Right Away Foods

National Labor Relations Board - Board Decisions

Jun 20, 1984

270 N.L.R.B. 1278 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Right Away Foods and United Food and Commercial
Workers International Union, AFL-CIO, Local
Union No. 171, successor to Amalgamated
Meatcutters and Butcher Workmen of North
America, AFL-CIO, Local No. 171. Cases 23-
CA-7945 and 23-CA-8509
20 June 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
Upon charges filed by the Union 16 May 1980
and 26 May 1981, the General Counsel of the Na-
tional Labor Relations Board issued a consolidated
complaint on 17 March 1983 against the Company,
the Respondent, alleging that it has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act.
The consolidated complaint alleges that the
Union is the exclusive bargaining representative of
the Company's employees in an appropriate unit
and that since 29 November 1979 the Company has
refused to bargain with the Union by refusing to
accept a grievance the Union filed, and by refusing
to provide the Union information necessary to
process the grievance. The complaint also alleges
that since 16 February 1981, and again since 2 Feb-
ruary 1983, the Company has refused to bargain
with the Union over the terms of a new contract
and to provide the Union information it requested
necessary for and relevant to the Union's perform-
ance of its duties as the employees' collective-bar-
gaining representative. On 11 April 1983 the Com-
pany filed its answer, admitting in part and denying
in part the allegations in the consolidated com-
plaint.
On 28 April 1983 the General Counsel filed a
Motion for Summary Judgment. On 6 May 1983
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 Company
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Proce-
dure provides that summary judgment shall be
granted if the "pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter
270 NLRB No. 187
of law."' We have reviewed the instant matter in
light of this standard and conclude that the Gener-
al Counsel's Motion for Summary Judgment should
be granted in part and denied in part.
Allegations Involving Refusal to Accept
Grievance or to Provide Related Information
Certain allegations and filings in this case estab-
lish that the Union, by letter dated 20 September
1979, forwarded to the Respondent seven dues-
checkoff authorization cards signed by seven of
Respondent's employees. On 28 September 1979
the Respondent returned the cards along with a
letter explaining that it was reluctant to deduct
dues from the seven employees because (1) at least
one of the employees had informed it that his card
was incorrectly dated and that he did not under-
stand that the dues would be deducted from his
company pay; (2) the dates on the cards were sev-
eral months old; and (3) the dates on the cards ap-
peared to have been written by someone other than
the employee signing the card.
In a letter dated 30 October 1979 the Respond-
ent again returned the cards to the Union and re-
stated its reasons for not honoring them. The con-
solidated complaint alleges that on 19 November
1979 the Union filed a grievance with the Respond-
ent over its refusal to honor the authorization
cards.2 The Respondent, in a letter dated 29 No-
vember 1979, replied that the collective-bargaining
agreement between it and the Union did not permit
grievances from the Union and therefore declined
to meet with the Union to discuss the grievance.
By letters dated 11 January and 13 February 1980
the Union requested that the Respondent furnish it
with (1) the names of individuals who did not
know that union dues were to be deducted from
their payroll check after they had executed authori-
zation cards; (2) the names of individuals who
claimed the dates on their authorization cards were
incorrect; and (3) any statement that the Respond-
ent might have to support such allegations. In re-
sponse to the Union's request for information, the
Respondent, in a letter dated 29 February 1980, re-
ferred the Union to the Respondent's previous let-
ters.
The consolidated complaint alleges that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to accept the grievance and by refusing
to provide the information described above. In its
answer to the consolidated complaint and its reply
in opposition to the Motion for Summary Judg-
' See Lake Charles Memorial Hospital, 240 NLRB 1330 (1979).
2 The Respondent denies that a grievance was filed, contending that
the document to which the complaint refers was not intended by the par-
ties or by the collective-bargaining agreement to be a grievance.
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RIGHT AWAY FOODS
ment, the Respondent contends that its refusal to
honor the dues-checkoff authorization cards oc-
curred outside the 10(b) period and that the Gener-
al Counsel's allegations that it unlawfully refused
to accept a grievance over the authorization cards
issue and unlawfully refused to supply information
necessary to process the grievance are also barred
by Section 10(b) because they were grounded on
the untimely charge that it refused to honor dues
authorization cards. The Respondent alternatively
argues that the grievance was untimely filed, that
the matters involved were not subject to the con-
tractual grievance procedure, that it had no obliga-
tion to supply the requested information because it
was readily available to the Union, and that the
Union was not a party to the collective-bargaining
agreement.
