Interstate Food Processing Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1987

283 N.L.R.B. 303 (N.L.R.B. 1987)

INTERSTATE FOOD PROCESSING
Interstate Food Processing Corp: and Local Lodge
No. 1198, District Lodge No. 99, Interstate As-
sociation of Machinists and Aerospace Workers,
AFL-CIO. Case 1-CA-22743
20 March 1987
DECISION AND ORDER
By MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 21 March 1986 Administrative Law, Judge
Stephen J. Gross issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order as modified.
The judge concluded that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by failing to
respond to requests by the Union for information.
We agree with the judge's conclusion, but only for
the reasons set forth below,
The essential facts are as follows. Historically,
the Respondent's management kept track of em-
ployee status by means of seniority lists, which
were updated and reissued several times a year and
provided to the Union on request. The record re-
flects that on 15 June 19841 the International
Union's Grand Lodge representative, William,
Layman, requested that the Respondent furnish a
seniority list of all permanent and temporary em-
ployees with their classifications and home address-
es. The Respondent sent Layman a seniority list
dated .21 June which designated employee name,
social security number, shift, hire date, department,
occupation, and phone number. The 21 June se-
niority' list also contained a blank "Comments"
column. In the autumn of 1984 Layman concluded
that the Union needed act ditional information from
the Respondent. Layman's conclusion was based
on his belief that the Respondent's, seniority list did
not indicate the status of all employees, including
employees laid off, and on the fact that a mistake
by the Union about the status of an employee had
led to 'an unfair practice charge against the Union.
By letter dated 25 November Layman wrote the
Respondent requesting "a new 'listing of all ' em-
ployees who were terminated, hired, layed [sic] off,
discharged, rehired, or quit since June 1, 1984." In
that summary paragraph of the 25 November letter
1 All dates refer to 1984 unless otherwise indicated
303
Layman requested a "new listing of all new hires,
[t]ermination, rehires or quits." The Respondent's
general manager, Christopher French, responded
by letter dated 4 December that "It]he company
has kept the Union up-to-date on terminations and
will supply you a new seniority list as of this date."
Enclosed was a copy of a 30 November seniority
list indicating employees' hire dates. That copy also
contained a "Comments" column in which hand-
written notations such as "probationary," "sick,"
"w/c," "restricted," and "service under Dr [sic]
care," appeared beside certain employees' names.
Layman responded by letter dated 7 December,
stating:
The company has, not been notifying the
Union whenever _ possible, in advance in all
cases of discharge. In the future, please for-
ward all copies of terminations of all kinds to
Charlotte Nelson, Financial Secretary. All
new hires are [sic] reinstatements of employees,
should also be sent to Mrs. Nelson so she can
have a record of who should ,be paying their
financial obligation.
The final sentence of Layman's 7 December letter
read, "I have had no response to my letter dated
November 25, 1984, so I am making the requests
again."
By letter dated 26 December 1984 French ad-
vised Layman, "We will discuss the information
the Union is requesting" at a grievance meeting set
for 8 January 1985. At the meeting, Layman and
French briefly discussed the Union's information
concerns while, as French 'testified, "going out the
door." Layman complained that the Union was not
getting the information it needed and questioned
French about employees hired after a Christmas
holiday layoff. French promised to "get back -to"
Layman about Layman's complaints.
The parties stipulated that on 11 February 1985
Layman wrote a letter to the Respondent's labor
counsel, Peter Kraft, that stated:
We have consistently requested the company
to give the union secretary the names of new
hires, quits, leave of absence [sic], employees
out sick or on workmen's, compensation and
terminations. To date, the company is comply-
ing only with the termination notices.2
By, letter dated 5 March 1985 Kraft wrote
Layman advising that Layman's re€erence to re-
quests for information had been forwarded to
French for response and that, to Kraft's knowl-
2 French testified that he never saw Layman's 11 February 1985 letter
nor heard about it from Kraft.
283 NLRB No. 46
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
edge, the Company had always complied with
Layman's requests for information in a timely fash-
ion.
On 1 March 1985 the Union filed the instant
charge. Complaint issued on 17 April 1985 alleging,
inter alia, that since 25 November the Respondent
had failed and refused to furnish the Union with
names of employees who were laid off or rehired
since 1 ' June and that, since 7 December, it had
failed to furnish the Union with the names of all
employees reinstated.
By letter dated 13 May 1985 Layman requested'
that French supply "a new and up todate [sic] se-
niority list" and substantial additional information. 3
On 20 May 1985 French wrote Layman, "Enclosed
is the information you requested from your May 13
1985 letter; concerning employee status. . . . feel
free to ask any questions in regard to this informa-
tion." Enclosed was an employee seniority list
dated 20 May 1985 plus a 28-page listing of "Infor-
mation Requested by Union."4
Based on the foregoing, the judge found that the
requested information about layoff, rehires, and re-
instatements was needed by the Union "for the
proper performance of its duties as the "employees'
bargaining representative." Detroit Edison Co. v.
NLRB, 440 U.S. 301, 303 (1979). The judge found,
however, that "until Layman's letter of 13 May,
the manner in which the Union asked for the infor-
mation made it a virtual certainty that the Union
would not get the information it wanted." First,
the, judge'noted that, until May 1985 the Union had
never specified that it considered seniority lists to
be inadequate for its needs. He also found Lay-
man's letters of 25 November and 7 December am-
biguous in important respects.5 Third, the judge
8 Layman requested the names, addresses, hiring dates, recall dates,
leave of absence and workmen compensation dates, and bargaining unit
and layoff status data for all employees who were new hires, on work-
men's compensation, on- layoff status, or on leave of absence of any kind.
4 By that time the Respondent had installed a new computer records
system from which the requested information was more readily available.
s The judge found two problems with Layman's 25 November letter.
First, the letter did not specify that Layman wanted something other
than a seniority list and could, he believed, be interpreted as a request for
an updated seniority, list. Second, in one place the letter asked for one set
of information while in another place-purportedly a summary of the
first-it asked for different information. Although the judge noted that
French arguably would have had a duty to clear up the confusion had
Layman clearly specified the inadequacy of seniority lists, he concluded
that under all the `circumstances, including the Union's long-time use of
seniority lists, French reasonably could have assumed that Layman's
letter was merely a request for an updated seniority list
Similarly, the judge found that French could be excused for not realiz-
ing that Layman was asking for a new kind of information ( reinstate-
ments) in his 7 December letter since "the principal purpose of the letter"
was to advise the Respondent that information should from then on 'be
sent to the Union's secretary. More importantly, the judge found the last
sentence of such letter, ie, "I have had no response to my letter dated
November 25, 1984, so I am making the requests again," factually inaccu-
rate and ambiguous
found that most of what Layman's November and
December letters requested was in fact readily
available from information the Respondent had
been providing to the Union.6 Fourth, he found
that Layman's 11 February 1985 letter to Kraft
"did nothing to reduce the confusion" because it
failed to mention the kinds of information specified
in the unfair labor practice complaint. Finally,
Layman impressed the judge as having "such a
combative and suspicious personality that virtually
any employer is likely to consider any communica-
tion with him, especially oral communication, to be
difficult, irritating, and confusing."
