Phoenix Coca-Cola Bottling Company

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1239 (N.L.R.B. 2002)

PHOENIX COCA-COLA BOTTLING CO. 1239
Phoenix Coca-Cola Bottling Company and United
Industrial Service, Transportation, Professional
and Government Workers of North America of
the Seafarers International Union of North
America, Atlantic, Gulf and Inland Waters Dis­
trict, AFL–CIO. Cases 28–CA–16595 and 28–
CA–16908
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On September 28, 2001, Administrative Law Judge
William L. Schmidt issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.2
The Respondent excepts arguing, among other things,
that the judge erred by failing to find that it was not re­
quired to provide the Union with information it requested
on November 21, 2000, because the Union sought to use
this information as a discovery tool for pending unfair
labor practice charges. We reject this defense. The un­
fair labor practice charges on which the Respondent
based this defense were withdrawn prior to the hearing in
this case. Further, the Respondent—in its posthearing
brief to the judge—stated that based on this withdrawal it
1 For the reasons found by the judge, we reject the Respondent’s ar­
gument that the Union failed to explain the relevance of its request for
the alleged nonunit information. Contrary to our dissenting colleague,
we agree with the judge that the record shows that the Union satisfied
its burden of demonstrating that it had a logical foundation and factual
basis for requesting the alleged nonunit information. We note particu­
larly that the employees whose unit status was not agreed upon (sea­
sonal employees and part -timer merchandisers) were performing unit
work, and the Union filed grievances concerning, among other things,
their rates of pay and performance of unit work. The information
sought was relevant to those grievances.
Our dissenting colleague argues that the Union did not satisfy its
relevance burden because the parties stipulated that the unit status of
the seasonal employees and part -time merchandisers would not be
resolved in this proceeding. That argument misses the mark. The
relevant inquiry for purposes of the relevancy determination is whether
these employees were performing unit work, not whether they are ulti­
mately determined to be in the bargaining unit. As noted above, the
employees were performing unit work; the grievances concerned that
fact; and the information was relevant to those grievances.
2 We shall substitute a new notice in accordance with our recent de­
cision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
“can now reveal information requested by the Union . . .
without fear that the Union is using its request as a
means for discovery.”3
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and
orders that the Respondent, Phoenix Coca-Cola Bottling
Company, Tempe and Prescott, Arizona, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.
MEMBER COWEN, dissenting.
This case presents a straightforward question of
whether the Respondent violated the National Labor Re­
lations Act by refusing to provide the Union with re-
quested information regarding certain nonunit employ­
ees. As the administrative law judge recognized, such
information is not presumptively relevant, and a respon­
dent has no obligation under the Act to provide such in-
formation unless the union establishes that such informa­
tion is “relevant and necessary” to its function as the col­
lective bargaining representative of the respondent’s em­
ployees. See Excel Rehabilitation & Health Center, 336
NLRB No. 10 at fn. 1 (not included in bound volumes)
(2001); Bohemia, Inc., 272 NLRB 1128 (1984); see
generally NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956);
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
Moreover, to establish relevance the union must do more
than generally claim that it needs the information “to
intelligently and effectively represent the bargaining unit
employees.” See Island Creek Coal Co., 292 NLRB
480, 490 fn. 19 (1989) (generalized conclusionary expla­
nation insufficient to demonstrate relevance); Uniontown
County Market, 326 NLRB 1069, 1071 (1998) (“general
avowals of relevance such as ‘to bargain intelligently’
and similar boilerplate are insufficient”); accord: E. I. du
Pont & Co., v. NLRB, 744 F.2d (6th Cir. 1984); Sole
Glass & Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir.
1981). Indeed, the Board has indicated that to demo n­
strate relevance a Union must identify specific contrac­
tual provisions it believes may have been violated. See
Island Creek Coal Co., supra.
3 Chairman Hurtgen notes that the information was relevant to a
pending grievance. However, it was sought on November 21, at a time
when unfair labor practice charges were pending. These charges were
withdrawn prior to the hearing in this case. Notwithstanding the with­
drawal, the Respondent persisted in its refusal to give the information.
It was not until the filing of its posthearing brief to the judge, however,
that the Respondent said it “can now reveal the information.” In these
circumstances, Chairman Hurtgen, rejects the defense that the refusal to
give the information was privileged because the information could be
used for discovery in unfair labor practice cases. Accordingly, the
Respondent’s exception in this respect lacks merit.
337 NLRB No. 157
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Measured against these legal principles, it is clear that
in this case the Respondent never had any obligation to
provide the nonunit information requested by the Union.
In this regard the record is clear that notwithstanding
repeated requests by the Respondent, the Union never
established that the requested information was relevant to
the Union’s function as the collective-bargaining repre­
sentative of Respondent’s represented employees.