We find that material issues of fact have been
raised concerning the allegations described above.
These issues include whether article V of the col-
lective-bargaining agreement, which sets forth
grievance procedures, covers the type of grievance
the Union filed in this proceeding, and whether the
grievance, even if covered by the collective-bar-
gaining agreement, was timely. Accordingly, we
will remand these allegations of the consolidated
complaint to the Regional Director for the purpose
of arranging a hearing thereon.
Allegations Involving Later Requests to Meet
and Bargain and to Provide Information
In a letter dated 2 February 1981, the Union re-
quested the Respondent to bargain with it concern-
ing rates of pay, hours of work, working condi-
tions, and other terms and conditions of employ-
ment, and to supply certain information that it be-
lieved necessary to its bargaining obligations. The
Respondent, by letter dated 16 February 1981, ad-
vised the Union that it had a good-faith doubt that
the Union represented a majority of the employees
in the appropriate bargaining unit and accordingly
refused to bargain with the Union and to furnish
the requested information.
About 18 January 1983 the Union, by letter, no-
tified the Respondent of its desire to engage in col-
lective-bargaining negotiations and requested cer-
tain information from the Respondent. By letter
about 2 February 1983, the Respondent declined to
meet and bargain or to provide the requested infor-
mation. In its answer to the consolidated complaint
and its reply in opposition to the Motion for Sum-
mary Judgment, the Respondent contends that it
had a good-faith doubt as to the Union's majority
status. The Respondent argues that, following the
Union's April through June 1977 strike, it rehired
only 30 of the over 75 strikers. The Respondent as-
serts that, of the 215 employees in its employ in
1981, 10 worked through the strike and 193 were
new employees not present in 1977. It further as-
serts that since 1977 there have been five or fewer
checkoff cards on file, and no dues have actually
been checked off.
The General Counsel contends that, with respect
to the Respondent's refusal to bargain, the Re-
spondent is raising issues which were or could
have been raised in the representation proceeding
and is precluded from relitigating them. The Gen-
eral Counsel further contends that, as a matter of
law, the Respondent has violated Section 8(a)(5) of
the Act by failing and refusing to provide certain
requested information.
We agree with the General Counsel's conten-
tions regarding these allegations. A review of the
record, including that of the representation pro-
ceeding in Case 23-AC-43, establishes that on 12
August 1980 the Union herein filed a petition seek-
ing to amend the certification issued 2 April 1964
in Case 23-RC-2212 by substituting the United
Food and Commercial Workers for the Amalga-
mated Meatcutters and Butcher Workmen of North
America, AFL-CIO (Meat Cutters). On 25 Sep-
tember 1980 the Regional Director issued a Deci-
sion and Order amending the certification. The
Board granted the Respondent's request for review
and on 12 November 1982 issued an order affirm-
ing the amendment of the certification.
In its decision on review of the Regional Direc-
tor's Decision and Order Amending Certification,
the Board affirmed the Regional Director's deci-
sion and found that the Respondent settled griev-
ances and entered into a collective-bargaining
agreement with Meat Cutters Local 171, after
learning of its merger with Meat Cutters Local
173. Under these circumstances, the Board found
that the Respondent was estopped from challeng-
ing the merger of Meat Cutters Local 173 and
Meat Cutters Local 171. The Board rejected the
Respondent's contentions concerning the merger of
the Meat Cutters International and the Retail
Clerks International for the reasons stated in Texas
Plastics, 263 NLRB 394 (1982).
With respect to the Respondent's contentions
that it had a good-faith doubt as to the Union's ma-
jority status, it is well settled that in the absence of
newly discovered and previously unavailable evi-
dence or special circumstances, a respondent in a
proceeding alleging a violation of Section 8(a)(5) is
not entitled to relitigate issues that were or could
have been litigated in a prior representation pro-
ceeding. See Pittsburgh Glass Co. v. NLRB, 313
U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c)
of the Board's Rules and Regulations.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All issues the Company raises with respect to its
refusal to bargain were or could have been litigated
in the prior representation proceeding.3 The Com-
pany does not offer to adduce at a hearing any
newly discovered or previously unavailable evi-
dence; nor does it allege any special circumstances
that would require the Board to reexamine the de-
cision made in the representation proceeding.4 We
therefore find that the Company has not raised any
issue that is properly litigable in this unfair labor
practice proceeding.