On the other hand, the judge found it reasonable
for the Union to seek a better source for informa-
tion than "awkward" seniority lists. Moreover, he
found that Layman's 7 December letter and 8 Janu-
ary oral complaint made it clear that the Union
wanted information that it thought it was not get-
ting.7
The judge concluded that the Respondent "vio-
lated Section 8(a)(5), notwithstanding the ambigui-
ty of the Union's requests." He noted that impreci-
sion in the wording of an information request does
not entitle an employer to ignore the request. E.g.,
Postal Service, 276 NLRB 1282, 1287 (1985): More
basically, the judge found that the Respondent
would have advised the Union of its confusion re-
garding Layman's December and January requests
had the Respondent's attitude been one of good
faith. Next addressing "the obstacle to communica-
tion presented by Layman's personality," the judge
found that the Respondent failed to show it would
have been futile to ask the Union for clarification.
See Postal Service, 276 NLRB at 1287. Finally, the
judge found that the failure of Layman's 11 Febru-
ary letter to refer to the kinds of information speci-
fied in the complaint did not excuse the Respond-
ent's obligation to respond to the Union's requests
of 7 December and '8 January in a timely fashion.8
Thus, the judge found that by 11 February the Re-
spondent had already violated the Act. Aeolian
Corp., 247 NLRB 1231, 1243-1244 (1980).
While we agree with the judge'sultimate conclu-
sion that the Respondent unlawfully failed to re-
spond to the Union's information requests,9 we dis-
agree with the judge's finding that "the manner in
which the Union asked for the information made it
' This finding was not supported by examples or evidence
The judge found, however, that it was unclear what "general catego-
ry of information" the Union was seeking. -
8 The judge also found that Layman's 11 February letter provided no
justification for French's failure to respond to the Union' s requests inas-
much as French had no knowledge of that letter until the hearing
9 The judge's finding of an 8(a)(5) violation was limited to the Re-
spondent's failure to respond to the Union's requests of 7 December and
8 January.
INTERSTATE FOOD PROCESSING
a virtual certainty that the Union "would not get
the information it wanted."
We find, contrary to the judge, that the Union's
25 November and 7 December requests were suffi-
ciently clear to place the Respondent on notice
that the Union was requesting information different
from that requested in the past and to place the
burden on the Respondent to ask for clarification if
it was, in fact, confused by the Union's requests.
Compare Postal Service, 276 NLRB at 1287. The 25
November request for a "new listing" was reason-
ably specific and precise in enumerating what cate-
gories of information the Union desired. Although
the summary paragraph arguably was inconsistent
in enumerating fewer categories of information
concerning employee status, we note that French
testified that he was not aware of any ambiguity in
the letter until the hearing. He testified that when
he received Layman's 25 November letter he cir-
cled "the summation paragraph, sent it to the per-
sonnel gal, and said take care of it." Therefore, any
ambiguity in the 25 November letter appears irrele-
vant to the Respondent's state of mind at the time
of receipt and to the sufficiency of the Respond-
ent's response based upon French's understanding
of the request. In any event, French never asked
Layman for clarification.
Even assuming, as found by the judge, that
French reasonably could have construed Layman's
25 November letter as merely a request for an up-
dated seniority list,10 French's 4 December re-
sponse, which stated that the Company had kept
the Union up-to-date on terminations and enclosed
the 30 November seniority list, was inadequate to
meet the Union's demands in its 25 November
letter. Aside from handwritten notations next to a
few names, the list included only hire dates. Thus,
notwithstanding the Respondent's contention that it
kept the Union current on terminations, the list
failed to denote employees laid off, discharged, re-
hired, or quit since 1 June 1984. Moreover, the list
also failed to denote the information requested in
the summary paragraph of the 25 November letter.
Accordingly, we find French's 4 December letter
nonresponsive and insufficient to satisfy the
Union's 25 November request.
Regarding Layman's 7 December request, while
we agree with the judge that the last sentence of
such letter was factually inaccurate and ambiguous
10 We note that Layman's prior request on 15 June specifically re-
ferred to a seniority, list whereas his 25 November letter requested the
Respondent to furnish a "new listing" of enumerated information. There-
fore, contrary to our dissenting colleague's assertion that the Union's re-
quest suggested that, it wanted a mere update of prior listings, the Re-
spondent arguably had reason to know that the Union's 25 November re-
quest was different from its usual requests and required something more
than the provision of another seniority list
305
to-the ektent that French did in fact respond to
Layman's 25 November request, that sentence, as
found elsewhere by the judge, did make it clear
that Layman wanted information that he thought
he was not getting." Again, French never asked
Layman for clarification. Instead, he ignored Lay-
man's 7 December letter until 26 December, when
he informed Layman he would discuss the informa-
tion requests at an 8 January 1985 grievance meet-
ing. As the judge found, Layman briefly com-
plained at the conclusion of the grievance meeting
that the Union was not getting the information it
needed. Although French promised to "get back
to" Layman, he did not do so until miid-May 1985,
i.e., after complaint had issued in the instant case
and after the Union had made another information
request. Again, we find such treatment of Lay-
man's request to be nonresponsive and insufficient
to satisfy the Union's 7 December and 8 January
1985 request.
Most significantly, we disagree with the judge's
unsupported finding that most of what the Union's
November and December letters requested was
readily available from information the Respondent
had been providing to the Union. Although the Re-
spondent claims that the Union had access to
changes in employee status through updated senior-
ity lists available to the shop stewards on request,
the evidence establishes that such seniority lists
failed to indicate requested changes in employee
status, that the Respondent was itself unsure how
the requested' information could be gleaned from
the seniority lists, and that the requested informa-
tion could not in fact 'be gleaned accurately from
such lists. i 2 Moreover, in response to the judge's
inquiry as to how the Union would find out about
new hires, French responded, "Through the shop
stewards," who would either see someone show up
or check the seniority listing in, the Respondent's
offices. The fact, however, that shop stewards may
have had access to updated seniority lists on re-
quest did not satisfy the Respondent's statutory ob-
ligation to furnish Layman the requested informa-
tion. New York Times Co., 265 NLR]B 353 (1982);
Kroger Co., 226 NLRB 512 (1976).
