Albertson's Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1993

310 N.L.R.B. 1176 (N.L.R.B. 1993)

1176
310 NLRB No. 199
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On July 21, 1992, the Board granted the General Counsel’s mo-
tion to consolidate these four cases.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Albertson’s, Incorporated and United Food and
Commercial Workers Union, Local No. 7.
Cases 27–CA–11463, 27–CA–11474, 27–CA–
11490, and 27–CA–11509
April 23, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On May 26, 1992, Administrative Law Judge Gor-
don J. Myatt issued the attached decisions.1 The Re-
spondent filed exceptions. The General Counsel filed
an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decisions and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Orders as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Orders of the administrative law judge as
modified below and orders that the Respondent,
Albertson’s Incorporated, Denver, Colorado, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Orders as modified.
1. Substitute the following for paragraph 1(b) in
each Order.
‘‘(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. Substitute the attached notices for each notice at-
tached to the administrative law judge’s decisions.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Relations Board, after a hearing in which
all parties had an opportunity to present evidence, has
found that we violated the National Labor Relations
Act and has ordered us to post and abide by this no-
tice.
WE WILL NOT refuse to bargain in good faith with
United Food and Commercial Workers, Local No. 7 by
failing to provide the Union with requested informa-
tion relating to a grievance of employee Dan Cook, or
of any other employee.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL immediately provide the above Union with
the information it requested on August 15, 1990, relat-
ing to the grievance of employee Dan Cook.
ALBERTSON’S, INCORPORATED
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Relations Board, after a hearing in which
all parties had an opportunity to present evidence, has
found that we violated the National Labor Relations
Act and has ordered us to post and abide by this no-
tice.
WE WILL NOT refuse to bargain in good faith with
United Food and Commercial Workers, Local No. 7 by
failing to provide the Union with requested informa-
tion relating to a grievance of employee Eugene Meis,
or of any other employee.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL immediately provide the above Union with
the information it requested on August 15, 1990, relat-
ing to the grievance of employee Eugene Meis.
ALBERTSON’S, INCORPORATED
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Relations Board, after a hearing in which
all parties had an opportunity to present evidence, has
found that we violated the National Labor Relations
Act and has ordered us to post and abide by this no-
tice.
WE WILL NOT refuse to bargain in good faith with
United Food and Commercial Workers, Local No. 7 by
failing to provide the Union with requested informa-
1177ALBERTSON’S, INC.
1 All dates refer to the year 1990 unless otherwise indicated.
2 According to Respondent’s records, Cook’s work classification
was freight crew manager. See R. Exh. 1. The Union’s grievance,
however, described Cook’s job classification as ‘‘head clerk and
night crew foreman.’’ See Jt. Exh. 2.
tion relating to a grievance of employee David Hucke,
or of any other employee.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL immediately provide the above Union with
the information it requested relating to the grievance of
employee David Hucke.
ALBERTSON’S, INCORPORATED
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Relations Board, after a hearing in which
all parties had an opportunity to present evidence, has
found that we violated the National Labor Relations
Act and has ordered us to post and abide by this no-
tice.
WE WILL NOT refuse to bargain in good faith with
United Food and Commercial Workers, Local No. 7 by
failing to provide the Union with requested informa-
tion relating to work-hours contributions to the Rocky
Mountain UFCW Unions and Employers Trust Plan
(Pension Plan) for unit employees covered by collec-
tive-bargaining agreements in the following geo-
graphical area:
1. Denver, Boulder, Colorado Springs, Grand
Junction, Greeley, Security and Longmont, Colo-
rado.
2. Casper, Wyoming.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL immediately provide the above Union with
the information it requested relating to the pension
plan contributions for unit emplyees covered by collec-
tive-bargaining agreements.
ALBERTSON’S, INCORPORATED
Barbara E. Greene and Chet Blue Sky, Esqs., for the General
Counsel.
Laura J. Hamblin and Michael B. Schwarzkopf, Esqs., of
Boise, Idaho, for the Respondent.
John P. Bowen, Esq., of Wheat Ridge, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. Upon a
charge filed by United Food and Commercial Workers, Local
No. 7 (the Union) against Albertson’s Incorporated (the Re-
spondent), the Regional Director for Region 27 issued a
complaint and notice of hearing on November 14, 1990.1 The
substantive allegations of the complaint allege that the Re-
spondent violated its statutory bargaining obligation by refus-
ing to furnish the Union, as the collective-bargaining rep-
resentative, with requested information relevant to the proc-
essing of a grievance concerning the suspension and demo-
tion of a unit employee. This conduct is alleged to be a vio-
lation of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act). The Respondent filed an answer which
admitted certain facts, denied others, and specifically denied
committing any unfair labor practices.
A hearing was held in this matter on April 2, 1991, in
Denver, Colorado. All parties were represented by counsel
and afforded full opportunity to examine and cross-examine
witnesses and to present material relevant on the issues.
Briefs have been submitted by the parties and have been duly
considered.
On the entire record in this matter, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation which has its head-
quarters in Boise, Idaho. It operates a chain of supermarkets
engaged in the retail sales of groceries and related products.
One such supermarket (Store #868) is located in Broomfield,
Colorado and is the only facility involved in this matter. In
the course and conduct of its business operations, the Re-
spondent annually purchases and receives goods, materials,
and services valued in excess of $50,000 directly from sup-
pliers located outside the State of Colorado. In addition, the
Respondent annually derives gross revenues in excess of
$500,000 from its business operations. On the basis of the
above, I find the Respondent is, and has been at all times
material, an employer within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers, Local No. 7 is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On July 29, unit employee Dan Cook was suspended and
demoted from his position as freight crew manager2 at the
Broomfield facility. The unrefuted testimony indicates that
Cook immediately notified Joe DeMers, a business agent for
the Union, of the situation involving his employment.
DeMers informed Cook that the collective-bargaining agree-
ment covering the Broomfield store required the employee to
first attempt to work out the matter with the store manage-
ment and if that proved unsuccessful, the Union would file
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The contract between the Respondent and the Union contained a
detailed and elaborate grievance procedure up through arbitration.
For purposes here, it provided for the aggrieved employee to attempt
to resolve the matter first with store management. If this effort was
unsuccessful, then a written grievance, signed by the employee,
would be filed within certain time limitations. This, in turn, would
trigger a meeting between representatives of the Respondent and the
union on the issue. see. Jt. Exh. 1, art. 45, sec. 123–129.
a grievance on his behalf.3 Cook’s efforts to resolve the
problem at the store level were unsuccessful and he notified
DeMers of this fact.
Shortly thereafter (the exact date is not clear in the
record), DeMers went to the Broomfield store and spoke to
Eric Brothers, the assistant store manager, about the Cook
matter. When DeMers asked for the particulars regarding the
suspension and demotion of Cook, he was told that all of the
information would have to come from Respondent’s central
labor relations office at the Boise headquarters. DeMers testi-
fied he considered his conversation with Brothers to be a
step 1 meeting under the grievance procedure. On August 15,
DeMers sent a written request by certified mail to Respond-
ent’s Boise office asking for a step 2 grievance meeting on
the matter. (See Jt. Exh. 2.) The grievance request was
signed by DeMers in his capacity as Cook’s union represent-
ative. Accompanying the request was a separate document
(containing the identical certified mail receipt number as the
grievance request) asking for specific information which the
Union asserted was necessary to ‘‘properly evaluate and
process’’ the grievance. (See G.C. Exh. 1(a), attachment A.)
