Ralphs Grocery Co.

National Labor Relations Board - Board Decisions

Feb 19, 2008

352 N.L.R.B. 128 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 18
128
Ralphs Grocery Company and United Food and
Commercial Workers Union, Local No. 135,1
and United Food and Commercial Workers Un-
ion, Local No. 324 and United Food and Com-
mercial Workers Union, Local No. 770 and
United Food and Commercial Workers Union,
Local No. 1036 and United Food and Commer-
cial Workers Union, Local No. 1167 and United
Food and Commercial Workers Union, Local
No. 1428 and United Food and Commercial
Workers Union, Local No. 1442. Cases 31–CA–
27160, 31–CA–27475, and 31–CA–2768
February 19, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On June 14, 2007, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent filed
exceptions and a supporting brief; the General Counsel
filed a brief answering the exceptions; the Charging
Party Unions filed cross-exceptions and a brief support-
ing the cross-exceptions and answering the exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions as modified3 and to adopt the rec-
ommended Order4 as modified and set forth in full be-
low.5

1 Local 135 was a charging party in Cases 31–CA–27160 and 31–
CA–27685, but was not a charging party in Case 31–CA–27475.
2 We reverse the judge’s finding that the social security numbers re-
quested by the Unions were presumptively relevant. See Bookbinder’s
Seafood House, Inc., 341 NLRB 14, 15 fn. 1 (2004) (employee social
security numbers are not presumptively relevant to a union’s perform-
ance of its obligations as bargaining representative). However, we note
that the Respondent used social security numbers in maintaining its
personnel records, and that this information was relevant to the Unions’
investigation of its discrimination grievance. Accordingly, we affirm
the judge’s finding that the Respondent was required to provide the
requested information.
In finding that the Respondent violated Sec. 8(a)(5) by failing to fur-
nish the requested information, the judge rejected the Respondent’s
contention that the Unions’ sole purpose in pressing its information
requests was to support unfair labor practice charges. The judge rea-
soned that “no nexus exists between the information requested and the
evidence necessary to support the charges,” and, therefore, that the
Unions “could not, logically, have sought the information at issue in
order to bolster their ULP charges.” In adopting the judge’s rejection
of the Respondent’s contention, we rely solely upon the fact that the
Respondent does not except to or otherwise challenge these findings.
3 In order to clarify the violations found, we shall set forth Amended
Conclusions of Law.
4 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the violations found and to include the
Board’s standard remedial language.
5 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
The Unions’ Request for Audit Information
The Respondent and the Unions were parties to suc-
cessive collective-bargaining contracts, the most recent
of which expired on October 5, 2003. During negotia-
tions for a new contract, the Respondent locked out the
19,000 bargaining unit employees from October 12,
2003, through February 26, 2004, when the parties
reached agreement on a new contract. During the lock-
out, the Respondent continued operations and hired tem-
porary replacements. It also rehired several hundred unit
employees under false identities—that is, using false
names and social security numbers.
Sometime before September 2004 the U.S. Attorney
began investigating allegations regarding the Respon-
dent’s rehiring of unit employees under false identities.
Shortly thereafter, the Respondent directed a law firm to
conduct an audit regarding the Respondent’s hiring prac-
tices during the lockout. On December 14, 2004, June 6,
and October 25, 2005, the Unions requested that the Re-
spondent provide the Unions with the audit information.
The Respondent refused to provide the audit information,
contending that the information was within the attorney-
client and attorney work-product privileges.
The judge found that the Respondent violated Section
8(a)(5) by refusing to provide the audit information and
ordered the Respondent to provide it. The judge, how-
ever, stated that the Respondent could litigate its privi-
lege contentions in compliance. In their respective ex-
ceptions, the Respondent and the Unions contend, among
other things, that the judge erred in deferring to compli-
ance litigation of the privilege contentions. The Respon-
dent contends that the audit information falls within the
privileges and the Unions contend that it does not.
We find that the Respondent timely raised its privilege
contentions and that the parties had an adequate opportu-
nity to litigate issues relating to those contentions. We
discern no reason why these issues are better suited to
resolution at the compliance stage. Accordingly, the
judge erred in deferring to compliance litigation and
resolution of the Respondent’s privilege contentions.
The attorney work-product privilege applies to docu-
ments prepared by a party or his representative in antici-
pation of litigation. See Central Telephone Co. of Texas,
343 NLRB 987, 988 (2004). Here, the U.S. Attorney’s
Office had undertaken an investigation of the Respon-

Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
RALPHS GROCERY CO. 129
dent’s hiring practices during the lockout. The Respon-
dent was aware of the investigation, and its attorney pre-
pared the audit information at the request of the Respon-
dent. Therefore, the audit information was within the
attorney work-product privilege.6
The General Counsel and the Unions contend that the
Respondent waived the attorney work-product privilege.
