Tony's Meats, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1974

211 N.L.R.B. 625 (N.L.R.B. 1974)

TONY'S MEATS, INC. 625
Tony's Meats, Inc. and Meatcutters District Union
427, Amalgamated Meatcutters & Butcher Work-
men of North America, AFL-CIO. Case
8-CA-8005
June 17, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 29, 1974, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Tony's Meats, Inc.,
Lorain, Ohio, its officers, agents , successors, and
assigns , shall take the action set forth in the said
recommended Order.
I The Respondent Employer has excepted to certain credibility findings
made by the Administrative Law Judge . It is the Board 's established policy
not to overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
inafter referred to as the Board, against Tony's Meats, Inc.,
hereinafter referred to as Respondent or the Company,
alleging violations of Section 8(a)(1), (3), and (5), and
Section 2(6) and (7) of the National Labor Relations Act,
as amended (61 Stat. 136), and upon an answer timely filed
by the Respondent denying the commission of any unfair
labor practices.I
All parties were represented by counsel, and were
afforded full opportunity to examine and cross-examine
witnesses, to introduce evidence pertinent to the issues, and
to engage in oral argument. Subsequent to the close of the
hearing, timely briefs were submitted by counsel for all the
parties.
Upon the entire record in this case, and from my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Tony's Meats, Inc., is an Ohio corporation engaged in
the retail sale of food products at its place of business in
Lorain, Ohio. Annually the Respondent derives in excess
of $500,000 from the retail sale of food products, and
receives goods valued in excess of $25,000 at its place of
business in Lorain, Ohio, directly from points located
outside the State of Ohio. The parties admit, and I find,
that the Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Meatcutters District Union 427, Amalgamat-
ed Meatcutters & Butcher Workmen of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Whether in refusing to furnish the Union with financial
information upon request in order to substantiate the
Respondent's claim that it was financially unable to meet
the Union's wage demand, the Respondent violated
Section 8(a)(1) and (5) of the Act.
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on February 28, 1974, at Elyria,
Ohio , and is based upon a charge and an amended charge
filed on November 14 and December 17, 1973 , respective-
ly, by Meatcutters District Union 427 , Amalgamated
Meatcutters & Butcher Workmen of North America,
AFL-CIO, hereinafter referred to as the Union, upon a
complaint issued on January 7, 1974, by the General
Counsel for the National Labor Relations Board, here-
At the opening of the hearing the 8 (a)(3) allegations of the complaint
were settled by the parties , leaving the 8(a)(l) and (5) allegations to be tried.
B. The Facts
On September 29, 1972, pursuant to a Board-conducted
election, the Union was certified as the exclusive bargain-
ing representative of the Respondent's store employees.
The unit, which I find to be an appropriate unit, consists
of:
All selling and nonselling employees employed at the
211 NLRB No. 88
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's Lorain, Ohio, store , excluding all office
clerical employees , professional employees , guards and
supervisors as defined in the Act.
Thereafter , commencing toward the latter part of 1972,
the parties engaged in a series of contract negotiations.
After several such sessions , on February 9, 1973, the Union
called a strike, which strike lasted until the following
September 5, 1973. The bargaining sessions continued
during the strike , and for a period after the termination of
the strike.
On December 3, 1973, the parties again met, with
Business Representatives Frank Cinino and Paul Gauntner
representing the Union, and Anthony Marinik, company
president , and David L. Daley, attorney, representing the
Company. During the 1101 - 1 /2 hour meeting , the negotia-
tions were carried on almost entirely by Cinino and Daley.
Daley opened the session by discussing with the union
representatives the general economic position of the
Company, asserting that the Company had lost between
$25,000 and $40 ,000 worth of business per month during
the 6-month period of the strike , and alluding to the
uncertainty as to the supply as well as price of meat on the
national scene and the fact that the Company had to pay
top dollar for meat and lose money in selling it in order to
stay in business . At some point , Daley made a company
proposal concerning jury duty pay and funeral leave pay,
which amounted to approximately a 15-cent-per-hour wage
increase . According to the testimony of Marinik and
Gauntner, both of whom I found credible, Daley indicated
that this proposal was the best that it could make. When
Cinino asked Daley what the Company was going to do
about the Union's proposals relative to health and welfare
contributions and pension contributions, Daley replied
that the Company "can't do anything else and that during
the 6 or 7 months strike there they had lost around $45,000
a month in business ." In rejecting the Union 's proposal,
Daley indicated that that was the best proposal the
Company could make at that time.
At this point, according to Gauntner, Cinino asked to
look at the Company's books to substantiate the loss,
which request was refused by Daley. Cinino said that he
needed proof of the loss , and that if the Union could see
the books he could be in a position to tell the employees
that he had seen the books , had verified the loss, and that
that was all the Company could afford at the time. Daley
refused. Cinino then asked Daley whether he would permit
a CPA or neutral party to look at the books to verify the
loss, to which Daley replied that Marinik was telling the
truth and that he could see no reason for showing the
company books. Although Gauntner testified on the stand,
in reply to Daley's question, that something may have been
said by Cinino to the effect that "auditors could find
money in the books," Gauntner was firm in his testimony
7 Cinmo was in Puerto Rico at the time of this hearing and was,
therefore , not available to testify.
3 The "financial records" referred to are (a) an affidavit of Mannik
providing , in addition to nonmonetary information , the monthly gross
revenue of the Respondent from January 1973 through September 1973,
and (b) copies of Respondent's payroll records from August 1973 through
October 1973 . Both documents had previously been submitted to the Board
in connection with the Section 8 (a)(3) aspects of the case.
