Safeway Stores, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 16, 1979240 N.L.R.B. 836 (N.L.R.B. 1979) Copy Citation 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Safeway Stores, Incorporated and Retail Clerks Union Local No. 455, chartered by the Retail Clerks International Association, AFL-CIO. Case 23-CA 6451 February 16, 1979 ORDER On January 4, 1979, the National Labor Relations Board issued the attached proposed Decision and Order in the above-entitled proceeding, in which the Board dismissed the complaint in its entirety. No statement of exceptions has been filed with the Board, and the time allowed for such filing has ex- pired. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and Section 102.48 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, the Board hereby adopts as its final Order herein the said proposed Decision and Order. By direction of the Board: George A. Leet, Associ- ate Executive Secretary January 4, 1979 PROPOSED DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed by Retail Clerks Union Local No. 455, chartered by the Retail Clerks International Associa- tion, AFL-CIO, on March 28, 1977, a complaint was is- sued on May 20, 1977, alleging that Safeway Stores, Incor- porated, herein called Respondent, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Pursuant to due notice, a hearing was held before Ad- ministrative Law Judge Anne F. Schlezinger on August I 1, 1977, in Houston, Texas. The General Counsel, the Union, and Respondent were represented by counsel. All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. Following the close of the hearing, Respondent and the General Counsel filed briefs with the Administra- tive Law Judge. On August 16, 1978, Chief Administrative Law Judge Thomas N. Kessell notified the parties that, following a serious illness, Administrative Law Judge Schlezinger died on that date and was unavailable to issue a decision within the meaning of Section 102.36 of the Board's Rules and Regulations. The Chief Administrative Law Judge pro- posed several courses of action for disposition of the in- Herein called the Union. 240 NLRB No. 138 stant matter including settlement of the case, transfer to the Board for issuance of a proposed decision on the rec- ord as made, designation of another Administrative Law Judge to prepare a decision on the record as made, or a hearing de novo before another Administrative Law Judge. Thereafter, Respondent and the General Counsel advised the Chief Administrative Law Judge of their desire to have the case transferred to the Board for issuance of a Pro- posed Decision and Order based on the record as made. Accordingly, the Chief Administrative Law Judge on Sep- tember 11, 1978, transferred the case to the Board for the purpose of making findings of fact and conclusions of law, and for the issuance of a proposed Decision and Order. The Board advised the parties that Section 102.46(b) and (j) of the Rules and Regulations are applicable with respect to the filing of exceptions and further briefs after issuance of the Board's Proposed Decision and Order. Pursuant to the provisions of Section 3(b) of the Na- tional Labor Relations Act, as amended, the National La- bor Relations Board has delegated its authority in this pro- ceeding to a three-member panel. Upon the entire record in this proceeding and after con- sideration of the briefs, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and we find that Respondent is a Maryland corporation engaged in a national retail grocery business including the Houston, Texas. metropolitan area stores involved herein which, dur- ing the 12-month period preceding issuance of the com- plaint, did a gross volume of business in excess of $500,000, and purchased goods and commodities in excess of $50,000 from suppliers located outside the State of Texas. Accord- ingly, we find, as alleged in the complaint and admitted by Respondent, that the latter is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and we find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The significant facts are not in dispute and we find them to be as follows: On September 7, 1975, the Union and Respondent en- tered into a 3-year collective-bargaining agreement cover- ing the following classifications in two separate bargaining units of stores located in (1) the Metropolitan Houston, Texas, area, and (2) Huntsville, Texas: all regular full-time and regular part-time employees in the grocery, produce, and bakery sales departments, and courtesy clerks, exclud- ing all other employees, meat and delicatessen department employees, managers, assistant managers, guards, watch- men, and supervisors as defined in the National Labor Re- SAFEWAY STORES, INCORPORATED 837 lations Act, as amended. 