In support, they cite a document titled “Limited Waiver
of Attorney-Client Privilege and Protections of Attorney
Work Product Doctrine” that the Respondent executed in
a federal criminal proceeding. However, as the judge
noted, the Limited Waiver document, by its terms, ap-
plies only to “material requested or inquired into by the
[U.S. Attorney],” and there is no evidence that the audit
information was requested or inquired into by the U.S.
Attorney. Accordingly, the record does not demonstrate
that the Respondent waived the attorney work-product
privilege regarding the audit information.
Having concluded that the requested audit information
is within the attorney work-product privilege, we then
balance the Respondent’s confidentiality interests against
the Unions’ need for the requested information in deter-
mining whether the Act requires its disclosure. See BP
Exploration, supra, 337 NLRB at 888; Detroit Edison
Co. v. NLRB, 440 U.S. 301 (1979). Here, the Respon-
dent has a strong confidentiality interest in material fal-
ling within the attorney work-product privilege. See
Central Telephone, supra, 343 NLRB at 990; BP Explo-
ration, supra, 337 NLRB at 889. Further, to the extent
that the requested audit information addresses the Re-
spondent’s hiring of bargaining unit employees during
the lockout, it contains information that our Order re-
quires the Respondent to provide in response to the Un-
ions’ other information requests. Accordingly, we find
that a balancing of the competing interests supports non-
disclosure of the audit information. Similarly, we find
that the Respondent is not obligated to provide a sum-
mary of the audit information where our Order already
requires the Respondent to provide information relevant
to the hiring of unit employees during the lockout.7

6 The attorney-client privilege principally applies to attorney-client
communications. See BP Exploration (Alaska), Inc., 337 NLRB 887,
888–889, 893–894 (2002). We find it unnecessary to reach the issue of
whether the audit information was within the attorney-client privilege.
See Central Telephone, supra, 343 NLRB at 990 fn. 7.
7 We find no merit to the General Counsel’s assertion that the Re-
spondent, in claiming that the audit information was privileged, “never
. . . attempted to negotiate an accommodation.” The record shows that
the Respondent offered to discuss the issues raised by the information
requests, that the Respondent and the Unions each told the other on
several occasions that they were willing to meet, and that at least one
meeting was tentatively scheduled. The Unions canceled the meeting
because the Respondent had not provided any of the requested informa-
tion.
For these reasons, we find that the Respondent did not
violate Section 8(a)(5) by refusing to disclose the audit
information.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Each of the Charging Party Unions is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) and (1) of
the Act by failing to provide the Charging Party Unions
with the following relevant information.
(a) For each employee who worked under a false
name or social security number during the 2003–2004
lockout, the employee’s true name and social security
number, the false name and social security number, the
dates employed under a false identity, the positions in
which the employee worked during the lockout, the em-
ployee’s straight-time rates of pay during the lockout,
and the store numbers at which such employment took
place.
(b) A description of all documents provided by em-
ployees in response to the September 13 and October 1,
2004 letters from Respondent Vice President Mary M.
Kasper that related to work by employees under false
identities or employee refusals to work under false iden-
tities, complete photocopies of such documents, or a
written proposal denoting a specific time and place for
the inspection and copying of such documents.
(c) The names and titles of all of the Respondent’s
employees or representatives who communicated in writ-
ing with bargaining unit employees concerning the in-
formation requested in the Kasper letters, the dates of all
such communications, and if such communications were
written, a description of the documents in detail, as well
as complete photocopies, or a written proposal denoting
a specific time and place for the inspection and copying
of such documents.
4. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. The Respondent has not violated the Act in any
other manner except as specifically found herein.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth below and orders that the Respon-
dent, Ralphs Grocery Company, Los Angeles, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to provide the Charging Party Unions
with the requested information described herein that is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD130
relevant and necessary to their responsibilities as exclu-
sive collective-bargaining representatives of the Respon-
dent’s employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, provide
the Charging Party Unions with the information re-
quested by them and described herein, including infor-
mation relating to the Respondent’s hiring of bargaining
unit employees under false names during the 2003–2004
lockout.
(b) Within 14 days after service by the Region, post at
its facilities throughout California copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 31,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that the Respondent has gone out of business or closed
any of the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense,
a copy of the notice to all current employees and former
employees employed by the Respondent at the closed
facilities at any time after December 23, 2004.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVE YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf.
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to provide your collective-
bargaining representative with requested information that
is relevant and necessary to its responsibilities as your
collective-bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL provide your collective-bargaining represen-
tative with the information requested by it relating to our
hiring of bargaining unit employees under false identities
during the 2003–2004 lockout.
RALPHS GROCERY CO.
Rudy L. Fong-Sandoval, Atty., for the General Counsel.
Timothy F. Ryan, Atty. (Morrison & Foerster, LLP), of Los
Angeles, California, for the Respondent.
