Nob Hill General Stores, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 2019

368 NLRB No. 63 (N.L.R.B. 2019)

368 NLRB No. 63
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Nob Hill General Stores, Inc. and United Food and
Commercial Workers Union, Local 5. Case 20–
CA–209431
August 29, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On January 31, 2019, Administrative Law Judge
Amita Baman Tracy issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief. The Gen-
eral Counsel and the Charging Party filed cross-
exceptions and supporting briefs, to which the Respond-
ent filed a combined answering brief. The Charging Par-
ty also filed an answering brief in support of the General
Counsel’s cross-exceptions as well as a reply brief in
support of its own cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order as modified.2

1 We agree with the judge that the information requested by the
Charging Party regarding the opening of the new Santa Clara store is
relevant to the administration of its collective-bargaining agreement
with the Respondent, and that the Respondent’s failure to provide cer-
tain information and unreasonable delay in providing other information
therefore violated Sec. 8(a)(5) and (1) of the Act. We find it unneces-
sary to rely on the judge’s alternative findings that the information
requested is also relevant to counseling unit members regarding poten-
tial transfers to the Santa Clara store or bargaining over the effects of
the opening of the Santa Clara store.
2 The General Counsel and the Charging Party each filed a cross-
exception to the judge’s remedy requiring the Respondent to post the
notice only at the Respondent’s store in Santa Clara, California. We
find merit in their exceptions. The notice should be posted at the Re-
spondent’s stores where affected employees perform their duties and
would thereby have an opportunity to read it. See Postal Service, 345
NLRB 426, 426 fn. 3 (2005), enfd. 486 F.3d 683 (10th Cir. 2007);
Southwestern Bell Telephone Co., 235 NLRB 963, 963 fn. 3 (1978).
Here, all bargaining unit employees could have requested transfers to
the Santa Clara store, and therefore all unit employees were potentially
affected by the Respondent’s unfair labor practices. Accordingly, we
shall modify the judge’s recommended Order to require that the notice
be posted in all of the Respondent’s stores where bargaining unit em-
ployees work, as well as the Santa Clara store where several former
bargaining unit employees work.
The Charging Party has requested numerous additional remedies for
the violations found. We deny these requests because the Charging
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Nob Hill
General Stores, Inc., West Sacramento, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post
at its store located at 3555 Monroe Street, Suite 90, Santa
Clara, California, and at all of its stores within the geo-
graphical jurisdiction of the United Food and Commer-
cial Workers Union, Local 5, where bargaining unit em-
ployees are employed, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 20, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, 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
any time since September 25, 2017.”
Dated, Washington, D.C. August 29, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member

Party has not established that the Board’s traditional remedies are insuf-
ficient to ameliorate the effects of the Respondent’s unfair labor prac-
tices. See, e.g., Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 367 NLRB
No. 117, slip op. at 1 fn. 3 (2019); Alstyle Apparel, 351 NLRB 1287,
1288 (2007) (denying request for a broad cease-and-desist order where
the General Counsel had not shown that traditional remedies were
insufficient to address the violations found in the case).
3 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Min-Kuk Song, Esq., for the General Counsel.
Henry F. Telfeian, Esq., for Respondent.
David A. Rosenfeld, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case
was tried based on a joint motion and stipulation of facts ap-
proved by me on July 23, 2018.1
The United Food and Commercial Workers Union, Local 5
(the Union or the Charging Party) filed the original charge on
November 3, 2017,2 and first amended charge on February 16,
2018. The General Counsel issued the complaint on March 6,
2018.3 Nob Hill General Stores, Inc. (Respondent) filed a time-
ly answer denying all material charges.
The complaint alleges Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by failing
and refusing or unreasonably delaying providing the Union
with requested information relevant and necessary for the Un-
ion to discharge its duties.
On the entire record, and after considering the briefs filed by
the General Counsel, the Charging Party, and Respondent,4 I
make the following
FINDINGS OF FACTS
I. JURISDICTION
At all material times, Respondent, a California corporation
with an office and place of business in West Sacramento, Cali-
fornia (Respondent’s facility), has been engaged in the business
of retail sale of groceries and related products. During the 12-
month period ending November 30, Respondent in conducting
its business operations received gross revenues in excess of
$500,000, and purchased and received goods valued in excess
of $5000 directly from sources outside the State of California.

1 The findings of fact in this decision are based entirely upon the
parties’ stipulation of facts. However, many of these facts are actually
responsive to the Union’s information request at issue in this proceed-
ing. The General Counsel’s brief notes that these stipulated facts that
are responsive to the contested information request such as the number
of employees and their bargaining unit status were only provided dur-
ing these proceedings, and not any time prior (GC Br. at 9, fn. 12–13).
2 All dates hereinafter are in 2017, unless otherwise noted.
3 Via the joint motion to submit stipulated record, the General
Counsel seeks to amend complaint paragraph 9(a) due to an incorrect
date: “October 31, 2018” should be amended to “October 31, 2017.”
The unopposed amendment is hereby granted.