Regarding Layman's 11 February 1985 letter to
Kraft, we find it unnecessary to pass on the judge's
II Thus, contrary to our dissenting colleague, whatever may have been
the "main thrust" of the 7 December letter, the letter did reiterate the
prior request, and there is no basis for an assertion that it was an "unre-
lated afterthought."
12 In this regard , the 'record demonstrates, that on cross-examination
French initially testified that Layman could determine that nobody was
laid off at the time he sent the 30 November seniority list because the list
showed new hires in mid-November and employees on layoff status
would have been recalled prior to the hiring of new employees Thereaf-
ter, the General Counsel demonstrated, and French conceded, that em-
ployee Ruth Adams was in fact laid off in November 1984.
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
finding that such letter "did nothing to reduce the
confusion" since we agree with his later finding
that by 11 -February 1985 the Respondent had_ al-
ready violated the Act. We, however, disavow any
implication that Kraft's -knowledge of the contents
of the letter'cannot be imputed to French.
We also 'note that, in concluding that it was a
"virtual certainty" that the Union's requests would
not elicit the information it sought, the judge mis-
takenly'relied on the "impression" he formed con-
cerning Layman's "personality," apparently on the
basis of Layman's demeanor at the hearing. What-
ever the accuracy ' or `inaccuracy of this " impres-
sion," it is immaterial to the essential questions pre-
sented here: the sufficiency of the Union's written
requests for information and the adequacy of the
Respondent's response.
In agreeing with the judge's finding of an`8(a)(5)
violation, we note that it is well settled that when a
request for relevant information adequately informs
the employer of the data needed, the employer
must supply the information or adequately explain
why it is unable to comply. Kroger Co., 226 NLRB
at 513. We have already found that the Union's re-
quests for information were adequate to inform the
Respondent of the data needed. The Respondent,
however, gave no explanation for not complying
with the Union's initial requests. Although the Re-
spondent eventually complied with the Union's re-
quests in May 1985, it never informed the Union
that it was unable ^ to provide the requested infor-
mation earlier. Moreover, this belated compliance,
which- occurred after issuance of the unfair labor
practice complaint, cannot now retroactively cure
the unlawful refusal to supply the information. U.S.
Gypsum Co.; 200 NLRB 305, 308 (1972); see also
Postal Service, 276 NLRB at 1288. The Respond-
ent's continued inattention to Layman's requests
therefore was unjustified. Accordingly, we con-
clude, as alleged in the complaint, that since 25
November and 7 December the Respondent has re-
fused to provide the Union with information in vio-
lation of Section 8(a)(5) and (1).
In light of the above, we therefore disagree with
the judge's statement in the remedy section of his
decision that the "Respondent's only wrongdoing
was its failure to communicate with the Union
about Respondent's lack of understanding of the
Union's information requests." Furthermore, and in
view of the Respondent's compliance on 20 May
after the Union's 13 May request, we disagree with
the judge's recommendation to remedy the Re-
spondent's violation of the Act by requiring it to
"respond in timely fashion to future Union requests
for information." A cease-and-desist order will
fully remedy the violation found herein.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Interstate Food Processing Corp., Fort
Fairfield, Maine, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Delete paragraph 2(a).
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER JOHANSEN, dissenting.
I am not persuaded that a 'violation has been es-
tablished. For years prior to the Union's 25 No-
vember 1984 request for information, the Respond-
ent had complied with similar requests by provid-
ing an updated seniority list, as it did here on 4 De-
cember. The Respondent itself relied solely on
these lists for information on employee status. The
Union's 25 November 1984 request asked for a
"new listing," suggesting- that it wanted an update
of the -prior listings. The main thrust of the Union's
next communication , a 7 December 1984 letter,
was to direct the Respondent to keep the Union's
financial secretary abreast in the future of termina-
tions, hirings, and reinstatements so that she could
keep a record of employees owing union dues. The
reference in that letter to Union Representative
Layman's 25 November 1984 request for informa-
tion appears to be an unrelated afterthought, and
reasonably could be interpreted as indicating Lay-
man's mistaken belief that there had been no re-
sponse to his request.
The Union did not take advantage 'of the Re-
spondent's 26 December offer to discuss the
Union's request for information at a scheduled 8
January 1985 meeting and specify what information
the Union needed. It appears that the Union's 11
February 1985 letter to the Respondent's attorney
refers to its desire that the union secretary be in-
formed of personnel action to assess dues liability,
and not to "Layman's 24 November, 1984 request for
a listing of the status of all employees. ' Moreover,
the letter does not refer to the information that the
complaint alleges the Respondent failed to provide.
In my view, the evidence indicates that the Re-
spondent complied in good faith with the Union's
request by providing an updated seniority list and
proves nothing beyond confusion. I am unable to
conclude that the burden rested with the Respond-
ent, and not the Union, to clarify the Union's re-
quest, when the Union was departing from the sole
manner in which the parties had traditionally
shared' the kind of information sought; Once 'the
complaint issued clearly setting forth the informa-
INTERSTATE FOOD PROCESSING 307
tion sought, the Respondent furnished it , evidenc-
ing its good faith . That the Respondent eventually
sent the Union a detailed breakdown of the re-
quested information does not change my view. The
breakdown was expressly in response to the
Union's more specific 13 May 1985 information re-
quest . In addition, it was made possible by a newly
installed computer system designed to allow the
Respondent itself access to more complete employ -
ee data than previously had been the case . Accord-
ingly, ][ dissent from my colleagues ' conclusion that
the Respondent violated Section 8(a)(5) of the Act.
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.
WE WILL NOT refuse to bargain collectively with
your Union, Local Lodge No. 1198, District Lodge
No. 99, International Association of Machinists and
Aerospace Workers, AFL-CIO, by failing to re-
spond to requests by the Union for information.
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.
INTERSTATE FOOD PROCESSING CORP.
Robert Pulcini, Esq., for the General Counsel.
Peter R. Kraft, Esq., of, Portland Maine, for the Respond-
ent.