It is also well settled that an employer has a gen-
eral obligation to provide information requested by
the bargaining representative of its employees
when such information is necessary and relevant to
that bargaining representative's performance of its
duties. See generally NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1955); NLRB v. Acme Industrial Co., 385
U.S. 432 (1967). As set forth above, on 2 February
1981 the Union requested the following items:
1. The names of all of the unit employees,
dates of hire, the rates of pay for each employ-
ee, date of birth, marital status, job classifica-
tion, department and any other pertinent infor-
mation to the employees.
2. A copy, if any, of any profit sharing plan
and/or pension fund, the amount of Employer
and/or employee's contributions to such plan.
3. A copy, if any, of all Rules and Regula-
tions governing the conduct of the employees.
4. The amount of Employees' contribution
toward the Group Insurance for employee and
dependent coverage.
Further, on 18 January 1983 the Union requested
the following information:
1. Names of all employees, rates of pay,
dates of hire, marital status, number of depend-
ents, job classification and department.
2. Description of any and all fringe benefits
currently provided to all employees such as
holiday, jury duty payment, funeral pay, paid
vacation etc. including health & welfare, total
cost, company share of expense and employ-
ee's share of expense, any pension and/or
profit sharing plan with an outline of the com-
3 In Case 23-AC-43 the Company argued unsuccessfully that an
amendment to the certification would be improper because a question
concerning representation existed. Had the Company been able to prove
the existence of a question concerning representation, the petition would
have been dismissed. Uniroyal, Inc., 194 NLRB 268 (1971). The Company
had the opportunity in the representation proceeding to litigate the issues
of good-faith doubt of majority status.
4 We have considered the Respondent's reply to the Motion for Sum-
mary Judgment with supporting documents and find that it raises no
issues of fact or law requiring a hearing concerning any good-faith doubt
of the Union's majority status that may have arisen after the amendment
of certification proceedings.
pany's cost as well as employee's cost to par-
ticipate in such plan, rules and regulations
governing the employees.
3. Job descriptions.
4. If merit wages are provided, the names,
amount of merit increases, the date such merit
increases were provided, the method and/or
procedure used to provide such merit in-
creases.
A review of the requested information establishes
that all the listed items fall within the ambit of data
which an employer must, on request, provide the
Union. We find that the requested information is
relevant to the Union's duties as bargaining repre-
sentative of the employees in the appropriate unit.
We therefore hold that the Respondent must pro-
vide the Union with the requested information set
forth above. Accordingly, with respect to the
Company's refusals to bargain and related refusals
to furnish information we grant the General Coun-
sel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a Texas corporation, freeze dries
and processes foods at its facility in San Carlos,
Texas, where it annually purchases and receives
goods and materials in excess of $50,000 from
points and places located outside the State of
Texas. We find that the Company is an employer
engaged in commerce within the meaning of Sec-
tion 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 PRACTICE
A. The Certification
On 25 September 1980 the Regional Director
issued an order, which the Board affirmed 12 No-
vember 1982, amending the certification by substi-
tuting the Union for the Meat Cutters as the collec-
tive-bargaining representative of the employees in
the following appropriate unit: 5
All production and maintenance employees,
truckdrivers, warehousemen, and quality con-
In the September 25 order, the Regional Director describes the unit
as excluding quality control inspectors. However, the General Counsel
alleges in the consolidated complaint, and the Respondent admits in its
answer, that the unit includes quality control inspectors. Because the par-
ties agree upon the composition of the unit, and do not contend that it is
an issue in this proceeding, we have, without ruling on the issue, included
quality control inspectors in our unit description.
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RIGHT AWAY FOODS
trol inspectors employed by the Company in
Hidalgo County, Texas, excluding guards,
office clericals, professional employees, labora-
tory technicians and supervisors as defined in
the Act.
The Union continues to be the exclusive represent-
ative under Section 9(2) of the Act.