Laurence D. Steinsapir and Susan M. Swan, Attys. (Schwartz,
Steinsapir, Dohrmann & Sommers LLP), of Los Angeles,
California, for the Charging Parties.
Jeffrey S. Wohlner, Atty. (Kohlner, Kaplon, Phillips, Young &
Cutler), of Los Angeles, California, for Charging Parties,
Locals 324 and 1167.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter
was tried in Los Angeles, California, on February 27, 2007,
upon an order consolidating cases, consolidated complaint, and
notice of hearing (the complaint) issued December 20, 2006,1
by the Acting Regional Director for Region 31 of the National
Labor Relations Board (the Board) based upon charges filed by
the above-named Locals of the United Food and Commercial
Workers Union (collectively the Charging Parties and individu-
ally Local plus respective number). The complaint alleges
Ralphs’ Grocery Company (the Respondent) violated Sections
8(a)(1) and (5) of the National Labor Relations Act (the Act).
The Respondent essentially denied all allegations of unlawful
conduct.

1 All dates herein are 2005, unless otherwise specified.
RALPHS GROCERY CO. 131
No oral testimony was presented; the record consists of a
Joint Stipulation of Facts and certain documents2 introduced
into evidence by the Charging Parties.3
Issue
Whether the Respondent failed and refused to bargain col-
lectively with the Charging Parties as the exclusive collective-
bargaining representatives of its employees by failing and re-
fusing to furnish the Charging Parties with requested informa-
tion necessary for, and relevant to, the Charging Parties’ per-
formance of its collective-bargaining duties.
Jurisdiction
At all relevant times, the Respondent, a corporation with an
office and places of business throughout California (the Facili-
ties), and a subsidiary of the Kroger Company, the headquarters
of which are in Cincinnati, Ohio, has been engaged in the op-
eration of retail grocery markets. The Respondent annually
derives gross revenues in excess of $500,000 from its business
operations and purchases and receives at the Facilities goods or
services valued in excess of $50,000, directly from points out-
side the State of California. Respondent admits, and I find, it
has at all relevant times been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and the Charging Parties are labor organizations within the
meaning of Section 2(5) of the Act.4
FINDINGS OF FACT
A. The 2003—2004 Labor Dispute
The Respondent and the Charging Parties have been signa-
tory to successive collective-bargaining agreements for dec-
ades, the penultimate of which was effective by its terms from
October 4, 1999, through October 5, 2003 (the 1999–2003
Agreement), and covered a unit of numerous employee classifi-
cations described in article 1, section A, paragraph 1 and ap-
pendices “A” through “H” of the 1999–2003 Agreement (the
unit).
In the course of negotiations between the Charging Parties
and the Respondent for a collective-bargaining agreement to
succeed the 1999–2003 Agreement, the Respondent, beginning
October 12, 2003, locked out more than 19,000 bargaining unit
employees from about 325 of its grocery markets. Thereafter,

2 CP Exhs. 3 and 4 were received into evidence posthearing. They
are, respectively, attachments to the Respondent’s June 2006 plea
agreement pursuant to the June 2004 grand jury indictment of the Re-
spondent: Statement of facts and limited waiver of attorney/client privi-
lege and protections of attorney work-product doctrine. The Charging
Parties’ posthearing motion for reconsideration of the ruling rejecting
CP Exhs. 1, 2, and 6 is hereby denied.
3 The parties agreed to change references to “the Unions” in the joint
stipulation of facts to the Charging Parties. The Charging Parties
sought to add to the statement of central issue in the joint stipulation (p.
10) the following: “and whether or not the Respondent violated the Act
in any other manner,” which request has been denied by separate writ-
ten ruling. Posthearing, the Charging Parties moved for reconsideration
of said ruling. For the reasons set forth in the original ruling, the re-
quest for reconsideration is denied.
4 Where not otherwise explained, the findings of fact herein are
based on party admissions, the joint stipulation of facts, and the CP
Exhs. 3 and 4.
the Respondent allegedly surreptitiously rehired more than
1000 bargaining unit employees (the lockout hirings), requiring
the employees to work under false identities and falsifying
relevant governmental and union employment reports. On
February 26, 2004, the Respondent and the Charging Parties
agreed upon the terms of a new collective-bargaining agree-
ment (the 2004–2007 Agreement) and unit employees returned
to work.
B. The Kasper Letters and the Respondent’s Internal
Investigation/Audit
During September and October 2004, the Respondent sent
mailings to certain unit employees over the signature of Mary
M. Kasper, Respondent’s vice president and senior counsel (the
Kasper letters), containing the following communications:
Letter of September 13, 2004. The Respondent notified the
employee addressees of an investigation by the United States
Attorney’s into false payroll reports generated during the 2003–
2004 labor dispute. The Respondent assured the addressees
that no disciplinary actions would be taken against them for
working during the lockout under inaccurate names and/or
social security numbers and requested them voluntarily to com-
plete and return an enclosed questionnaire providing correct
personnel information, which might be furnished to govern-
mental agencies.