The information request listed the following:
1. The personnel field [sic] of Dan Cook, including,
but not limited to, work or performance evaluations,
disciplinary actions, commendations, progress reports,
documentation of counseling, documentation of verbal
warnings, and all other documentation contained herein
[sic], except for routine personnel actions.
2. To the extent Mr. Cook’s personnel file does not
reflect the same, all documentation of counseling and/or
training Mr. Cook was given with regard to Head Clerk
duties as Night Crew Foreman.
3. The reasons for, and the information relied upon
by the Company in, demoting Dan Cook.
4. A list of witnesses and a copy of any and all writ-
ten statements or memos of oral statements made by
them.
The request set September 15 as the outside limit for receipt
of the information.
DeMers testified he made request for the information in
order to determine if the action taken against Cook was for
‘‘just cause’’ or in violation of the bargaining agreement. He
stated the information was necessary for the Union to decide
whether to pursue the grievance or initiate other steps to set-
tle the matter.
Karen Freckleton, a contract administrator for the Re-
spondent with responsibility for the geographic area which
included the Broomfield store, testified the Respondent re-
ceived the Union’s grievance on behalf of Cook on August
17. Freckleton sent a written reply to the Union on August
27, in which she stated the Respondent would investigate the
grievance and respond when the investigation was completed.
(Jt. Exh. 3.) On October 24, Freckleton sent a written re-
sponse containing the results of the Respondent’s investiga-
tion of the grievance and denied it at that step. (R. Exh. 1.)
Freckleton admitted that neither she nor any other rep-
resentatives of Respondent ever furnished the information re-
quested by the Union. Freckleton stated she had no recollec-
tion of seeing the Union’s request for information, although
she did author the responses to the grievance on August 27
and October 24. According to Freckleton, the Cook griev-
ance was received along with several others from the Union
at a time when the secretary for her unit was seriously ill,
and some of the grievances were assigned to other contract
administrators. While acknowledging that her unit was small
and close knit (approximately 15 persons), Freckleton stated
she was unaware of the complaint involving the failure to
furnish the requested information to the Union until a month
before the instant hearing.
The unrefuted testimony indicates that at the time of the
instant hearing, Respondent has not supplied the Union with
the requested information relating to the Cook suspension
and demotion. Further, that the Union is taking the grievance
to arbitration without the benefit of the requested informa-
tion.
Concluding Findings
It has long been settled case law that an employer has a
statutory duty to supply requested information to a union,
which is the collective-bargaining representative of the em-
ployer’s employees, if the information is relevant and reason-
ably necessary to the union’s proper performance of its du-
ties and responsibilities. NLRB v. Acme Industrial Co., 385
U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). See also Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979). This obligation extends not only to information that
is useful and relevant for the purpose of contract negotia-
tions, but also encompasses information necessary to the ad-
ministration of the collective-bargaining agreement. Central
Soya Co., 288 NLRB 1402 (1988). In this vein, requested in-
formation necessary for proceeding with and arguing griev-
ances under a collective-bargaining agreement, including that
necessary to decide whether to proceed with a grievance or
arbitration, must be provided by an employer. NLRB v. Acme
Industrial Co., supra, at 437–438; American National Can
Co., 293 NLRB 901 (1989); Howard University, 290 NLRB
1006, 1007 (1988); Eazor Express, 271 NLRB 495 (1984).
The standard for determining the relevancy of requested in-
formation is a liberal one and it is necessary only to establish
‘‘the probability that the desired information is relevant, and
that it would be of use to the union in carrying out its statu-
tory duties and responsibilities.’’ NLRB v. Acme Industrial
Co., supra at 437. See also Leland Stanford Junior Univer-
sity, 262 NLRB 136 (1982).
Applying the above principles to the facts of the instant
case, I find that the Respondent has breached its statutory
bargaining obligation by failing to supply the Union with the
requested information concerning the Cook suspension and
demotion. I credit the testimony of DeMers that he sent the
information request along with the grievance on August 15.
DeMers was a candid and forthright witness and his testi-
mony is supported by the grievance and information request
documents received in evidence. (Jt. Exh. 2 and G.C. Exh.
1(a), attachment A.) In contrast, Respondent has offered
1179ALBERTSON’S, INC.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
nothing to persuasively refute this evidence other than the
testimony of Freckleton, which I find was ambivalent and
dubious at best. While she could not recall seeing the infor-
mation request, she did not deny that it had been received
along with the grievance. Rather, her testimony was replete
with dubious explanations and speculations, all of which
point to the fact that the information request had ‘‘fallen
through the cracks,’’ possibly as a result of the illness of the
office secretary. I reject this explanation; especially in view
of Respondent’s answer to the complaint paragraph 9(b) in
which the Respondent admits it received the Union’s infor-
mation request regarding the Cook situation. Thus, I find
Freckleton’s testimony to be misleading and designed to ob-
scure the truth. The only reliable statement to be ascertained
from her the testimony is that the information was never sup-
plied to the Union. In these circumstances, I find that the re-
quest for information was indeed received by the Respondent
and the information was never provided to the Union.
The Respondent contends that the grievance is proce-
durally defective because it was not signed by Cook, as re-
quired by bargaining agreement, but by DeMers. Respondent
appears to reason that the failure to follow the contract re-
quirements relieves it of the statutory obligation to provide
the Union with the requested information. I find this conten-
tion to be without merit.
Initially, it should be noted that the Respondent at no time
prior to the instant hearing raised the issue of procedural de-
fect as a basis for its failure to provide the requested infor-
mation. Indeed, the record reveals that the Respondent treat-
ed the Cook matter as one routinely winding its way through
the established grievance procedure. This is evidenced by
Freckleton’s letters of August 27 (acknowledging receipt of
the grievance), and October 24 (denying the grievance on its
merits). Thus the Respondent cannot now be heard to claim
that a procedural defect invalidates a request for information
which, if supplied, would enable the Union to determine
whether to pursue the underlying grievance that the Respond-
ent has acknowledged as being at the step 2 level of the
grievance procedure. Equally important, the question of
whether the grievance is procedurally defective goes to the
ultimate issue of arbitrability and not to the issue of the Re-
spondent’s statutory obligation to provide the information.
Since the information sought was for the purpose of aiding
the Union in determining whether to pursue the grievance,
including through arbitration, Respondent cannot avoid its
statutory responsibility to furnish the information by claiming
procedural defectiveness of the grievance itself. Cf. Proctor
& Gamble Mfg., 237 NLRB 747 (1978); Safeway Stores, 236
NLRB 1126 (1978).
