Office Depot

National Labor Relations Board - Board Decisions

Nov 9, 2000

332 N.L.R.B. 116 (N.L.R.B. 2000)

332 NLRB No. 116
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Office Depot, Inc. and International Brotherhood of
Teamsters, Local 705, AFL–CIO. Case 13–CA–
38703–1
November 9, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
Pursuant to a charge filed by the Union on July 20,
2000, and a first amended charge filed on August 15,
2000, the General Counsel of the National Labor Rela-
tions Board issued a complaint on August 23, 2000, al-
leging that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refusing
the Union’s request to bargain and to furnish informa-
tion following the Union’s certification in Case 13–RC–
20283. (Official notice is taken of the “record” in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint.
On September 15, 2000, the General Counsel filed a
Motion for Summary Judgment. On September 18,
2000, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed a
response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain and to furnish information that is alleged to be rele-
vant and necessary to the Union’s role as bargaining rep-
resentative, but attacks the validity of the certification on
the basis of the Board’s unit determination in the repre-
sentation proceeding. Specifically, the Respondent re-
news its contention, raised and rejected in the representa-
tion case, that the petitioned-for and certified unit of full-
time and regular part-time DSRs (Delivery Service Rep-
resentatives), lead DSRs, and DSR Assistant helpers em-
ployed at its Carol Stream, Lansing, and Rockford, Illi-
nois facilities is not an appropriate unit. Instead, the Re-
spondent reiterates its argument that the only appropriate
unit is a wall-to-wall unit of all warehouse, receiving,
production, plant clerical, maintenance, and transporta-
tion employees employed at the three Illinois facilities
mentioned above and its facilities in Milwaukee, Wis-
consin, St. Louis, Missouri, and Indianapolis, Indiana.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexa mine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).1
We also find there are no factual issues warranting a
hearing regarding the Union’s request for information.
The complaint alleges, and the Respondent admits, that
the Union requested the following information from the
Respondent by letter of June 5, 2000:

1. A list of current bargaining unit employees,
including their names, dates of hire, rates of pay, and
job classifications.
2. A copy of all current company policies that
concern or relate to wages, hours, and working con-
ditions for bargaining unit employees.
3. A copy of all current job descriptions for bar-
gaining unit employees.
4. A copy of all fringe benefit plans for bargain-
ing unit employees (including the plan document
and summary plan description), including pension,
profit sharing, severance, stock incentive, vacation,
health and welfare, apprenticeship, training, legal
services, child care, or any other plans that relate to
the bargaining unit employees.

It is well established that the foregoing type of com-
pensation and employment information sought by the
Union is presumptively relevant for purposes of collec-
tive bargaining and must be furnished on request unless
its relevance is rebutted.2 The Respondent has not at-
tempted to rebut the relevance of the information re-
quested by the Union. Instead, in its answer, the Re-
spondent relies solely on its challenge to the Union’s
certification as the basis for its denial that it has a duty to
provide the Union with the requested information. We
therefore find that no material issues of fact exist with
regard to the Respondent’s refusal to furnish the informa-
tion sought by the Union.
Accordingly, we grant the Motion for Summary Judg-
ment and will order the Respondent to bargain with the
Union and to furnish the Union with the information it
requested.
On the entire record, the Board makes the following

1 Members Liebman and Hurtgen did not participate in the underly-
ing representation proceeding. They find, however, that the Respon-
dent has not raised any new matters that are properly litigable in this
unfair labor practice case.
2 See, e.g., U.S. Family Care San Bernardino, 315 NLRB 108
(1994); Trustees of Masonic Hall, 261 NLRB 436 (1982); and Mobay
Chemical Corp., 233 NLRB 109 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration with an office and place of business in Carol
Stream, Illinois, has been engaged in supplying office
products nationwide. During the calendar year preceding
issuance of the complaint, the Respondent, in conducting
its business operations described above, sold and shipped
from its Carol Stream, Illinois facility goods valued in
excess of $50,000 directly to points outside the State of
Illinois, and purchased and received at its Carol Stream,
Illinois facility, goods valued at more than $50,000 di-
rectly from points outside the State of Illinois. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 5, 2000, the Union
was certified on May 31, 2000, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time DSRs, lead DSRs,
and DSR Assistant helpers located at the Employer’s
facility in Carol Stream, Illinois, and its Lansing and
Rockford, Illinois transfer points, including the “stem
DSRs” who begin and end their routes from Carol
Stream, deliver products to the transfer points, and then
continue with their assigned routes; but excluding of-
fice clerical employees, warehouse associates (includ-
ing janitors), lead warehousemen, DSR Assistant load-
ers, reconciliation employees (plant clericals), customer
service representatives, dispatchers, equipment opera-
tors, supervisors and guards as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since about June 5, 2000, the Union has requested the
Respondent to bargain and to furnish information, and,
since about June 5, 2000, the Respondent has refused.
We find that this refusal constitutes an unlawful refusal
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after June 5, 2000, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit and to fur-
nish the Union requested information, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement. We also shall order the Respon-
dent to furnish the Union the information requested by it
on about June 5, 2000.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Office Depot, Inc., Carol Stream, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Brotherhood
of Teamsters, Local 705, AFL–CIO, as the exclusive
bargaining representative of the employees in the bar-
gaining unit, and refusing to furnish the Union informa-
tion that is relevant and necessary to its role as the exclu-
sive bargaining representative of the unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and if
an understanding is reached, embody the understanding
in a signed agreement:

All full-time and regular part-time DSRs, lead DSRs,
and DSR Assistant helpers located at the Employer’s
facility in Carol Stream, Illinois, and its Lansing and
Rockford, Illinois transfer points, including the “stem
DSRs” who begin and end their routes from Carol
Stream, deliver products to the transfer points, and then
continue with their assigned routes; but excluding of-
fice clerical employees, warehouse associates (includ-
ing janitors), lead warehousemen, DSR Assistant load-
ers, reconciliation employees (plant clericals), customer
service representatives, dispatchers, equipment opera-
tors, supervisors and guards as defined in the Act.

(b) Furnish the Union the information requested by it
on about June 5, 2000.
OFFICE DEPOT , INC. 3
(c) Within 14 days after service by the Region, post at
its facilities in Carol Stream, Lansing, and Rockford,
Illinois, copies of the attached notice marked “Appen-
dix.”
3 Copies of the notice, on forms provided by the
Regional Director for Region 13 after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive 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 cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed any of the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 5, 2000.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. November 9, 2000

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Peter J. Hurtgen, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

3 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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

WE WILL NOT refuse to bargain with International
Brotherhood of Teamsters, Local 705, AFL–CIO as the
exclusive representative of the employees in the bargain-
ing unit, and WE WILL NOT refuse to furnish the Union
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:

All full-time and regular part-time DSRs, lead DSRs,
and DSR Assistant helpers located at our facility in
Carol Stream, Illinois, and our Lansing and Rockford,
Illinois transfer points, including the “stem DSRs” who
begin and end their routes from Carol Stream, deliver
products to the transfer points, and then continue with
their assigned routes; but excluding office clerical em-
ployees, warehouse associates (including janitors), lead
warehousemen, DSR Assistant loaders, reconciliation
employees (plant clericals), customer service represen-
tatives, dispatchers, equipment operators, supervisors
and guards as defined in the Act.

WE WILL provide the Union with the information it re-
quested on about June 5, 2000.

OFFICE DEPOT , INC.