2 Another collective-bargaining agreement between the parties covers a similar unit in cen- tral Texas. On August 3, 1976, Wooster sent Kent Milton. Respondent's employee relations manager. a letter initiat- ing the following grievance at step three of the contractual dispute procedure, alleging Respondent's "violation of Ar- ticle 7-Seniority of the Collective-bargaining agree- ment," 4 and violation of title VII of the Civil Rights Act of 1964,5 namely, that there is in Respondent's Houston divi- sion no female serving as produce manager, store manager, or in any higher supervisory capacity. and that Respondent has not offered such jobs to female employees or made a sincere effort to train them to "advance" to such positions. On August 17, Respondent Branch Manager D. V. Coleman wrote to Wooster asking him to explain how the Houston division was violating article 7 of the agreement. Coleman also stated, with respect to title VII of the Civil Rights Act, that all of Respondent's divisions have an affir- mative action program, that any female desiring a job as manager need only request that she be considered therefor, and that Respondent periodically asks females if they are interested, but few express interest in those jobs. On Au- gust 23 and 24, respectively, Wooster asked for, and Cole- man agreed to provide, a list of females to whom such jobs were offered. However, on September 9, Coleman stated that it was Respondent's position that "the issue of females participating in management is not one that is a differ- ence or dispute involving the interpretation or application of the provisions of the collective-bargaining agreement." On October II., the Union requested access, for exami- nation and copying, to the following: Records showing the names, rates of pay, date of hire and the store worked in of every female manager, as- sistant manager and supervisor employed in the Em- ployer's stores. II List of names of every female employee offered the op- portunity to become a store manager, assistant man- 'Ray B. Wooster. the nion's president, testified thaI the Unit In lulde, produce managers '*ho are "reall' head produce clerks" and posses, io supervisor. authority lie also testified that dislricl or zone nma inaels are among those classified as superslsors. Sec. B of art 20 of the collective-hargaining agreement pro, ides hat al step 3 there shall he a conference hetueen n official of the It llon nd the representative of the Fmployer or his designate" and that in the eeTit there is no satisfactory settlement of the grievance, it "shall he consildered nuill and void" if it is not referred by either party to arbitrltion u.ithin 14 das Sec. F of art. 7 is entitled "''ransfers' and pros ide,. in prtl as flosHv, "In the matter of promotion r transfers from one tpe of oirk Io the other, the Employer shall have the right to eercise the sole decision after lsing due regard to seniority The Company recognizes the nionX' right Io grieve in these matters." Title VII provides. inter at, that It sh;tll he an nla;lful emploment practice for an employer to discriminate againIst ill indlxidua;l heca.lle of such ndi idual's race. color. religion. sex. ,ir national rigin It also creaties and prosides for recourse to, an qual I mplosnienr Opportunit ('1lnlls- sion (Ift O(') for persons clailmlig to he aggrie'cd ager. or supervisor. the date. the store, and the rate of pay since September 7. 1975. III Records, job description plans, or manuals showing the job description or summary of duties and authority of female assistant manager, store manager, and super- visors employed in the stores.6 The Union stated that it desired the foregoing information because of its "apprehension that [Respondent] failed to promote female employees because of their sex." The Union asserted further that the information was "relevant and material and necessary for [the] Union to carry out its function as a bargaining representative intelligently: to po- lice the administration of [the] current collective-bargain- ing contract: to prepare for [the] next negotiations: and to insure that the employees [represented by the Union] will not be deprived of Section [7] rights under the National Labor Relations Act." On October 13, Respondent refused to supply the infor- mation on the ground that it was not readily available, was not necessary to carry out the purposes specified by the Union. and did not pertain to the interpretation of the col- lective-bargaining agreement. 7 On October 26, the Union stated that it was willing to furnish the manpower to examine and copy Respondent's records and that the information requested in its October I I letter did not relate to Respondent's treatment of super- visors but did relate to "equal employment opportunities" afforded to members of the bargaining unit. As Respon- dent did not reply. the Union on March 8. 