On the basis of the foregoing, I find and conclude that the
Respondent has violated Section 8(a)(5) and (1) of the Act
by failing to provide the Union with the requested informa-
tion relating to the Cook grievance.
CONCLUSIONS OF LAW
1. Respondent Albertson’s Incorporated is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers, Local No. 7 is
a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material, the Union has been the designated
and recognized exclusive collective-bargaining representative
of the Respondent’s employees in an appropriate bargaining
unit.
4. By failing to provide the Union with requested informa-
tion relating to the suspension and demotion of employee
Dan Cook, the Respondent has failed and refused to bargain
in good faith with the Union in violation of Section 8(a)(5)
and (1) of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act, it shall be ordered to cease and desist therefrom
and take to take certain affirmative action designed to effec-
tuate the policies of the Act. Respondent shall be ordered to
immediately provide the Union with the information re-
quested on August 15, 1990, regarding the suspension and
demotion of employee Dan Cook.
On these findings of fact and conclusions of law and on
the entire record in this case, I issue the following rec-
ommended4
ORDER
The Respondent, Albertson’s Incorporated, Denver, Colo-
rado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the United Food
and Commercial Workers Union, Local No. 7, by failing to
provide the Union with requested information relating to em-
ployee grievances.
(b) In any like or related manner violating Section 8(a)(5)
and (1) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide the Union with the information requested on
August 15, 1990, relating to the suspension and demotion of
employee Dan Cook.
(b) Post at its Broomfield, Colorado facility copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt thereof and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to the year 1990 unless otherwise indicated.
2 Frank Panteloglow, also a business agent for the Union, testified
that it was not always possible for the business agents to get infor-
mation requests completed in typed form. He stated there were occa-
sions when business agents would complete the forms after office
hours and no clerical staff was available. In such instances, the
forms would be completed by hand and sent to the Respondent.
Panteloglow stated, however, that he always sent his information re-
quests by certified mail.
Barbara E. Greene and Chet Blue Sky, Esqs., for the General
Counsel.
Laura J. Hamblin and Michael B. Schwarzkopf, Esqs., of
Boise, Idaho, for the Respondent.
John P. Bowen, Esq., of Wheat Ridge, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. Upon a
charge filed by United Food and Commercial Workers, Local
No. 7 (the Union) against Albertson’s, Incorporated (the Re-
spondent), the Regional Director for Region 27 issued a
complaint and notice of hearing on November 14, 1990.1 The
substantive allegations of the complaint allege that the Re-
spondent violated its statutory bargaining obligation by refus-
ing to furnish the Union, as the collective-bargaining rep-
resentative, with requested information relevant to the proc-
essing of a grievance concerning the suspension and demo-
tion of a unit employee. This conduct is alleged to be a vio-
lation of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act). The Respondent filed an answer which
admitted certain facts, denied others, and specifically denied
committing any unfair labor practices.
A hearing was held in this matter on April 2, 1991, in
Denver, Colorado. All parties were represented by counsel
and afforded full opportunity to examine and cross-examine
witnesses and to present material relevant on the issues.
Briefs have been submitted by the parties and have been duly
considered.
On the entire record in this matter, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation which has its head-
quarters in Boise, Idaho. It operates a chain of supermarkets
engaged in the retail sales of groceries and related products.
One such supermarket (Store #854) is located in Northglenn,
Colorado and is the only facility involved in this matter. In
the course and conduct of its business operations, the Re-
spondent annually purchases and receives goods, materials
and services valued in excess of $50,000 directly from sup-
pliers located outside the State of Colorado. In addition, the
Respondent annually derives gross revenues in excess of
$500,000 from its business operations. On the basis of the
above, I find the Respondent is, and has been at all times
material, an employer within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers, Local No. 7 is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On August 20, unit employee Eugene Meis was demoted
from the position of manager to meatcutter in the meat de-
partment of Respondent’s Store #854. Meis contacted his
union representative, Joe DeMers, who came to the store on
August 30 to hold a step 1 grievance meeting with the store
director, Ed Page. DeMers testified that when he questioned
Page about the reasons for the Meis’ demotion, he was told
that Page did not make the decision, and any information
DeMers wanted would have to be secured from Respondent’s
headquarters in Boise, Idaho. DeMers stated he then asked
to see the ‘‘employee file’’ of Meis. According to DeMers,
Page attempted to find the file but could not. Page told
DeMers that since Meis had recently transferred from an-
other store, the file had not been received as yet. DeMers
further testified that when he insisted he needed the informa-
tion from the file, Page stated he would notify Boise that the
employee file was not in his store and the Union was re-
questing it.
While acknowledging he had a conversation with DeMers
about the Meis grievance, Page was unable to recall whether
the union representative requested to see the employee file
which normally was kept at the store. According to Page, he
discussed numerous grievances with DeMers over a period of
time, and he had no firm recollection that DeMers asked to
see the information contained in the employee’s store file.
He admitted, however, that DeMers had come to the store
seeking information about the circumstances surrounding the
demotion of Meis. Page also acknowledged that the file
would ordinarily contain copies of the employee’s perform-
ance reports, writeups, and other personnel information.
Subsequent to the meeting with Page, DeMers sent a
grievance report form to Respondent’s industrial relations de-
partment in Boise requesting a step 2 meeting. This request
was sent by certified mail. (Jt. Exh. 2.) On September 5,
Karen Freckleton, a contract administrator for the Respond-
ent, acknowledged receipt of the grievance and indicated a
forthcoming response once Respondent had completed its in-
vestigation of the matter. (Jt. Exh. 3.)
DeMers further testified that when he heard nothing from
Page about the information he requested, he sent a written
request for specific information directly to the Boise office
on September 25. This request was on a printed form con-
taining blank spaces which DeMers stated he filled out by
hand. Unlike the step 2 meeting request, this form did not
indicate the name of the Respondent as addressee on its face,
nor did DeMers send it by certified mail. The request asked
that the information be submitted no later than October 10.
(See G.C. Exh. 1(c), attachment A.) According to DeMers,
he merely addressed the envelope and mailed the information
request to Respondent’s Boise office.2
On October 2, Laura Hamblin, a labor relations representa-
tive for Respondent, sent a written response indicating the re-
sults of Respondent’s investigation and denying the griev-
ance. (Jt. Exh. 4.) It is undenied that Respondent never sup-
plied the information contained in the Union’s written re-
quest.
1181ALBERTSON’S, INC.
3 The answer filed by the Respondent, dated December 27, denied
all of the substantive allegations of the subsections of par. 9 of the
complaint (alleging the Union’s request for and Respondent’s failure
to supply the information), with the sole exception of subsection
(9(c) (alleging the Union made a written request for the information
on September 25). This particular subsection of the complaint was
specifically admitted by the Respondent. See G.C. Exhs. 1(c) and
1(d).
4 The complaint was issued by the Regional Director on November
14, 1990, and received by the Respondent on November 19. G.C.
Exhs. 1(c) and 1(d).