My colleagues find relevance to be established based
upon unit placement issues and grievances specifically
disclaimed by the General Counsel and the Charging
Party. In this regard, on February 1, 2001, the parties
executed a stipulation that “the issue of whether part-
time or seasonal employees are part of the bargaining
unit is not presented by the pleadings in this matter and
will not be litigated in the unfair labor practice hearing in
this matter.” (Jt. Exh. 1.) The “bargaining unit work”
issue advanced by my colleagues cannot be separated
from the unit placement issues disclaimed by the General
Counsel and the Charging Party. The unit placement and
the unit work issues are one-in-the-same, and I see no
basis for circumventing this stipulation in a strained at-
tempt to find evidence of relevance where none exists.
In any event, merely claiming that certain employees
are part of the bargaining unit or that they are performing
—unit work—does not make it so, and does not relieve
the Union of its burden of demonstrating the relevance of
requested information. Here, the fact is that the employ­
ees in question (seasonal and part-time merchandising
employees) were not performing unit work, nor did the
Union claim to Respondent that they were performing
unit work. The record plainly shows that the parties’
collective-bargaining agreement allowed these nonunit
employees to perform this work under certain circum­
stances. Notably, however, the information sought by
the Union does not relate to this question at all.
Nor does the requested nonunit information relate in
any manner to the contractual issues actually raised by
the Union. Thus, the Union’s initial articulated concern
was that some bargaining unit employees were not being
paid the proper wage rate and that others were being im­
properly charged for uniforms. Plainly, information re­
garding the nonunit employees does not relate to any
question regarding the pay rates or uniform policies for
unit employees.
Eventually, in response to Respondent’s repeated re-
quests, the Union stated that it had heard “that part-timers
were actually working longer hours than the full timers,
and that full timers were actually being reprimanded for
working 40 [hours per week].” Again, the requested non-
unit information does not relate to the hours of work or
alleged reprimands of the “full-timers.” Clearly, the re-
quested information relates directly to the nonunit “part-
timers,” but the Union has not identified any contractual
basis for its alleged concern for the number of hours
worked by “part-timers,” who it does not represent.
In sum, absent an identified nexus between a legiti­
mate contractual concern and the requested information,
the Union simply has not sustained its burden of demo n­
strating the relevance of the requested information.
Since such relevance was not demonstrated to the Re­
spondent either at the time of the request or in response
to Respondent’s repeated inquiries, the Respondent did
not violate the Act by refusing to provide the requested
information. Accordingly, I would dismiss the com­
plaint.
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 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 delay or refuse to provide United Indus­
trial, Service, Transportation, Professional, and Govern­
ment Workers of North America of the Seafarers Interna­
tional Union of North America, Atlantic, Gulf and Inland
Waters District, AFL–CIO, the information it requests
that is necessary and relevant to the performance of its
duties as the representative of the following appropriate
unit of employees:
All production and maintenance employees, including
route salesmen and truck drivers working in and out of
our facilities located at 1850 W. Elliot Road, Tempe,
Arizona and 2425 E. Hwy. 69, Prescott, Arizona; but
excluding watchmen, guards, office clerical, profes­
sional and supervisory employees, and seasonal em­
ployees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran­
teed you by Section 7 of the Act. Section 7 provides:
PHOENIX COCA-COLA BOTTLING CO. 1241
Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain col­
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur­
pose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from
any or all such activities except to the extent [limited by
a lawful union-security] agreement.
WE WILL provide the Union with the information re-
quested by it in letters to us dated May 22 and November
21, 2000, within 14 days from the date of this Order.
PHOENIX COCA-COLA BOTTLING COMPANY
Paul R. Irving, Atty., for the General Counsel.
Daniel B. Gilmore and Joseph Y. McCoin, III, Attys. (Miller &
Martin LLP), of Los Angeles, California, for the Respon­
dent .
Stanley Lubin, Atty. (Lubin & Enoch, P.C.), of Phoenix, Ari­
zona, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. This is an
information case. The consolidated complaint that constitutes
the General Counsel’s operative pleading charges that Respon­
dent failed to furnish the bargaining representative of its pro­
duction, maintenance, route sales, and truckdriver employees at
its Tempe and Prescott, Arizona facilities with relevant infor­
mation requested on four separate occasions between May and
November 2000. Respondent denies that it engaged in the un­
fair labor practices alleged.
The consolidated complaint (complaint) is based on two
separate charges filed on July 6, 2000 (Case 28-CA-16595),
and December 8, 20001 (Case 28–CA–16908). The complaint
in the first-filed case issued on September 29; the consolidated
complaint issued on January 16, 2001. I heard this case at
Phoenix, Arizona, on February 1, 2001. Having now reviewed
the entire record2 mindful of the impressions left by the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent and Charging Party I find
Respondent violated the Act as alleged based on the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, Phoenix Coca-Cola Bottling Company, a Dela­
ware corporation, maintains offices and places of business in
1 All dates are in the 2000 calendar year unless otherwise indicated.
2 I grant Charging Party’s motion to correct transcript except as to
those allegedly appearing at p. 61, l. 12, and p. 73, l. 4. I have granted
the motion where the context supports the proposed change. As to the
two rejected corrections, I am unable to find with certainty that they
would be appropriate. No finding is made that the transcript is free of
other errors. The motion to correct is hereby made a part of the record
in this case.