1977, sent Re- spondent a cop), of its October 26 letter which was marked, "Second Request." On March 15, the correspondence came to a close when Respondent answered that it was adhering to the stand it had taken in its October 13 letter. As indicated above, the complaint alleges that since on or about October 13. 1976. and at all times thereafter, Re- spondent violated Section 8(a)(5) and (1) of the Act by failing to furnish the Union with the data and information specified in the latter's letter of October II. Respondent admits said conduct but denies that it was unlawful. It is well settled that wage and related information per- taining to employees in the bargaining unit is presumptive- ly relevant and, in the absence of an employer's rebuttal as to that presumption, must upon request be provided to a union to police and administer existing collective-bargain- ing agreements as well as to negotiate modifications thereof.' However, the range of relevance is not limited by '' l:ostlcr testified that I in this and subsequent letters to Respondent. the I niion uniitentnonall dropped" the classification of produce manag- ers and (2) the nlon also desired informilion as to management trainees As to (I). it appears that the grievance set forth in the Union's August 3, 1976. letter hecame "null and sl'" hecauae the I nion did not seek arhitra- tion hereof lithin the time imit prolided in art. 20 of the collectise-har- gaining agreement As to 12). the classification of management trainee is not conltamed in the ilnit descrlnptln f the collectlse-hargaining agreement or nieilltted In the U nion's letters No esidence as adduced to sho the status f persons serx ing In that c.ipacits Respondent also argued at the hearing and n its brief that it could not release such info rmanton beca;use IIt as confidenlta[. i( tti-t r y ('rh t pllrtlrllt. lf ,, h 4'rilhlttl 1 [)iL¥si~in n 1 R R. ager. or supervisor, th date, the store, and the rate of 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the boundaries of the bargaining unit if it is shown that the requested information is relevant to the union's statutory duties and obligations. Thus, a union may properly seek information concerning such excluded categories as super- visors if it is shown to be necessary to determine whether certain individuals belong in the unit and have not been improperly designated and excluded as supervisors. In Cur- tiss- Wright. supra, for example, the court found relevant the union's request for information about all individuals classi- fied as supervisors because of its belief and apprehension that the employer was encroaching upon the bargaining unit by misclassifying bargaining-unit employees as super- visors and wrongly excluding them from the unit. Simi- larly, the Board held in Globe Stores, supra, that the union was justified in seeking information about group managers because of its belief that the unit was being eroded by the employer through its arbitrary classification of bargaining- unit employees as group managers and improper exclusion of them from the unit as supervisors. As it is undisputed that the managers, assistant manag- ers. and supervisors (district managers) herein are not bar- gaining unit employees, there is no merit in the General Counsel's contention that information as to them is pre- sumptively relevant. Although, as indicated above, a union may, under certain circumstances, properly request infor- mation as to supervisors, it has not been shown that the question of erosion or integrity of the unit is involved herein as the Union has at no time expressed apprehension that bargaining unit employees have been misclassified as supervisors and wrongfully kept out of the unit. Accord- ingly, we find that the requested information as to super- visors does not meet the test of relevance, as we are not persuaded that it is necessary to police and administer the collective-bargaining agreement which pertains only to the wages, hours, and conditions of employees within the bar- gaining unit. In this connection, we deem without merit the Union's contention that its role as the representative of the bargaining-unit employees goes beyond its contractual right to police promotions of employees "from one type of work to the other" within the unit and encompasses an obligation to police promotions of employees to manage- ment positions which are outside the bargaining unit.' We turn now to the Union's contention that its request for information also extended to produce managers and management trainees as bargaining-unit employees. As noted above, the grievance as to the former was nullified by reason of the Union's failure to ask for arbitration thereof and was not mentioned in the October I I or subse- quent letters, and the latter classification is not referred to in the collective-bargaining contract or in any of the Union's letters to Respondent. Therefore, we find it unnec- essary to determine whether the Union would be entitled to information as to them. In view of the foregoing, we shall dismiss the complaint. 