Although the pleadings reflect otherwise,3 at the hearing
the Respondent’s witnesses uniformly denied ever receiving
the information request from the Union. Freckleton denied
that she ever saw the information request in Respondent’s of-
fice files. Freckleton stated she could not recall receiving in-
formation requests from the Union which were not typed (as
opposed to being filled out by hand) and which did not have
the Respondent’s name and office address typed at the top
as addressee. While she admitted that on occasions the Union
would submit handwritten grievances, Freckleton insisted that
information requests were always typed. She also stated that
the Union’s requests for information were always sent by
certified mail rather than by ordinary mail. According to
Freckleton, the first time she became aware of the Union’s
information request regarding Meis was when she saw a
copy of the complaint approximately a month before the in-
stant hearing.4
Michael Schwarzkopf, Respondent’s director of labor rela-
tions and chief counsel in this proceeding, was called as an
adverse witness by counsel for the General Counsel and
questioned regarding settlement conversations held subse-
quent to the issuance of the complaint. Schwarzkopf stated
he informed the counsel for the General Counsel, during the
course of such discussions relating to this and other cases,
that the Respondent had never received the written informa-
tion request from the Union. He was unable to recall, how-
ever, in which conversation this statement was made. By way
of an explanation for the contradiction between Respondent’s
admission concerning the written information request and its
denial of receipt of the request at the hearing, Schwarzkopf
stated he could ‘‘only imagine’’ he ‘‘was dashing off the an-
swer’’ at the time he responded to the complaint.
Bev Hutchison, administrative secretary in Respondent’s
industrial relations department, testified she had never seen
a written request for information from the Union concerning
the Meis’ demotion. Hutchison acknowledged that she absent
from work due to illness from August 1990 to January 1991.
She stated that upon her return, she never saw a copy of the
written request in the office. According to Hutchison, all
such requests which she has seen are in typed form and have
Respondent’s address as part of the heading. She also stated
that approximately 75 percent of the correspondence received
from the Union is by certified mail and information requests
are always sent in that manner.
Finally, Lucy Dill, a secretary, testified that one of her re-
sponsibilities was to open the incoming mail and route it to
the proper persons in the department. Dill stated she had
never seen a copy of the Union’s request for information on
the Meis grievance. Dill also stated the requests for informa-
tion were always received by certified mail and were always
typed. Dill admitted, however, that she had received griev-
ances on occasions from the Union which were handwritten
rather than typed.
Concluding Findings
The primary question to be determined here is whether the
Union made a request of the Respondent for information re-
lating to the demotion of Meis. As stated at the hearing, this
factual determination rests primarily on which version of the
events is deemed most credible and reliable. Having ob-
served the witnesses closely and considering all of the record
evidence, I find that the Union did indeed make a request for
information which the Respondent failed to supply.
First, I deem it to be profoundly significant that the Re-
spondent, in answering the allegations of the complaint, ad-
mitted that the Union had made a written request for the in-
formation on September 25. I find the explanation of Re-
spondent’s counsel, to the effect that this admission was an
inadvertent error due to haste in ‘‘dashing off the answer,’’
to be totally unpersuasive. Scrutiny of the entire answer, and
especially those portions relating to the subsections of para-
graph 9, clearly demonstrates that the answer was well craft-
ed and quite specific in addressing the specific allegations of
the complaint.
In addition, I do not credit the testimony offered by the
Respondent in its attempt to establish that the Union never
made a request for the information. In this regard, I note that
while Schwarzkopf maintained he informed counsel for the
General Counsel during postcomplaint discussions that the
Respondent had not received the Union’s information re-
quest, his testimony was vague and he could not establish
when this occurred with any precision. Indeed, such a claim,
if it existed, would have been advanced initially and em-
phatically by Respondent in an effort to avoid this very pro-
ceeding. I also find the testimony of Freckleton on this point
to be unreliable and not worthy of belief. I particularly note
that in another case involving the Respondent (Albertson’s,
Inc., JD(SF)–61–92), issued this date, I have found the testi-
mony of this witness to be contrived and misleading. I find
no reason here to alter my prior assessment of her testimony.
As in the prior case, Freckleton stated she had not seen a
copy of the complaint and the attached information request
until approximately a month before the instant hearing; even
though the record shows it was received by the Respondent
on November 19. Since it has been established in the prior
case that Respondent’s industrial relations department is a
small and cohesive unit, I find it extremely suspect that she
was not aware of the information request until a month be-
fore this hearing. In my judgement, this is merely continuing
evidence of the untrustworthiness of Freckleton’s testimony.
Finally, I do not find the statements of Dill and Hutchison,
indicating that the Union’s information request was never re-
ceived by the Respondent, to be persuasive. Although Dill
testified the Union’s correspondence was usually typed, she
acknowledged that some grievances received from the Union
were handwritten. Hutchison likewise acknowledged that at
least 25 percent of the correspondence sent by the Union was
by ordinary mail. Thus, it is apparent that correspondence re-
lating to grievances was not always typed and that the Union
did not always send its correspondence to the Respondent by
certified mail.
In sum, I find that the record evidence and the credited
testimony establishes that the Union submitted a request to
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I reject Respondent’s claim that the Union contractually waived
the right to request the information directly from the store director.
This involves a strained reading of the contract provisions, which I
am not prepared to do. Moreover, any asserted ‘‘waiver’’ in this
case was vitiated by the Union’s subsequent written request which
was submitted to the Boise headquarters.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
7 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
the Respondent for information relating to the demotion of
unit employee Meis, and the Respondent failed to supply the
information. The request was first a general one made orally
to Store Director Page, when DeMers asked to see the em-
ployee’s file, and was particularized in the written request
sent to the Respondent on September 25.5
Turning to the ultimate issue here, it has long been settled
case law that an employer has a statutory duty to supply re-
quested information to a union, which is the collective-bar-
gaining representative of the employer’s employees, if the in-
formation is relevant and reasonably necessary to the union’s
proper performance of its duties and responsibilities. NLRB
v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). See also Detroit Edison Co.
v. NLRB, 440 U.S. 301 (1979). This obligation extends not
only to information that is useful and relevant for the pur-
pose of contract negotiations, but also encompasses informa-
tion necessary to the administration of the collective-bar-
gaining agreement. Central Soya Co., 288 NLRB 1402
(1988). Thus, requested information necessary for arguing
grievances under a collective-bargaining agreement, including
that necessary to decide whether to proceed with a grievance
or arbitration, must be provided by an employer. NLRB v.
Acme Industrial Co., supra, at 437–438; American National
Can Co., 293 NLRB 901 (1989); Howard University, 290
NLRB 1006, 1007 (1988); Eazor Express, 271 NLRB 495
(1984). The standard for determining the relevancy of re-
quested information is a liberal one and it is necessary only
to establish ‘‘the probability that the desired information is
relevant, and that it would be of use to the union in carrying
out its statutory duties and responsibilities.’’ NLRB v. Acme
Industrial Co., supra at 437. See also Leland Stanford Junior
University, 262 NLRB 136 (1982).