William H. Layman , Grand Lodge Representative, of
York, Maine, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEPHEN J. GRoss , Administrative Law Judge. Re-
spondent Interstate Food Processing Corporation (Re-
spondent or IFP) processes vegetables at a plant in Fort
Fairfield , Maine . Its employees are represented by Local
Lodge No. 1198 , District Lodge No. 99, International
Association of Machinists and Aerospace Workers,
AFL-CIO (the Union).'
' The bargaining unit consists of. All employees employed by Re-
spondent at its Fort Fairfield processing plant, but excluding executives,
clerical and office employees , maintenance employees , guards and super-
visors as defined by the National Labor Relations Act Respondent
admits that it is an employer engaged in commerce within the meaning of
the Act, that the Union is a labor organization for purposes of Sec 2(5)
of the Act, and that the foregoing unit constitutes a unit appropriate for
the purposes of collective bargaining within the meaning of Sec 9(b) of
the Act.
The General Counsel alleges that Respondent: (1)
made coercive statements to employees in violation of
Section 8(a)(1) of the National Labor Relations Act (the
Act); and (2) failed to provide information to the Union
that the Union had requested, in violation of Section
8(a)(5) and (1) of the Act.2 Respondent denies that it has
violated the Act in any respect.
I heard the case in Presque Isle, Maine , on 12 and 13
June 1985 . The General Counsel subsequently moved to
reopen the hearing; but I denied that motion by Order
dated 26 September 1985. The General Counsel and Re-
spondent have filed briefs.
1. FRENCH 'S CONVERSATION WITH GALLOP
A group of Respondent 's employees filed a deauthor-
ization petition with the Board in July 1984 . That led to
an election on 1 November 1984 . The weeks prior to the
election were tumultuous at the IFP plant. Feelings ran
deep among both the prounion and antiunion employee
groups, and electioneering led to spats between employ-
ees.
A. The Poirier Incident
Theresa Poirier is an IFP employee and is a proumon
member of the bargaining unit. Hope Doughty , another
IFP employee, opposed the Union. About 7 October
1984 Doughty called Respondent 's general manager,
Christopher French , to say that Poirier "was bothering
her and it was making her very uncomfortable during
work and it was difficult for her to do her job." Dough-
ty sounded very upset . About the same time another em-
ployee called French , referred to Poirier , and said that
Doughty "was extremely upset about what was going
on.3
Lawrence Gallop is president of the Union and is an
IFP employee . According to undisputed testimony,
Gallop frequently plays a "peacemaker" role in the plant.
And when French gets reports of union adherents both-
ering other employees about union -related matters he
routinely asks Gallop to investigate . (French calls on the
leader of the antiunion group to investigate reports of
problems being caused by antiunion employees .) Accord-
ingly, on 10 October French spoke to Gallop about Poir-
ier.
French repeated what Doughty had said about Poirier
and expressed his concern about a possible decline in
production stemming from the turmoil over the deau-
thorization election . French went on to tell Gallop to in-
vestigate Doughty 's complaint . If it turned out that Poir-
ier was "harassing" Doughty, said French, Gallop
should tell Poirier that if she continued that conduct 'she
would be disciplined. French claims that he told Gallop
that his only concern was employee conduct during
working time, but I do not credit that testimony.4
2 The Union filed its unfair labor practice charge on 1 March 1985.
The complaint issued on 17 April 1985
3 The telephone call quotations are from French's testimony.
4 Gallop testified that French referred to Doughty as a "loyal employ-
ee." I do not credit Gallop in that respect "Loyal employee " allegations,
and the meaning to be attributed to the term "loyal employee," are dis-
cussed further, below
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD'
French,never 'raised the matter again. Months after his
conversation with French about the Poirier incident,
Gallop reported to French that Poirier had not been at
fault, a report that French did not question. Poirier was
never disciplined-in any way about the incident.
B. Cyr and Dorr
On 25 October French spoke to Gallop about the ac-
tivities of Clyde Cyr and Beverly Dorr. In many re-
spects French's statements about Cyr and Dorr were
similar to his statements to Gallop about Poirier.
French told Gallop that employees were complaining
about the extent to which Cyr and Dorr were talking to
other employees in a working area of the plant about
union and deauthorization matters. French told Gallop to
check out those complaints. If the complaints were accu-
rate, said French, Gallop was to "go out and tell them to
keep their mouths shut." In the course of the conversa-
tion French threatened to "file charges if the union mem-
bers continued to talk to people in the plant about union
business." (French did not, however, say what "charges"
he was talking about.) As in the Poirier case, French did
not tell Gallop that his concern was limited to Cyr's and
Dorr's behavior during working time.
Gallop subsequently did tell Cyr and Dorr "to calm
down, keep their remarks to themselves." Neither Cyr
nor Dorr was ever disciplined for the activities to which
French referred.5
C. Conclusion-French 's Conversations with Gallop
French's threats of discipline . Once again the Board is
faced with the need to work out "an adjustment" be-
tween , on the one hand, the protected right of employees
to seek to persuade , their fellow employees to support (or
oppose) their union and, on the other , the "right of em-
ployers to maintain ' discipline in their establishments"
and'the , right of an individual employee to be free from
the improper behavior of other employees with whom he
or she disagrees . 6 Here there is no doubt that Gallop
could have interpreted French 's remarks as a threat that
any employee who talked to another employee about the
upcoming deauthorization election would be disciplined
if the employee on the receiving end of the discussion
considered the talk to be harassment , however mild the
discussion may in fact have been, and even if the discus-
sion took place on nonworking time.?
On the other hand,'while French's remarks could have
been interpreted that way, they did not have to be.
French 's remarks were reasonably susceptible to the in-
terpretation that his concern was preventing aggravated
kinds of harassment of employees that occurred while
the employees were at work . an that latter respect
5 Gallop and French were the only witnesses to the two conversations
discussed above The foregoing description of those conversations is
based on Gallop's and French's testimony and on my determination about
which of the two witnesses seemed more credible where there were con-
flicts in that testimony.
6 The quotes are from Republic Aviation Corp. v. NLRB, 324 U.S. 793,
797-798 (1945)
7 See, in this respect, Sierra Hospital Foundation, 274 NLRB 427, 428
(1985), in which the Board focused on the fact that the employer careful-
ly limited its prohibitions on union organizing activity to working time
French referred to Doughty's belief that her work was
suffering and to the reports that Cyr's and Dorr's activi-
ties took place in working areas of the plant.) And
Gallop had some responsibility for clarifying the ambigu-
ity. Gallop, after all, was president of the Union, was a
senior employee, and had often been called on to resolve
disputes between employees. Moreover, French did not
tell Gallop that he (French) knew what the facts were.