4 Even President Mannik, on cross -examination , admitted that this was
that such was not the reason Cinino wanted him to look at
the company records, that the reason expressed to Daley
was "that if they could see if the Company made this loss
... they would be able to go back to the people and say
that this is all that the Company could offer." 2
According to Gauntner, Daley then indicated that he
had given the financial records to the NLRB , and that that
was sufficient information to furnish at that time .3
According to Marinik, whom I credit on this point, Daley
offered to make copies of his own copies of the two
documents and to give them to Cinino at that time, and
that Cinino replied that he had those figures and did not
need copies . When Daley indicated to Cinino that the
financial books also included other business matters not
related to the Respondent's store operations , and that that
was not any of the Union 's business, Cinino made it clear
that he was interested only in the losses in the meat
operations of the store . With the Company's refusal to
permit an examination of its records, and Cinino's
statement that he had nothing to take back to his
membership , the meeting adjourned and Cinino and
Gauntner left.
The long and short of the fact situation as to the
December 3 bargaining session is that , in refusing to grant
more than what amounts to a 15-cent-an-hour wage
increase and at the same time rejecting the Union's
proposals concerning health , welfare, and pension plans,
the Company, allegedly making its best offer , stressed the
tremendous monthly losses it had sustained during the 6-
month strike period , in effect , pleading financial inability.
When confronted with the Union 's requests, first , to look
at its books, and then , to permit a CPA to examine its
records, in order to verify the loss and thus to substantiate
the Company assertion that it could not offer more, the
Company adamantly refused . In this regard , I find the only
offer the Company made to the Union concerning
"financial records" was the offer to xerox the two
documents which it had previously submitted to the
Board,4 one, an affidavit containing self-serving assertions
of monthly dollars sales for January through September
1973, and the other, weekly employee payroll figures for
the period between August 31 and November 2, 1973.
It is well recognized that the duty to bargain in good
faith includes the duty to substantiate claims, including
claims of inability to pay increased wages as well as
economic benefits requested by a union during collective-
bargaining negotiations ,5 and that an employer must, upon
request, provide the union with evidence to support its
alleged inability claims . This the Respondent here failed to
do. The limited information as to sales and employee
wages offered by the Respondent did not address itself to
reasons asserted by the Respondent for its inability to
grant higher wages or the economic benefits requested, and
all that the Company offered to give the Union in terms of financial records,
and, except for this, Daley offered no financial records which the Union
could use to verify how much money the Company was making or losing.
Mannik also testified that, to his knowledge , Daley did not offer to validate
the data supplied to the Board. I find that the Company offered to do
nothing more.
S NLR.B. v. Truitt Mfg. Co., 351 U.S. 149 (1956); Stanley Building
Specialties Co., 166 NLRB 984.
TONY'S MEATS, INC.
in no way would enable the Union to intelligently
determine whether the Respondent was making its best
offer.
Under these circumstances, including what I find to have
been an honest and bona fide request on the part of the
Union, the refusal of the Respondent to furnish the Union
with financial records for examination in order to
substantiate its claim that it was financially unable to meet
the Union's demands, constitutes a refusal to bargain in
violation of Section 8(a)(5) of the Act, and I so find.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Tony's Meats, Inc., is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Meatcutters District Union427,AmalgamatedMeat-
cutters and Butcher Workmen of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All selling and nonselling employees employed at
Respondent's Lorain, Ohio, store, excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since September 29, 1972, the Union has been, and
is now the exclusive representative of all employees in the
appropriate unit within the meaning of Section 9(a) of the
Act.
5. By refusing to furnish the Union with financial
information in order to substantiate its claim that it was
financially unable to meet the Union's wage and other
economic demands , the Respondent refused to bargain
collectively with the Union in violation of Section 8(a)(1)
and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
IV. THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER6
627
Respondent, Tony's Meats, Inc., its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Meatcutters
District Union 427, Amalgamated Meatcutters and Butch-
er Workmen of North America, AFL-CIO, as the
exclusive bargaining representative of all employees in the
appropriate unit described above in violation of Section
8(a)(1) and (5) of the Act, by refusing to furnish the Union
with financial information in order to substantiate the
Respondent's claim that it was financially unable to meet
the Union's wage and other economic demands.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, supply the Union with all books and
records containing financial information which would tend
to substantiate Respondent's claim that it is financially
unable to meet the Union's wage demands.
(b) Post in conspicuous places at its Lorain, Ohio, store,
including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix." 7 Copies of the notice, on forms provided by
the Regional Director for Region 8, shall, after being duly
signed by an authorized representative of the Respondent,
be posted by it, as aforesaid, immediately upon receipt
thereof and maintained for at least 60 consecutive days
thereafter. Reasonable steps shall be taken by the Respon-
dent to ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
7 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment 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
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive bargaining representative of our
employees.
WE WILL, upon request, furnish the Union with all
books and records containing financial information
which would tend to substantiate our claim that we are
financially unable to meet the Union's wage and other
economic demands.
628
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TONY'S MEATS , INC. This notice must remain posted for 60 consecutive days
(Employer) from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
(Representative) (Title) directed to the Board 's Office, Suite 1695 - Anthony J.
Celebrezze , Federal Building, 1240 E. 9th Street, Cleve-
This is an official notice and must not be defaced by land , Ohio, Telephone 216-522-3715.
anyone.