Since it is more than evident that the Union sought the in-
formation here for the purpose of aiding it in determining
whether to pursue the grievance on behalf of a unit em-
ployee, it follows that the Respondent had a statutory obliga-
tion to furnish requested information. By failing to do so, the
Respondent has violated Section 8(a) (5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Albertson’s Incorporated is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers, Local No. 7 is
a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material, the Union has been the designated
and recognized exclusive collective-bargaining representative
of the Respondent’s employees in an appropriate bargaining
unit.
4. By failing to provide the Union with requested informa-
tion relating to the demotion of unit employee Eugene Meis,
the Respondent has failed and refused to bargain in good
faith with the Union in violation of Section 8(a)(5) and (1)
of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act, it shall be ordered to cease and desist therefrom
and take to take certain affirmative action designed to effec-
tuate the policies of the Act. Respondent shall be ordered to
immediately provide the Union with the information re-
quested regarding the demotion of Employee Eugene Meis
on August 20, 1990.
On these findings of fact and conclusions of law and on
the entire record in this case, I issue the following rec-
ommended6
ORDER
The Respondent, Albertson’s, Incorporated, Denver, Colo-
rado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the United Food
and Commercial Workers Union, Local No. 7, by failing to
provide the Union with requested information relating to em-
ployee grievances.
(b) In any like or related manner violating Section 8(a)(5)
and (1) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide the Union with the information requested relat-
ing to the demotion of employee Dan Cook on August 20,
1990.
(b) Post at its Northglenn, Colorado facility copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Barbara E. Greene and Chet Blue Sky, Esqs., for the General
Counsel.
Laura J. Hamblin and Michael B. Schwarzkopf, Esqs., of
Boise, Idaho, for the Respondent.
John P. Bowen, Esq., of Wheat Ridge, Colorado, for the
Charging Party.
1183ALBERTSON’S, INC.
1 All dates refer to the year 1990 unless otherwise indicated.
2 Individual stores maintained a personnel file for each employee
currently working there. In addition, master personnel files for all
employees were maintained at the Respondent’s headquarters in
Boise, Idaho.
3 As the retail director, Mathewson supervised the work of the
union business agents in Colorado and Wyoming.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. Upon a
charge filed by United Food and Commercial Workers, Local
No. 7 (the Union) against Albertson’s Incorporated (the Re-
spondent), the Regional Director for Region 27 issued a
complaint and notice of hearing on December 5, 1990.1 The
substantive allegations of the complaint allege that the Re-
spondent violated its statutory bargaining obligation by refus-
ing to furnish the Union, as the collective-bargaining rep-
resentative, with requested information relevant to the proc-
essing of a grievance concerning the suspension and demo-
tion of a unit employee. This conduct is alleged to be a vio-
lation of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act). The Respondent filed an answer which
admitted certain facts, denied others, and specifically denied
committing any unfair labor practices.
A hearing was held in this matter on April 3, 1991, in
Denver, Colorado. All parties were represented by counsel
and afforded full opportunity to examine and cross-examine
witnesses and to present material relevant on the issues.
Briefs have been submitted by the parties and have been duly
considered.
On the entire record in this matter, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation which has its head-
quarters in Boise, Idaho. It operates a chain of supermarkets
engaged in the retail sale of groceries and related products.
One such supermarket (Store #1811) is located in West-
minster, Colorado and is the only facility involved in this
matter. In the course and conduct of its business operations,
the Respondent annually purchases and receives goods, mate-
rials and services valued in excess of $50,000 directly from
suppliers located outside the State of Colorado. In addition,
the Respondent annually derives gross revenues in excess of
$500,000 from its business operations. On the basis of the
above, I find the Respondent is, and has been at all times
material, an employer within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers, Local No. 7 is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On March 28, unit employee Dave Hucke was demoted
from the position of market manager to meatcutter at Re-
spondent’s Store #1811. Joe DeMers, a union business agent,
went to the store on April 2 and spoke with the store direc-
tor, Gary Hart, regarding the demotion. Hart informed
DeMers that the decision was made by Respondent’s division
office and he had nothing to do with it. DeMers then asked
to see the employee’s personnel file that was kept at the
store.2 Hart permitted DeMers to inspect the file, and the lat-
ter determined that the only infraction it contained was a
written warning for a timecard violation in October 1989.
DeMers inquired about the documentation supporting the re-
cent demotion of Hucke and Hart replied that he did not
have any. DeMers then stated he needed that information and
Hart promised the union representative that he would contact
the Respondent’s division office regarding DeMers’ request.
DeMers also asked for a copy of the 1989 warning but Hart
refused to provide it.
On April 5, DeMers sent a grievance report form to Re-
spondent’s Boise headquarters requesting a step 2 meeting
regarding the Hucke demotion. (Jt. Exh. 2.) Karen
Freckleton, a contract administrator for the Respondent, re-
plied on April 19, indicating that a response would be made
once the Respondent had completed its investigation of the
grievance. (Jt. Exh. 3.)
DeMers testified that the Respondent and the Union were
in contract negotiations during the months of April through
June. He stated that during a number of the negotiating ses-
sions he spoke with Michael Schwarzkopf, Respondent’s di-
rector of labor relations, about the Hucke grievance. Accord-
ing to DeMers, Schwarzkopf usually responded by saying the
Respondent was still investigating the matter. On cross-ex-
amination, DeMers acknowledged it was a ‘‘possibility’’ that
Schwarzkopf told him during one of these discussions that
Schwarzkopf had reviewed Hucke’s file and there was no
documentation to support the demotion.
In early October, DeMers asked the Union’s retail director,
John Mathewson, to contact the Respondent concerning in-
formation on the Hucke grievance.3 On October 5,
Mathewson sent a letter to the Respondent protesting the fail-
ure of the Respondent to reply to the Hucke grievance at the
step 2 level and making a request for ‘‘a copy of any and
all documentation’’ in Hucke’s personnel file. In this letter,
Mathewson noted that DeMers had examined Hucke’s store
file and failed to discover any documentation supporting the
demotion. (G.C. Exh. 2.) On October 8, Schwarzkopf replied
to Mathewson’s inquiry, acknowledging that the Respondent
had not responded to the Union’s step 2 request. In the letter
he set forth the reasons for the demotion. Schwarzkopf noted
that the Union’s (DeMers’) earlier review of Hucke’s file re-
vealed no documentation of any ‘‘deficiency in Hucke’s per-
formance,’’ and stated that nothing had changed since the
time of the employee’s demotion. (R. Exh. 1.)
Schwarzkopf was the Respondent’s only witness in this
proceeding. He testified he felt the Union was seeking ‘‘to
prove a negative’’ since there was no such documentation re-
lating to the demotion in the file. He further stated that he
had a telephone conversation with Mathewson after receiving
a copy of the underlying charge in this case, and learned for
the first time that the Union intended to take the grievance
to arbitration. According to Schwarzkopf, the union rep-
resentatives could testify at the arbitration hearing that there
was no documentation to support the demotion; thereby im-
plying there was no need to supply the Union with informa-
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 At the time of the instant hearing the parties were in the process
of selecting an arbitrator from a panel provided by the Federal Medi-
ation and Conciliation Service.