4 Abbreviations used in this decision are as follows: “Jt. Exh.” for
joint exhibit; “GC Br.” for the General Counsel’s brief; “CP Br.” for
the Charging Party’s brief, and “R. Br.” for Respondent’s brief.
The parties admit and I find that Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that the Union is a labor organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
Respondent, a separate corporation, is part of a corporate
family that operates supermarkets and other types of food stores
in Northern California and Northern Nevada under various
“name banners” including Nob Hill General Stores, Inc. (Jt.
Exh. W). Nearly all non-supervisory employees can be catego-
rized as either in the retail department (a clerk) or as a meat
cutter. The representation of non-supervisory employees, who
are either retail department clerks or meat cutters, varies by
store; at a given store, the Union or its sister locals represent all
non-supervisory employees, represent some non-supervisory
employees, or represent no non-supervisory employees. Ra-
ley’s, a California corporation, provides various corporate sup-
port services including labor and human relations services to all
of these stores, and directly operates some of the stores.5
With respect to Respondent’s stores which have opened pre-
viously in the Union’s (or its predecessor local unions) jurisdic-
tion, Respondent staffed each new store with a cadre of em-
ployees, as defined and used in Section 1.13 of the CBA, from
employees who voluntarily sought a transfer to a new store. In
all instances, some existing unit employees, represented by the
Union, and some existing non-unit employees transferred into
the new store. Respondent notified all of its existing unit em-
ployees, represented by the Union, of the opportunity to trans-
fer to and request a transfer to a new store. Respondent also
notified the employees working in non-unit stores of the oppor-
tunity to transfer and request to transfer to the new store. Re-
spondent did not require or force any employee to transfer to a
new store. All employees who requested a transfer were con-
sidered for transfer, but not all employees who requested a
transfer were granted a transfer.
B. The Union
The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act and consti-
tute a unit in existence for many years (the Unit):
All Retail Department Employees and Meat Cutters working
in Respondent’s stores located within the geographical juris-
diction of the Union, as described in the collective-bargaining
agreement between the Union and Respondent effective by its
terms from October 12, 2014 to October 11, 2017 and extend-
ed by the parties to February 8, 2018.

5 During the relevant time period, Mark Foley (Foley) held the posi-
tion of executive vice president and chief people officer for Raley’s and
was a supervisor and agent of Respondent within the meaning of Secs.
2(11) and 2(13) of the Act. Also Tara Locaso (Locaso) held the posi-
tion of Labor Relations Manager for Raley’s and was an agent of Re-
spondent within the meaning of Sec. 2(13) of the Act. Finally, Henry
Telfeian (Telfeian) was the legal representative of Respondent and an
agent of Respondent within the meaning of Sec. 2(13) of the Act.
NOB HILL GENERAL STORES, INC. 3
Since at least January 1, 2000, Respondent has recognized
the Union as the exclusive collective-bargaining representative
of the Unit (at those store locations and for those employees
where the Union has demonstrated its majority status).6 This
recognition has been embodied in successive collective-
bargaining agreements between Respondent and the Union
concerning the terms and conditions of employment of unit
employees, the most recent of which was effective by its terms
from October 12, 2014, to October 11, 2017, and extended by
agreement of the Union and Respondent to February 8, 2018
(Collective-Bargaining Agreement or CBA) (Jt. Exh. J).
Of relevance in this matter, Section 1.1 concerns union
recognition; Section 1.11 concerns individual agreements; Sec-
tion 1.14 of the CBA concerns new jobs; Section 2.4 concerns
hiring when employees are transferred to jobs covered by the
CBA from outside the Union’s jurisdiction; Section 2.5 con-
cerns new employees; Section 2.6 concerns extra work; Section
4.3.4 concerns recall when employees who have been laid off
for lack of work have seniority rights in recall for jobs subse-
quently available; Section 4.9 concerns transfers; Section 4.10
concerns part-time employees; and Section 5.9 concerns union
business (Jt. Exh. J).
Specifically, Section 1.11, Individual Agreements, states:
The Employer agrees that no employee covered by this Agree-
ment shall be compelled or allowed to enter into any individual
contract or agreement with said Employer concerning wages,
hours of work, and/or working conditions that provides less
benefits than the terms and provisions of this Agreement, ex-
cept by written agreement of the Employer, the employee and
the Union. Section 1.13 of the CBA states:
[…] Notwithstanding any language to the contrary contained
in this [CBA] between the parties, it is agreed this [CBA]
shall have no application whatsoever to any new food market
or discount center until fifteen (15) days following the open-
ing to the public of any new establishment. [….]
The Employer shall staff such new or reopened food market
with a combination of both current employees and new hires,
in accordance with current industry practices of staffing such
stores with a cadre of current employees possessing the nec-
essary skills, ability and experience, plus sufficient new hires
to meet staffing requirements. Employees, who are thus
transferred, upon whom contributions are made to the various
trust funds, shall continue to have contributions to the several
trust funds made on their behalf in the same manner and in the
same amount per hour as such contributions were made prior
to their transfer.
[….]
