Kellogg���s Snack Co.

National Labor Relations Board - Board Decisions

May 31, 2005

344 N.L.R.B. 756 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 91
756
Kellogg’s Snack Company and Local 560, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
Case 2–CA–36270
May 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On February 25, 2005, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Kel-
logg’s Snack Company, Langhorne, Pennsylvania, its
officers, agents, successors, and assigns shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).

1 The Respondent’s defense is that it was willing to concede at arbi-
tration the substance of the Union’s grievance, i.e., that it uses common
carriers rather than unit drivers to deliver some of its products to inde-
pendent distributors. Thus, the Respondent argues, the Union did not
need the information that it requested in its three letters. Chairman
Battista finds that this defense is based on a faulty underlying prem-
ise—the Respondent’s assertion that the disputed deliveries all origi-
nated from its bakeries, rather than from its New York distribution
centers where the unit drivers work and, as such, involved nonunit
work. In the Chairman’s view, this argument misperceives the purpose
of the Union’s information request. The Union needs the requested
information to determine for itself whether, as the Respondent claims,
the disputed deliveries originated from its bakeries. The Union is not
required to accept, at face value, the Respondent’s assertion on this
point. The requested information shows where the disputed deliveries
originated from and, armed with this information, the Union would be
able to decide whether it has a meritorious grievance worth pursuing to
arbitration, or a nonmeritorious grievance that it should drop. Chair-
man Battista concludes that, under NLRB v. Acme Industrial Co., 385
U.S. 432, 438–439 (1967), the requested information is relevant to this
inquiry and must be provided.
2 Chairman Battista and Member Schaumber note that the Respon-
dent does not argue that the Union’s requests for information should be
deferred to the parties’ contractual grievance-arbitration procedures.
Thus, they do not pass on this issue. Compare SBC California, 344
NLRB No. 11 fn. 3 (2005).
3 We modify par. 2(a) of the judge’s recommended Order, and sub-
stitute a new notice, correcting the date of one of the Union’s letters
requesting information. The correct date is March 4, rather than March
3, 2004.
“(a) Furnish to the Union the information requested in
the letters sent by the Union dated March 4, April 13,
and April 27, 2004.”
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT do anything that interferes with these
rights. More particularly,
WE WILL NOT refuse to furnish relevant information to
Local 560, International Brotherhood of Teamsters,
AFL–CIO in connection with a grievance filed on Febru-
ary 12, 2003.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce employees in the exercise of
their Section 7 rights.
WE WILL furnish to the Union the information re-
quested in the letters sent by the Union dated March 4,
April 13, and April 27, 2004.
KELLOGG’S SNACK COMPANY
Dharma Wilson, Esq., for the General Counsel.
Irving L. Hurwitz, Esq., for the Respondent.
Paul A. Montalbano, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in New York, New York, on November 15, 2004. The
charge was filed on May 21, 2004, and the complaint was is-
sued against the Respondent on August 27, 2004.1 In sub-
stance, the complaint alleges that since on or about February
11, 2004, the Respondent has failed to furnish to the Union
certain information, to wit:

1 The correct name of the Employer is Kellogg’s Snack Company.
Accordingly the caption of this case is amended to reflect the correct
name.
KELLOGG’S SNACK CO. 757
(a) Bills of lading from certain named carriers; and
(b) Invoices identifying the shipper, the name of the product,
and the amount of the product and the date of delivery relating
to certain named carriers.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated that the Respondent, a corporation, is
engaged in the manufacture and distribution of food products
and that annually, it purchases goods valued in excess of
$50,000 that are delivered directly to its New York facilities
from outside the State of New York. I therefore conclude that
the Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The parties
also agree and I find that Local 560, International Brotherhood
of Teamsters, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent is engaged in the manufacture and sale of
prepared foods such as cookies and crackers. It and the Union
have had a collective-bargaining relationship for at least 20 to
25 years. In this regard, although the Company has multiple
facilities nationwide, Local 560 represents the drivers and
warehousemen at two distribution centers in New York State.
