Endo Painting Service, Inc. v. NLRB , 679 F. App'x 614 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 09 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENDO PAINTING SERVICE, INC., No. 14-71316
Petitioner, NLRB No. 20-CA-080565
v.
MEMORANDUM*
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
NATIONAL LABOR RELATIONS No. 14-71541
BOARD,
NLRB No. 20-CA-80565
Petitioner,
v.
ENDO PAINTING SERVICE, INC.,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted February 21, 2017
Honolulu, Hawaii
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: KOZINSKI, HAWKINS, and BEA, Circuit Judges.
Endo Painting Service, Inc. (“Endo”) seeks review of an administrative law
judge’s order (“the Order”), adopted with modification by the National Labor
Relations Board (“the Board”). The Board found that Endo violated the National
Labor Relations Act by failing to produce information requested by the International
Union of Painters and Allied Trades, Painters Local Union 1791 (“the Union”) and by
failing to inform the Union, within a reasonable time, that certain requested
information did not exist. The Board cross petitions for enforcement of the Order.
We have jurisdiction under 29 U.S.C. § 160(e) and (f). We deny Endo’s petition for
review and grant the Board’s petition for enforcement.
1. Substantial evidence supports the Board’s determination that Endo
committed an unfair labor practice by failing to produce the requested information,
because the information was “relevant and necessary” to the administration and
negotiation of the parties’ collective bargaining agreement (“CBA”). See 29 U.S.C.
§§ 158(a)(5), 160(e); Frankl ex rel. NLRB v. HTH Corp., 693 F.3d 1051, 1064 (9th
Cir. 2012) (citation omitted). The information was relevant because it was related to
Union employees’ “wages, hours, [and] conditions of employment” and necessary for
the Union’s investigation into a class grievance filed against Endo. See Press
Democrat Publ’g Co. v. NLRB, 629 F.2d 1320, 1324 (9th Cir. 1980); NLRB v.
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Associated Gen. Contractors of Cal., Inc., 633 F.2d 766, 770 (9th Cir. 1980). Thus,
the Board correctly found that Endo violated its statutory duty to bargain in good faith
by failing to furnish the Union with the requested relevant information. See Frankl,
693 F.3d at 1064.
Substantial evidence also supports the Board’s finding that the Union’s
information request did not seek confidential information, did not constitute
harassment, and was not overbroad, unduly burdensome, or sought in bad faith.
Moreover, because an employer’s statutory duty to provide requested relevant
information is not limited to “information relevant to grievable disputes,” Endo’s
objections to the underlying grievance’s merits do not excuse its noncompliance. See
NLRB v. Safeway Stores, Inc., 622 F.2d 425, 430 (9th Cir. 1980), cert. denied, 450
U.S. 913 (1981) (declining to add a grievability requirement to federal labor law); see
also NLRB v. Acme Indus. Co., 385 U.S. 432, 436-38 (1967) (rejecting the argument
that a grievance’s merits limit an employer’s statutory duty to disclose requested
relevant information).
2. Substantial evidence also supports the Board’s finding that Endo committed
an unfair labor practice by delaying nearly three months in informing the Union that
a requested company organizational chart did not exist. See 29 U.S.C. § 160(e). The
Union’s request for the chart was not complex. Nor did Endo ever inform the Union
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that it was difficult to determine whether such a chart existed. Under the totality of
the circumstances, Endo’s delay was unreasonable. See W. Penn. Power Co., 339
N.L.R.B. 585, 587 (2003) (“In evaluating the promptness of the response, ‘the Board
will consider the complexity and extent of information sought, its availability and the
difficulty in retrieving the information.’”) (quoting Samaritan Med. Ctr., 319
N.L.R.B. 392, 398 (1995)).
3. In light of well-established Board policy “that issues regarding a refusal to
provide information are not subject to deferral to the grievance-arbitration procedure,”
the Board did not abuse its discretion by refusing to defer this information-request
dispute to arbitration. Chapin Hill at Red Bank, 360 N.L.R.B. 116, 122 (2014); see
Acme Indus., 385 U.S. at 436-39; Safeway Stores, 622 F.2d at 428-29.
Endo’s petition for review of the Order is DENIED. The Board’s petition
for enforcement of the Order is GRANTED.1
1
The Board’s motion for leave to file a response to Endo’s supplemental brief
is denied as moot.
4