Tempe and Prescott, Arizona. At each location Respondent is
engaged in business as a manufacturer and distributor of bever­
ages. In the 12-month period ending July 6, Respondent pur­
chased and received at these two facilities products, goods, and
materials valued in excess of $50,000 directly from locations
outside the State of Arizona. Based on its direct inflow, I find
Respondent meets the Board’s discretionary standard for exer­
cising its statutory jurisdiction in this case.
For a number of years the Union or Charging Party, United
Industrial, Service, Transportation, Professional, and Govern­
ment Workers of North America of the Seafarers International
Union of North America, Atlantic, Gulf and Inland Waters
District, AFL–CIO, has served as the exclusive collective-
bargaining representative for certain of Respondent’s employ­
ees assigned to its Tempe and Prescott facilities.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent and the Union are parties to a collective-
bargaining agreement (agreement) effective for the period from
February 1, 1999, through January 31, 2002. In the agreement,
Respondent recognizes the Union as the exclusive collective-
bargaining agent for all production, maintenance, route sales-
men. and truckdrivers.3 Article XIV of the agreement estab­
lishes wage and commission rates for a variety of classifica­
tions in five departments: (1) production; (2) warehouse; (3)
cooler/fountain service; (4) fleet; and (5) distribution.4 Exclud­
ing part-time and seasonal employees discussed below, the
Company employs about 550 unit workers in various depart­
ments and classifications described as follows in the agree­
ment’s pay provisions:5
Production Department: Quality Control/Syrup Room Master
Technician; Quality Control/Syrup Room Technician; Sani­
tizer; Machine Operator; Forklift Operator; General Plant
Employee; Plant Maintenance Master Mechanic; Plant Main­
tenance A, B and C; and Facilities Mechanic. Warehouse
Department: General Plant Employee; and Forklift Operator.
Cooler/Fountain Service Department: Master Technician; and
Technicians I, II and III. Fleet Department: Mechanic. Dis­
tribution Department: Special Events Driver; Bulk Driver;
Utility Driver; Merchandiser; Full Service Driver; and Base +
Incentive Driver.
In addition, to these various classifications, the agreement
contains certain relevant references to seasonal employees and
part-time merchandisers. Thus a note to article I (the recogni­
tion clause) provides that Respondent may use the nonunit
“[s]easonal employee . . . only in entry level positions, between
the period of May 1 through November 30 in any given calen-
3 Specifically, art . I describes the unit as consisting of all production
and maintenance employees, including route salesmen and truckdrivers,
but excluding watchmen, guards, office clerical, professional and su­
pervisory employees, and seasonal employees.
4 Sec. 3 of art . XIV effectively establishes a leadperson classification
that may be utilized at the discretion of the Company.
5 Respondent’s total employee complement numbers nearly 900.
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dar year.” As to part-time merchandisers, article VII, section
14, provides:6
The Company may employ and utilize part-time merchandis­
ing employees to service accounts as business needs dictate.
It is understood and agreed that such part-time merchandising
employees may be used to supplement the regular workforce
only when no full-time Merchandisers are laid off. The Com­
pany will not utilize part-time employees to deny reasonable
overtime opportunities to full-time Merchandisers.
The agreement also provides that when the Company directs
employees to work in a different classification, it must pay
employees at the rate applicable to the classification worked.
See article VIII, section 1.
Company drivers, regardless of their specific classification,
may be assigned to deliver products to a retail store. Ordinarily
the drivers simply drop the products in the retail establish­
ment’s storage area.7 Respondent’s merchandisers spend their
work day traveling around to their assigned retail stores to
clean, arrange, and replenish the product displays. Their dis­
trict managers (supervisors) provide the merchandisers with
“schematics” that contain instructions and directions about
changing or phasing products out and the most desirable shelf
location for the various products. The merchandisers do not
work out of Respondent’s facilities and only rarely have occa­
sion to visit Respondent’s production and warehouse facilities
where other unit employees work.
B. The Complaint Allegations
The complaint alleges two sets of information requests, one
in the late spring and the other in the fall. Complaint paragraph
6(a) alleges that around May 22, 2000, the Union submitted a
written request for Respondent to furnish this information:
Complete names, addresses, phone numbers, classifications,
dates of hire, social security numbers for all full and part time
merchandisers, all forklift operators, machine operators, all
maintenance mechanics, all fleet mechanics, all sanitizers, all
general plant employees, all special events drivers, all bulk
drivers, all utility drivers all full service drivers, all Base plus
Incentive drivers [and] the rates of pay for all employees.