One is in Orangeburg, New York, and the other is in Long Is-
land, New York.2
The most recent collective-bargaining agreements covering
these two facilities (each is covered by a separate but largely
identical agreement), ran from June 12, 2001 to June 12, 2004.
Bargaining for new contracts began sometime in June 2001 and
no new contracts have been reached.
The products that are handled at the two distribution centers
are food items such as cookies and crackers that are baked at
various facilities in the United States such as Macon, Georgia,
etc. The goods are delivered from the manufacturing facilities
to distribution centers which service specified geographic areas
and are then delivered to customers, such as large supermar-
kets, from these centers. The two centers involved in the pre-
sent case service New York City, Long Island, and New Jersey.
The employees who handle the goods at the centers are ware-
housemen and the drivers who deliver the goods to customers
are drivers. Local 560 represents both of these categories of
employees.
There are, however, a category of smaller retailers who indi-
rectly purchase the Respondent’s goods such as grocery stores,
bodegas, etc. And as to these, the Respondent has decided that
it would not be efficient to deliver its products directly to them
from its distribution centers by its own drivers. Accordingly, at
some point in the past, the Respondent arranged to sell its

2 Actually the Union has represented these employees when they
were employed by predecessor companies. One was Sunshine and the
other was Keebler. The most recent owner is Kellogg’s Snack Com-
pany.
products to various independent companies (wholesalers), who
in turn sold and delivered the goods to these kinds of retailers.
Examples of these kinds of companies are W.B. Brown, Con-
del, and Premiere Snacks.
One of the questions in this case is how do cookies get to
bodegas and grocery stores?
The parties agree that pursuant to the contract, if the goods
come into either distribution center they must be handled by
and delivered by Local 560 members. That is, the cookies are
driven from a center to the wholesaler in a truck owned by the
Respondent and driven by a driver employed by the Respon-
dent. In this regard, the collective-bargaining agreements at
Article 16 state:
The Employer agrees to respect the jurisdictional rules of the
Union and shall not direct or permit their employees or per-
sons other than the employees in the bargaining unit here in-
volved to perform work which is recognized as the work of
the employees in said unit. Deliveries shall not be made by
sales employees except in cases of extreme emergencies. . . .
At various times since about 1996, there have been occasions
when the Union has suspected that wholesalers such as W.B.
Brown have been allowed to use their trucks and drivers to pick
up goods at the distribution centers. These situations have gen-
erated grievances, settlements, and side letters. In a memoran-
dum agreement dated June 11, 1998, the parties agreed that:
It is understood that the deliveries to non-DSD customers will
be made by the bargaining unit unless under unusual circum-
stances beyond the control of Keebler Foods Company.
Venders such as Condel or D.W. Brown may make an occa-
sional pickup at the Keebler facilities. It is understood that
prior agreements not in existence regarding these vendors re-
main in force. In these limited instances there shall be no vio-
lation of the CBA for customer pickups due to these limited
circumstances.
On June 12, 2001, in connection with the most recent collec-
tive-bargaining agreement, the parties signed a letter agreement
which essentially prohibited wholesalers from making pickups
at the Long Island distribution center. This stated:
The Company agrees that all deliveries to step-van sales mini
warehouses in the Long Island Distribution service area will
be delivered by bargaining unit employees and step-van sales
employees will not be permitted to pick up product from the
Distribution Center.
Nevertheless, the Company asserts that historically, this is
not the only way that the cookies go to the smaller stores. It
asserts that for a long time, even before 1996, there were occa-
sions when cookies were delivered directly to the wholesalers
from the bakeries by way of common carrier. It asserts that in
those circumstances, the cookies and crackers never went into
the distribution centers at all and therefore were never handled
by or driven by Local 560 employees. As to this contention,
there is probably some dispute between the parties, either as to
the past practice or the extent thereof. Luckily, I am not the
person called upon to decide that dispute which is pending
before an arbitrator.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD758
On February 12, 2003, the Union filed a grievance alleging
that the Respondent violated article 16 in that goods were wind-
ing up at wholesalers without having been driven there by Lo-
cal 560 drivers who were employed at the two distribution cen-
ters. The grievance demanded that the Company “Cease and
Desist.” As in past grievances of a similar nature, it is reason-
able to assume that the Union would seek backpay for any loss
of earnings suffered by affected drivers.
