Lewers & Cooke, Ltd.

National Labor Relations Board - Board Decisions

Jul 22, 1965

153 N.L.R.B. 1542 (N.L.R.B. 1965)

1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All lessor-drivers, who do not utilize n onowner-drivers, nonowner-
drivers, and spotters,"' excluding multiple tractor lessors and all other
employees.
[Text of Direction of Election omitted from publication.]
'B Some lessor-drivers, denominated as spotters , perform transportation work for the
Employer by (1) utilizing their tractors in hauling trailers between the terminal and the
loading docks of certain of the employer 's customers ; ( 2) working on the grounds of the
customers ; or (3) making short-haul deliveries . Spotters are guaranteed 10 hours work
per day at an agreed-upon hourly rate. Accordingly, we find that spotters are appro-
priately Included In the unit . However, the record shows that some spotters utilize
nonowner-drivers. Consequently , we exclude such spotters from the unit as supervisors
for the reasons set forth , supra, with respect to multiple tractor lessors.
Lewers & Cooke, Ltd. and Hawaii Teamsters and Allied Workers,
Local 996. Case No. 37-CA-335. July 02, 1965
DECISION AND ORDER
On May 25, 1965, Trial Examiner Eugene K. Kennedy, issued his
Decision in the above-entitled proceeding, finding that the Respondent,
had engaged in certain unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Respondent has filed exceptions 1 o the Trial Examiner's
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
Respondent Lewers & Cooke, Ltd., Honolulu, Hawaii, its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order. -
153 NLRB No. 138.
LEWERS & COOKE, LTD. 15437
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint herein was issued on December 17, 1964, upon a charge filed on
August 10, 1964, by Hawaii Teamsters and Allied Workers, Local 996, affiliated with
the International Brotherhood of Teamsters, Chauffeurs and Warehousemen of
America, herein referred to as the Union. The issue presented is whether the failure
of the Respondent, Lewers & Cooke, Ltd., to furnish information requested by the
Union violated Section 8(a)(5) and (1) of the National Labor Relations Act, as
amended, herein called the Act.
Upon the entire record, including a consideration of the briefs submitted by
Respondent and the General Counsel, and from his observation of the witnesses,
Trial Examiner Eugene K. Kennedy makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE JURISDICTION OF THE BOARD
Lewers & Cooke, Ltd., herein called Respondent, at all times material herein has
been an Hawaiian corporation with its main office and principal place of business in
Honolulu, Hawaii, where it is engaged in business as a wholesaler of building mate-
rials. During the past calendar year, Respondent has received gross revenues from
the sale of building materials valued in excess of $500,000. During the past
calendar year, Respondent has purchased materials and supplies directly from points,
outside the State of Hawaii valued in excess of $50,000. At all times material herein,
Respondent is and has been an employer engaged in commerce or in a business-
affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hawaii Teamsters and Allied Workers, Local 996, affiliated with the International
Brotherhood of Teamsters, Chauffeurs and Warehousemen of America, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events and background
The Union and Respondent at all times material have been parties to an agree-
ment containing a grievance procedure. In the event the first three steps of the
grievance procedure are invoked without resolving the dispute, the agreement con-
tained a provision for arbitration.
Respondent, in accordance with the terms of its agreement with the Union on
July 13, 1964, posted job vacancies for two equipment operators. Wendell Aken,
the grievant, and three other employees applied. The two employees appointed
were junior in length of service to Aken.1
On July 23, 1964, Union Shop Steward Freitas wrote to Ed Bond, Respondent's
warehouse superintendent, claiming that Aken was entitled to one of the positions
filled. On July 27, 1964, Bond replied to Freitas stating that vacancies for which
Aken was applying were filled on the basis of merit, ability, performance, turnout,
and physical and mental fitness. During the grievance procedure, Respondent's
representatives also informed the umon representatives that one of the bases for
not selecting Aken was an evaluation of the damage reports submitted. These
reports were usually prepared by drivers of a vehicle in connection with damage
sustained in the course of their employment. The record reveals that Union Business
Agent Perry had good reason to believe that on occasion the helper, rather than
the driver, would fill out a damage report. On July 28, 1964, Shop Steward Freitas
wrote to Respondent Operation Manager A. J. Spielman, reiterating that the Union
thought Aken had been unfairly treated, thereby complying with the third step of
the grievance procedure which was a prerequisite to arbitration.