Complaint paragraph 6(b) alleges that the Union made a written
request on June 5 that Respondent furnish a “complete list of all
employees and their classifications and rates of pay.” Although
couched in the complaint as a separate information request, I
have concluded that the June 5 letter this allegation obviously
alludes to actually amounts to a demand for all of the informa­
tion sought on May 22 rather than a separate request altogether.
6 Art. VII, sec. 15, also provides: “The Company may use part-time
(non-bargaining unit) employees in the Special Events department to
supplement the number of full-time employees required to maintain the
business.” Although Respondent and Union differ as to the unit status
of part -time employees generally, no one points to this provision or the
group covered as having any relevance to this dispute.
7 Drivers occasionally stock the product on the retail floor but ordi­
narily this work is left to the merchandisers.
Complaint paragraph 6(c) alleges that the Union twice re-
quested (on October 24 and November 21) that Respondent
furnish this information:
All alleged seasonal merchandisers and all merchandisers
hired or working since 2/01/99, including the date they were
originally hired, the original status as a merchandiser, [i.e.],
full-time, part-time, and alleged seasonal. All dates when the
company offered merchandisers the classifications full-time,
part-time and alleged seasonal. The information should in­
clude all cronos or time sheets. All full-time, part-time and al­
leged seasonal merchandiser payroll information by original
hire date, original classification, and any reclassifications of
any merchandisers.
Unlike the information requests alluded to in paragraphs 6(a)
and (b), the written request on November 21 expressly modifies
a similar request on October 24. Accordingly, as to these two
information requests made in the fall, I find that the request
made on November 21 amounts to the operative request.
C. Relevant Evidence
Around June 1999, John Solano became an International rep­
resentative for the Union.8 Solano’s union duties included
servicing the Union’s agreement with Respondent. By the
middle of May, Solano had received employee complaints
about receiving improper pay rates and incurring unwarranted
paycheck deductions for uniforms.9 In addition, he came to
suspect that Respondent had begun utilizing part-time mer­
chandiser and seasonal employee categories in a manner not
permitted under the parties’ agreement.
The employee complaints prompted Solano to submit a writ-
ten information request dated May 22 to Pat Edgar, Respon­
dent’s human resources manager. Solano asked Edgar to fur­
nish the following information: the complete names, addresses,
phone numbers, classifications, dates of hire, social security
numbers, and rates of pay for all employees under the agree­
ment. His letter specifically alludes to the following employee
categories: full- and part-time merchandisers, forklift operators,
machine operators, maintenance mechanics, fleet mechanics,
cooler service technicians, quality control technicians, sani­
tizers, general plant employees, and the special events, bulk,
utility, full-service, and base-plus-incentive drivers. (GC Exh.
3.) Solano explained: “[W]e needed to make sure that the con-
tract was being upheld, and all employees were being treated
fairly.”
Edgar, who claimed that she knew of no issue at the time that
would make the information sought relevant, responded to So­
lano’s request orally and in writing. At some time between
May 22 and 26, Solano and Union President Stacy Sanchez met
with Edgar in her office. During this meeting Solano explained
8 Before that, Respondent employed Solano as a lab technician for
about 20 years.
9 If Respondent requires an employee to work in a uniform, agree­
ment art . XXVIII provides for Respondent to furnish a certain quantity
of uniforms and pay for their maintenance. Sec. 2 of that art. permits
Respondent to deduct the uniforms’ cost or the cleaning costs from a
terminated employee’s final paycheck if an employee fails to return
furnished uniforms “cleaned and pressed.”
PHOENIX COCA-COLA BOTTLING CO. 1243
that he sought the requested information to find out if Respon­
dent had been correctly paying employees and complying with
the provision concerning uniforms. In this discussion, Solano
addressed Respondent’s use of part-time merchandisers. Edgar
told Solano that, as part-time employees were not unit mem­
bers, the Company would provide the Union with no informa­
tion regarding them.
Edgar then sent Solano a letter dated May 26. In that letter,
Edgar referred Solano to article III of the agreement and de­
clined to furnish any information other than the name, classifi­
cation, and the date on which the Company hired new employ­
ees. Edgar’s letter asserts that Solano’s “request for additional
information is not within the scope of our agreement.” General
Counsel’s Exhibit 4. The contractual checkoff provision cited
by Edgar includes a requirement that Respondent provide the
Union each month with a written notice of the name, classifica­
tion, and date of hire for each new employee who completed
the probationary period during the previous month. Edgar’s
May 26 letter failed to provide the vast bulk of information
Solano sought in his May 22 letter. Nor did Edgar make any
reference in her May 26 letter to her claim at the May 22 meet­
ing that the unit excluded part-timers. Edgar admitted that she
understood the breadth of the information requested but ex­
plained that she limited the information provided to that called
for under article III because she thought Solano “didn’t know
what he was requesting.”