Letter of October 1, 2004. The Respondent sent a second re-
quest to the addressees of the September 13, 2004 letter, limit-
ing the previous questionnaire request to employees who
worked during the labor dispute under another’s or fictitious
personnel information. The Respondent informed the address-
ees that the information they furnished, “although confidential,”
would be provided to the government.
Investigation and Audit. The Respondent conducted an in-
ternal investigation/audit (the audit) of the Lockout Hirings.
No specifics of the contents of the audit were adduced at the
hearing; by letter of June 22, the Respondent informed the
Charging Parties that the audit had not been completed and that
no final investigative report had been prepared.
C. Indictment of the Respondent and Guilty Plea
On December 15, 2005, a Federal grand jury in Los Angeles
indicted the Respondent for, inter alia, false representation of
social security numbers and false employment reporting. On
July 26, 2006, the Respondent, by Mary M. Kasper (M.
Kasper), vice president of legal services, pled guilty to the fol-
lowing felony counts: conspiracy, use of false social security
numbers, identity fraud, falsifying and concealing material facts
in matters within the jurisdiction of the Internal Revenue Ser-
vice and the Social Security Administration, and concealment
of facts from an employee benefit plan. Under the terms of its
plea agreement, the Respondent paid a criminal fine and a resti-
tution sum that included reimbursement to the Charging Parties
for financial assistance given to the employees during the labor
dispute. Further, any officer and/or agent of the Respondent
owing fiduciary duty to any employee benefit funds was re-
quired to participate in a fiduciary training and compliance
program.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD132
D. The Charging Parties’ Information Requests and
Respondent’s Responses5
1. The Charging Parties’ December 14, 2004 information
request
By letter dated December 14, 2004, the Charging Parties re-
quested the Respondent provide, inter alia the following: (1)
names, employee numbers, store numbers and store addresses
of all current and former bargaining unit employees who pro-
vided information in response to the Kasper letters; (2) for each
employee who provided information in response to the Kasper
letters, the information provided, including real names and
social security numbers, false names and social security num-
bers, dates employed under a false identity, store numbers at
which such employment took place, and a description of all
documents; (3) copies of any documents or records provided in
response to the Kasper letters; and (4) a detailed explanation of
the scope of the Respondent’s internal investigation and audit
of work performed by employees during the lockout and its
findings.
By letter dated December 23, 2004, the Respondent refused
the Charging Parties’ December 14, 2004 request on grounds
that the information sought was not presumptively relevant to
the bargaining relationship between the parties and raised con-
fidentiality, privacy, and, with regard to the Audit, attor-
ney/client and attorney work product privilege concerns.
By letter dated December 29, 2004, the Charging Parties ex-
pressed their willingness to meet and discuss the Respondent’s
confidentiality concerns and asserted, inter alia:
The information we seek is in fact directly relevant to the en-
forcement of various aspects of the collective-bargaining
agreement . . . . Moreover, the requested information is
needed to pursue unfair labor practice charges before the
Board.
By letter dated January 11, the Respondent again requested
that the Charging Parties explicate the relevance of the re-
quested information so the Respondent could determine its
obligations, if any, to respond.
The Respondent furnished no information to the Charging
Parties pursuant to the Charging Parties’ December 14, 2004
request.
2. The Charging Parties’ May 12 grievance
On May 12, 2005, the Charging Parties filed a grievance
against the Respondent in accordance with the 2005–2007
Agreement alleging that since the lockout ended, “Ralphs
. . . [has] discriminated against locked-out workers in favor of
workers who agreed to work during the lock-out with respect to
various terms and conditions of employment . . .” (the griev-
ance).6
By letter dated May 26, the Respondent notified the Charg-
ing Parties that it considered the grievance defective because it

5 As the parties concede the communications detailed herein were
sent and/or received by authorized communicants, I have not identified
specific addressors/addressees.
6 Perhaps inadvertently, the May 12 grievance cover letter did not
list Local 135 as one of the grieving locals.
did not give “written notice setting forth the exact nature of the
grievance.”
3. The Charging Parties’ June 2005 Information Requests
By letter dated June 6, the Charging Parties further expli-
cated the basis of the grievance and requested information, as
follows:
Our grievance includes, but is not limited to, the following
conduct by Ralphs:
(a) Retaliation against bargaining unit employees who pro-
vided information about Ralphs’ potential criminal conduct or
who refused to work during the lockout.
(b) Favorable treatment for employees who worked during
the lockout.
(c) Retaliation or favorable treatment arising in connection
with bargaining unit members’ responses to [the Kasper let-
ters].
To assist the local unions in their investigation of this griev-
ance, we request . . . the following information:
(2) [sic] For each employee who worked under a false
name or Social Security number, the employee’s true
name and Social Security number, the false name and So-
cial Security number, the dates employed under a false
identity, the positions in which the employee worked dur-
ing the lockout, the employee’s straight-time rates of pay
during the lockout, and the store numbers at which such
employment took place.
