Lucky Markets, Inc.

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 X37 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 . .. .. ...