Edgar’s May 26 letter prompted Union Counsel Stanley
Lubin to write a “follow-up” letter dated Saturday, June 5. In
his letter Lubin decried the Company’s failure to furnish the
Union with a “complete list of all employees and their classifi­
cations and rates of pay.” Lubin explained that the Union
needed this information to “assess” the merits of claims by
“numerous employees that they are being paid at less than the
contractual rates of pay.” He further asserted that the Union
needed the information to “determine whether it should file a
grievance” concerning the pay issue. Lubin explained that the
Union based its request on the Act rather than the agreement as
Edgar had intimated. He concluded by threatening to file an
unfair labor practice charge unless the Company furnished the
requested information by the next Friday. (GC Exh. 5.)
Edgar responded to Lubin in a letter dated June 6. In that
letter she offered to rectify any “pay issues” the Union brought
to her attention and asked for the Union to “provide specifics.”
She asserted that the Union “has not contacted me verbally or
in writing about pay issues” and explained “[i]nformation
would be provided on specific grievance issues.” She con­
cluded by lecturing the Union on its responsibilities and stating
that the “Union’s vague request for wide sweeping information
is inappropriate and unnecessary.” Needless to say, she pro­
vided none of the requested information.
The Union promptly filed a grievance dated June 6 claiming,
“some merchandisers are not being paid the negotiated rate per
the bargaining agreement.” This grievance requests “[a]ll mer­
chandisers should be paid the negotiated rate from January 6,
2000 or the past 6 months also including overtime.” (GC Exh.
7.) In a memo to Union President Sanchez dated June 8, Edgar
again asked “for more specific information.” Because she felt
the grievance had been couched as a “payroll issue” she urged
the Union to respond in a timely fashion providing “specifics.”
She concluded by advising that the Company was aware of, and
intended to remedy “Pete Ruiz’ situation” by the following
payday and asked that Sanchez advise “whom else needs im­
mediate attention asap.” (GC Exh. 8.)
In a letter dated June 9, Lubin responded to Edgar’s June 6
memo to Sanchez. He stated that there were no specifics but
the Union had received “reports from a number of employees
that leads it to believe that some may be paid at the wrong
rate.” He explained that the Union “wanted to investigate the
matter,” that some employees were reluctant to allow their
names to be brought to the attention of the Company, and that
the Union “has asked for the information that it feels necessary
to fully investigate.” Lubin then asserted that the Company
was “required to comply” with the request. He also asserted
that it did not matter whether the Company agreed with the
“claims or agree[d] that there is fear amongst employees.”
Finally, he characterized the information as “reasonable and
relevant to a bargaining unit issue” and asserted that the Union
intended to take “appropriate action” if the material had not
been furnished by the following Monday.
On June 14, Edgar sent Sanchez a memo, apparently in re­
sponse to his request for a “final answer” regarding the pending
grievance. She advised Sanchez that the Company had cor­
rected the Ruiz pay problem and that there were no other dis­
parities with merchandiser wages. Respondent still furnished
no information that would permit the Union to make its own
independent assessment of that claim. The Union took the
grievance to the second step of the parties’ procedure and filed
an unfair labor practice charge on July 5.
On July 13, Edgar, Solano, and Sanchez held a second-step
grievance meeting on the merchandiser grievance.10 A discus­
sion occurred during this meeting as to why the Union needed
the information previously sought in May. When Edgar
pressed the two union representatives on this subject, they ex­
plained that they needed the information because of reports
they had received about a widespread practice of paying full-
time merchandisers varying pay rates and the failure to pay
part-time merchandisers at the same rates paid the full-timers.
Sanchez explained that the union representatives understood
from what they heard “that part-timers were actually working
longer hours than the full timers, and that full timers were actu­
ally being reprimanded for working 40 [hours per week].” This
situation, at least from Sanchez’ point of view, was in direct
violation of the collective-bargaining agreement and the Union
wanted the information sought in order to police the agree-
ment.11 Edgar finally provided the union agents with a list of
all full-time merchandisers, their date of hire, and their rate of
10 R. Br. 3 refers to a June 13, 2000 meeting involving “Ms. Edgar
. . . Mr. Solano and Stacey Sanchez.” This reference appears to allude
to the second-step grievance meeting held on July 13 rather than June
13.
11 Sanchez could not recall specifically whether the Union’s concern he
related was expressed to Edgar at the July 13 meeting. However, his
testimony shows that the broad nature of the problem the Union sought to
investigate was made very clear to Edgar at several meetings. Sanchez
impressed me as a very credible witness. To the extent this aspect of his
testimony conflicts with that of any other witness, I credit Sanchez.