Also on February 12, 2003, the Union filed a request for ar-
bitration of the grievance with the New Jersey State Board of
Mediation. In bringing the grievance, the testimony was that
various union drivers had seen product at the warehouses of the
wholesalers that they knew were not delivered by Local 560
drivers.
On January 13, 2004, Paul Montalbano, the Union’s attorney
served a subpoena upon the Respondent in anticipation of an
arbitration hearing scheduled to take place on February 11,
2004 before Michael Berzansky. Without going into too much
detail, suffice it to say that he was seeking documents covering
a 3-year period of time to determine the past practice and the
extent to which the Respondent was having products delivered
to New York area wholesalers by means other than using the
drivers who were employed at the two distribution centers. The
purposes of the subpoena were (1) to prove that the Company
was doing this and (2) to establish the extent to which it was
done and therefore the extent of damages.
Shortly before the hearing, the Company’s representatives
asked to postpone the hearing and sit down and see if the matter
could be settled. The Union agreed and the parties met on Feb-
ruary 11, 2004. According to Montalbano, the Company’s
representatives stated that they did not understand what the
problem was and Montalbano said that the Union would be able
to demonstrate that the Respondent was causing deliveries to be
made to the area wholesalers by using common carriers instead
of Local 560 drivers.
On March 4, 2004, Montalbano wrote to the Company’s di-
rector of labor relations, Tom Rezek, and stated:
Consistent with our discussions of February 11, 2004, I have
been able to prepare a listing of carriers and dates of viola-
tions which are the subject matter of the Union’s arbitration.
Please note that the Union continues to obtain additional
documentation which we believe evidences the violation. It is
requested that you please conduct an investigation concerning
each of these vendors during the relevant time period as speci-
fied in my schedule and provide information in that regard.
The letter’s attachment lists alleged deliveries by specified
common carriers during certain months in 2003 and 2004 to
Premier Snack Distribution in Garden City Park, New York.
(Presumably alleged as a violation of the contract covering the
Long Island Distribution Center employees.) Similarly, it lists
deliveries made to W.B. Brown by various common carriers
during certain months in 2002 to 2004. (Presumably alleged as
a violation of the Orangeburg contract.)
When the Company did not respond, Montalbano wrote an-
other letter on April 13, 2004. This stated:
By my letter of March 4, 2004, I provided to you a
schedule listing carriers which we believe made deliveries
in violation of the collective bargaining agreement. I pro-
vided not only the carriers but the month in which we be-
lieve the violations to have occurred.
During our conversation . . . on February 11, 2004, I
advised that I was seeking to receive copies of the bills of
lading and related invoicing identifying the shipper, the
destination, the nature of the product, the amount of prod-
uct and the date of delivery. I remind you that I need a re-
sponse containing information to that request.
Since that time, I have received additional information
indicating a continuation of the violation. It is requested
that you please provide similar invoice information con-
cerning the following carrier: New England Motor Freight,
March 2004, Master Bill of Lading #14314684M.
I also seek information concerning carrier Joseph’s
Express, March 2004, including, but not limited to Order
Nos. 62895980, 62895991, 62895981.
Still not getting any response from the Company, Montal-
bano sent a letter dated April 27, 2004. This stated:
By my letter on March 4, 2004 and April 13, 2004, I
requested that you provide Local 560 with information
concerning the above reference grievance. To date I have
not received any response containing the information, or in
the alternative any reply with a question as to any uncer-
tainties you may have concerning the Union’s request.
Please be advised that the Union has learned of other
questionable shipments in particular involving U.S. Ex-
press shipped on February 7, 2004 and by overnight deliv-
ery company shipped on March 24, 2004 and April 2,
2004. As you have probably seen under separate cover,
the Union has filed a supplemental grievance concerning
this issue by grievance submitted on April 12, 2004. This
problem is continuing and it appears the Company is not
giving it sufficient time and effort. Please provide true
copies of the shipping invoices on each of these additional
shipments.
If the requested information is not forthcoming . . . I
will have no alternative but to file an Unfair Labor Prac-
tice charge. . . .