(3) A description of all documents provided in re-
sponse to [the Kasper letters] that relate to work by em-
ployees under false identities or employee refusals to work
under false identities. Alternatively, please provide com-
plete photocopies, or . . . arrange a mutually-convenient
time and place for their inspection and copying.
(4) The names and titles of all Ralphs’ employees or
representatives who communicated in writing with bar-
gaining unit members concerning the information re-
quested in [the Kasper letters], and the dates of all such
communications. If such communications were written,
please describe the documents in detail, provide complete
photocopies, or . . . arrange a mutually-convenient time
and place for their inspection and copying.
(5) . . . a complete copy of [the internal investigation
and audit of work performed by employees during the
lockout] with all attachments or . . . arrange a mutually-
convenient time and place for the inspection and copying.
By letter dated June 22, the Respondent informed the Charg-
ing Parties that it would not provide the requested information
because the grievance failed to meet specificity requirements
(i.e., dates, locations, employees involved, social security num-
bers, incidents pertaining to the grievance, terms of employ-
ment, specific transfers and hours of work) and the information
sought was not presumptively relevant and was confidential.
Regarding the Charging Parties’ request for a copy of the “in-
vestigation,” the Respondent declined to produce any docu-
ments generated during the continuing investigation, as they
RALPHS GROCERY CO. 133
were protected by attorney/client and attorney work product
privileges.
The Respondent furnished no information to the Charging
Parties pursuant to the Charging Parties’ May and June 2005
requests. In the ensuing months, the Charging Parties declined
to meet with the Respondent to discuss the grievance because
the requested information had not been furnished.
4. The Charging Parties’ October 2005 information request
By letter dated October 25, the Charging Parties renewed
and repeated their June 6 request for information, explaining
each item’s relevance to the Charging Parties’ investigation and
processing of the grievance, as follows:
1. For each employee who worked under a false name or So-
cial Security number, the employee’s true name and Social
Security number, the false name and Social Security number,
the dates employed under a false identity, the positions in
which the employee worked during the lockout, the em-
ployee’s straight-time rates of pay during the lockout, and the
store numbers at which such employment took place.
Relevance: This information is presumptively relevant, as it
pertains to the identities and and terms and conditions of bar-
gaining unit members. Moreover, it is directly relevant to the
Grievance, as it pertains to the identities of employees who
worked at Ralphs during the lockout.
2. A description of all documents provided in response to [the
Kasper letters] that relate to work by employees under false
identities or employee refusals to work under false identities.
Alternatively, please provide complete photocopies, or . . . ar-
range a mutually-convenient time and place for their inspec-
tion and copying.
Relevance: This information, too, is presumptively relevant.
The requested information concerns employee responses to
[the Kasper letters] . . . . Moreover, the information is directly
relevant to the Grievance, and is necessary for the Local Un-
ions’ investigation and evaluation of the Grievance [which]
concerns Ralphs’ discrimination with respect to whether em-
ployees worked at Ralphs during the lockout. As this is pre-
cisely what Ms. Kasper inquired of in her letters, the informa-
tion contained in employee responses is immediately relevant
to the Grievance. The Grievance also concerns Ralphs’ dis-
crimination on the basis of bargaining unit employees’ re-
sponses to the Kasper letters. For this reason, too, copies of
employee responses to Ms. Kasper’s correspondence are im-
mediately relevant to the Unions’ investigation and evaluation
of the Grievance.
3. The names and titles of all Ralphs’ employees or represen-
tatives who communicated in writing with bargaining unit
members concerning the information requested in [the Kasper
letters], and the dates of all such communications. If such
communications were written, please describe the documents
in detail, provide complete photocopies, or . . . arrange a mu-
tually-convenient time and place for their inspection and
copying.
Relevance: This information is also directly relevant to the
Local Unions’ ability to effectively police the Collective Bar-
gaining Agreement. As with request two, above, this request
is directly relevant to the Grievance as it concerns discrimina-
tion on the basis of employees’ response to the Kasper letter.
In order to fully investigate and evaluation this aspect of the
Grievance, the Local Unions obviously require copies of all
communications between bargaining unit employees and
Company representatives. Moreover, the information is rele-
vant as it pertains to the identities of witnesses with knowl-
edge of the facts at issue in the Grievance.
4. [The Kasper letters], as well as other correspondence from
Ralphs, indicates that Ralphs is conducting an internal inves-
tigation and/or audit of work performed by Ralphs employees
during the lockout, under either false identities of their own
names, as well as of Ralphs’ employment of Albertsons and
Vons employees during the lockout. We request a complete
copy of the investigation with all attachments, or, if the inves-
tigation is still ongoing a complete copy of all existing drafts,
attachments, and evidence used in conducting and/or prepar-
ing the investigation. If Ralphs claims that its investigation(s)
are privileged under the attorney-client or attorney work-
product privileges, we alternately request that Ralphs furnish
a complete summary of the investigation and factual findings.
