Lucky Markets, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 836 (N.L.R.B. 1980)

836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lucky Markets, Inc. and Retail Clerks Union, Local
1442, Chartered by United Food and Commer-
cial Workers International Union, AFL-CIO-
CIlC. Case 31-CA-8898
August 27, 1980
DECISION AND ORDER
BE CHAIRMAN FANNING AND MEMBERS
PINII.ILO AND TRUESDAI.E
Upon charges duly filed in Case 21-CA-8898 on
April 5, 1979, by Retail Clerks Union, Local 1442,
chartered by United Food and Commercial Work-
ers International Union, AFL-CIO-CLC, herein-
after the Charging Party or the Union, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 31, issued a com-
plaint and notice of hearing dated May 30, 1979,
against Lucky Markets, Inc., hereinafter Respond-
ent. The complaint alleged that Respondent has
failed to bargain in good faith in violation of Sec-
tion 8(a)(5) of the National Labor Relations Act, as
amended, by refusing to supply the Union with in-
formation necessary for the administration of its
collective- bargaining agreement with Respondent.
Copies of the charge and complaint arid notice of
hearing were duly served on the parties. Respond-
ent filed an answer to the complaint denying the
commission of unfair labor practices. On October
11 and 12, 1979, the parties executed a stipulation
of facts in which the parties waived a hearing
before an administrative law judge and the issuance
of an administrative law judge's decision, and
agreed to submit the case to the Board for findings
of fact, conclusions of law, and an order, based on
a record consisting of the stipulation and the exhib-
its attached thereto. On November 28, 1979, the
Board issued an order approving the stipulation
and transferring the proceeding to the Board.
Thereafter, the General Counsel, the Charging
Party, and Respondent filed briefs in support of
their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
On the basis of the stipulation, the briefs, and the
entire record in this case, the Board makes the fol-
lowing:
FINDIINGS OF FACrl
1. J U RISI)ICI ION
Respondent is a California corporation engaged
in retail food sales and general merchandising and
operates a retail food store, known as store 636, lo-
cated at 3105 Wilshire Boulevard, Santa Monica,
251 NLRB No. 118
California. In the course and conduct of its busi-
ness operations, Respondent annually receives
gross revenues in excess of $500,000 and purchases
goods or receives services valued in excess of
$50,000 directly from suppliers located outside the
State of California.
The parties stipulate, and we find, that Respond-
ent is, and has been at all times material herein, an
employer as defined in Section 2(2) of the Act and
is engaged in commerce and operations affecting
commerce as defined in Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOL.VE[)
The parties stipulate, and we find, that the Union
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE AI.I.EGED UNFAIR l.ABOR PRACTICES
A. The Facts
Since on or about July 19, 1942, Respondent has
been a member of the Food Employer's Council,
Inc., a multiemployer association which exists, in
part, to represent its members for purposes of col-
lective bargaining with the duly designated repre-
sentatives of their employees. As a member of the
Council, Respondent has been a signatory to a
series of collective-bargaining agreements negotiat-
ed by the Union and the Council over the past
years, including the current contract, effective July
31, 1978, to July 26, 1981.
On or about November 15, 1977, Gale Hicks was
employed by Respondent as a part-time food and
grocery clerk at store 632, located in Culver City,
California. That store is within the geographical ju-
risdiction of the Union as set forth in its collective-
bargaining agreement. On or about November 13,
1978, Hicks was transferred to Respondent's store
634, located in Carson, California, and at the time
of the transfer Hicks became a full-time food and
grocery clerk. Store 634 is within the jurisdiction
of Retail Clerks Local 905, chartered by the Retail
Clerks International Union, AFL-CIO.'
On or about February 5, 1979, Hicks transferred
to Respondent's store 636, situated in Santa
Monica, California, and was employed there as a
full-time food and grocery clerk.
By letter dated February 16, 1979, the Charging
Party advised Respondent that it considered the
transfer of licks on February 5, 1979, to store 636
to be a violation of article III, section J,4, of the
' S1CL JIC 7, 1979i, I ,j i t1ll,in h11 , b iell kno,,1 I .,,i Retail Clerks
lal t 9)5, [nited IFood and Cirllrllncrciil Workers Ilwcritionial UiLniT),
AlFI () CC
L.UCKY MARKFEIS, INC S37
collective-bargaining agreement. That provision, in
pertinent part, reads as follows:
4. (a) Within classifications, when a perma-
nent schedule calling for a forty (40) hour
workweek on any assignment of shift becomes
available in a given store within the jurisdic-
tion of the Local Union, such work scheduled
shall be offered on the basis of seniority and
qualifications to an experienced clerk, working
less than forty (40) hours, from the "available"
seniority list....