Rather, French told Gallop to find out what they were.
That put Gallop in the position of being able to report
back to French that the complaining employees had no
basis for their gripes (which, in the case of the Poirier-
Doughty incident, is what he did). Finally, the General
Counsel does not contend that French's remarks to
Gallop were the product of union animus, and the record
would not support any such contention. Rather, it ap-
pears to me that French talked to Gallop about the com-
plaints directed at Poirier, Cyr, and Dorr solely to
remedy matters French thought might hurt plant effi-
ciency and because employees on the receiving end of
Poirier's, Cry's, and Dorr's remarks had asked French
for help.
Under all these circumstances, my conclusion is that
those remarks did not violate the Acts
French's threat to "file charges " As the General Coun-
sel contends, an employer's' threat to "file charges"
against an employee can violate the Act. Consolidation
Coal Co., 266 NLRB 670, 675-676 (1983). But such
threats do not necessarily constitute violations; they must
be evaluated in light of the circumstances in which they
were made. Here the considerations applicable to
French's threats of discipline seem equally applicable to
his threat to file charges. Accordingly my recommenda-
tion is that the Board dismiss this allegation too.
It is worth noting, moreover, that French's threat to
file charges would not necessarily be a violation of the
Act even if his threats to discipline employees were. One
consideration is that French's statement about filing
charges could readily be understood to mean filing unfair
labor practice charges with the Board. (The General
Counsel, in fact, does interpret French's statement that
way: see G.C. Br. at 5.) In contrast, in all of the cases of
which I am aware in which an employer was held to
have violated the Act by threatening litigation, the em-
ployer threatened criminal or civil action.9 Another con-
sideration is that French,made the threat to the Union's
president (whom French did not accuse of personally en-
gaging in any of the alleged harassment). Thus it is as
8 For a case that appears to touch on some of these same issues, see
ACTIVIndustries, 277 NLRB 834 fn. 2 (1985).
9 Cases arising during the past 10 years that involve threats of litiga-
tion by an employer include: Consolidation Coal, above, Kay Fries, Inc.,
265 NLRB 1077 (1982), enfd. mein 722 F 2d 732 (3d Cir 1983), Clara's
Restaurant, 263 NLRB 37 (1982); Cutting Inc., 255 NLRB 534, 543
(1981), enfd. in pertinent part 701, F 2d 659 (7th Cir 1983); Pabst Brewing
Co., 254 NLRB 494 (1981), Centre Engineering, 253 NLRB 419 (1980);
North State Supply Co, 247 NLRB 1331 (1980), enfd. 649 F.2d 860, (3d
Or. 1981); Wolverine World Wide, 243 NLRB 425 (1979); Pleasurecraft
Marine Engine Co., 234 NLRB 1216 (1978), Donn Products, 229 NLRB
116 (1977), enfd. in pertinent part 613 F 24 162 (6th Cir. 1980); S.E Nich-
ols Marcy Corp, 229 NLRB 75 (1977); San Clemente General Hospital, 224
NLRB 378 (1976). As stated above, in all these cases the employer
threatened civil or criminal litigation, not litigation before the Board
INTERSTATE FOOD PROCESSING 309
reasonable to interpret French's statement as a threat to
file charges against the Union as it-is to interpret it as a
threat to bring action against individual employees. Yet
the cases on the subject refer to employer threats against
employees, not unions. i o
In suun, French's statement can reasonably be inter-
preted as a threat to file unfair labor practice charges
against the Union. And it is far from clear that that kind
of threat, made to a union official, ought to be deemed a
violation of the Act except, perhaps, under egregious cir-
cumstances.
II. THE CYR-LEVESQUE INCIDENT AND ITS AFTERMATH
Phyllis Cyr is an IFP employee and an officer of the
Union. On the day of the deauthorization election Cyr
challenged the ballot of another employee who, at the
time of the election, was not working due to a work-re-
lated injury. Dawn Levesque; also in IFP employee, is
the leader of the antiunion faction and had petitioned for
deauthorization of the Union. The day after the election,
in the plant, Levesque loudly insulted Cyr for the ballot
challenge. Cyr immediately reported the incident to Re-
spondent's management.
Cyr had been involved in a similar incident about a
year earlier, except on that occasion she was the one
hurling the insults. As a result of that behavior Cyr re-
ceived a written warning. Cyr accordingly expected that
Respondent would discipline Levesque in a similar
manner. But that did not- happen . Instead Levesque re-
ceived only a "verbal warning," which at IFP is a lesser
form of punishment.
Cyr thereupon filed a grievance, claiming disparate
threatment. Her grievance demanded removal of the
written warning from her record. As it turns out, Re-
spondent's actions were not disparate . (At IFP a first in-
cidence of misbehavior results in a verbal warning. A
second occurrence results in a written warning. Cyr's
misbehavior was her second; Levesque's was her first.)
The General Counsel does not argue otherwise. The
General Counsel 's contention is, instead , that French
used language that implied that Respondent was not
taking disciplinary action against Levesque because
Levesque was opposed to the Union.
The basis of the General Counsel's claim is testimony
by Gallop and by the Union's Grand Lodge representa-
tive, William Layman, that, during a meeting with
French held to consider Cyr's grievance, French on the
one hand did not advise Gallop or Layman that Leves-
que had already received a verbal warning and, on the
other hand, referred to Levesque as a "loyal employee."
(That claimed reference to "loyal employee" is signifi-
cant because, as all parties agree, everyone in Respond-
ent's plant understands that the term 'refers to any em-
ployee who crossed the picket line to work during a
strike called by the Union in 1983.) Gallop's recollection
was that at the conclusion of the discussion of the griev-
ance, French said that he would "talk to" Levesque
about the 2 November incident and, somewhere in the
course of that conversation, referred to Levesque as a
loyal employee. As Layman remembered the circum-
10 See the cases cited in fn. 9, above.
stances, after he told French that the Union wanted the
same treatment for all employees , French responded,,
"Dawn [Levesque] is one of [Respondent's] loyal em-
ployees."
French denied that anything of the sort occurred. He
testified that he did tell Gallop and Layman that Leves-
que had received a verbal warning and that he did not
use the term "loyal employee." In that latter regard,
French claimed that it was union officials who used the,
term frequently-as an ironic reference to employees
who refused to support the strike against Respondent.