On July 31, 1964, Spielman replied by letter to Freitas stating the circumstances
surrounding the promotion had been reviewed and that the four applicants had been
found not relatively equal and, therefore, seniority could not govern in the decision.
'This proceeding does not involve George Merseburg, who also was senior to the two
employees selected. The junior employees selected over Aken were Jerry Toledo and,
Arthur Heanu.
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a letter dated August 7, 1964, Spielman was advised by Bernard W. Stem,
assistant to the Union's president, that the promotions were in violation of provisions
of the agreement including the seniority clause.2
On August 5, 1964, Union Business Agent Perry and Shop Steward Freitas met
with Respondent Warehouse Superintendent Bond . Perry asked Bond to inspect the
damage reports and Bond replied that they could be made available. On August 7,
1964, Freitas and Perry were on Respondent' s premises in connection with a matter
unrelated to this proceeding. Since Bond was not available, they requested Truck-
ing Superintendent Naito to make the damage reports available for their inspection.
Naito referred Perry and Freitas to Bond. Unsuccessful attempts were then made
to see Bond and Respondent Personnel Manager DeCrow. When Perry returned to
his office, he telephoned DeCrow and told him he wanted to see the damage reports
inasmuch as August 7, 1964, was the deadline for a decision to invoke arbitration
in connection with the grievance of Wendell Aken. DeCrow told Perry he thought
the reports could be made available that afternoon.3 Later that day, in another
telephone conversation, DeCrow told Perry that the requested records would not be
available, and if Perry wanted them they would be available in arbitration. Perry
detailed to DeCrow the three types of data he was seeking and repeated his request
for them. DeCrow replied, "No, my instructions are you will see them in arbitration."
The classifications of data that Perry requested from DeCrow were (1) damage
reports for Aken, Hearin, and Toledo for the period utilized by Respondent in
making its evaluation of the employees; (2) job classification of the employees when
the reports were completed; and (3) the number of days each of the three employees
was driving during the period used by Respondent for a measure of their abilities.
Instead of proceeding with the contested arbitration without the requested infor-
mation , the Union sought recourse by filing the charge herein and invoking the
Board's processes.
B. Analysis and concluding findings
In its brief Respondent states, "At the outset and conclusive as to this case, it is
clear that the union had already determined to go to arbitration when the request was
made to Mr. DeCrow on August 7, 1964."
Whether or not the decision to go to arbitration had been made prior to the
request for the records, is regarded as immaterial . The reports would be necessary
for the Union to intelligently present a case for Aken at the arbitration proceeding.
Obviously, if the Union were going to argue that certain data obtained with reference
to the damage reports supported Aken' s claim , access to such information must be
available, or the Union would be rendered ineffective as Aken's advocate.
However, an examination of the transcript refutes the contention of Respondent
that the Union had determined to go to arbitration prior to the request of DeCrow
and establishes that, in fact, Union Representative Perry made it clear that if the
requested information did not reveal information favorable to the grievant, Aken,
the grievance would be dropped and there would be no necessity to resort to
arbitration.
Perry's credited testimony contains the following:
A. We went back to the Teamsters' office and I called Mr. DeCrow. I think
at this time it must have been 10:30 or 11 o'clock in the morning. And I
talked with Mr. DeCrow and asked him-Oh, I told him that with the informa-
z Section 10. SENIORITY
(33) In case of layoff for more than four weeks, recall after such layoff, or in
case of promotion, length of time in the continuous employment of the Company shall
govern where all other relevant factors ( such as merit , ability, performance , turnout,
physical and mental fitness) are relatively equal.
(34) In case of temporary layoff ( of four weeks or less ) of employees within any
department or recall of such employees after a temporary layoff, relative length of
time in the continuous employment of the Company of employees within the depart-
ment affected shall govern where all other relevant factors ( such as merit , ability,
performance , turnout, physical and mental fitness ) are relatively equal.