(Jt. Exh. J). Section 4.9, Transfers, states: No employees shall
be required to accept a permanent transfer outside the jurisdic-
tion of this Local Union unless approved by the Union. Re-

6 During the relevant time period, David Rosenfeld (Rosenfeld) was
the legal representative of the Union and agent of the Union. Also,
John Nunes (Nunes) held the position of President of the Union and
was an agent of the Union.
quests for transfers, within the Union’s geographical jurisdic-
tion, so an employee may work nearer his home will be given
proper consideration and will not be refused arbitrarily. Simi-
larly, an employee will not be arbitrarily or capriciously trans-
ferred. Management will give proper consideration to transfer
requests.
With regard to Respondent’s staffing of new stores to be
opened within the Union’s jurisdiction, the Union never filed
grievances asserting that Respondent’s staffing practices as
described in Respondent’s operations violated any contractual
provision. In addition, with the exception of this conflict in this
matter, the Union never filed an information request or demand
seeking any type of information regarding any store prior to the
date the store opened to the public.
Previously, when Respondent opened a new store within the
Union’s jurisdiction, the parties negotiated separate agreements
that upon proof, offering or availability of the Union’s majority
status, the Union would become the representative of the em-
ployees working in that new store, on a date subsequent to the
new store’s opening. All Respondent’s stores within the Un-
ion’s jurisdiction, except the Santa Clara, California Nob Hill
General Store (Santa Clara Store), are covered by the parties’
CBA.
C. Santa Clara Store
From September 15 through September 22, Respondent
posted at store numbers 315, 316, 604, 606, 634, and 635 a
physical flyer notice soliciting current employees from those
stores to transfer to a new store that Respondent was opening at
3555 Monroe Street, Suite 90, Santa Clara, California (Santa
Clara Store) (Jt. Exh. S). The open positions listed in the flyer
were non-supervisory positions normally included in the bar-
gaining unit. In addition, Respondent posted a notice on Ra-
ley’s intranet site, known as “the Pantry”, on August 17 and on
August 24, advising employees of the availability of jobs in the
Santa Clara Store and inviting employees to request a transfer
by going to the posted job opening on the “Raley’s Jobs” web-
site. These Santa Clara Store’s job openings continued to be
posted on the “Raley’s Jobs” website throughout additional
dates in September, October and November (Jt. Exh. T). Any
employees from stores within the Raley’s family had access to
the intranet job notice postings.
Respondent originally scheduled the Santa Clara Store to
open in October, postponed the opening to December, and then
finally opened to the public on January 10, 2018. As of Janu-
ary 10, 2018, a total of 13 current employees sought a transfer
to work in the Santa Clara Store. Any employee working in
any of the store locations listed on Joint Exhibit W was eligible
to request a transfer to the Santa Clara Store. The 13 employ-
ees who requested to transfer consisted of the following:
1 Unit employee from Store 615 was not offered a transfer.
1 non-Unit employee from Store 236 accepted a transfer offer.
1 non-Unit employee from Store 315 accepted a transfer offer.
1 Unit employee from Store 603 accepted a transfer offer.
3 Unit employees from Store 604 accepted transfer offers.
1 Unit employee from Store 620 accepted a transfer offer, but
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
employment terminated prior to the transfer date.
1 Unit employee from Store 628 accepted a transfer offer.
2 Unit employees and 1 non-Unit employee from Store 634
were offered transfer where 1 Unit employee and 1 non-Unit
employee accepted the offer while 1 Unit employee declined
the offer.
1 Unit employee from Store 635 accepted a transfer offer.
Furthermore, all non-supervisory employees who transferred to
the Santa Clara Store were volunteers who requested and ac-
cepted transfers.
As of January 10, 2018, 10 existing employees transferred to
and worked at the Santa Clara Store. The remaining 47 non-
supervisory employees working in the Santa Clara Store as of
January 10, 2018, were “new hires.” The opening and opera-
tion of the Santa Clara Store has not resulted in the layoff of
any unit employees or in the reduction of any unit employee’s
work hours. Also, the opening and operation of the Santa Clara
Store has not resulted in any unit employees then on “lay-off”
status for lack of work during the pendency of the Union’s
information requests. Any positions or work hours vacated by
unit employees transferring to the Santa Clara Store have be-
come available to other unit employees that did not transfer.
The Santa Clara Store employees are not represented by any
labor organization. While the Union represented some of the
Santa Clara Store employees when they worked in the Unit at
their former work locations, the Union has never represented
those employees after they began working at the Santa Clara
Store. Also, prior to the opening of the Santa Clara Store, Re-
spondent, on an unspecified date, indicated to the Union that,
absent agreement, it would not recognize the Union in that store
without a National Labor Relations Board conducted election.
D. Timeline of Events Regarding the Union’s Information
Request
On September 25, via letter to Foley, the Union requested
that Respondent provide the following information “within the
next week”:
(1) Please provide a list of classifications and the number of
employees in each classification to be initially hired in the
store. Let us know how many in each classification will be
full time (40 hours per work) and part time.
(3) Provide a list of those employees who are currently
working in the bargaining unit who have been asked to work
in the new store. We want the names of those employees and
the dates that they were asked to work in the store.