5 The fact that the Respondent maintained two sets of personnel
files for employees (one in the store and one at its headquarters) is
of no consequence here in assessing whether the Respondent has
adequately met its statutory obligation to provide the information
sought by the Union. The critical issue is whether the information
existed and the Respondent complied with the request.
tion from Hucke’s personnel file.4 Schwarzkopf admitted that
it was not the practice of the Respondent to take disciplinary
action against an employee without putting supporting docu-
mentation in the employee’s personnel file.
Concluding Findings
In refusal-to-furnish information cases such as this, the law
is well established. An employer has a statutory duty to sup-
ply requested information to a union, which is the collective-
bargaining representative of the employer’s employees, if the
information is relevant and reasonably necessary to the
union’s proper performance of its duties and responsibilities.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). See also Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). This obligation
extends not only to information that is useful and relevant for
the purpose of contract negotiations, but also encompasses
information necessary to the administration of the collective-
bargaining agreement. Central Soya Co., 288 NLRB 1402
(1988). Thus, requested information necessary for pursuing
grievances under a collective-bargaining agreement, including
that necessary to decide whether to proceed with a grievance
or arbitration, must be provided by an employer. NLRB v.
Acme Industrial Co., supra, at 437–438; American National
Can Co., 293 NLRB 901 (1989); Howard University, 290
NLRB 1006, 1007 (1988); Eazor Express, 271 NLRB 495
(1984). The standard for determining the relevancy of re-
quested information is a liberal one and it is necessary only
to establish ‘‘the probability that the desired information is
relevant, and that it would be of use to the union in carrying
out its statutory duties and responsibilities.’’ NLRB v. Acme
Industrial Co., supra at 437. See also Leland Stanford Junior
University, 262 NLRB 136 (1982).
It is more than evident that the Union here was seeking
information from Hucke’s personnel file to determine wheth-
er and how to proceed on the grievance of the employee’s
demotion.
When DeMers reviewed Hucke’s personnel file in the
store and discovered there was nothing to support the demo-
tion, his request for a copy of the 1989 written warning was
refused by Hart. He also made known at that time that the
Union wanted to see any documentation relating to the de-
motion. Although DeMers renewed the request for the demo-
tion documentation in subsequent discussions with
Schwarzkopf and was advised that none existed, the Union
neither abandoned nor limited the scope of its request for in-
formation from the employee’s personnel file. Mathewson’s
letter of October 5, seeking ‘‘any and all documentation’’
contained in Hucke’s personnel file is graphic evidence of
this fact. Thus, even if the prior requests for information
were construed to be limited soley to the demotion docu-
mentation, which the Respondent asserts did not exist,
Mathewson’s letter expanded the request to encompass all
documentation in Hucke’s personnel file.5
There is no contention here that the material sought by the
Union was not relevant to the discharge of it duties as the
collective-bargaining representative. There is only the conten-
tion that the demotion documentation did not exist; even
though Schwarzkopf admitted the Respondent normally did
not take disciplinary action against employees without docu-
menting the reason for it in their files. Thus, the requested
information becomes all the more relevant to the Union in
pursuing the grievance, through possible arbitration, on be-
half of the demoted employee.
Nor does it rest with the Respondent to determine how the
Union should utilize the requested information in handling
the grievance or presenting its position at arbitration. The
view adopted by Schwarzkopf that the union representatives
could testify there was no documentation on the demotion in
the file at the time the demotion occurred is a gratuitous ar-
rogation of the responsibilities which lie soley with the
Union, and in no way relieves the Respondent of its statutory
obligation to provide the requested information. Cf. Ohio
Power Co., 216 NLRB 987 (1975); Los Angeles Chapter,
Sheet Metal Contractors, 246 NLRB 886 (1979).
In these circumstances, I find the Respondent failed to
meet its statutory obligation to provide the Union with the
documentation it had in its possession at the time of the
Union’s request. By so doing, the Respondent has refused to
bargain in good faith with the Union, as the representative
of the unit employees, and has violated Section 8(a)(5) and
(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Albertson’s, Incorporated, is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers, Local No. 7 is
a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material, the Union has been the designated
and recognized exclusive collective-bargaining representative
of the Respondent’s employees in an appropriate bargaining
unit.
4. By failing to provide the Union with requested informa-
tion from the personnel file of demoted unit employee David
Hucke, the Respondent has failed and refused to bargain in
good faith with the Union in violation of Section 8(a)(5) and
(1) of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act, it shall be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate
the policies of the Act. Respondent shall be ordered to im-
mediately provide the Union with the information requested
from the personnel file of demoted employee David Hucke.
1185ALBERTSON’S, INC.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
7 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 All dates refer to the year 1990 unless otherwise indicated.
2 The unit locations covered by existing agreements were Denver,
Boulder, Colorado Springs, Security, Greeley, and Longmont, Colo-
rado. In addition, there was an agreement in effect covering a unit
of employees in Casper, Wyoming. A successor agreement was in
the process of being negotiated by the Respondent and the Union for
unit employees in Grand Junction, Colorado. Each of the existing
agreements was a successor to prior agreements containing provi-
sions for pension plan contributions for unit employees. See Jt. Exhs.
1–13, 19, and the oral stipulation of the parties on the record.
On the foregoing findings of fact, conclusions of law, and
the entire record in this case, and pursuant to Section 10(c)
of the Act, I issue the following recommended6
ORDER
The Respondent, Albertson’s, Incorporated, Denver, Colo-
rado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the United Food
and Commercial Workers Union, Local No. 7, by failing to
provide the Union with requested information relating to em-
ployee grievances.
(b) In any like or related manner violating Section 8(a)(5)
and (1) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide the Union with the information requested from
the personnel file of demoted employee David Hucke.
(b) Post at its Westminster, Colorado facility copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the Notice,
on forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt thereof and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
Barbara E. Greene and Chet Blue Sky, Esqs., for the General
Counsel
Laura J. Hamblin and Michael B. Schwarzkopf, Esqs., of
Boise, Idaho, for the Respondent.
John P. Bowen, Esq., of Wheat Ridge, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. Upon a
charge filed by United Food and Commercial Workers, Local
No. 7 (the Union) against Albertson’s Incorporated (the Re-
spondent), the Regional Director for Region 27 issued a
complaint and notice of hearing on December 5, 1990.1 The
substantive allegations of the complaint allege that the Re-
spondent violated its statutory bargaining obligation by refus-
ing to furnish the Union, as the collective-bargaining rep-
resentative, with requested information relevant and nec-
essary to the processing of grievances concerning pension
plan contributions for unit employees in various geographical
locations in Colorado and Wyoming. The contributions in
dispute were made pursuant to provisions contained in exist-
ing collective-bargaining agreements or in agreements for
which successor agreements were in the process of being ne-
gotiated.2 This conduct is alleged to be a violation of Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act). The Respondent filed an answer which admitted certain
facts, denied others, and specifically denied committing any
unfair labor practices.