The Cyr-Levesque Incident-Conclusion '
The General Counsel's contention that Respondent im-
plied that it was favoring antiunion employees comes
down to the question of whether French did in fact use
the term "loyal employee." Layman and Gallop testified
that French did use the term, and their testimony was
reasonably consistent with each other's. Gallop, more-
over, was a credible witness. (My impression of Layman,
on the other hand, is that he has trouble keeping his facts
straight.) But French 's testimony was no less credible
than Gallop's. From what I saw of French, it would be
entirely out of character for him to use any expression
like "loyal employee," especially when dealing with
union representatives. Under the circumstances, there-
fore, I cannot conclude that the General Counsel has
carried her burden of proof.
III. THE GUIMOND +INCIDEN'T
Shortly before the deauthorization election the Union
sent letters to Respondent's employees suggesting that
only the Union 's presence kept Respondent from reduc-
ing wages to minimum wage levels and from eliminating
various employees benefits. Respondent , in reply, called
groups of 20 to 30 employees into the plant 's conference
room where French and Respondent's labor counsel,
Peter Kraft, spoke to them . Respondent deemed the
Union's allegations to be false, and French and Kraft
made that clear in the course of their comments.
Employee Gerard , Guimond attended one of those
meetings . The meeting , proceeded without incident until
Kraft had completed his remarks and French asked for
questions from the employees. Management 's remarks
had infuriated Guimond , and that the juncture Guimond
pointed at French and shouted "you're a goddamn liar."
French 's response to Guimond was "I understand your
opinion, we'll discuss this later."
When the meeting ended French and Kraft decided to
have that discussion with Guimond forthwith . Accord-
ingly, French and Kraft stepped out of the conference
room in the direction of Guimond 's work station, and
French told Guimond's foreman , Fred Jalbert , to have
Guimond return to the conference room . Jalbert did as
he was ordered, telling Guimond that French and Kraft
wanted to speak to him. Guimond refused to go.
When Jalbert advised French of Guimond 's refusal,
French ' told Jalbert to repeat the order . Jalbert did, and
on this second go-round Guimond did leave his work
station (which was, about 30 feet from the conference
310 DECISIONS OF THE NATIONAL LA13OR RELATIONS BOARD
room) and move toward French and Kraft. But Gui-
mond refused the order to enter the conference room.
That much of the Guimond incident is reasonably
clear (notwithstanding some conflicts in testimony). At
this point, however, the facts become murky. But as best
I can determine, both Kraft and French spoke to Gui-
mond, referring to his "liar" accusation, and French per-
sonally ordered Guimond to go into the conference
room. Guimond responded by noisily claiming that
French had no right to give such an order and by deny-
ing that he had called French a liar. (Guimond claimed
that he called IFP-not French-a liar.) A loud alterca-
tion ensued. French repeatedly and at high volume or-
dered Guimond into the conference room and threatened
Guimond with discharge if Guimond continued to dis-
obey French's order. Guimond nonetheless refused to
step into the conference room.
Gallop arrived on the scene (having been summond by
another employee) and convinced Guimond to go'into
the conference room. (Gallop accompanied Guimond
into the conference room.) Kraft thereupon told Gui-
mond that Guimond should not have called French a liar
in front of a group of employees. French reiterated that
message in stronger terms, telling Guimond that French
"could not tolerate a person [calling] him a liar because
there [were] other employees that heard that . con-
versation and it didn't look right for an employee to be
calling a supervisor, a general manager, a liar."11
After French permitted Guimond to return to his
work station, French made a record of the incident, indi-
cating that Guimond had received a verbal warning for
"failure to obey a direct command." Guimond was not
otherwise disciplined.
The Guimond Incident-Conclusion
Guimond's "you're a goddam liar" accusation was
protected by the Act. It was neither "flagrant" nor "vio-
lent," there was nothing improper about Guimond's mo-
tives, and it plainly was a "spontaneous protest" uttered
in "the heat of the moment." 12 French found the remark
particularly offensive because it was made directly to
him in the presence of numerous other employees and
thus could affect his status in the employees' eyes. But
that aspect of Guimond's utterance is by no means suffi-
cient to deny it the Act's protection.13
The question is whether any of management's re-
sponses to Guimond's protected utterance violated the
Act. My conclusion is that while the question is a close
one, none of those responses was unlawful.
The most serious of management's responses was
French's statement that he "could not tolerate" Guimond
calling him a liar in front of other employees. If that did
not violate the Act, none of management's other re-
sponses did either. (Those other responses: French's
statement, made immediately after Guimond's accusation,
11 The quote is from Gallop's testimony
12 The first two quotes are from Prescott Industrial Products Co, 205
NLRB 51, 52 (1973), enf denied 500 F.2d 6 (8th Cir 1974) The other
two quotes are from, respectively, J. P. Stevens & Co., 219 NLRB 850,
859 (1975), enfd 547 F 2d 792 (4th Or 1976), and Ozark Properties, 274
NLRB 6,87 (1985)
13 See Martin Brower Co, 270 NLRB 805, 808-809 (1984).
that "we'll discuss this later"; the orders that Guimond
return to the conference room; and Kraft's statement that
Guimond should not have called French a liar in front of
other employees.)There is no doubt that French's loud
declaration that he "could not tolerate" behavior that the
Act protects could readily be deemed to be coercive. It
suggests that Respondent would fire Guimond were Gui-
mond to repeat such action. (Indeed that is how Gui-
mond interpreted French's remarks.) French made the
statement while in the company of respondent's lawyer.
And neither French nor Kraft advised Guimond that Re-
spondent recognized that Guimond had the right to have
said what he did.