347 F2d 61 3d (ir. 1965), i erto l)ilintn. Boeing c ripain. 182 NI RB 421 (1970); General lehitr ( ompani/. 199 NRB 286 1972); Ila Br.o,,,AI I ninon Ga ( mpali. 22(1) NlRB 189 (19751: (;I,he .59or.,, In . t .i. 227 NlRB 1251 (1977. ') In eic ,f oour finding ai to the lack oif releiance of the requcsted foi- maionI. we find it unnlecessar to psit poln Respondent's refu;sal io [trnlllh the infornatilon oil the basis f its unavalilbilits or cnfidenalia t Upon the basis of the findings of fact set forth above, the Board makes the following: CON.I.c SIONS ()I LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6)., and (7) of the Act. 2. Respondent did not violate Section 8(a)(5) and (I) of the Act by refusing to provide the Union with the informa- tion it requested concerning supervisors. ORDER ' It is hereby ordered that the complaint in this proceeding be, and it hereby is, dismissed in its entirety. MEMBER MURPHY, concurring: My colleagues find that the requested information con- cerning supervisors is not necessary to police and adminis- ter the collective-bargaining agreement which pertains only to wages, hours. conditions of employment of employees within the bargaining unit. For this reason, they conclude that Respondent's refusal to provide the information re- quested by the Union does not constitute a violation of Section 8(a)(5) of the Act. I agree with this conclusion, both for the reasons stated by them and for the additional reason that the information was requested in connection with the Union's allegation that Respondent violated Title VII of the Civil Rights Act of 1964. The Union requested information regarding the names, rates of pay. dates of hire and stores worked in for every female manager, assistant manager, supervisor, and for ev- ery female offered the opportunity to assume such posi- tions in Respondent's stores. In addition, the Union re- quested access to records, job description plans or manuals showing the job description or summary of duties, and au- thority of female assistant managers, store managers, and supervisors employed in the stores. Prior to its request, the Union alleged in a letter to Respondent dated August 3, 1976, that Respondent violated Title VII as well as the seniority provision in the collective-bargaining agreement. Thus, the Union while alleging violation of Title VII sought detailed information about female employees in certain employment categories which is similar to the infor- mation an employer with 100 or more employees is re- quired to provide under Title V11.'' In Westinghouse Electric Corporation.' 2 I pointed out in my dissent that disclosure to unions of information re- quired by Title VII would discourage employers from vol- untarily complying with the requirements of Title VII be- cause, in so complying, they would run the risk of a union lawsuit. I further discussed the fact that such disclosure would result in a situation where the Board would order In lthe , ent nil exceptions are filed as prov ded hb Sec 102.46 of the Rules and Regulationl f the Nalional Labor Relaitons Board. the findings. co cluins . and prop sed Order herein hall, as provlded in Sec. 102.48 of lie Rc .al d Regulaions. he adopted h the Ba rd and become its find- iig,. ionclusion.s. ad Order, and all oihections thereto shall he deemed , iicl If.r all purpose, See I1 miinlkhortc L'e, tri, ( roriruion 239 NI.RB 106 fn. 56 (1978). id ccomllpanxing test '2 't .' SAFEWAY STORES. INCORPORATED 839 employers to give unions information which must be kept confidential by the EEOC under the requirements of Title VII. Upholding the Union's request in the instant case would. therefore. conflict with Title Vll and would under- mine the spirit and motive behind Title VII which was o encourage voluntary compliance. For these reasons. in addi- tion to those stated by my colleagues. I find that Respon- dent did not violate the Act by refusing to provide the information requested by the Union. Moreover. I would not find the Union entitled to the information requested even if such information concerned unit employees. As I emphasized in '.cstinghousvc Elcctric (C oporation, upra, and the East Darton 7,o ant Di) ('o..l the request to obtain this information gives rise to a corresponding dutb and oblication to secure and act on it under the dutv of fair representation. I firml, believe that these new obligations placed on unions under the above decisions also place added unfair burdens on employers and lead to a prolifera- tion of litigation. creating more confusion in the law of the workplace and more dela, under the National Labor Rela- tions Act. ' \) \I R 141 1 1 S Copy with citationCopy as parenthetical citation