Alternately, please propose in writing a specific time and
place for our inspection and copying of such documents.
Relevance: This information is also directly relevant to the
Local Unions’ ability to effectively police the Collective Bar-
gaining Agreement. Essential to the Local Unions’ investiga-
tion and evaluation of the Grievance is complete information
of the identities of the employees against and in favor of
whom Ralphs is now discriminating. The full picture of
Ralphs’ lockout recall of bargaining unit employees is still
unknown to the Local Unions, and the Local Unions do not
have complete information regarding the employees who
worked during the entire recall, worked during portions of the
recall, and/or were solicited, but declined, to work during the
recall. For this reason, Ralphs’ investigation of the matter is
of immediate relevance.
The Respondent did not respond to the Charging Parties’ Oc-
tober 25 letter and furnished none of the requested information.
Discussion
A. Positions of the Parties
The General Counsel and the Charging Parties contend that
the information sought by the Charging Parties is presump-
tively relevant to the Charging Parties’ obligation to represent
unit employees and to administer and police an existing collec-
tive-bargaining agreement.
The Respondent, while recognizing its obligation to provide
relevant information to unions representing its employees, ar-
gues that the Charging Parties have no right to the information
they seek in this instance. The Respondent contends that the
Charging Parties have not met their burden of establishing the
relevance of the information sought, that the Charging Parties
seek the information for the improper purpose of pursuing
pending unfair labor practice charges, that the Charging Parties
manufactured a grievance to provide an otherwise factitious
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD134
basis for the requested information, and that some of the infor-
mation requested was protected by the attorney/client privilege.
B. The Charging Parties’ Requests for Information and
the Respondent’s Refusals
No party disputes the existence of a “general obligation of an
employer to provide information that is needed by the bargain-
ing representative for the proper performance of its duties.”
NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967).
This obligation extends to information in furtherance of, or
which would allow the union to decide whether to process, a
grievance. Id. at 436; Bickerstaff Clay Products, 266 NLRB
983 (1983). Information pertaining to employees within the
bargaining unit is presumptively relevant to a union’s represen-
tational duties, including that necessary to decide whether to
proceed with a grievance or arbitration. Thus, employee per-
sonnel information, job descriptions, pay-related data, em-
ployee benefits, and policies that relate thereto are all presump-
tively relevant, as is similar information regarding employee
hires, including strike replacements. Bargaining representa-
tives are not required to make a specific showing of the rele-
vance of requested information unless the employer has rebut-
ted the presumption of such. Presumptively relevant informa-
tion must be furnished on request to employees’ collective-
bargaining representatives unless the employer establishes le-
gitimate affirmative defenses to the production of the informa-
tion. Golden Crest, 349 NLRB No. 37 (2007) (not reported in
Board volumes); Metta Electric, 349 NLRB 1088 (2007 );
Finch, Pruyn & Co., 349 NLRB 270, 277 fn. 28 (2007); South-
ern California Gas Co., 346 NLRB 449 (2006); Beverly Health
& Rehabilitation Services, 346 NLRB 1319, 1326 (2006); River
Oak Center for Children, 345 NLRB 1335, 1336 (2005); Postal
Service, 332 NLRB 635 (2000); Mathews Readymix, Inc., 324
NLRB 1005, 1009 (1997), enfd. in relevant part 165 F.3d 74
(D.C. Cir. 1999).
In situations where a collective-bargaining representative
must demonstrate the relevance of the requested information to
its representational duties, the burden is not severe. The rele-
vance standard is a liberal, “discovery-type standard.” NLRB v.
Acme Industrial Co., supra at 437; Southern California Gas
Co., supra (2006); Quality Building Contractors, 342 NLRB
429, 430 (2004). Accordingly, information that is “potentially
relevant and will be of use to the union in fulfilling its respon-
sibilities as the employees’ exclusive bargaining representa-
tive” must be produced. Pennsylvania Power & Light Co., 301
NLRB 1104, 1104–1105 (1991). The requested information
need not be dispositive of the issue for which it is sought but
need only have some bearing on it. Id. at 1105. “An employer
must furnish information that is of even probable or potential
relevance to the union’s duties.” Conrock Co., 263 NLRB
1293, 1294 (1982).
The Respondent contends that the requested information
bears no relationship to any mandatory subject of bargaining, as
the information sought concerns events that occurred during the
hiatus between the 1999–2003 Agreement and the 2004–2007
Agreement. A union’s collective-bargaining relationship with
employees to whom it owes a representational duty is not de-
fined by the existence of a collective-bargaining agreement; the
relationship is as viable in the absence of a labor contract as
during its term. The information sought herein relates to man-
datory subjects and is presumptively relevant. A finding that
the requested information is presumptively relevant resolves the
Respondent’s further objection that the Charging Parties did not
adequately explain the relevance of the requested information.