As the Company did not comply with the above requests, the
charge was filed and this case has come to me.
I note that both the Union and the General Counsel state that
they are not seeking to have the Board compel the Respondent
to furnish it with all of the documents and information sought
in the arbitration subpoena that is dated January 13. In this
regard, Montalbano states that the subpoena, which under New
Jersey law requires production of documents at the opening of
an arbitration hearing, can be enforced by the New Jersey Supe-
rior Court. (Assuming that the arbitrator finds that the material
is relevant.)
What is sought in this unfair labor practice case is the pro-
duction of the particular documents requested in Montalbano’s
letters of March 4, April 13 and 27. Although the letter re-
quests are different from the subpoena, Montalbano agrees that
the documents sought in the three letters are, in fact, a subset of
the information sought by the subpoena. That is, if the sub-
poena were to be enforced by a New Jersey Court, the informa-
KELLOGG’S SNACK CO. 759
tion sought by the letters would be encompassed by the sub-
poena and any order compelling compliance.
The Company asserts that it decided not to furnish the in-
formation because, in its view, the information sought was not
relevant to any legitimate grievance that the Union could have
brought under the terms of the contract. It’s witness testified
that after reviewing the information sought, it was discovered
that the deliveries that the Union was contending to be a viola-
tion of article 16 were not deliveries which went through the
distribution centers but were deliveries which went by common
carrier, directly from the manufacturing facilities to the whole-
salers such as W.B. Brown. The Company’s legal position is
that because such deliveries are consistent with a past practice,
the work that the Union argues should be “preserved” for its
members was never going to be performed by its members
because the products were never going to be delivered to the
distribution centers. Moreover, the Respondent contends, that
even if the information sought could arguably be deemed rele-
vant to the grievance, it will concede to the arbitrator that it has
used common carriers, not Local 560 drivers, to transport goods
to wholesalers when it has chosen to deliver them directly from
the bakeries.
Thus, the Company argues that unlike the past grievances,
settlements, and side agreements, the situation in the present
case does not involve a situation where a wholesaler was using
its own truck and driver to pick up and deliver cookies from the
distribution centers. Instead, it argues that the situation here is
that the deliveries were made directly to the wholesalers from
the bakeries and were never intended to go through either dis-
tribution center.
In response, the Union argues that even if this were true, if
the Company was allowed to deliver goods directly to the
wholesalers and thereby bypass the distribution centers, it
would be diverting bargaining unit work away from Local 560
members and therefore would constitute a violation of article
16 of its collective-bargaining agreement. Moreover, despite
the Company’s assertion that it will admit that it has caused
products to be delivered directly from bakeries to wholesalers,
the Union argues that the specific information would still be
needed in order to establish the amount of work lost and there-
fore the amount of damages. As to the last claim, the Respon-
dent argues that information for that purpose would only be
relevant if and when the arbitrator rules in favor of the Union
on the merits of the dispute. (I imagine that the Respondent
contemplates that the arbitrator will bifurcate the hearing and
reserve a decision on damages if he finds that the Company
breached the agreement.)
It is not for me to decide who is right about the underlying
merits of the grievance regarding the interpretation of the col-
lective-bargaining agreement. I have not been given the task of
interpreting the extent of the prohibitory provisions of article 16
and that question is presently before an arbitrator.
III. ANALYSIS
Where information is sought for the purpose of evaluating
and processing a grievance, the legal test is whether the infor-
mation is relevant to the grievance. In this respect, the deter-
mination of relevancy is made based on a liberal, discovery
type of standard. NLRB v. Acme Industrial Co., 385 U.S. 432,
437 (1967); Knappton Maritime Corp., 292 NLRB 236 (1985).
Moreover, the fact that the information sought may tend to
disprove a grievance is as equally relevant as those situations
where the information would tend to support a grievance. This
is because the process of resolving grievances is best served by
the disclosure of information which would tend to resolve
grievances one way or the other, at the earliest stage of the
procedure and not burden the parties with unwarranted arbitra-
tions. NLRB v. Acme Industrial Co., supra, Square D Electric
Co., 266 NLRB 795, 797 (1983); Ohio Power Co., 216 NLRB
987, 991 (1975).