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pay. The union agents, however, continued to claim that this
limited data failed to satisfy their information request. When
pressed for further specific claims regarding the grievance, the
union agents called to Edgar’s attention their belief that another
employee, Jesus Figueroa, had not been paid properly on one
recent occasion.
The following day Edgar issued the Company’s second-step
response in which she acknowledged one improper payment to
Figueroa and agreed to correct it on his next paycheck if the
error was verified by the payroll department. Apart from that
minor error, Edgar asserted that the “Company is not in viola­
tion of the contract.” In the next to last two paragraphs of her
response Edgar took the Union to task for “filing vague, wide-
sweeping grievances.”
Nothing further happened regarding the information request
until August 22. At that time Edgar sent a letter to NLRB A-
gent William Mabry, with a copy to Union Attorney Lubin, in
which she submitted the names, addresses, telephone numbers,
and detailed pay history for the full-time merchandisers for the
period from the first of the calendar year up to the time of her
letter. She also informed Mabry that the Union through Lubin
“is not currently seeking additional information regarding Mer­
chandisers, or any information concerning other employees, in
order to conduct the desired review.” Admittedly, the Com­
pany provided no information about the part-time merchandis­
ers to Mabry or the Union because, Edgar’s letter explains,
Lubin and the Company’s counsel continued their active dis­
cussions seeking to resolve the part-time merchandiser’s unit
status. A week later, Edgar reported in a letter to Mabry, again
with a copy to Lubin and others, that the Company awaited
information from Lubin about the part-timers unit status. She
asserted the Company’s belief that it had provided all informa­
tion required.
Because the matter remained unresolved, the Regional Di­
rector issued the complaint in Case 28–CA–16595 on Septem­
ber 29. However, shortly thereafter the merchandiser issue was
complicated by another twist. Around that time, the Union
filed a series of grievances relating to the pay and benefits of
merchandisers. Then Edgar, at an ensuing grievance meeting
with Solano and Sanchez in October, alluded to laying off the
seasonal merchandisers because the agreement restricted their
employment to the period between May 1 and November 30.
This, Solano claimed, was the first either he or Sanchez knew
that the Company was using seasonal employees for merchan­
diser work and both expressed surprise. Theretofore, Solano
claims, seasonals amounted to untrained workers employed in
entry-level, unskilled positions at the warehouse, mainly per-
forming cleanup work.
Edgar’s disclosure about the seasonal employees gave rise to
Solano’s October 24 letter to her requesting extensive informa­
tion pertaining to the merchandisers. Two days later, the Union
filed a grievance alleging, in effect, the Company unilaterally
changed the agreement by classifying part-time merchandisers
as seasonal employees. The October 24 request sought the
following information concerning all merchandisers hired since
February 1, 1999: (1) their date of hire and the beginning clas­
sification, i.e., full time, part time, or seasonal; (2) the dates on
which those merchandisers were offered the full-time, part-
time, and seasonal status; (3) documentation in the form of
“control sheets . . . cronos or time sheets; (4) probationary pe­
riod extensions, disciplinary actions, employment applications,
and management responses to applicants that were hired; (5)
payroll information for all merchandisers regardless of their
classification or reclassification; (6) the names of the merchan­
diser supervisors, the names of those they supervise, and the
length of time the supervisors have been in their positions; and
(7) the names of the managers to whom the supervisors report.
In a letter dated November 2, Edgar summarily rejected this
request on the ground that it was “burdensome.” Additionally,
she again asserted that the seasonal employees were excluded
from the current agreement.
On November 21, Solano sent Edgar a letter purporting to
revise his October request. In the November 21 letter, he
sought the following information as to all full-time, part-time,
or seasonal merchandisers: (1) their date of hire and their origi­
nal classification; (2) the dates on which Respondent offered
any merchandiser the full-time, part-time, or seasonal classifi­
cation; (3) the “cronos or time sheets” showing the foregoing
information; and (4) the payroll information reflecting for all
merchandisers their “original date of hire, original classification
and any reclassifications of any merchandisers.”
In a letter dated the same date, Edgar acknowledged the re­
ceipt by fax of Solano’s letter. She noted that the “part-time
and seasonal merchandisers are not covered by the cba” and
that “the exclusion of part-time and seasonal merchandisers
from the bargaining unit is the subject of several matters pend­
ing before the NLRB and several grievances.”12 She then es­
sentially declined to provide the information because it would
“not serve any objective purpose on our part to continue to
spend time with this topic until it is formally resolved.”
D. Further Findings and Conclusions
Upon request, an employer has the legal duty to furnish its
employees’ bargaining agent during the term of the agreement
with information relevant and necessary to the performance of
its statutory duties. NLRB v. Acme Industrial. Co., 385 U.S.