A hearing was held in this matter on April 3, 1991, in
Denver, Colorado. All parties were represented by counsel
and afforded full opportunity to examine and cross-examine
witnesses and to present material and relevant on the issues.
Briefs have been submitted by the parties and have been duly
considered.
On the entire record in this matter, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation which has its head-
quarters in Boise, Idaho. It operates a chain of supermarkets
engaged in the retail sales of groceries and related products.
The Respondent’s supermarkets covered by collective-bar-
gaining agreements with the Union in Denver, Boulder, Col-
orado Springs, Security, Greeley, Longmont, and Grand
Junction, Colorado and Casper, Wyoming, are the facilities
involved in this matter. In the course and conduct of its busi-
ness operations, the Respondent annually purchases and re-
ceives goods, materials and services valued in excess of
$50,000 directly from suppliers located outside the State of
Colorado. In addition, the Respondent annually derives gross
revenues in excess of $500,000 from its business operations.
On the basis of the above, I find the Respondent is, and has
been at all times material, an employer within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Food and Commercial Workers, Local No. 7 is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In each of the collective-bargaining agreements between
the Respondent and the Union covering unit employees in
the various locations in Colorado and Wyoming, there were
provisions for employer contributions to the Rocky Mountain
UFCW Unions and Employers Trust Pension Plan (Pension
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The pension plan provisions for the Colorado units were con-
tained in art. 41 of each of the agreements with the exception of
Grand Junction, which was contained in art. 29 of that agreement.
The relevant section of the Casper, Wyoming agreement was art. 19.
4 Generally the period of the reduced rate was 34 months, depend-
ing upon when the particular agreement was negotiated. In addition,
the Casper, Wyoming agreement apparently required a period when
the work hours contribution was increased to 20 cents per hour be-
fore reverting to the 45-cent-per-hour rate.
Plan).3 The Pension Plan was jointly administered by the
Union and Employers who were parties to agreements with
the Union. An equal number of union and employer rep-
resentatives constituted the board of trustees setting policy,
and an independent firm (Sedgewick James of Colorado,
Inc.) provided the management for the Pension Plan.
The unrefuted evidence indicates the relevant pension plan
provisions in the collective-bargaining agreements at issue
here provided for a set amount (45 cents) per work hour each
month for the unit employees as the signatory employer’s
contribution to the Pension Plan. These same provisions then
permitted the employer to make substantially lower payments
per work hour (5 cents) to the Pension Plan for a specified
number of months, after which the payments reverted to the
original amount.4
On January 8, Maureen Beighey, employed by Sedgewick
as the assistant manager of pension services for the Pension
Plan, wrote to the Respondent concerning alleged defi-
ciencies in the Respondent’s contributions under the Casper,
Wyoming agreement for work hours in 1988 and 1989. On
behalf of the Pension Plan, Beighey asserted the Respondent
made contributions at the rate of 20 cents rather than 45
cents per work hour, which the Pension Plan contended was
required by the agreement. The amount of the deficiency
claimed was $53,736.52. (Jt. Exh. 14.) Again on May 5,
Beighey notified the Respondent, in writing, that its contribu-
tions for March 1990 work hours under the Colorado agree-
ments were deficient. The total amount of the deficiency
claimed was $66,265.42. (Jt. Exh. 15.) Next, on July 12,
Beighey wrote to the Respondent asserting deficiencies in the
contributions for the April and May work hours under the
Colorado agreements. (Jt. Exh. 16.) Finally, on September 6,
the administrative officer of the Pension Plan notified the Re-
spondent of a deficiency in the amount of $1,714.60 in the
Respondent’s contribution for the June work hours under the
Grand Junction agreement. (Jt. Exh. 17.)
In addition to the written notification of deficiencies sent
directly to the Respondent, it is undisputed that Beighey noti-
fied the Trustees at their meetings, attended by representative
of both the Respondent and the Union, of the Respondent’s
deficiencies in its pension plan contributions. Victor Schaff,
executive assistant to the president of the Union and a trustee
of the Pension Plan, informed John Bowen, the Union’s at-
torney, of the matter. Bowen in turn spoke with Michael
Schwarzkopf, Respondent’s director of labor relations, and
held a step 1 grievance meeting on the question of the delin-
quencies. In response to Bowen’s claim that the Respondent
failed to remit the proper contributions, Schwarzkopf took
the position that the Respondent was not delinquent and was
making its contributions in accordance with the terms of the
respective agreements.
On October 4 and 5, Bowen filed seven grievances on be-
half of the Union requesting a step 2 meeting—one under
each of the collective-bargaining agreements. (See G.C. Exh.
1(c), Exhibit A.) Among other things, the grievances con-
tained the following request for information:
(1) All documents showing actual contributions made
for the period involved.
(2) All documents relied upon by the company in de-
termining the contribution made for the period.
Karen Freckleton, a contract administrator for the Respond-
ent, replied in writing on October 18 that the grievances
were being investigated and a response would forthcoming
upon its completion. (Jt. Exh. 18.) On October 22, Schaff
wrote the Respondent about the grievances and renewed the
Union’s request for the information set forth in the written
grievances. (G.C. Exh. 3.)
Schwarzkopf testified as the Respondent’s only witness.
According to Schwarzkopf, the Respondent did not supply
the information to the Union because the Union already had
in its possession all of the information relied upon by the Re-
spondent in making the contributions under the various
agreements. The following excerpts of the transcript record,
setting forth portions of Schaff’s cross-examination by
Schwarzkopf, graphically reveal the basis for the Union’s
claim for the requested information and the Respondent’s
contention that the Union had the information in its posses-
sion:
Q. (By Mr. Schwarzkopf): It’s true, Vic, isn’t it that
these grievances that are part of Joint—General Coun-
sel’s Exhibit 1(c) are grievances that go solely to the
issue in the claim that Albertson’s paid at an improper
contribution per hour rate?
A. Yes, that’s right.
Q. Okay. And you spoke generally under questioning
by the General Counsel, by Mr. Blue Sky, that the rea-
son you were requesting this information was to be cer-
tain that the contributions were properly made, do you
recall saying that?
A. Yes, I believe that’s correct.
Q. Okay. And granting that that’s so and granting
that it is so that the only disagreement as represented
by these seven grievances that are General Counsel’s
1(c) exhibits what in the world could any of the addi-
tional information you’ve requested have to do with
processing the grievance?
A. My thinking on that is that the company has not
responded to the grievance to speak of, they have not
furnished any evidence that they intend to comply with
the request or the remedy requested. I take that to indi-
cate that the indication that they are denying the griev-
ance in its entirety and in order to fully investigate it
we requested the documents that you actually used in
order to determine these contributions and we haven’t
received that. I think that’s definitely a part of the
grievance. You did not comply with the remedy re-
quested so it’s still outstanding and in order for us to
really determine whether there is a delinquency or not
we need to have those records to make that determina-
tion, it’s that simple. [Tr. 41–42.]
1187ALBERTSON’S, INC.