In the present case the Union and the Respondent are arguing
about the meaning of article 16 of the collective-bargaining
agreement and whether or not this would prohibit the Company
from making deliveries, by drivers other than the union repre-
sented drivers employed at the two distribution centers. It also
is obvious that the information requests were all related to the
grievance/arbitration proceeding and the discussions to settle
the grievance. The information was not sought in connection
with the bargaining for a new contract that commenced in June
2004.
While I am not being asked to resolve the contract question;
it having been placed before an arbitrator, it is clear to me that
the information sought by the Union in the three letters would
be relevant to show if the alleged deliveries were made, the
extent to which these deliveries were consistent with or incon-
sistent with the Company’s practice over a 3-year period and
the extent to which drivers lost income as a result of the prac-
tice.
Obviously, if the arbitrator concludes that the contract does
not prohibit the Company from using common carriers to de-
liver its products directly from its bakeries to the wholesalers,
then the information sought would ultimately be useless to the
Union. But it is not for me to prejudge the outcome of the arbi-
tration case. And given the Union’s argument that the contract
clause would prohibit the Company from diverting bargaining
unit away from the distribution centers, the information sought
would be relevant to support its contentions in the arbitration
case or in any discussions to resolve the dispute short of litiga-
tion.
I note that it could be argued that the Board should defer this
case to the arbitration process because the information sought
via this unfair labor practice case is a subset of the information
subpoenaed by the Union in the arbitration case. Nevertheless
the Board has consistently refused to defer its own procedures
to the arbitration process in cases involving information re-
quests. Shaw’s Supermarkets, Inc. 339 NLRB 871 (2003);
General Dynamics Corp., 270 NLRB 829 (1984). Moreover,
the Respondent in its brief does not argue for deferral.
The Company contends that the information is not necessary,
at least at the present time, because it intends to concede to the
arbitrator, the practice complained of by the Union and let the
arbitrator decide first whether the practice is violative of the
contract. In the Company’s view, the information could only
be relevant if the arbitrator decides against it and then only for
the purpose of deciding the amount of lost pay.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD760
With respect to this contention, it seems to me that if the in-
formation is relevant to the grievance (or to any interim bar-
gaining to resolve the grievance), then its disclosure should not
depend on the procedural state of the grievance/arbitration
process. If that were the case, then the Board would get bogged
down in trying to figure out not only if information was rele-
vant, but also in determining at what point in the grievance
process, a party is required to disclose relevant information.
And I should note, by the way, that information which may be
relevant to a potential grievance has to be turned over even
before any grievance is filed. As the Court pointed out in
NLRB v. Acme Industrial Co., supra,
Far from intruding upon the preserve of the arbitrator, the
Board’s action was in aid of the arbitration process. Arbitra-
tion can function properly only if the grievance procedures
leading to it can sift out unmeritorious claims. For if all
claims originated as grievances had to be processed through
to arbitration, the system would be woefully overburdened.
In light of the above, it is my opinion that the information
sought in the Union’s requests dated March 3, April 13 and 27,
2004, were relevant for the purpose of bargaining or potentially
enforcing the provisions of the collective-bargaining agree-
ment. Accordingly, it is my conclusion that the Respondent has
violated Section 8(a)(1) and (5) by refusing to furnish this in-
formation.
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.
ORDER
The Respondent, Kellogg’s Snack Company, its officers,
agents, successor, and assigns, shall
1. Cease and desist from
(a) Refusing to furnish relevant information to Local 560, In-
ternational Brotherhood of Teamsters, AFL–CIO in connection
with a grievance filed on February 12, 2003.
(b) In any like or related manner, interfering with, restraining
or coercing employees in the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Upon request, furnish to the Union the information re-
quested in the letters sent by the Union dated March 3, April 13
and 27, 2004.
(b) Within 14 days after service by the Region, post at its fa-
cilities in Long Island and Orangeburg, New York, copies of
the attached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region 2, 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. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, or sold the
business or the facilities involved herein, 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
Respondents at any time since March 4, 2004.
(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.

4 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.”