As noted above, a union may rely upon a presumption of the
relevance of information pertaining to employees within the
bargaining unit and has no obligation to otherwise explain its
significance. Inasmuch as the Charging Parties were not
obliged to explain the relevance of the information they sought,
any asserted deficiencies thereof are immaterial. See Quality
Building Contractors, supra, quoting Commonwealth Commu-
nications, 335 NLRB 765, 768 (2001): “When a union seeks
information pertaining to employees within a bargaining unit,
the information is presumptively relevant to the union’s repre-
sentational duties, and the General Counsel may establish a
violation for the employer’s failure to furnish it without any
further showing of relevancy.”
The Respondent also argues that the Charging Parties were
not entitled to the requested information because they sought it
for an improper purpose, i.e., to pursue unfair labor practice
charges before the Board. Because the Board’s procedures do
not include pretrial discovery, the Board has found refusals to
furnish information lawful where information requests relate to
pending charges. Saginaw Control & Engineering, Inc., 339
NLRB 541, 543–544 (2003). If the request’s timing and the
information’s relationship to the charges show the union sought
the information in order to bolster its charges, the Board will
not find a refusal to provide the information unlawful. See
Pepsi-Cola, 315 NLRB 882 (1994).
In their December 29, 2004 letter, the Charging Parties stated
a twofold purpose in requesting information from the Respon-
dent: to enforce the collective-bargaining agreement and to
pursue unfair labor practice (ULP) charges before the Board.
On January 12, the Charging Parties filed with the Board the
first of the ULP charges herein (Case 31–CA–27160), which
alleged the Respondent had violated Section 8(a)(1) and (5) of
the Act by “failing to provide information reasonably necessary
for collective-bargaining, the investigation of grievances, and
fulfilling other statutory responsibilities of a collective-bar-
gaining representative.” Succeeding ULP charges filed on
August 18 (Case 31–CA–27475) and January 26, 2006 (Case
31–CA–27685),7 respectively, repeated the same allegations.
While the close proximity of the first information request to the
first ULP filing (about 2 weeks) superficially suggests a link-
age, the substance of all the charges negates any such conclu-
sion. The Charging Parties could not, logically, have sought
the information at issue in order to bolster their ULP charges
that the Respondent had refused to supply the information; no
nexus exists between the information requested and the evi-
dence necessary to support the charges. Consequently, the
Respondent has failed to demonstrate that the Charging Parties
sought the information for an improper purpose.

7 The Region inadvertently stated the filing date on Case 31–CA–
27685 as “01/26/05.”
RALPHS GROCERY CO. 135
When, on May 12, the Charging Parties filed a grievance
against the Respondent alleging discrimination against locked-
out workers in favor of workers who agreed to work during the
lock-out, the Charging Parties established an additional need
for the information they sought. Although the Respondent
argues the grievance was filed solely to mask the Charging
Parties’ true and improper motive for requesting the informa-
tion, there is no evidence the Charging Parties were not, in fact,
legitimately concerned about the impact of the Respondent’s
felonious conduct on terms and conditions of unit employees’
employment. Indeed, it is reasonable to expect that any consci-
entious representative would seek full disclosure of the circum-
stances surrounding the Respondent’s criminal acts. Even as-
suming the Charging Parties had more than one motive in re-
questing the information, “it is well established that, where a
union’s request for information is for a proper and legitimate
purpose, it cannot make any difference that there may be other
reasons for the request or that the data may be put to other
uses.” Associated General Contractors of California, 242
NLRB 891, 894 (1979). When the information requested is
presumptively relevant, “it is well settled that the presumption
of relevance is not rebutted by a showing that the union also
seeks the information for a purpose unrelated to its representa-
tive function.” Coca-Cola Bottling Co., 311 NLRB 424, 425
(1993). The Respondent’s further argument that the grievance
was defective in not providing specific instances or details of
discriminatory acts giving rise to the grievance likewise fails.
The Respondent offers no authority for the proposition that a
grievance must detail the provenance of the conduct grieved,
but only urges that an inference should be drawn from the gen-
erality of the grievance that its purpose is improper. For rea-
sons stated, I decline to infer an improper purpose and find the
information sought, relating as it does to unit employees’ terms
and conditions of employment, presumptively relevant.8
The Respondent contends that some of the information re-
quested by the Union is protected by the attorney/client privi-
lege, specifically documents generated by the Respondent’s
outside counsel pursuant to the audit. The General Counsel
asserts the Respondent has not established that any documents
or reports comprising the audit were privileged and argues that
even assuming any portion of the audit met privilege require-
ments, the privilege was waived by the Respondent’s execution
of the Waiver of Privileges in the course of the federal indict-
ment proceedings (the waiver). The waiver is titled “Limited
Waiver of Attorney-Client Privilege and Protections of Attor-
ney Work-Product Doctrine.” It specifies that the waiver ap-
plies to “communications requested or inquired into by the
[United States Attorney]” and provides that the Waiver “(a) [i]s
effective only in the Criminal Investigation and in any criminal
prosecutions that may arise from or relate to the Criminal In-
vestigation; and (b) [d]oes not bind, and is not enforceable
against, RALPHS in any judicial, legislative, administrative, or
regulatory proceedings arising therefrom or relating thereto.”