(4) Please provide a list of all current employees who have in-
dicated their willingness to work in the store or have agreed to
work in the store as of the date of this request and as of the
date of your reply. Provide the classifications they will be
working in and the wage rates promised them.
(5) Please provide a copy of any employee handbook that
[Respondent] intend[s] to apply to the employees in the store.
(6) Please provide a statement of the ranges of rates to be paid
to each classification of employee in the store.
(7) Please provide a copy of any benefit plans to be applicable
to employees in the store.
(8) When will employees begin actually working in the store?
What is the projected opening date?
The Union also asked for the following information which is
unnumbered in its request:
Please advise us of Nob Hill’s position as to whether employ-
ees who are currently working in the bargaining unit may
transfer into the store and under what circumstances.
Local 5 has members who are working short hours, not work-
ing or who are otherwise available to work in the new store.
Please advise Local 5 of how we can make arrangements for
them to be hired.
The Union explained that the above information is necessary
and relevant to administer the following provisions of the CBA
(Sections 1.14, 2.4, 2.5, 4.3.4, 4.9, 4.10, 5.9, and various other
provisions of the CBA) and to bargain over the effects of the
opening of the Santa Clara Store (Jt. Exh. K).
On October 18, Respondent, via letter from Locaso, refused
to furnish the information requested by the Union on September
25. Respondent stated that it was not obligated to furnish the
information because Section 1.13 of the CBA indicates that the
CBA does not apply to the Santa Clara Store but also stated that
it would consider any information requests made by the Union
after the Santa Clara Store had been open to the public for 15
days (Jt. Exh. L).
On October 31, the Union via letter again requested that the
information it first requested on September 25, be provided.
The Union stated that it was entitled to this information based
on the CBA provisions regarding the staffing of new stores and
the continuation of trust fund payments on behalf of unit em-
ployees after those employees transferred to the Santa Clara
Store. The Union requested that the information be provided
“within the next 48 hours” (Jt. Exh. M).
Again on December 5, the Union via letter requested the in-
formation it first requested on September 25. The Union reiter-
ated that the Union is entitled to the information because the
CBA includes a provision allowing unit employees to staff a
new store and because the information is relevant and necessary
for the Union to administer Sections 1.14, 1.1, 1.11, 1.13, and
2.6 of the CBA. The Union stated in response to Respondent’s
position that the Santa Clara Store is not covered by the CBA
per Section 1.13, “Staffing is a critical issue. The contract pro-
tects the current bargaining unit by allowing them to staff a new
store. When a new store opens it often compete [sic] with ex-
isting stores and the right to transfer and the staffing obligation
protects current employees and the bargaining unit” (Jt. Exh.
N).7
On December 13, Respondent via letter again refused to fur-
nish the information the Union first requested on September 25.
Respondent reiterated that it was not obligated to provide the

7 The December 5 letter from the Union references Section 1.14 of
the CBA but subsequent correspondences between the parties indicates
that the Union intended to address Section 1.13 of the CBA as original-
ly noted by Locaso in the October 18 letter (Jt. Exhs. O, P).
NOB HILL GENERAL STORES, INC. 5
information (Jt. Exh. O). However, in this letter, Respondent
did answer the following unnumbered requests from the Union:
Please advise us of Nob Hill’s position as to whether employ-
ees who are currently working in the bargaining unit may
transfer into the store and under what circumstances.
Local 5 has members who are working short hours, not work-
ing or who are otherwise available to work in the new store.
Please advise Local 5 of how we can make arrangements for
them to be hired.
On December 19, the Union reiterated its position that it is
entitled to the information it first requested on September 25.
The Union explained that it is entitled to the information re-
quested as the CBA includes a provision requiring Respondent
to staff a new store with a combination of current employees
and new hires (Jt. Exh. P).
On December 23, Respondent responded to the Union’s De-
cember 19 letter, and again stated that its position remained the
same (Jt. Exh. Q).
On December 27, the Union via email from Nunes to Foley
and Locaso, again requested the information it originally re-
quested on September 25. The Union stated that it needs the
information to represent unit employees who are accepting a
transfer or considering a transfer to the Santa Clara Store.
Nunes set forth various scenarios as to why the request for in-
formation is relevant and necessary (Jt. Exh. R). Nunes wrote
with regard to the September 25 information request,
[…] As with Nob Hill and our other contracted Union em-
ployers, when new stores open there are many additional op-
portunities afforded current employees and Local 5 members
with a process in which to attain those opportunities contained
in the collective bargaining agreements. Some of those op-
portunities would include job transfers so employees may
work nearer to their homes, promotions, additional full-time
positions and more work hours for part-time workers to name
a few. It is the duty of the Union to monitor these matters and
make sure they are performed in a fair and equitable manner
consistent with the terms of the Union agreement.