Concluding Findings
As noted, the Respondent contends the Union possessed
all of the information the Respondent relied on in deter-
mining the rate to be applied to the work-hours contributions
to the Pension Plan under the various agreements. Presum-
ably this implies that the Union had full knowledge, through
the Pension Plan, of the number of work hours reported
under each agreement and, by virtue of being a party to the
agreements, copies of the provisions setting forth the rate to
be applied to the monthly work hours. In addition, the Re-
spondent argues for the first time in its brief that the infor-
mation requested was neither necessary nor relevant to proc-
essing the grievances since the Union ‘‘waived’’ the griev-
ances by failing to timely file them pursuant to the terms of
the respective collective-bargaining agreements.
Settled law has established that an employer has a statu-
tory duty to supply requested information to the collective-
bargaining representative of the employer’s employees, if the
information is relevant and reasonably necessary to the
union’s proper performance of its duties and responsibilities.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). See also Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). This obligation
extends not only to information that is useful and relevant for
the purpose of contract negotiations, but also encompasses
information necessary to the administration of the collective-
bargaining agreement. Central Soya Co., 288 NLRB 1402
(1988). Thus, requested information necessary for deter-
mining whether there has been compliance with the terms of
a collective-bargaining agreement, including that necessary to
decide whether to proceed with a grievance or arbitration on
a perceived breech of the agreement, must be provided by
an employer. NLRB v. Acme Industrial Co., supra, at 437–
438; American National Can Co., 293 NLRB 901 (1989);
Howard University, 290 NLRB 1006, 1007 (1988); Eazor
Express, 271 NLRB 495 (1984). The standard for deter-
mining the relevancy of requested information is a liberal
one and it is necessary only to establish ‘‘the probability that
the desired information is relevant, and that it would be of
use to the union in carrying out its statutory duties and re-
sponsibilities.’’ NLRB v. Acme Industrial Co., supra at 437.
See also Leland Stanford Junior University, 262 NLRB 136
(1982).
There can be no real question here as to whether the infor-
mation sought by the Union was relevant and necessary to
its function of policing the collective-bargaining agreement.
Clearly the requested information would assist the Union in
determining whether the amounts of the delinquencies as-
serted by the Pension Plan were accurate. It would also en-
able the Union to determine whether the manner by which
the Respondent calculated the work-hours contributions was
in violation of the terms of the collective-bargaining agree-
ments Thus, it is evident that the requested information was
relevant and reasonably necessary ‘‘to the Union in carrying
out its statutory duties and responsibilities.’’ Rockwell-Stand-
ard Corp., 166 NLRB 124 (1967), enfd. 410 F.2d 953 (6th
Cir. 1965). Indeed, it is apparent from the position adopted
by the Respondent at the hearing that the Respondent did not
seriously contest the relevancy of the requested information.
Rather, the Respondent adamantly contended that the Union
already had the all the information in its possession to pursue
the grievances on the claimed delinquencies.
Turning to this contention, I find it places too narrow a
scope on the Union’s statutory right to request and be pro-
vided with relevant information necessary to policing compli-
ance with its collective-bargaining agreements. Cf. W-L
Molding Co., 272 NLRB 1239 (1984). There is no claim that
the information did not exist or that its production would be
burdensome. Rather, the Respondent, in effect, is asserting
for itself a right to determine what information is necessary
for the Union to ascertain whether there has been a breech
of the terms of the collective-bargaining agreements. This the
Respondent can not lawfully do. The mere fact that the
Union had the delinquency statements from the Pension Plan
and the bargaining agreements in its possession does not re-
lieve the Respondent of it statutory duty to provide the addi-
tional relevant information requested by the Union. New Jer-
sey Bell Telephone Co., 289 NLRB 318 (1988); Borden, Inc.,
235 NLRB 982 (1978); Kroger Co., 226 NLRB 512 (1976).
Finally, the Respondent’s contention that the Union
waived its right to the requested information, because the
grievances were not timely filed, is without merit. As noted,
this defence was never asserted by the Respondent until the
filing of it brief in this matter. Thus the Respondent cannot
now be heard to claim that a procedural defect invalidates
the Union’s statutory right to the requested information.
More important, the question of whether the grievances were
procedurally defective goes to the ultimate issue of
arbitrability and not to the issue of the Respondent’s statu-
tory obligation to provide the information. Cf. Proctor &
Gamble Mfg., 237 NLRB 747 (1978); Safeway Stores, 236
NLRB 1126 (1978).
On the basis of the above, I find and conclude that the Re-
spondent has violated Section 8(a)(5) and (1) of the Act by
failing to provide the Union with the requested information
relating to the asserted delinquencies in the Respondent’s
work-hours contributions to the pension plan.
CONCLUSIONS OF LAW
1. Respondent Albertson’s, Incorporated is an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers, Local No. 7 is
a labor organization within the meaning of Section 2(5) of
the Act.
3. At all times material, the Union has been the designated
and recognized exclusive collective-bargaining representative
of the Respondent’s employees in the appropriate bargaining
units set forth in the collective-bargaining agreements at
issue here.
4. By failing to provide the Union with requested informa-
tion relating to work-hours contributions to the Pension Plan
for unit employees covered by collective-bargaining agree-
ments in various geographical areas, the Respondent has
failed and refused to bargain in good faith with the Union
in violation of Section 8(a)(5) and (1) of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act, it shall be ordered to cease and desist therefrom
and take to take certain affirmative action designed to effec-
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
6 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
tuate the policies of the Act. Respondent shall be ordered to
immediately provide the Union with the requested informa-
tion relating to the work-hours contributions to the Rocky
Mountain UFCW Unions and Employers Trust Plan (Pension
Plan) for unit employees covered by collective-bargaining
agreements in the following geographical areas:
1. Denver, Boulder, Colorado Springs, Grand Junc-
tion, Greeley, Security and Longmont, Colorado.
2. Casper, Wyoming
On these findings of fact and conclusions of law and on
the entire record in this case, I issue the following rec-
ommended5
ORDER
The Respondent, Albertson’s, Incorporated, Denver, Colo-
rado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the United Food
and Commercial Workers Union, Local No. 7, by failing to
provide the Union with requested information relating to the
work-hours contributions to the Rocky Mountain UFCW
Unions and Employers Trust Plan (Pension Plan) for unit
employees covered by collective-bargaining agreements in
the following geographical areas:
1. Denver, Boulder, Colorado Springs, Grand Junc-
tion, Greeley, Security and Longmont, Colorado.
2. Casper, Wyoming
(b) In any like or related manner violating Section 8(a)(5)
and (1) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately provide the Union with the requested in-
formation relating to the work-hours contributions to the
Rocky Mountain UFCW Unions and Employers Trust Plan
(Pension Plan) for unit employees covered by collective-bar-
gaining agreements in the following geographical areas:
1. Denver, Boulder, Colorado Springs, Grand Junc-
tion, Greeley, Security and Longmont, Colorado.
2. Casper, Wyoming
(b) Post at the above Colorado and Casper, Wyoming fa-
cilities copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Regional Di-
rector for Region 27, 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.