8 Because I have found the information sought by the Charging Par-
ties is presumptively relevant, it is unnecessary to address the Respon-
dent’s contention that the Charging Parties improperly placed condi-
tions on proposed negotiations over the information requests.
Once waived, the attorney/client privilege is lost in all fo-
rums for proceedings running concurrent with or after the
waiver occurs. Wal-Mart Stores, Inc., 348 NLRB 833, 834
(2006), citing Genentech, Inc. v. U.S. International Trade
Commission, 122 F.3d 1409, 1416–1417 (Fed. Cir. 1997)
(waiver in district court proceeding operated as a waiver in
concurrent International Trade Commission proceeding).
However, neither the General Counsel nor the Charging Parties
have cited any authority for the proposition that a limited
waiver of specified documents constitutes a waiver of entirely
different documents, even those arising from the same factual
circumstances. It may be that some documents included in the
audit are covered by the waiver, but, as the Respondent points
out, “[t]here is no evidence in the record . . . that the informa-
tion requested by the Union was ‘requested or inquired into by
the [U.S. Attorney].”
It appears that the audit addressed information relating to the
Respondent’s hiring during the lockout. Such information is,
for the reasons already stated, presumptively relevant, and the
Respondent is therefore obligated either to produce the audit or
to provide the Union with a legitimate explanation for its re-
fusal. See U.S. Postal Service, 332 NLRB 635, 636 (2000). The
“strong confidentiality interest with respect to a communication
that is subject to the attorney/client privilege, which generally
protects from disclosure confidential communications between
attorneys and their clients for the purpose of obtaining or pro-
viding legal advice” would constitute a legitimate explanation
and preclude the furnishing of such communications. See BP
Exploration (Alaska), Inc., 337 NLRB 887, 889 (2002).
The contents of the audit are not expressly known, and no
evidence has been adduced to demonstrate whether any of the
documents and/or information comprising the audit fit within
the attorney/client privilege. However, it does not follow that
the Charging Parties are stymied in obtaining such portions of
the audit as fall outside the privilege. Any dispute as to the
privileged nature of the information encompassed by the audit
may be raised and litigated in compliance. See Earthgrains
Co., 349 NLRB 389 fn. 1 (2007).
Accordingly, by refusing to provide the Charging Parties
with the requested information described herein, the Respon-
dent has violated Section 8(a)(1) and (5) of the Act.9
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Each of the Charging Parties is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the
Act by failing to provide the Charging Parties with the follow-
ing relevant information:

9 It is unnecessary to distinguish among the various requests for in-
formation. By their information request of October 25, 2005, the
Charging Parties particularized all information sought. An order re-
quiring the Respondent to furnish the information forthwith remedies
each of the Respondent’s unlawful refusals to provide information.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD136
For each employee who worked under a false name or Social
Security number during the 2003–2004 lockout, the em-
ployee’s true name and Social Security number, the false
name and Social Security number, the dates employed under a
false identity, the positions in which the employee worked
during the lockout, the employee’s straight-time rates of pay
during the lockout, and the store numbers at which such em-
ployment took place.
A description of all documents provided in response to the
Kasper letters that relate to work by employees under false
identities or employee refusals to work under false identities,
complete photocopies of such documents, or a written pro-
posal denoting a specific time and place for the inspection and
copying of such documents.
The names and titles of all Ralphs’ employees or representa-
tives who communicated in writing with bargaining unit
members concerning the information requested in the Kasper
letters, the dates of all such communications, and if such
communications were written, a description of the documents
in detail, as well as complete photocopies, or a written pro-
posal denoting a specific time and place for the inspection and
copying of such documents.
A complete copy of the Respondent’s internal investigation
and/or audit with all attachments that are not shielded under
the attorney-client or attorney work-product privileges, of
work performed by employees during the 2003–2004 lockout,
under either false identities or their own names, as well as of
Ralphs’ employment of Albertsons and Vons employees dur-
ing the lockout. If the investigation is still ongoing, a com-
plete copy of all existing drafts, attachments, and evidence
used in conducting and/or preparing the investigation except-
ing those shielded under the attorney-client or attorney work-
product privileges, or a written proposal delineating a specific
time and place for the inspection and copying of such docu-
ments. As to items that may be found privileged, a complete
summary of the investigation and factual findings.
4. The Respondent’s unlawful conduct described in para-
graph 3 above affects commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
[Recommended Order omitted from publication.]