On the other hand, if Raley’s employment recruiters are in-
forming Local 5 members the store will be a non-union opera-
tion it is important they have all the facts before making such
an important decision. It is not possible for the Union to edu-
cate current Local 5 Nob Hill members of the possible pitfalls
of accepting such a transfer if we do not know prospectively
the Union members choosing to go to the new store. For ex-
ample, employees in the pension plan will cease to be partici-
pants which will impact their retirement income and will also
have severe negative effects on their retiree medical eligibil-
ity. It is also important to receive impartial information from
the Union on the differences in the medical plans offered by
the company compared to the medical benefits provided un-
der the Union Trust Fund plan. […]
(Jt. Exh. R.)
Since September 25, Respondent has refused to provide the
following information requested by the Union:
(1) Please provide a list of classifications and the number of
employees in each classification to be initially hired in the
store. Let us know how many in each classification will be
full time (40 hours per work) and part time.
(3) Provide a list of those employees who are currently work-
ing in the bargaining unit who have been asked to work in the
new store. We want the names of those employees and the
dates that they were asked to work in the store.
(4) Please provide a list of all current employees who have
indicated their willingness to work in the store or have agreed
to work in the store as of the date of this request and as of the
date of your reply. Provide the classifications they will be
working in and the wage rates promised them.
(5) Please provide a copy of any employee handbook that
[Respondent] intend[s] to apply to the employees in the store.
(6) Please provide a statement of the ranges of rates to be
paid to each classification of employee in the store.
(7) Please provide a copy of any benefit plans to be applica-
ble to employees in the store.
(8) When will employees begin actually working in the store?
What is the projected opening date?
ISSUES PRESENTED
The parties stipulated as to the following:
1. Whether Respondent violated Section 8(a)(1) and (5) of
the Act by failing and refusing to furnish the Union with the
information it requested on September 25, identified in items
1 and 3 to 8 of subparagraph 9(a) of the complaint, and as fol-
lows:
(1) Please provide a list of classifications and the number of
employees in each classification to be initially hired in the
store. Let us know how many in each classification will be
full time (40 hours per work) and part time.
(3) Provide a list of those employees who are currently work-
ing in the bargaining unit who have been asked to work in the
new store. We want the names of those employees and the
dates that they were asked to work in the store.
(4) Please provide a list of all current employees who have
indicated their willingness to work in the store or have agreed
to work in the store as of the date of this request and as of the
date of your reply. Provide the classifications they will be
working in and the wage rates promised them.
(5) Please provide a copy of any handbook that [Respondent]
intend[s] to apply to the employees in the store.
(6) Please provide a statement of the ranges of rates to be
paid to each classification of employee in the store.
(7) Please provide a copy of any benefit plans to be applica-
ble to employees in the store.
(8) When will employees begin actually working in the store?
What is the projected opening date?
2. Whether Respondent violated Section 8(a)(1) and (5) of
the Act by unreasonably delaying in furnishing the Union with
the information it requested on September 25, identified in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
unnumbered items of subparagraph 9(a) of the complaint, and
as follows:
(1) Please advise us of Nob Hill’s position as to whether em-
ployees who are currently working in the bargaining unit may
transfer into the store and under what circumstances.
(2) Local 5 has members who are working short hours, not
working or who are otherwise available to work in the new
store. Please advise Local 5 of how we can make arrange-
ments for them to be hired.
DISCUSSION
A. Respondent Failed to Provide Relevant and Necessary In-
formation to the Union In the Performance of Its Duties as the
Collective-Bargaining representative of the Unit Employees
The General Counsel argues that the Union explained the
relevance of its requested information as its need to ensure that
Respondent (1) complied with the staffing requirements for
new stores set forth in CBA Section 1.13; (2) did not compel or
allow employees covered by the CBA to enter individual con-
tracts or agreements providing less benefits than the CBA as
covered by Section 1.11; and (3) complied with the transfer
provisions of Section 4.9. Furthermore, the Union explained
the relevance for the requested information to engage in effects
bargaining. Among its many arguments, Respondent argues
that since the CBA did not apply to the Santa Clara Store as it
was a new store until 15 days after it was open to the public the
Union had no basis for the information requested. Moreover,
Respondent argues that the Union failed to provide “specific
facts” to support a “viable and valid” claim of breach of con-
tract (R. Br. at 25–30). Respondent argues that the Union
waived its right to enforce the contractual provisions it cites (R.
Br. at 32–37).
An employer’s duty to bargain includes a general duty to
provide information needed by the bargaining representative to
assess claims made by the employer relevant to contract negoti-
ations as well as administration of the contract. In addition, an
employer is required to furnish the union representing its em-
ployees with information that is relevant to the union in the
performance of its collective-bargaining duties. Piggly Wiggly
Midwest, LLC, 357 NLRB 2344, 2355 (2012); NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–436 (1967); NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). This includes information
which concerns the terms of transfer of bargaining unit em-
ployees. See Kansas Education Assn., 275 NLRB 638, 640
(1985).