But I think French's statement nonetheless falls within
the range of permissible management responses. First,
Respondent did not in fact discipline Guimond for his
accusation or even explicitly warn Guimond that a repe-
tition of his behavior would result in discipline. 114 (I will
discuss below the verbal warning French gave Gui-
mond.) Second, while Guimond was entitled to be free
from being disciplined for his comment, for several rea-
sons he was not entitled to avoid an angry retort from
management: (1) virtually anyone on the receiving end
of an angrily shouted "you're a goddam liar" would
react strongly; (2) Guimond's accusation was inappropri-
ate to the circumstances in that there is no indication
that either Kraft or French used comparable language or
tone of voice in the discussion that led up to Guimond's
accusation; and (3) Guimond's repeated refusals to obey
the orders of Jalbert and, French had the inevitable result
of further upsetting an already angry French. It would
be altogether unrealistic to interpret the Act as requiring
a manager to choose his phrases carefully under these
emotionally charged circumstances-especially where, as
here, the employees involved have a 'major hand in cre-
ating that emotional charge. Thus while French's lan-
guage was stronger than one might wish, my recommen-
dation is that the Board conclude that it did not violate
the Act. 115
As a last matter, I think that French's "verbal warn-
ing" of Guimond for failing to obey a direct command
was lawful. I have considered the fact that Jalbert's and
French's orders to return to' the conference room could
themselves be deemed coercive. Guimond certainly was
freightened by them. (Guimond desperately wanted to
avoid facing French because he knew that French was
angry about the "liar" accusation). But French was enti-
tled to talk to Guimond about Guimond's accusation and
to order Guimond to go to a location where they could
have the talk. I have also considered whether that disci-
14 Compare Ozark Properties, above (employee discharged); Martin
Brower, above (employee discharged), J P Stevens, above (employee dis-
charged); Prescott, above (employee discharged)
15 This discussion had proceeded on the assumption that Respondent
would have violated the Act had management explicitly threatened to
discipline Guimond if he made a similar accusation in the future. It is not
altogether clear, however, that that assumption is a valid one. The fact
that the Act protects, on one occasion, an, employee's public accusation
that the employer's general manager is a "'goddam liar" does not neces-
sarily mean that a second instance of such' behavior would also be pro-
tected. It may be that, as in the case of some other kinds of behavior, an
employee is entitled to only one such bite at the apple See, e.g, Mashkin
Freight Lines, 261 NLRB 1473, 1477 fn. 14 (1982).
INTERSTATE FOOD PROCESSING
pline might have been at least partially a function of
French's anger about Guimond 's accusation . But Gui-
mond did repeatedly disobey both Jalbert and French,
and the nature of the discipline certainly was not so
harsh as to suggest that French was responding to some-
thing more than Guimond's insubordination.
IV. GENERAL COUNSEL'S CONTENTION THAT
RESPONDENT VIOLATED SECTION 8 (A)(5) BY
FAILING TO PROVIDE INFORMATION TO THE UNION
For many years the only document that Respondent's
management used to keep track of the status of its em-
ployees (in respect to such matters as seniority , position
in the plant, out sick or on workers ' compensation, in the
military, and the like) was a seniority list that IFP re-
issued several times a year . Respondent provided copies
of the seniority lists to the Union on request and, until
the autumn of 1984, the Union found the seniority lists to
be adequate for its purposes.
A. The Union 's Letter of 25 November
In the autumn of 1984 the Union 's Grand Lodge rep-
resentative, William Layman, concluded that the Union
needed additional information from Respondent. (One
reason for that conclusion : a' mistake by the Union about
the status of an IFP employee had led to a charge that
the Union committed an unfair labor practice against the
employee . Another reason : Layman was not aware that
Respondent 's seniority lists showed the status of all em-
ployees, including employees on layoff.) Accordingly, on
25 November 1984 Layman wrote to French , requesting
additional information.
According to the General Counsel, in that letter the
Union requested the names of employees who had been
laid off or rehired , and, Respondent unlawfully failed to
provide the information. Unfortunately the facts associat-
ed with that allegation are extraordinarily ambiguous.
Layman's 25 November letter did in fact request the
information that the General ' Counsel claims it asked for.
But there were two problems with the letter . First, it did
not specify that Layman wanted something other than a
seniority list. In fact , the letter could be read as indicat-
ing that what Layman wanted was an updated seniority
list. And second , in one place the letter asks for one set
of information while in another , place-purportedly a
summary of the first-the letter asks for another set of
information.
In that latter respect, the first request for information
in the 25 November letter was as follows: "We further
request a new listing of all employees who were termi-
nated, hired, laid off, discharged ,; rehired or quit since
June 1 , 1984." But the last paragraph of the letter reads:
"To sum up this correspondence, we have . . . [made a]
[r]equest for new listing of all new hires , [t]erminations,
rehires or quits."
The table below , compares the two parts of the letter,
Information Requested Information Requested
in First Reference in Summary Line
terminated terminations
hired new hires
discharged
311
- laid -off
rehired rehires
quit quits
Most conspicuously, of course, in one place Layman's
letter requests layoff information ; in the other it does
not.
If Layman's letter had been clear that Layman consid-
ered seniority lists inadequate for his needs , French argu-
ably would have come under a duty to clear up the con-
fusion. But in light of all the circumstances , including the
Union's longtime use of seniority list , my conclusion is
that French could resonably have assumed that Lay-
man's letter was merely a request for an updated seniori-
ty list . And, in fact, on 4 December French did send a
new seniority list to Layman. (The relevant part of
French's covering letter reads : "The Company has kept
the Union up-to-date on terminations and will supply
you a new seniority list as of this date.")
B. The Union 's Letter of 7 December
Layman responded to French 's 4 December letter with
a letter dated 7 December 1984 . The General Counsel al-
leges that in that letter the Union asked for the names of
all "reinstated" employees and that Respondent failed to
provide the information.
The 7 December letter did refer to information,about
reinstatements . But French can be excused for not realiz-
ing that Layman was asking for a new kind of' informa-
tion . The problem was that the principal purpose of the
letter seemed to be to advise Respondent that the infor-
mation that IFP had been sending to Layman should
henceforth be sent to another union official , Charlotte
Nelson . Thus the only reference to reinstatements was as
follows:
In the future, please forward all copies of termina-
tions to Charlotte Nelson , Financial Secretary. All
new hires are [sic] reinstatements of employees
should also be sent to Mrs . Nelson ... .
The last sentence in the letter seems to me to have
greater significance to this proceeding . The sentence
reads : "I have had no response , to my letter dated No-
vember 25 , 1984, so I am making the requests again."
As Respondent contends , that last sentence "was factu-
ally inaccurate as well as ambiguous."16 But French did
not say that to Layman or to anyone else associated with
the Union . What French did do was advise Layman, by
letter dated 26 December , that French would "discuss
the information the Union is requesting " at a grievance
meeting set for 8 January. (The grievance matter was un-
related to the Union's information requests .) While that
response was better than none at all, it not only failed to
provide Layman with the information he wanted, it
failed to inform Layman why Respondent was not pro-
viding that information.
is IFP Br. at 5.
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. The Union's 8 January 1985 Oral Request for
Information
Layman and French met on 8 January, as planned, to
consider the grievance matter. They did not discuss the
Union 's information concerns until the conclusion of the
meeting-"going out the door," as French put it. The
discussion was brief. Layman complained that, among
other things, the Union was not getting the information
it needed. French said that he would "get back to"
Layman about Layman's complaints, but he never did.