It was the Unioh's position that the full-time posi-
tion assigned to Hicks should have been awarded
to the most senior part-time "available" person as
defined in the contract. According to article
III,G,2, the "available" seniority list is composed
of those individuals who have indicated that they
are available to work a 40-hour workweek in any 5
days.
By letter dated February 28, 1979, Respondent
advised the Union that it had transferred Hicks
pursuant to its affirmative action program (AAP)
and that Hicks' transfer was effectuated in order to
continue her training for promotion. In its letter,
Respondent indicated that Hicks was a manage-
ment trainee and that Hicks had been in training in
such a position since on or about October 16, 1978.
Respondent concedes that a management trainee is
a nonsupervisory position.
By letter dated March 12, 1979, the Union re-
quested that Respondent furnish the Union with
certain information that the Union deemed relevant
and necessary to the administration of the collec-
tive-bargaining agreement and to the performance
of its obligation to provide fair representation to
the employees in the bargaining unit. The Union
requested, inter alia, the following information: (I)
a copy of Respondent's AAP; (2) a list of all em-
ployees of Respondent transferred to positions
within the bargaining unit pursuant to Respond-
ent's AAP, together with the positions from which
and to which they were transferred; (3) a list of all
employees of Respondent in the bargaining unit
who were offered management trainee positions
under Respondent's AAP; (4) a list containing the
names, ages, race, sex, and marital status of all em-
ployees of Respondent in the bargaining unit; and
(5) all actions taken by Respondent pursuant to its
AAP with respect to the employees of Respondent
in the bargaining unit who are minorities, women,
or between 40 and 70 years of age. Respondent re-
fused and is continuing to refuse to furnish the
Union with the requested information.
By letter dated May 29, 1979, Respondent indi-
cated that it would not comply with the Union's
request for the above information, and, in addition,
stated that the position of management trainee does
not exist within the Company. On April 2, 1979,
the Union filed the instant unfair labor practice
charge concerning Respondent's refusal to tender
the requested information.
B. Positions of the Parties
The General Counsel contends that in light of
the Board's recent decision in Westinghouse Electric
Corporation, 239 NLRB 106 (1978), the Union is
entitled to information requested in the letter of
March 12, 1979. The General Counsel argues that
the information sought can be classified into two
categories: (1) the statistical information concerning
the age, race, sex, and marital status of unit em-
ployees, and the statistical data involving employ-
ees transferred pursuant to the Respondent's AAP;
and (2) the AAP itself. The General Counsel notes
that the Board applies different standards regarding
the disclosure of such information and that the ap-
propriate standards in this case have been satisfied
by the Union.
With respect to the first category, the General
Counsel asserts that, for the reasons expressed in
T3Westinghouse Electric Corporation, supra, the
information requested is presumptively relevant as
it clearly relates to the Union's statutory duty of
fair representation to protect unit members from
discrimination as well as enabling the Union to
police the collective-bargaining agreement's antidis-
crimination provision. The General Counsel refers
to the Board's language in Westinghouse, which
states:
The employer's obligation . . . is predicated
upon the need of the union for such informa-
tion in order to provide intelligent representa-
tion of the employees ....
There can be no doubt that information re-
lating to possible race and sex discrimination is
relevant to the [union's] role as collective-bar-
gaining representative. [239 NLRB at 107.]
In attempting to group marital status information
with the race and sex data discussed in Westing-
house, the General Counsel notes that California
law specifically prohibits discrimination based on
one's marital status and thus the same rationale ar-
ticulated by the Board in Westinghouse for compel-
ling the employer to furnish race and sex informa-
tion is equally applicable to marital status informa-
tion.
The General Counsel further argues that the
Westinghouse decision is relevant to the statistical
affirmative action information sought by the Union.