Generally, a union’s request for information pertaining to
employees in the bargaining unit is presumptively relevant and
an employer must provide the information CVS Albany, LLC,
364 NLRB No. 122, slip op. at 2 (2016). However, where the
information requested concerns non-unit employees, the union
bears the burden of establishing relevancy. Public Service
Electric & Gas Co., 323 NLRB 1182, 1186 (1997). A union
satisfies its burden to do so, if it demonstrates either “a reason-
able belief, supported by objective evidence, that the requested
information is relevant,”8 or “a ‘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,’”9
The required showing is subject to a liberal, “discovery-type
standard” and is not an exceptionally heavy one. DirectSat
USA, LLC, 366 NLRB No. 40, slip op. 1, fn. 2 (2018). The
union need only show a probability that the desired information
was relevant, and would only be used by the union to carry out
its statutory duties and responsibilities. But “[t]he union’s ex-
planation of relevance must be made with some precision; and
a generalized, conclusory explanation is insufficient to trigger
an obligation to supply information.” Disneyland Park, 350
NLRB 1256, 1258, fn. 5 (2007). The determination of rele-
vance “depends on the factual circumstances of each particular
case.” San Diego Newspaper Guild, Local No. 95 v. NLRB,
548 F.2d 863, 867 (9th Cir. 1977).
As explained below, I find that Respondent failed to provide
the information requested by the Union which violates Section
8(a)(5) and (1) of the Act. In this matter, the Union repeatedly
explained that it sought to administer the CBA regarding the
staffing of the Santa Clara Store as well as to bargain any ef-
fects of its opening. In summary, the Union sought the classifi-
cations and numbers of employees to be hired at the Santa
Clara Store along with the full or part-time status of each posi-
tion; the Union sought the number of unit employees asked to
work at the Santa Clara Store as well as the date these employ-
ees were asked this question; a list of all current employees
who had indicated a willingness to work or who have agreed to
work in the Santa Clara Store; the employment handbook
which would be applicable to those employees working in the
Santa Clara Store; the ranges of rates of pay for each employee
in the Santa Clara Store; the benefits applicable to the employ-
ees working in the Santa Clara Store; and the dates of when the
employees would be working in the Santa Clara Store and what
date the Santa Clara Store would be opened to the public. The
Union explained the relevancy of such information to its statu-
tory duties and responsibilities via written correspondence with
Respondent from September to December. Generally the Un-
ion mentioned various contractual provisions as well as the
potential for effects bargaining.
After the Union’s initial request, Respondent declined to
provide any information claiming that Section 1.13 of the CBA
indicated that the CBA would not apply to the Santa Clara
Store any sooner than 15 days after it was open to the public,
and thus, the Union had no contractual need for the infor-
mation. In response, the Union explained that it was entitled to
the information as Section 1.13 concerning staffing of a new
store as well as the trust fund contributions of unit employees
who transferred. To reiterate, Section 1.13 states that Respond-
ent shall staff such new food market with a combination of both
current employees and new hires, in accordance with current
industry practices of staffing such stores with a cadre of current
employees possessing the necessary skills, ability and experi-

8 Disneyland Park, 350 NLRB 1256, 1257–1258 (2007) (citation
omitted).
9 Kraft Foods North America, Inc., 355 NLRB 753, 754 (2010)
(quoting NLRB v. Acme Industrial Co., supra at 437).
NOB HILL GENERAL STORES, INC. 7
ence, plus sufficient new hires to meet staffing requirements.
In addition, employees, who are thus transferred, upon whom
contributions are made to the various trust funds, shall continue
to have contributions to the several trust funds made on their
behalf in the same manner and in the same amount per hour as
such contributions were made prior to their transfer. Even after
such explanation, Respondent did not respond to the Union and
did not provide the Union with any information. Again, the
Union renewed its request in early December stating that the
CBA covers staffing of a new store. Later, in December, the
Union again renewed its request for information, and explained
that the Union needed to monitor the transfers of employees to
ensure that the staffing was conducted in a “fair and equitable
manner consistent with the terms of the Union agreement” (Jt.
Exh. R). The Union also provided information that its mem-
bers were being informed that the Santa Clara Store would be a
non-union store, and thus, the Union needed this information to
“educate” unit employees on the effects of any transfer to a
non-union store.
Based on the parties’ stipulated record, I find that the Union
has satisfied its burden by showing a probability that the de-
sired information was relevant, and that it would be of use to
the union in carrying out its statutory duties and responsibili-
ties. Again, the Union’s burden is “not an exceptionally heavy
one.” SBC Midwest, 346 NLRB 62, 64 (2005). Per Section
1.13 of the CBA, the staffing of the new store would be a mix
of new hires and current employees, some of whom could have
been unit employees. As such, it appears relevant to the Un-
ion’s duties to determine which positions would be filled by at
the Santa Clara Store as well as the work hours of such posi-
tions. In the same vein, it appears relevant and necessary for
the Union to need the list of employees who have been asked to
work in the Santa Clara Store along with a list of employees
(and their classifications and wage rates) who were willing to
work in the store.