3 On direct examination DeCrow's testimony suggests only one telephone conversation
between DeCrow and Perry on August 7, but on cross-examination DeCrow admitted to
two telephone conversations on that day.
LEWERS & COOKE, LTD. 1545
tion we had and the conflict on the damage reports, information on damage
reports, it looked like we would like to go to arbitration . Today was our
deadline, and I asked him if he could make certain records available to us.
Q. Did you specify what records you desired?
A. Yes. I asked him for the damage reports of the three employees , Heanu,
Aken and Toledo. I asked him for the classification of the three employees for
each date of each damage report , and I asked him for the number of days each
of the three people were driving during this period the company was using as
a measurement.
Q. And what did Mr. DeCrow state to you at that time?
A. Well, just one second. I told him that I had a late afternoon meeting and
that if he could have the records available to me at 2 o'clock, I would come up
and look at them, and he said he thought they could be made available to me
at that time.
Q. What happened then?
A. Shortly before 12 1 got a message that DeCrow had called . I returned
the phone call shortly before 12. And he said that he had been informed to tell
me that the information we wanted would not be made available and that it
would be presented in arbitration ; if we wanted the records , we would see them
in arbitration . And I went over, because Mr. Freitas was there , I wanted a
witness, I went over the three things I had asked for again , and I said, "Do you
mean to tell me you won't give me Nos . 1, 2 and 3?"
And he said , "No, my instructions are you will see them in arbitration."
On cross-examination Perry reinforced the proposition that the reason he wanted
the information on August 7, 1964 ( the Union 's deadline date for filing a grievance),
was to determine from the reports whether there would be merit in Aken's grievance.
Q. (By Mr. SPIELMAN .) Why did you want the damage reports?
A. Because this was the one bit of anything tangible that we could lay our
hands on . A lack of knowledge of the route or he walked too slow, we felt
were too intangible to grade an employee on . This was the one tangible area
that we could discuss and the records would either prove-
Q. (Interrupting ) In other words , if the damage reports indicated that he had
in fact been involved in certain accidents , you would have been willing to drop
the grievance right then and there?
A. Yes. If the damage reports showed that Mr. Aken-And may I say just
one word, sir?
Q. I have no way of stopping you.
A. If the damage reports showed that Mr. Aken while driving approximately
an equal number of times, versus the other two people , had more damage
reports admitted than the other two employees , we felt that this would destroy
whatever case we might have had in arbitration.
Respondent argues that, because DeCrow's testimony indicates that Perry stated
he was going to take the matter to arbitration prior to asking for the reports, it is
established that the Union would go to arbitration irrespective of what the reports
showed. It seems very questionable whether the record, viewed in its most favorable
light, would support this contention of Respondent . However, to the extent that
DeCrow's testimony implicitly conflicts with Perry's testimony establishing that he
wanted the reports to determine whether or not to continue with the arbitration, it
is not credited . Much of DeCrow's testimony, given in response to leading ques-
tions by Respondent 's counsel , appears to represent an attempt to mold the testi-
mony to fit the legal theories implicit in the questions of Respondent's counsel.
Moreover , Perry's version is far more plausible and his explanations are con-
sistent with the inherent probabilities . It would seem a grotesque distortion of prob-
ability to accept the view that Perry would be anxious to see the reports on the dead-
line date for filing a grievance unless he contemplated , as his testimony establishes,
that the damage reports might indicate arbitration was futile and in that event the
grievance would be ended.
The finding is here expressly made that Business Representative Perry requested
the records in order to determine whether or not to proceed to arbitration . However,
assuming that arbitration had already been invoked by the Union when the reports
were requested , the same result would obtain . In both situations , the data requested
is relevant to the Union's functions as a bargaining representative . Under such
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, the data must be made available to the Union and a failure to do so
constitutes a refusal to bargain in good faith? N.L.R.B. v. Truitt Mfg. Co., 351
U.S. 149.
In the case at hand, the relevancy of the requested data appears obvious. In the
course of processing the grievance prior to arbitration, Respondent informed the
union representatives that a factor in not selecting Aken for promotion was based
on his damage reports. The information sought by the Union was designed to test
whether or not these damage reports demonstrated Aken's record was worse than
Heanu's or Toledo's, the junior employees who were promoted ahead of Aken.