That information concerns transfers effectuated
LUCKY MARKTS. INC X
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to Respondent's AAP. The General
Counsel asserts that the Board in Westinghouse
clearly indicated that it considered such informa-
tion presumptively relevant:
Statistics of the type sought herein are clearly
relevant to the determination of whether dis-
crimination exists. .... [B]ecause . .. the
Union has a statutory and contractual right to
make a good-faith effort to correct any dis-
crimination, the relevance of the information
for that purpose is clearly established.
[S]uch information is presumed relevant to
the collective-bargaining process. [239 NLRB
at 109.1
With respect to Respondent's AAP, the General
Counsel concedes that the burden is on the Union
to demonstrate relevance before Respondent is ob-
ligated to produce such information. In Westing-
house the Board specifically held that the presump-
tion of relevancy does not carry over to AAPs.
The General Counsel argues, however, that the
Union has demonstrated that the information
sought is relevant in this case and therefore it is in-
cumbent upon Respondent to honor the Union's re-
quest.
The General Counsel notes that the collective-
bargaining agreement itself bears evidence of the
relevancy of the AAP to the instant matter. Article
III, section I, 2 states:
2. In cases involving operational transfers, the
Employer must show either (a) business necessity
or (b) the transfer's necessity to advance the Em-
ployer's equal employment opportunity program.
Thus, Respondent had a contractual obligation to
substantiate its claim that the transfer was in fur-
therance of its AAP. The General Counsel argues
that furnishing the Union with the AAP would be
a logical consequence of that obligation. Equally as
important, the General Counsel notes that it was
Respondent who placed the AAP in issue by
claiming it as defense to the grievance concerning
Hicks' transfer. Thus, Respondent's own conduct
underscores the relevance of the information
sought. The General Counsel argues that, while the
Board in Westinghousefound that the union's fear of
possible contract violations was speculative and,
thus, insufficient to establish relevance, the present
controversy involves an active grievance between
the parties. The Union's grievance directly relates
to Respondent's AAP, and thereby establishes its
relevance.
The Union makes essentially the same arguments
as those set forth by the General Counsel. In addi-
tion, however, the Union contends that the Su-
preme Court's decision in Detroit Edison Co. v.
N.L.R.B., 440 U.S. 301 (1979), is not applicable to
the current proceeding because the relevance of
the information sought here has been demonstrated
and thus the Union's request is more than the "bare
assertion" referred to by the Court in Detroit
Edison. As for the concern expressed by the Court
in Detroit Edison over the confidentiality of certain
types of information, the Union notes that here
there has been no claim that disclosure of the "in-
formation requested" would impair the confiden-
tiality of a relationship between the company and
an employee such that the employee's consent
should be required prior to the disclosure.
Respondent argues that the Union has not dem-
onstrated why it requires the information sought
beyond a bare assertion of necessity. Respondent
contends that the grievance involves a question of
contract interpretation and can be decided under
the procedures set out in the parties' collective-bar-
gaining agreement. Further, according to Respond-
ent, the contents of the AAP is irrelevant to the
processing of the grievance and, thus, Respondent
is under no duty to furnish it to the Union. Citing
Westinghouse and The East Dayton Tool and Die
Co., 239 NLRB 141 (1978), Respondent argues
that, absent a demonstration of relevance, Respond-
ent is under no obligation to honor the Union's re-
quest. Respondent asserts that the sole question is
whether the collective-bargaining agreement pro-
hibits transfers for any reason, including those in
accord with the AAP, and that examination of the
AAP will not answer that question.2 Respondent
thus contends that the issue raised by the grievance
is one to be decided by an arbitrator and that no
amount of affirmative action information can re-
solve the dispute. Accordingly, Respondent argues
that the AAP and the related data are irrelevant to
Hicks' grievance and therefore the Union is not en-
titled to it.
C. Analysis and Conclusions
We have considered the entire record in this pro-
ceeding, and find that, for the reasons expressed in
Westinghouse Electric Corporation, supra, the Union
is entitled to most of the information it has request-
ed. It is our view that the statistical data sought by
the Union with a single exception is presumptively
relevant and, therefore, Respondent is required to
furnish the information as requested. With regard
to the AAP, we find that the Union has demon-
strated the requisite relevance, but that it is entitled
to receive only that portion of the AAP which Re-
2 This, of course, is premised upon the AAP being valid and Respond-
ent notes that there has been no contention that it is not.
LUICKY %IARKI-'I'S INC S1
spondenl asserts justifies its decision to transfer
Hicks.