432. (1967). The law deems information about the wages,
hours, and other terms and conditions of employment of unit
employees to be presumptively relevant. Timken Roller Bear­
ing Co., 138 NLRB 15 (1962), enfd. 325 F.2d 746, 750 (6th
Cir. 1963), cert. denied 376 U.S. 971 (1964). The duty to fur­
nish information may also extend to providing requested infor­
mation related to nonunit employees especially where, as here,
those employees perform unit work. Lenox Hill Hospital, 327
NLRB 1065 (1999); United Graphics , 281 NLRB 463 (1986).
For information requests relating to nonunit persons, the re-
12 In its brief, Respondent asked that I take notice of unfair labor
practice charges filed by the Union in Cases 28–CA–16823 and 28–
16843–1 on October 20 and 31, respectively and the letters of the Re­
gional Director notifying the parties that the charges had been with-
drawn in January 2001. Respondent appended the charges and the
letters to its brief. Charging Party moved to strike the attached charges
and the Regional Director’s letters. The Charging Party and General
Counsel vigorously oppose consideration of these materials. I find the
opposition lacks merit and I take notice as requested. See Rule 201(f),
Federal Rules of Evidence.
PHOENIX COCA-COLA BOTTLING CO. 1245
questing party must show that there is a logical foundation and
a factual basis for the requested information. Postal Service,
310 NLRB 391 (1993). But a “liberal discovery standard”
applies regardless of the employees’ unit status. 281 NLRB at
465. The Union satisfies this standard by a showing of poten­
tial or probable relevance. Shoppers Food Warehouse, 315
NLRB 258, 259 (1994). An employer’s duty to bargain en-
compasses an obligation to furnish the employee representative
with relevant information necessary for it to bargain over em­
ployee grievances. Hobelmann Port Services , 317 NLRB 279
(1995). A labor organization is “entitled to . . . information . . .
to judge for [itself] whether to press [its] claim in the contrac­
tual grievance procedure or before the Board or Courts.” Ma­
ben Energy Corp., 295 NLRB 149 (1989).
In agreement with the General Counsel, I find that the Un­
ion’s various requests derive substantial justification and rele­
vance from the terms of the collective-bargaining agreement as
well as the type and location of the merchandisers’ work. As to
the employees unquestionably in the unit, the information re-
quested would have been presumptively relevant. Respondent
provided nothing to rebut this presumption. Hence, it should
have been furnished without any undue delay whatever.
The parties’ collective-bargaining agreement itself does not
specifically exclude the disputed part-time merchandisers but it
expressly excludes all seasonal employees. Even assuming the
parties’ agreement excluded the part-time merchandisers as
well, Respondent still would have a duty to furnish information
about both groups of nonunit individuals “engaged in perform­
ing the same tasks as rank-and-file employees within the bar-
gaining unit [as it] ‘relates directly to the policing of contract
terms.’” United Graphics, supra at 465. Here, Edgar consis­
tently asserted when dealing with the union agents that Re­
spondent had no duty to furnish the requested information as to
the part-time merchandisers and seasonal employees simply
because they were not unit employees. As is evident, that
stance is simply wrong. Contrary to Respondent’s claim, I find
the Union provided an ample “logical foundation and factual
basis” supporting the relevance of the requested information.
The contractual provisions prohibiting the use of part-time
merchandiser when full-timers were laid off or to deny full-
timers overtime opportunities as well as the employment period
and pay limitations imposed on seasonal employees amply
justifies all of the requested information. The fact that all mer­
chandisers mainly worked alone at locations away from the
production facility significantly reduced the opportunity for
union agents to talk with them or to observe first hand their
identity, their dates of hire, the amount of work they performed,
and their conditions of employment. Additionally, the fact that
the part-timers and seasonal employees received no benefits
would provide Respondent with ample incentive to manipulate
these employees to the detriment of the full-time merchandis­
ers. Hence, the amount of work and terms of employment of
the part-time merchandisers, some of whom may have been
reclassified at some point as seasonal employees at certain
times of the year, would be information of considerable con­
cern to the Union in representing the unit employees. That
information, readily accessible by Respondent, would be essen­
tially unobtainable by the Union unless it undertook some sort
of Herculean detective work.
Yet Respondent argues that the Union failed to “explain the
relevancy of its request for information concerning non–unit
employees to the Company.” I reject this claim. The argument
really amounts to an assertion that the Union failed to convince
Respondent’s representatives who assumed they had an abso­
lute right to deny the information to the Union by claiming that
some of it might pertain to nonunit employees. Couched in
these terms, Respondent’s argument becomes recognizable as a
self-serving rationalization devised as a strategy to deflect at­
tention from its persistent refusal to furnish the requested in-
formation solely because of its erroneous claim that it had no
duty at all to furnish information about nonunit employees. For
reasons explained above, the terms of the agreement concerning
part-time merchandisers and seasonal employees alone would
likely satisfy the relevance standard applicable to the informa­
tion sought here. But the Union provided much, much more
justification for the requested information. The verbal and
written assertions by Solano, Sanchez, and Lubin to Edgar con­
cerning reports of pay errors, the alleged use [of] noncontrac­
tual pay rates, the misuse of part-timers and seasonal employ­
ees, and the imposition of overtime restrictions on full-timers
all serve to establish the relevance of the requested information
beyond any reasonable doubt. Edgar’s various written re­
sponses amount to little more than disingenuous dodges, evi­
dencing a clear intent to avoid the legal duty to furnish the re-
quested information.