The request of the Union for inspection of Aken's as well as Heanu's and Toledo's
records would be a starting point reflecting how many reports each had prepared.
The classification of each employee at the time the report was prepared was relevant
because Perry, the union representative, had a basis for believing that some of the
reports were prepared while one or more of the employees was acting as a helper
rather than as a driver. The sense of the Union's inquiry was to determine whether
or not reports signed or prepared by some of the employees should be attributable
to them when the driver, and not the helper, was responsible. Likewise, in order to
make a rational judgment relative to the damage reports, the Union had to ascertain
how many days during the period used for evaluation Aken, Hearin, and Toledo
were driving. As Union Representative Perry explained, this information would be
necessary to compute the percentage of accidents relative to the total time employed.
This obviously again would be of relevance in connection with the Union's grievance
on behalf of Aken.
In Fafnir Bearing Company, 146 NLRB 1582, the Board stated, "It is well settled
that Section 8(a)(5) of the Act imposes an obligation upon an employer to furnish
upon request all information relevant to the bargaining representative's intelligent
performance of its function. This obligation extends to information which the
union may require in order `to police and administer existing agreements.' "
The Union here was seeking the damage reports and related information in order
to ascertain whether or not to proceed with the Aken grievance. Certainly, such
information would be related to the "intelligent performance of its function." The
Union's function here was to represent Aken and determine whether there was a
basis for contesting the selection of Toledo and Heanu ahead of Aken. The reports
requested were necessary in order to make an intelligent judgment with respect to
the merits of Aken's grievance, whether or not the request was made prior or subse-
quent to the time the Union requested arbitration.
Respondent opposes the production of damage reports on the basis that Respondent
might use them to impeach Aken in the arbitration proceeding. Although the reports
were prepared by Aken, Respondent would deny him and his representatives access
to them. This position is contrary to the spirit of modern-day advocacy which favors
maximum disclosure prior to a contested proceeding. More important, it prevents
the grievance representative from carrying out an "intelligent performance of its
function." In this case it would maintain the Union in a state of doubt as to the
merit of Aken's grievance and force the Union into a contested proceeding when a
production of the requested records might well indicate to the Union that arbitra-
tion was unnecessary.
Respondent also argues that the records are confidential as they might be used
against it in a damage suit. If the records were produced at the arbitration proceed-
ing, it would appear probable that the Union would see them in order to intelligently
represent Aken. Personnel Manager DeCrow expressly stated the records would
be available to the Union at the arbitration proceeding. Inasmuch as these records
-were prepared by the employees involved, it appears anomalous they should be
characterized as confidential records. In view of DeCrow's statement that the
records would be produced at arbitration and the likelihood of the union repre-
sentatives seeing them at that stage of the grievance, this defense as to the confiden-
tial nature of the data seems attributable to a legal theory conceived after DeCrow
stated to Perry that the records would be available at arbitration. In this context
of events, the claim that the records need not be produced because they are con-
-fidential is rejected.
In its brief, Respondent argues that the time the three employees were temporarily
classified as drivers for July 1964 is irrelevant. Perry, in his testimony, explained
4 The exception to this occurs when there is an overriding consideration excusing the
-employer from furnishing the information. This question is suggested by Respondent's
affirmative defense that the requested information is confidential and will be considered
'herein below.
LEWERS & COOKE, LTD. 1547
that this information was sought to determine whether Aken had a higher or lower
percentage of damage reports. Such information would offer a basis for comparison
and it appears obviously relevant . This reason , advanced by Respondent for non-
production of its records , is also rejected.
Finally, the Respondent cites Hercules Motor Corporation, 136 NLRB 1648, in
support of its argument that the Respondent was not obligated to produce the informa-
tion requested by the Union . In Hercules, the employer refused to supply informa-
tion in connection with the grievance . However, the distinguishing factor between
Hercules and the instant case is that the information requested by the union in
Hercules would not serve to resolve the issue there presented . The issue was
whether or not under the contract , in effect, the union could even raise the question
in arbitration . In Hercules, the question was essentially one of the arbitrability of
the issue presented . In the instant case , it is clear that there exists no question of
arbitrability with reference to the issue involved and the information sought is
essential for the Union to resolve a grievance.