The Union listed other CBA provisions which could also im-
pact any employee who transferred to the Santa Clara Store
including provisions concerning the employees’ pension plans
as well as transfer provisions. For example, Section 1.11, cited
by the Union, covers employment agreements, and specifies
that no unit employee will be compelled or allowed to enter
into an employment agreement with the Employer which re-
duces wages and benefits of the employee. In addition, Section
4.9 concerns transfers and when and by whom those should be
approved. The Union obviously should know which unit em-
ployees sought to transfer so as to provide them counsel as
needed including any benefits that may be changed due to the
transfer. In addition, the need for the employee handbook,
range of rates to be paid, and benefit plans is clear from the
Union’s duties to ensure that any unit members who chose to
transfer would be well-informed as to any difference between
their current wages, benefits, and terms and conditions of em-
ployment. Furthermore, the need by the Union to know when
the store would be open for employees and the public directly
relates to Section 1.13 which states that the CBA shall apply no
sooner than 15 days after a new store is open to the public—
thus, how would the Union know when to be prepared any
bargaining or recognition if the date of the Santa Clara Store’s
opening is not known. Thus, I find that the information sought
by the Union was necessary to determine whether Respondent
was following the CBA concerning staffing at the new location
as well as any effects on unit employees transferring to the
Santa Clara Store.
Moreover, as the Union indicated in its last correspondence
of December 27, the Union certainly may need this information
to bargain over the effects of the opening of the Santa Clara
Store. This explanation is certainly valid, and provides another
basis in which the Union overcomes its burden to prove the
probability that the desired information is relevant to fulfill its
statutory duties. As Nunes articulated, with the opening of a
new store, the unit employees remaining in their current stores
also creates the need for the Union to monitor the CBA to en-
sure that all provisions are being met.
Respondent argues that the CBA, specifically at Section
1.13, does not apply to the Santa Clara Store, and thus the in-
formation requested was not relevant and necessary to the Un-
ion’s representational duties (R. Br. at 9). Respondent elabo-
rates that the CBA only applied to the Santa Clara Store 15
days after the opening of the store, and thus, Respondent had no
existing contractual obligation to the Union at the time of the
information request (R. Br. at 16). The language in Section
1.13 mirrors the language analyzed by the Board in Raley’s,
336 NLRB 374 (2001). In Raley’s the Board found that the
provision such as in the parties’ CBA at Section 1.13 is known
as an “after acquired stores clause,” “additional stores clause,”
or “after acquired.” Id. at 376; see also Alpha Beta Co., 294
NLRB 228 (1989). The Board determined that these types of
clauses affected an employer’s obligation to recognize a union
at a new store 15 days after a store opens. However, I do not
find that this after acquired provision affects the Union’s in-
formation request regarding the staffing of the new store, the
impact of any transfer by unit employees to the Santa Clara
Store, or the applicability of the CBA to these unit employees
as they seek to transfer. Again, the Union’s burden is not a
heavy one, but simply one where the Union should show a
probability that the desired information is relevant. The Board
has affirmed administrative law judge decisions in similar sit-
uations involving whether a union is entitled to requested in-
formation to evaluate or process a grievance where the employ-
er refuses to provide the requested information based on its
interpretation of the parties’ collective-bargaining agreement.
United-Carr Tennessee, 202 NLRB 729, 731–732 (1973) (em-
ployer unlawfully refused to provide certain information to the
union based on its reliance on its own interpretation of the con-
tract where the employer determined the information was not
relevant to the union’s decision to take a grievance to arbitra-
tion). Here too, Respondent may continue to argue that the
CBA does not apply to the Santa Clara Store until 15 days after
the store opens, but such an argument on any potential griev-
ance or bargaining issue would only arise in those proceedings,
not under these circumstances where the Union seeks infor-
mation to determine whether in its view the CBA is being fol-
lowed appropriately. An actual grievance need not be pending,
and it is sufficient if the requested information is potentially
relevant to a determination as to whether a grievance should be
pursued. United Technologies Corp., 274 NLRB 504 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Respondent also argues that the Union never requested to
bargain even after the Santa Clara Store opened. However, as
the Union never received its requested information, the argu-
ment that the Union never requested to bargain makes little
sense. See NLRB v. Postal Service, 18 F.3d 1089, 1100–1101
(3d Cir. 1994) (“a union may be entitled to information [proba-
tive of discrimination] before it has made a bargaining de-
mand”). The relevance for the information requested is clear—
the Union sought to ensure that the parties’ agreement regard-
ing the staffing for the Santa Clara Store was being followed
along with other provisions of the CBA including the transfer
provisions.
To the extent Respondent argues that the Union waived its
rights to enforce the contractual provisions cited in support of
its claim for relevance, the Board requires a waiver of a party’s
statutory right to be clear and unmistakable. Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693 (1983); Timken Roller Bearing
Co., 138 NLRB 15, 16 (1962). “A clear and unmistakable
waiver may be found in the express language and structure of
the collective-bargaining agreement or by the course of conduct
of the parties. The burden is on the party asserting waiver to
establish that such a waiver was intended.” Leland Stanford
Junior University, 307 NLRB 75, 80 (1992). Respondent pre-
sented no evidence to support its burden of proof that the Union
waived its right to enforce the contractual provisions.