In addition, I also reject Respondent’s claim that it had no
duty to furnish the requested name and address information
concerning the alleged nonunit, part-time merchandisers and
seasonal employees. Respondent asserts it is not obliged to
assist the Union to organize employees and the name and ad-
dress information would do just that. In the past, the Board has
repeatedly rejected that claim by employers to justify their re­
fusal to furnish relevant and necessary information. See, e.g.,
Central Manor Home for Adults , 320 NLRB 1009, 1099
(1996).
Finally, Respondent’s claims that the May and November
requests are moot also lack merit. Respondent claims that the
parties’ hearing stipulation that the unit placement dispute con­
cerning the part-time merchandisers and seasonal employees
need not be resolved in this proceeding (Jt. Exh. 1) precludes
the General Counsel from seeking any information sought on
May 22 beyond that already furnished, i.e., that pertaining to
the full-time merchandisers. Respondent further argues that it
offered at the start of the hearing to furnish the information
sought in the November 21 request but the General Counsel
and the Union rejected that offer. As to the former, nothing in
Joint Exhibit 1 precludes the Union from having a right to the
information requested in its May 22 letter. This argument
amounts to little other than another variant on its consistent
theme that it is not required to furnish information concerning
nonunit employees. As to the latter, Respondent specifically
declined to furnish any names of employees in connection with
the November 21 request. For that reason, I find that Respon­
dent’s offer insufficient to meet the requests contained in the
Union’s November 21 letter. Respondent’s assertion that the
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
November 21 letter contains no request for the names of mer­
chandiser employees plainly lacks merit.
Accordingly, I find the information sought in Solano’s letters
of May 22 and November 21, including that pertaining to part-
time and seasonal employees but not including the social secu­
rity numbers sought on May 22, to be relevant and necessary
for the performance of the Union’s statutory duties.13 I con­
clude, therefore, that Respondent’s refusal to furnish most of
the information sought and its undue delay in submitting what
little it did provide violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The information requested by the Union in its letters to the
Company dated May 22 and November 21, 2000, including that
pertaining to part-time and seasonal employees but not includ­
ing the social security numbers sought on May 22, is necessary
and relevant for it to perform its statutory duties as the collec­
tive-bargaining agent for Respondent’s employees.
2. By delaying or refusing to furnish the Union with the nec­
essary and relevant information described in paragraph 1,
above, Respondent has engaged in unfair labor practices affect­
ing commerce within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act.
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.
My recommended order requires Respondent to furnish all of
the information requested by the Union’s letters to the Com­
pany dated May 22 and November 21, with the exception of the
social security numbers sought in the May 22 letter. In connec­
tion with the November 21 request, my recommended Order
requires the production of employee names associated with the
requested information. Respondent need not furnish informa­
tion already provided. If, during the compliance proceedings,
the Union concurs with the waiver claims made in Edgar’s
letter of August 22 (GC Exh. 12), those claims will be given
effect.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Phoenix Coca-Cola Bottling Company,
Tempe and Prescott, Arizona, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
13 The Union’s Br., p. 2 at fn. 3, states that its request for social secu­
rity numbers has been withdrawn. Regardless, the General Counsel
failed to prove their relevance here as required. Capital City Fire Pro­
tection, 332 NLRB No. 129 at fn. 2 (2000) (not reported in Board vol­
umes) and the cases cited there.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended 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 purposes.
(a) Delaying or refusing to provide United Industrial, Ser­
vice, Transportation, Professional, and Government Workers of
North America of the Seafarers International Union of North
America, Atlantic, Gulf and Inland Waters District, AFL–CIO
with the information requested by its letters dated May 22 and
November 21, 2000, as provided in the remedy section of this
decision, that is necessary and relevant to the performance of its
duties as the representative of the following appropriate unit of
employees:
All production and maintenance employees, including route
salesmen and truck drivers working in and out of our facilities
located at 1850 W. Elliot Road, Tempe, Arizona, and 2425 E.
Hwy. 69, Prescott, Arizona; but excluding watchmen, guards,
office clerical, professional and supervisory employees, and
seasonal employees.
(b) In any like or related manner interfering with, restraining,
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 effec­
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, provide the
Union with the information specified in 1(a) above.
(b) Within 14 days after service by the Region, post at its fa­
cilities in Tempe and Prescott, Arizona, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being
signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and main­
tained 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 pro­
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 5, 2000.
(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.
15 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.”