In two recent cases the Board has restated its position with respect to the obliga-
tion of an employer to furnish a union relevant data necessary for the union to
effectively perform its function in administering a contract . Metropolitan Life Insur-
ance Company, 150 NLRB 1478 , and Acme Industrial Company, 150 NLRB
1463. Both of these cases found a failure to bargain when the employer refused to
furnish data necessary for the union to adequately function in connection with repre-
senting any employees in grievance procedures.
In Metropolitan , the defense that the information would be supplied at the arbitra-
tion hearing was held to be without merit . The Board adopted the Trial Examiner's
Decision which stated:
The information , requested by the Union during the first two grievance steps
and summarized in its letters of December 3 and December 12, 1963, was
sought by the Union for the purpose of determining whether the grievance did
or did not have merit . It would have enabled the Union to drop grievances if
they did not have merit , to bargain with the Company during the grievance meet-
ings over the resolution of the grievance , and to determine whether they were
of sufficient merit to warrant their prosecution before an arbitrator.
As alleged in the complaint and admitted in the answer, the Union at all times
material was the exclusive representative of the employees in an appropriate unit
consisting of: All employees of the employer employed on the Island of Oahu,
excluding all casual employees , office workers , outside salesmen , guards, professional
employees , and supervisors as defined in the Act.
In view of the above , it is found that Respondent failed in its obligation under the
Act to furnish the information requested by the Union . It is found that by such
conduct, Respondent since on or about August 7, 1964 , has failed to bargain with
the Union in violation of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondent set forth in section III, above , occurring in connection
with its operations described in section I, above, has a close , intimate , and substan-
tial relation to trade, traffic , and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing commerce and its free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in an unfair labor practice by refusing
to furnish the Union the data requested by it relevant to the Aken grievance, it will
be recommended that Respondent cease and desist from such refusal and take certain
affirmative action designed to effectuate the policies of the Act. It will also be
recommended that Respondent cease and desist from like and related conduct in
Order to prevent a repetition of the unfair labor practice found herein . It will be
further recommended that Respondent , upon request , furnish the Union with all the
information relevant to the grievance involved herein.
CONCLUSIONS OF LAW
1. Respondent is an employer and the Union is a labor organization within the
meaning of the Act.
2. By refusing to furnish to the Union the data requested by it in connection with
the processing of the Aken grievance , Respondent has violated Section 8(a)(5) and
(1) of the Act.
1548 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and the entire
record in this case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that Lewers & Cooke, Ltd., Honolulu, Hawaii,
its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to furnish the Union with the data requested by the Union in con-
nection with the processing of the Aken grievance.
(b) Refusing to bargain with the Union_ in good faith in any like or related
manner.
2. Take the following affirmative action which it is deemed will effectuate the
policies of the Act:
(a) Upon request, furnish the Union with all information requested relevant
to the Aken grievance.
(b) Post in its offices, in Honolulu, Hawaii, copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Resident Attorney for
Subregion 37, shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that such notices are not altered, defaced, or covered by
any other material.
(c) Notify the Resident Attorney for Subsection 37, in writing, within 20 days
from the receipt of this Decision, what steps Respondent has taken to comply
herewith .6
' In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
61n the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify the said Resident Attorney, in writing, within 10 days
from the date of this Order , what steps have been taken in compliance."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain in good faith with Hawaii Teamsters and
Allied Workers, Local 996, by refusing to furnish relevant data in connection
with processing a grievance for Wendell Aken or any other employee, or in
any like or related manner refuse to bargain collectively with Hawaii Teamsters
and Allied Workers, Local 996, as the exclusive representative of all our employ-
ees in the appropriate unit defined hereunder:
All employees of the employer employed on the Island of Oahu, exclud-
ing all casual employees , office workers , outside salesmen , guards, profes-
sional employees, and supervisors as defined in the Act.
LEWERS & COOKE, LTD.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Subregional Office, 680
Ala Moana Boulevard, Room 409, Honolulu, Hawaii, Telephone No. 58831, Exten-
sion 408.