NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,473, GLOVERSVILLE EMBOSSING CORP. and AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO., (Sep. 23, 1994), National Labor Relations Board, (Sep 23, 1994)

GLOVERSVILLE EMBOSSING CORP. and AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, AFL-CIO.

314 NLRB No. 206.Case Nos. 3-CA-17217 and -17880. September 23, 1994 Raymond P. Green, Administrative Law Judge..

Before Stephens, Devaney and Browning.

Alfred M. Norick, for General Counsel. Christian Fleissner, for Respondent. William Towne, for Union.

Union Right to Information--Failure to Furnish--Adequacy of Payroll Records.--An employer’s response to a union’s unambiguous request for employee payroll record information was incomplete and constituted a violation of the employer’s bargaining duty. The employer limited disclosure of the records to bargaining unit employees currently employed at the time of the request, which was unresponsive to the union’s request because the union’s stated purpose of uncovering payroll violations could not be accomplished. Section 8(a)(5).

Back reference: ¶3135.138.

Impasse--Existence of--Permissive Bargaining Topic.--By bargaining to impasse over its demand for a wage reduction, such demand being made for the purpose of recouping from its employees amounts paid pursuant to an NLRB order, an employer violated its bargaining duty. The employer improperly conditioned further bargaining on a permissive subject of bargaining, and its subsequent declaration of impasse was, therefore, unlawful. Section 8(a)(5).

Back reference: ¶3120.10.

Unilateral Changes by Employer--Fact Finding--Work Conditions.--On the facts, an employer violated its bargaining duty by unilaterally failing to pay a regularly scheduled Christmas bonus to its employees, without notifying a union representing those employees. Section 8(a)(5).

From Text of Board’s Decision

The judge found, inter alia, that the Respondent complied with the Union’s June 19, 1992 request for payroll information, albeit not in a timely manner. [1] In his exceptions, the General Counsel contends that the information the Respondent provided was not only untimely, but also incomplete. For the reasons set forth below, we find merit in the General Counsel’s exceptions.

This case arises in the context of the parties’ negotiations for a new collective-bargaining agreement to succeed the one that was in effect from February 1, 1988, to January 31, 1991. By June 1992, the parties had not reached agreement on the terms of a new contract.

On June 19, 1992, the Union sent the Respondent a letter requesting payroll records for bargaining unit employees. The June 19, 1992 information request stated, inter alia:

In an effort to fulfill the Union’s duty of fair representation and responsibilities it is again necessary to obtain certain information from you.

The purpose of this request is that the Union believes that our contract which expired on February 1, 1991 has been violated. In addition, because of your continued demands in our current negotiations for a 10% across the board wage cut, the Union believes you have been engaging in unfair bargaining. Please provide the Union with the following information:

1. Beginning February 1, 1988 to the present copies of all payroll records for all bargaining unit employees.

On August 17, 1992, the Respondent provided payroll records dating from February 1988, but not limited to unit employees employed at the time of the request. The judge found that the Respondent legitimately construed the Union’s letter as a request for payroll records for the existing bargaining unit employees. We do not agree.

There is no dispute that the employee wage and employment information desired by the Union is presumptively relevant for purposes of collective bargaining. See, e.g., Trustees of Masonic Hall, [1981-82 CCH NLRB ¶18,975] 261 NLRB 436 (1982); Verona Dyestuff, [1977-78 CCH NLRB ¶18,748] 233 NLRB 109 (1977). What is in dispute is whether the Union’s communication was sufficiently clear to place the Respondent on notice that the Union actually wanted payroll records for all unit employees employed since February 1, 1988, not just for all unit employees employed at the time of the request.

It is well established that the adequacy of a union’s request for information must be judged in light of “the entire pattern of facts available to [the employer],” not just the bare words of the request itself. Ohio Power Co., [1974-75 CCH NLRB ¶15,557] 216 NLRB 987, 990 fn. 9 (1975), enfd. mem. 531 F.2d 1381 (6th Cir. 1976).

Here, the “pattern of facts available” to the Respondent include the following: the Union’s letter began by stating that the Union was requesting certain information in order to fulfill its duty of fair representation; the letter continued by stating that “the purpose” of the information request was the Union’s belief that the expired contract had been violated; and the letter concluded by requesting “all payroll records for all bargaining unit employees” beginning the first day of the expired contract and continuing through the 3-year life of that contract to the present day. Given the clear statement of the Union’s purpose (its belief that contract violations had occurred) an given the Union’s explicit request for payroll information beginning on the first day of the contract, it should have been apparent to the Respondent from the face of the Union’s letter that the information the Union needed and wanted must have included the payroll records of all unit employees employed during the term of the 1988-1991 contract. Instead, the Respondent limited the information it furnished to the payroll records of unit employees presently employed. This was not responsive to the Union’s letter because on the basis of the information supplied the Union would still be unable to accomplish its purpose of uncovering contract violations insofar as unit employees no longer working were concerned.

For these reasons, we find, contrary to the judge, that the Union’s request, taken in context, unambiguously informed the Respondent of the specific information the Union desired. [2] Therefore, we conclude that the Respondent violated Section 8(a)(5) and (1) not only by failing to provide the requested information in a timely manner, as the judge found, but also by failing to provide the requested information in a complete manner. Accordingly, we shall order the Respondent to furnish the information requested.

[Partial Dissent]

Member Stephens, dissenting in part. While I agree with my colleagues that the Respondent violated Section 8(a)(5) and (1) of the Act by its lack of timeliness in responding to the Union’s June 19, 1992 information request, I do not agree that there is any additional ground for violation in the Respondent’s failure to construe the request as seeking 1988-1992 payroll records for employees who were no longer in the bargaining unit at the time of the request, as well as such records pertaining to current unit employees. My colleagues insist that the Respondent should have gleaned from the Union’s reference to a possible contract violation that the Union must have wanted records for all employees working after February 1, 1988, even those who had departed by the time of the request. But the Union nowhere explained what sort of contract violation it was alleging, and the reference to alleged unfairness in the Respondent’s existing demand in contract negotiations for a wage cut appeared to relate solely to current employees. The Union could easily have been more specific in describing either the scope of its contract violation claim or the documents it was seeking. Like the judge, I would find that the Respondent “legitimately construed the request as requiring the delivery of payroll records for the existing bargaining unit employees.” Any mistake in the matter is certainly not so egregious as to rise to the level of a refusal to bargain in good faith.