the
denial of his right to work Saturday overtime and asserted his
seniority should give him the assignment over the temporary
employees (GC Exh. 7). Lastly, both employees credibly testi-
fied that job bidding and the ability to receive preferred jobs
was impacted by the presence of the temporary employees at
the Albany facility after October 1.
For all of the forgoing reasons, I find that the erosion of unit
work effectively made the Union’s articulated need for the
information necessary and relevant. Additionally, I conclude
that the information was necessary to the Union’s efforts to
ascertain whether the Accustaff employees were or were not
within the unit it represented. Accordingly, I find that when the
Respondent refused to provide the information regarding the
temporary employees, it violated Section 8(a)(1) and (5) of the
Act. Continental Winding Co., 305 NLRB 122 (1991).
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
GOURMET AWARD FOODS, NORTHEAST 173
3. By failing and refusing to furnish the Union with informa-
tion it requested on October 13, 1998, the Respondent violated
Section 8(a)(1) and (5) of the Act.
4. The Respondent did not violate Section 8(a)(1) and (5) of
the Act when it failed to apply the provisions of the collective-
bargaining agreement to the temporary employees of Accustaff
and other referral agencies performing unit work at the Albany
facility.
REMEDY
Having found that the Respondent 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. In this regard, I shall recommend
that Respondent be ordered to promptly provide the Union with
the information that it requested on October 13, 1998.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Tree of Life, Inc., d/b/a Gourmet Award
Foods, Northeast, Albany, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Teamsters Local
294, International Brotherhood of Teamsters, AFL–CIO, by
failing and refusing to furnish it with information that was re-
quested on October 13, 1998, which information is relevant and
necessary to administer the collective-bargaining agreement
they have with the Respondent.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the their 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) Furnish the Union the information it requested on Octo-
ber 13, 1998.
(b) Within 14 days after service by the Region, post at its
facility in Albany, New York, copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms provided

7 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.
8 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-
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 13, 1998.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not specifically
found.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain collectively with Team-
sters Local 294, International Brotherhood of Teamsters, AFL–
CIO, by refusing to furnish, on request, with information neces-
sary for, and relevant to the Union’s function as the exclusive
bargaining representative of certain of our employees.
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 Act.
WE WILL furnish the Union with the information it re-
quested on October 13, 1998.

TREE OF LIFE, INC., D/B/A GOURMET AWARD
FOODS, NORTHEAST

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.”