In Westinghouse, a union sought information re-
garding the makeup of the bargaining unit in terms
of race and sex. The union claimed that the infor-
mation was necessary to determine whether the
employer was engaging in racial and sexual dis-
crimination, and whether such conduct was affect-
ing the advancement of female and minority group
employees. In finding that the union was entitled to
certain information, the Board noted that "[t]he re-
quest for race and sex data constitutes an effort to
determine whether the contractual policy was
being implemented, and is certainly . . . a legiti-
mate effort by the Union to monitor and police the
terms of the collective-bargaining agreement." (239
NLRB at 108.) The Board, having concluded that
the information sought was relevant for the union's
performance of its statutory obligations, addressed
the issue of whether statistical data relating to em-
ployment practices should in general be accorded a
presumption of relevancy. In answering this ques-
tion in the affirmative, the Board stated that since
"the Union has a statutory and contractual right to
make a good-faith effort to correct any discrimina-
tion, the relevance of the information for that pur-
pose is clearly established." (239 NLRB at 109.)
Accordingly, it decided that the same standard ap-
plicable to wage data, i.e., presumed relevance, is
applicable to statistics relating to employment prac-
tices.
Because the information sought by the Union
here falls in the same category as that sought by
the union in Westinghouse, we find that, with a lim-
ited exception, the Union is entitled to the informa-
tion listed in its letter of March 12, 1979, at para-
graphs 2, 3, 4, and 5. As noted in Westinghouse, the
test for a union's need for information concerning a
unit's terms and conditions of employment is
simply "a showing of probability that the desired
information was relevant, and that it would be of
use to the union in carrying out its statutory duties
and responsibilities." N.L.R.B. v. cme Industrial
Co., 385 U.S. 432, 437 (1967). Since Hicks was 22
at the time of the events in issue, we fail to see the
relevance of the information requested concerning
Respondent's actions pursuant to its AAP regard-
ing employees between the ages of 40 and 70. Ac-
cordingly, we find that Respondent is not obligated
to divulge that information.
With respect to the AAP itself, the Board in
Westinghouse held that an AAP is not presumptive-
ly relevant because the information contained
therein, such as projections, goals, and timetables,
is not reasonably necessary to the union in its per-
formance of its statutory duties. The Board further
stated that speculative allegations, such as those
raised by the union there that an employer may
have acted in contravention of its contractual com-
mitments, are insufficient to establish relevance.
Thus, the Board in Westinghouse was not confront-
ed with an active grievance in light of which the
relevance of the information sought could be eval-
uated. In the instant case, however, the request for
information has arisen in the context of a grievance
which Respondent has chosen to defend against on
the basis of its AAP. Accrdingly, Respondent has
demonstrated the relevance of the AAP by making
it an integral part of the resolution of the griev-
ance. Furthermore, the collective-bargaining agree-
ment provides that in the event of an operational
transfer, of the kind effected here, Respondent
must show that it was mandated by business con-
siderations or was an integral part of Respondent's
equal employment program. Complying with the
Union's request is a logical extension of this con-
tractual obligation. We again note, however, that
Respondent is only required to furnish that portion
of the AAP upon which it predicated its action
with respect to Hicks since the Union has not
shown that the entire AAP is relevant to the reso-
lution of the instant controversy. 3
Accordingly, in view of the above, we find that
Respondent violated Section 8(a)(5) of the Act by
refusing to supply the Union with the requested in-
formation set forth above. We shall, therefore,
order Respondent to refrain from such conduct and
to provide the Union with the information.
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case, we make
the following:
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning
of Section 2(2) of the Act, and is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) cf the Act.
3. The unit of Respondent's employees described
below constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act. At all times material
herein, the Union has been and is the exclusive col-
a In General Motors Corporation. 243 NLRB 186 (1979). the respondent
was not compelled to provide the union with a copy of its AAP The
Board did find, however. that the union had established relevance with
respect to certain information conained in General Motors' Work Force
Analssis and the Board required the respondent to dichose that nforma
tion. Smilarly, the Union here has demonstrated relesance ilth respect
to hat part of the AAP directly bearing on Hicks' transfer and, thus, is
entitled to that infirmation
[IKY MARKTS. INC x3q
840 DECISIONS ()OF NATIONAL LABOR REI.ATI()NS B()ARI)
lective-bargaining representative of Respondent's
employees in the following unit:
Food and grocery clerks; bakery, health and
beauty aids and household hardware clerks;
general merchandise clerks; clerks helpers; and
snack bar and take-out food department em-
ployees; excluding all other employees, guards
and supervisors as defined in the Act.
4. Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (5) of the Act, by failing and refus-
ing to provide the Union with information request-
ed on or about March 12, 1979, which is relevant
and necessary to the Union's administration of its
collective-bargaining agreement and to the per-
formance of its obligations to provide fair represen-
tation as the statutory bargaining representative of
employees in the unit described above.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Lucky Markets, Inc., Santa Monica, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail
Clerks Union, Local 1442, chartered by United
Food and Commercial Workers International
Union, AFL-CIO-CLC, as the exclusive bargain-
ing representative of Respondent's employees in
the appropriate collective-bargaining unit, by refus-
ing to furnish the Union with information, request-
ed on or about March 12, 1979, which is relevant
and necessary to the Union's administration of its
collective-bargaining agreement and to the per-
formance of its obligations to provide fair represen-
tation as the statutory bargaining representative of
the employees in the bargaining unit.
(b) In any like or related manner refusing to bar-
gain collectively with the Union or interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Furnish the Union with the following infor-
mation for the unit referred to above:
(1) Those sections of Respondent's affirmative
action program upon which it relies in defending
the current grievance involving the transfer of Re-
spondent's employee Hicks to store 636 in Santa
Monica, California.
(2) A list of all employees of Respondent trans-
ferred to positions within the unit described above,
pursuant to Respondent's affirmative action pro-
gram, together with the positions from which and
to which they were transferred.
(3) A list of all employees of Respondent in the
bargaining unit who have been offered manage-
ment trainee positions under Respondent's affirma-
tive action program.
(4) A list containing all the names, ages, race,
sex, and marital status of all employees of Respond-
ent in the bargaining unit.
(5) All actions taken by Respondent pursuant to
its affirmative action program with respect to em-
ployees of Respondent in the bargaining unit who
are minorities or women.
(b) Post at its store, No. 636, located in Santa
Monica, California, copies of the attached notice
marked "Appendix."4 Copies of said notice, on
forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's
authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges vio-
lations of the Act not found herein.
4 In the event that 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 Pursu-
ant 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 Retail Clerks Union, Local 1442, char-
tered by United Food and Commercial Work-
ers International Union, AFL-CIO-CLC, as
the exclusive collective-bargaining representa-
tive of our employees in the following unit ap-
propriate for purposes of collective bargaining
LUICKY MARKES. INC 841
by refusing to furnish the Union with informa-
tion requested on or about March 12, 1979,
which is relevant and necessary to the Union's
administration of its collective-bargaining
agreement and to the performance of its obli-
gations to provide fair representation as the
statutory bargaining representative of the em-
ployees in the following unit:
Food and grocery clerks; bakery, health and
beauty aids and household hardware clerks;
general merchandise clerks; clerk helpers;
and snack bar and take-out food department
employees; excluding all other employees,
guards and supervisors as defined in the Act.
WE- Wll.. NOT in any like or related manner
refuse to bargain collectively with Retail
Clerks Union, Local 1442, chartered by United
Food and Commercial Workers International
Union, AFL-CIO-CLC, or interfere with, re-
strain, or coerce employees in the exercise of
the rights guaranteed them in Section 7 of the
National Labor Relations Act.
WE wtit furnish the Union with the follow-
ing current information for the unit referred to
above:
(1) Those sections of our affirmative action
program upon which we rely in defending the
current grievance involving the transfer of em-
ployee Hicks to store 636, located in Santa
Monica, California.
(2) A list of all of our employees transferred
to positions within the bargaining unit, pursu-
ant to our affirmative action program, together
with the positions from which and to which
they were transferred.
(3) A list of all our employees in the bar-
gaining unit who have been offered manage-
ment trainee positions under our affirmative
action program.
(4) A list containing all the names, ages,
race, sex, and marital status of all our employ-
ees in the bargaining unit.
(5) All actions we have taken pursuant to
our affirmative action program with respect to
our employees in the bargaining unit who are
minorities or women.
LUCKY M.ARKETS, INC.
I LIC K Y M.R K. . . .. C . ..
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