NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,514, SHOPPERS FOOD WAREHOUSE CORPORATION and UNITED FOOD AND COMMERCIAL WORKERS LOCAL 400 aw UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

SHOPPERS FOOD WAREHOUSE CORPORATION and UNITED FOOD AND COMMERCIAL WORKERS LOCAL 400 aw UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC.

315 NLRB No. 35.Case Nos. 5-CA-23249 and -23394. September 30, 1994 Stephen J. Gross, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Union Right to Information--Failure to Furnish--Ownership Data.--By failing and refusing to provide a union with information that it requested regarding the ownership and operation of a new store, an employer violated its bargaining duty. The information was relevant to the union’s duty to properly administer a collective bargaining agreement because it concerned the interrelationship between the two entities and would assist the union in developing its bargaining position during negotiations. Section 8(a)(5).

Back reference: ¶3135.138.

From Text of Board’s Decision

The pertinent facts are as follows. The Respondent operates a chain of retain food stores. The Union represents the Respondent’s employees within a 25-mile radius of Washington, D.C., and has been signatory to a series of collective-bargaining agreements with the Respondent for many years. The agreement in effect during the events at issue contained a successorship clause which stated that the agreement would be binding on all signatories as well as their successors and assigns and that the Respondent promised not to transfer operations without first securing the successor’s agreement to assume the Respondent’s contractual obligations. The agreement also contained article 2.2., which stated that “if [the Respondent] should establish a new food store, or stores ... this agreement shall apply to such new store or stores.”

In July 1992, the Union heard rumors that the Respondent was going to open a discount beer and wine store within the Union’s jurisdiction. Earman, a union official, [1] questioned Kaplan, an official of the Respondent, who confirmed the existence of the new store but stated that it had nothing to do with the Union. When pressed, Kaplan said that the Respondent’s personnel would be handling the new store’s hiring, training, and payroll, but he disputed Earman’s contention that its employees would be part of the bargaining unit.

When the Union subsequently renewed its contention in writing to the Respondent that employees of the new store would be part of the unit, the Respondent restated its position that the new store would be a separate operation and not a food store, a reference to the collective-bargaining agreement’s article 2.2. The Union demanded to arbitrate the applicability of the contract to the new store, and the Respondent refused.

The new store, which was named Total Beverage by the time it opened, began operating in October 1992. Subsequently, the Union received documents indicating that some items sold to Total Beverage were billed to it “c/o Shoppers Food Warehouse” and that some goods were transferred from a Shoppers Food Warehouse store to the Total Beverage store, which, according to undisputed record evidence, was designated Respondent’s store #99. Meanwhile, the Union was engaged in litigation in Federal district court to compel arbitration of the dispute, during which the Respondent’s attorney admitted that the Respondent, through a subsidiary, “owned, managed, and operated” Total Beverage prior to February 28, 1993. On that date, the Respondent, which itself is affiliated with the Dart Group, sold Total Beverage to a wholly owned subsidiary of the Dart Group.

During the same time period, the parties began contract negotiations for a successor agreement. On March 11, 1993, the Respondent submitted its proposal for a new agreement in which it, inter alia, proposed to eliminate the successorship provision contained in the expiring agreement. According to Earman, this led the Union to be concerned that the Respondent was going to attempt to move some of its operations to nonunion entities. The Respondent withdrew this proposal at a later bargaining session.

On March 12, 1993, the day following the Respondent’s bargaining proposal, the Union requested the Respondent to furnish certain information concerning who owned, managed, and operated Total Beverage from its inception to that date because, as stated in the request, the Union believed such information was relevant to a determination of whether the Respondent was in violation of article 2.2 of the parties’ agreement. The Respondent refused to provide the information.

The judge noted that the burden was on the Union to demonstrate relevance where, as here, the information it requested concerned matters outside the bargaining unit. He concluded that the Union did not demonstrate that the requested information was relevant, essentially finding that the Union did not have a reasonable basis for requesting the information sought. Thus, he dismissed the complaint allegation that the Respondent violated Section 8(A)(5) and (1) of the Act by refusing to furnish the information. For the reasons set forth below, we find merit to the General Counsel’s and the Charging Party’s exceptions to the judge’s conclusion.

As the judge noted, it is well settled that an employer, on request, must provide a union with information that is relevant to its carrying out its statutory duties and responsibilities in representing employees. NLRB v. Acme Industrial Co., [54 LC ¶11,639] 385 U.S. 432 (1967). This duty to provide information includes information relevant to contract administration and negotiations. Barnard Engineering Co., [1986-87 CCH NLRB ¶18,500] 282 NLRB 617, 619 (1987); and Leland Stanford Junior University, [1981-82 CCH NLRB ¶19,056] 262 NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983). As further noted by the judge, where, as here, the information sought concerns matters outside the bargaining unit, such as those related to single employer or alter ego status, a union bears the burden of establishing the relevance of the requested information. Reiss Viking, [1993-94 CCH NLRB ¶15,088] 312 NLRB 622, 625 (1983); and Duquesne Light Co., [1992-93 CCH NLRB ¶17,198] 306 NLRB 1042 (1992). A union has satisfied its burden when it demonstrates a reasonable belief supported by objective evidence for requesting the information. Knappton Maritime Corp., [1988-89 CCH NLRB ¶15,333] 292 NLRB 236, 238-39 (1988). See also Postal Service, 310 NLRB 391 (1993).