D. The Union's letter of 11 February 1985
On 11 February Layman wrote to Respondent's labor
counsel, Peter Kraft, ' to complain that Respondent was
not providing the Union with information that the Union
needed. But Layman's letter did not refer to the kinds of
information that are the subject of the complaint (layoffs,
rehires, and reinstatements). Rather , it read:
We have consistently requested the company to
give the union secretary the names of new hires,
quits, leave of absence, employees out sick or on
workmen 's compensation and terminations . To date,
the company is complying only with the termina-
tion notices.
Kraft, in response , wrote to Layman 3 weeks later in a
letter that concluded: "To my knowledge the Company
has always complied with your requests for information
in a good timely fashion in spite of your insulting , unpro-
fessional style.
E. The Union 's letter of 13 May 1985
By letter dated 13 May Layman asked French for an
up-to-date seniority list and , in addition, for substantial
additional information.
Not long before Layman sent that letter to Respond-
ent, Respondent had installed a new information retrieval
system that gave Respondent ready access to much more
complete employee data than had previously been the
case. Because of the relative clarity of the Union's 13
May letter and because of Respondent 's new information
system , Respondent was in a position to provide the
Union with the information the Union sought. Accord-
ingly, on 20 May French sent Layman a new seniority
list and, additionally , a 28-page listing of "Information
Requested by Union ." While the Union claims that some
of that information is inaccurate, it is clear that the data
reasonably met the Union 's needs.
V. CONCLUSION-THE ALLEGED FAILURE TO
BARGAIN
There is no doubt that information about layoffs, re-
hires, and reinstatements was needed by the Union "for
the proper performances of its duties as the employees'
bargaining representative." Detroit Edison Co. Y. NLRB,
440 U.S. 301, 303' (1979)." But until Layman's letter of 13
May, the manner in which the Union asked for the infor-
mation made it a virtual certainty that the Union would
not get the information it wanted. For one thing, until
that May letter the Union never did specify that it con-
sidered seniority lists to be inadequate for its needs. For
another, even apart from that first difficulty, Layman's
letters of 25 November and 7 December were ambiguous
in important respects. Third, most of what Layman's No-
vember and December letters said that the Union needed
was in fact readily available from information that IFP
had been providing to the Union. Fourth, Layman's
letter to Kraft (in February) did nothing to reduce the
confusion since it made no mention of the kinds of infor-
mation the General Counsel claims that Respondent, was
failing to provide. Finally, the impression I got at the
hearing is that Layman has such a combative and suspi-
cious personality that virtually any employer is likely to
consider any communication with him , especially oral
communication, to be difficult, irritating, and confusing.
On the other hand, seniority lists were an awkward
way for the Union to obtain information about rehirings
and reinstatements, and it was reasonable for the Union
to seek a better source for that information. Moreover
Layman did make it clear that he wanted information
that he thought he was not getting-in his letter of 7 De-
cember and his oral complaint of 8 January.
The parties have not cited any case similar to this one,
and my research has found none. The problem is the am-
biguity of Layman's requests for information. In every
request-for-information case that I have read, the union
at least made clear what general category of information
it was seeking. -Here that was not the case. All Respond-
ent could be expected to have known was that the Union
believed that it did not have some sort of information
that the Union thought it needed.
My conclusion is that Respondent violated Section
8(a)(5), notwithstanding the ambiguity of the Union's re-
quests. -
For one thing, in cases involving imprecise union re-
quests for information, the Board has concluded that
such imprecision does not entitle the employer to ignore
the requests. E.g., Postal Service, 276 NLRB 1282, 1285
(1985).
A more basic consideration is that the Act requires an
employer to operate "in good faith" when bargaining
collectively. That requirement of good faith surely also
applies to the attitude with which an employer considers
a union 's requests ' for information. And as I add up the
facts, Respondent would in the very least have advised
the Union of its 'confusion about Layman's December
and January requests had Respondent's attitude been one
of good faith, of wanting its relationship with the Union
to be characterized by "constructive, open discussions."
H. K Porter Co., 397 U.S. 99, 103 (1970).
Two other points remain for consideration.
One concerns the obstacle to communication presented
by Layman's personality. But while it is understandable
that Respondent found it difficult to deal with Layman,
there has been no showing that Respondent had any
basis for concluding that it would have been futile to ask
the Union for clarification. See Postal Service, above.
The second point involves Layman's 11 February
letter to Kraft. That letter fails to mention any of the
kinds of information to which the complaint refers (re-
hires, reinstatements, and layoffs). It could thus be
INTERSTATE FOOD PROCESSING
argued that the letter amounted to a withdrawal by the
Union of its requests for the kinds of information that are
the subject of the complaint , thereby ending any obliga-
tion on Respondent 's part to provide such information.
But for two reasons I think that that letter does not
excuse Respondent 's failure to respond to the Union's re-
quests of 7 December and 8 January. First , Respondent
had an obligation to respond in a timely fashion to those
requests. Aeolian Corp., 247 NLRB 1231, 1243-1244
(1980). By 11 February , therefore , Respondent had al-
ready violated the Act. Second , French, not Kraft, was
responsible for providing the Union with information.
But French did not learn of Layman's 11 February letter
until the hearing . Thus, that letter provides no justifica-
tion for French 's failure to respond to the Union's re-
quests.
THE REMEDY
Attaching a remedy to Respondent 's violation of Sec-
tion 8(a)(5) is awkward in that the violation is a peculiar
one: Respondent's only wrongdoing was its failure to
communicate with the Union about Respondent 's lack of
understanding of the Union 's information requests. More-
over, Respondent did provide the information that the
Union wanted as soon as the Union requested the infor-
mation unambiguously . Under the circumstances the rec-
ommended Order will not require that Respondent fur-
nish information to the Union (which is the typical order
in cases involving information requests by a union).
Rather, the recommended Order will require Respondent
to: (a) cease and desist from failing to respond to re-
quests by the Union for information ; and (b) respond in
timely fashion to future union requests for information.
The recommended Order will, in addition, require Re-
spondent to post a notice advising of the Board's action.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'7
17 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
ORDER
313
The Respondent Interstate Food Processing Corpora-
tion, Fort Fairfield, Maine, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain collectively with Local Lodge
No. 1198, District Lodge No. 99, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO
by failing to respond to requests by the Union for infor-
mation.
(b) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Respond in a timely fashion to requests by the
Union for information.
(b) Post at its facility in Fort Fairfield, Maine , copies
of the attached notice marked "Appendix."18 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt and maintain for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted . Respondent shall take
reasonable steps to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
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.
1e 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."