B. The Requests to Bargain and the
Respondent's Refusal
Since 2 February 1981 and again since 18 Janu-
ary 1983, the Union has requested the Company to
bargain and to provide certain requested informa-
tion necessary for and relevant to its duties as stat-
utory bargaining representative in the above-de-
scribed unit, and since 16 February 1981 and 2
February 1983, respectively, the Company has re-
fused. We find that these refusals constitute unlaw-
ful refusals to bargain in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 16 February 1981, and
again since 2 February 1983, to bargain with the
Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit, or
to furnish the requested information necessary and
relevant for the purpose of collective bargaining,
the Company has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(aXS) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing to
meet and bargain with the Union, 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.
As we have also found that the Respondent vio-
lated Section 8(aX5) and (1) of the Act by failing
and refusing to provide the Union with information
related to its requests to bargain, we shall order the
Respondent to furnish the Union with such infor-
mation.
ORDER
The National Labor Relations Board orders that
the Respondent, Right Away Foods, San Carlos,
Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to meet and bargain with United
Food and Commercial Workers International
Union, AFL-CIO, Local Union No. 171, as the ex-
clusive bargaining representative of the employees
in the bargaining unit.
(b) Refusing to supply requested information
necessary for and relevant to the Union's perform-
ance of its function as exclusive representative of
employees in the bargaining unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit concerning terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement:
All production and maintenance employees,
truckdrivers, warehousemen, and quality con-
trol inspectors employed by the Company in
Hidalgo County, Texas, excluding guards,
office clericals, professional employees, labora-
tory technicians and supervisors as defined in
the Act.
(b) On request, furnish the Union with the fol-
lowing information:
The names of all of the unit employees, dates
of hire, the rates of pay for each employee,
date of birth, marital status, number of depend-
ents, job classification, department and any
other pertinent information to the employees; a
copy, if any, of any profit sharing plan and/or
pension fund, the amount of Employer and/or
employees' contributions to such plan; a copy,
if any, of all Rules and Regulations governing
the conduct of the employees; the amount of
Employees' contribution toward the Group In-
surance for employee and dependent coverage;
description of any and all fringe benefits cur-
rently provided to all employees such as holi-
day, jury duty payment, funeral pay, paid va-
cation etc. including health & welfare, total
cost, company share of expense and employ-
ee's share of expense; jobs descriptions; and, if
merit wages are provided, the names, amount
of merit increases, the date such merit in-
creases were provided, the method and/or
procedure used to provide such merit in-
creases.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its facility in San Carlos, Texas,
copies of the attached notice marked "Appendix."6
Copies of the notice, on forms provided by the Re-
gional Director for Region 23, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the proceeding be
remanded to the Regional Director for Region 23
for the purpose of arranging a hearing before an
administrative law judge on the remaining allega-
tions of the consolidated complaint not found
herein.
tlIf 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to meet and bargain with
United Food and Commercial Workers Internation-
al Union, AFL-CIO, Local Union No. 171, as the
exclusive representative of the employees in the
bargaining unit.
WE WILL NOT refuse to supply requested infor-
mation necessary for and relevant to the Union's
performance of its function as exclusive representa-
tive of employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
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 bargaining unit:
All production and maintenance employees,
truckdrivers, warehousemen, and quality con-
trol inspectors employed at our plant in Hidal-
go County, Texas, excluding guards, office
clericals, professional employees, laboratory
technicians and supervisors as defined in the
Act.
WE WILL, on request, furnish the Union with the
following information:
The names of all of the unit employees, dates
of hire, the rates of pay for each employee,
date of birth, marital status, number of depend-
ents, job classification, department and any
other pertinent information to the employees; a
copy, if any, of any profit sharing plan and/or
pension fund, the amount of Employer and/or
employee's contributions to such plan; a copy,
if any, of all Rules and Regulations governing
the conduct of the employees; the amount of
Employees' contribution toward the Group In-
surance for employee and dependent coverage;
description of any and all fringe benefits cur-
rently provided to all employees such as holi-
day, jury duty payment, funeral pay, paid va-
cation etc. including health & welfare, total
cost, company share of expense and employ-
ee's share of expense; jobs descriptions; and, if
merit wages are provided, the names, amount
of merit increases, the date such merit in-
creases were provided, the method and/or
procedure used to provide such merit in-
creases.
RIGHT AWAY FOODS
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