The Board uses a broad, discovery-type standard in determining relevance in information requests, including those for which a special demonstration of relevance is needed, and potential or probable relevance is sufficient to give rise to an employer’s obligation to provide information. Reiss Viking, supra, Children’s Hospital of San Francisco, [1993-94 CCH NLRB ¶15,113] 312 NLRB 920, 930 (1993); and Pfizer, Inc., [1983-84 CCH NLRB ¶16,093] 268 NLRB 916, 918 (1984), enfd. [103 LC ¶11,516] 763 F.2d 887 (7th Cir. 1985). In this regard, the Board does not pass on the merits of a union’s claim of breach of a collective-bargaining agreement in determining whether information relating to the processing of a grievance is relevant. Reiss Viking, supra, and Island Creek Coal Co., [1988-89 CCH NLRB ¶15,326] 292 NLRB 480, 487 (1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990).

Applying these principles, we find, contrary to the judge, that the Union established that the requested information was relevant to the Union’s grievance processing and collective-bargaining functions. Earman initially questioned Kaplan based on a rumor Earman had heard that the Respondent was opening a beer and wine store within the Union’s jurisdiction. Although Kaplan, in confirming the rumor, denied that employees of the new store would be covered under the parties’ collective-bargaining agreement, he conceded that the Respondent would perform the new store’s personnel functions. Additionally, in connection with the Union’s attempts to compel arbitration, it was admitted that the Respondent owned, managed, and operated Total Beverage until it was sold to a related affiliate.

The Union was not required to show that the information which triggered its request was accurate or ultimately reliable, and a union’s information request may be based on hearsay. Magnet Coal, 307 NLRB 444 fn. 3 (1992). We further note that the Union was not required to accept the Respondent’s response that Total Beverage was a totally separate operation and not a food store within the meaning of the contract. By the same token, the Union was entitled to conduct its own investigation and reach its own conclusions about the applicability of the agreement. See Reiss Viking, supra. Thus, as the judge himself concludes, there is not doubt that the Union had reason to believe under the circumstances that the ownership of the Respondent and Total Beverage were closely linked, if not identical.

Furthermore, during approximately the same period of time, at the parties’ first negotiating session for a new agreement, the Respondent proposed eliminating existing contract language assuring that the parties’ agreement would be binding on the Respondent’s successors and assigns in the event of a sale or transfer of the Respondent’s operations. It was immediately after this event that the Union requested information concerning the relationship of the Respondent and Total Beverage. Earman testified in this regard that the Respondent’s proposal led the Union to be concerned that the Respondent was going to attempt to “spin off” portions of its operations to nonunion entities. Contrary to the judge, we cannot conclude that the Union’s concern during collective bargaining was speculative considering the Respondent’s bargaining stance and its concurrent actions denying any obligation to apply the expiring agreement to the new operation.

Additionally, the Union had received documents from unit employees confirming that the Respondent performed payroll functions for the Total Beverage store and further establishing that the Respondent paid for products shipped to Total Beverage, thus providing further support for its belief that the two operations were interrelated. Finally, the Union received two documents reflecting that products were transferred between one of the Respondent’s stores and Total Beverage. Significantly, this documentation indicated a transfer of products from “store 25” to “store 99,” further indicating that the Respondent itself made no distinction in its designations of Total Beverage and its other stores. The judge discounted this evidence of transfer as essentially insufficient to establish a reasonable basis for the Union’s belief that the contract applied to the Total Beverage store, noting that it involved a transfer of only two boxes of fruit on one occasion. Contrary to the judge, we conclude that the documented transfer of products on at least one occasion was sufficient objective evidence, together with the other factors discussed above, to support the Union’s request for information about the interrelationship of Total Beverage and the Respondent’s stores. That information would aid the Union in its determination of whether the parties’ contract had been violated. In light of all the above, we conclude that the Union had a reasonable and objective factual basis for its information request.

We further find that the requested information concerning the interrelationship of the Respondent and Total Beverage was relevant and necessary to the Union in its role as the collective-bargaining representative. In this regard, we find the information was of potential or probable relevance in aiding the Union in developing its bargaining positions during negotiations, noting particularly the timing of the Union’s request, i.e., the day after the Respondent made its initial bargaining proposal to eliminate the “successor” provision of the expiring agreement. Further, contrary to the Respondent’s argument, the fact that it subsequently withdrew this proposal does not render the Union’s concern baseless under all the circumstances set forth above. [2] Additionally, we conclude that the requested information was necessary to the Union’s role in administering and enforcing its collective-bargaining agreement. During the events at issue, the Union was attempting to arbitrate the Respondent’s refusal to apply the agreement to Total Beverage employees. The requested information was clearly relevant to its evaluation and preparation of its position in anticipation of the possible arbitration hearing, whether or not the Union ultimately prevailed as to all aspects of its arbitration case on the merits. See Arch of West Virginia, [1991-92 CCH NLRB ¶16,910] 304 NLRB 1089, 1092 (1991).

We find that the judge’s conclusion in effect was tantamount to a determination on the merits that the Union did not establish a contract violation. But that determination properly rests with the arbitrator, not the Board. Indeed, the Board’s discovery-type standard favoring disclosure is intended to facilitate the arbitral process by permitting a union access to a broad scope of potentially useful information. See Barnard Engineering, supra, citing Acme Industrial, supra; and Pfizer, Inc., supra, citing Communications Workers Local 13 (Detroit Newspaper) v. NLRB, 598 F.2d 267, 271 (D.C. Cir. 1979).

In sum, in light of all the above, we conclude that the Union’s information request concerned relevant and necessary information and that the Respondent violated Section 8(a)(5) by failing to provide the requested information. [3]