Accordingly, Respondent violated Section 8(a)(5) and (1) of
the Act when it refused to provide the Union relevant and nec-
essary information it requested on September 25, and repeated
on October 31, December 5, December 19, and December 27,
B. Respondent Unreasonably Delayed Providing Information
to the Union
The General Counsel argues that Respondent violated Sec-
tion 8(a)(5) of the Act when it provided the following infor-
mation in an untimely manner: (1) Please advise us of Nob
Hill’s position as to whether employees who are currently
working in the bargaining unit may transfer into the store and
under what circumstances; and (2) Local 5 has members who
are working short hours, not working or who are otherwise
available to work in the new store, and please advise Local 5 of
how we can make arrangements for them to be hired. Re-
spondent argues that it did not need to provide the information,
and Respondent had timely responded to the Union’s requests.
“[A]n unreasonable delay in furnishing such information is
as much of a violation of Section 8(a)(5) of the Act as a refusal
to furnish the information at all.” Monmouth Care Center, 354
NLRB 11, 41 (2009) (citations omitted), reaffirmed and incor-
porated by reference, 356 NLRB 152 (2010), enfd. 672 F.3d
1085 (D.C. Cir. 2012). “[I]t is well established that the duty to
furnish requested information cannot be defined in terms of a
per se rule. What is required is a reasonable good faith effort to
respond to the request as promptly as circumstances allow.”
Good Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993).
“In evaluating the promptness of the employer’s response, the
Board will consider the complexity and extent of information
sought, its availability, and the difficulty in retrieving the in-
formation.” West Penn Power Co., 339 NLRB 585, 587 (2003)
(quoting Samaritan Medical Center, 319 NLRB 392, 398
(1995)), enfd. in relevant part 394 F.3d 233 (4th Cir. 2005); see
Pan American Grain, 343 NLRB 318 (2004) (3-month delay);
Bundy Corp., 292 NLRB 671 (1989) (2.5-month delay); Wood-
land Clinic, 331 NLRB 735, 736 (2000) (7-week delay).
To determine whether an employer has failed to furnish in-
formation in a timely manner, the Board considers a variety of
factors, including the nature of the information sought (includ-
ing whether the requested information sought is time sensitive);
the difficulty in obtaining it (including the complexity and ex-
tent of the requested information); the amount of time the party
takes to provide it; the reasons for the delay in providing it; and
whether the party contemporaneously communicates these
reasons to the requesting party. West Penn Power Co., 339
NLRB 585, 587 & fn. 6, 588 & fn. 9. See also Postal Service,
308 NLRB 547, 551 (1992); Valley Inventory Service Inc., 295
NLRB 1163, 1166 (1989).
To repeat, the Union requested the information on September
25, and Respondent provided two of the requests on December
13. Ultimately, Respondent opened the Santa Clara Store on
January 10, 2018. Applying the above factors, it is clear that
Respondent unlawfully delayed in providing the information to
the Union. The information sought by the Union was not diffi-
cult to obtain, complex or voluminous. In fact, Respondent did
not provide any indication that providing such information was
difficult, and failed to offer any explanation or reason why it
delayed providing the information. As the Union did not even
know when the Santa Clara Store was to open, any delay in
providing this reasonably easy information to obtain was signif-
icant. The Board has found that even a 2-month delay in
providing information to a union has been found to be untime-
ly. Gloversville Embossing Corp., 314 NLRB 1258 (1994).
Yes, the Santa Clara Store opened in January 2018, but the
Union did not know of its opening date when it first requested
this information in September.
Based on the foregoing, Respondent violated Section 8(a)(5)
and (1) by failing and delaying from September 25 to Decem-
ber 13 to provide the following requested information: whether
employees who are currently working in the bargaining unit
may transfer into the store and under what circumstances, and
advise the Union on how to make arrangements for those mem-
bers who are working short hours, not working or who are oth-
erwise available to work in the new store.
CONCLUSIONS OF LAW
1. Nob Hill General Stores, Inc. (Respondent) is, and has
been at all times material, an employer engaged in commerce
and in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers Union, Local 5
(Charging Party or the Union) is, and has been at all times ma-
terial, a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to provide the Union with information re-
quested on September 25, and repeated on October 31, Decem-
ber 5, 19, and 27, which was necessary and relevant to the Un-
ion’s performance of its duties as the collective-bargaining
representative of the unit employees.
NOB HILL GENERAL STORES, INC. 9
4. By delaying in providing responses to the Union’s Sep-
tember 25 request until December 13, Respondent has violated
Section 8(a)(5) and (1) of the Act.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated the Act by failing
and refusing to furnish the Union with the information request-
ed, and delaying providing other information, and thereby en-
gaged in certain unfair labor practices, I shall order it to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.10
On the basis of the foregoing findings of fact and conclu-
sions of law, and the entire record, I issue the following rec-
ommended11
ORDER
Respondent, Nob Hill General Stores, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish United Food and Com-
mercial Workers Union, Local 5 with information requested on
September 25, and repeated on October 31, December 5, De-
cember 19, and December 27, that is relevant and necessary to
the Union’s performance of its functions as the collective-
bargaining representative of Respondent’s unit employees.
(b) Unreasonably delaying from September 25 to December
13 in providing responses to requests for relevant information
by the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish to the Union, in a timely manner, the infor-
mation requested on September 25, and repeated on October
31, December 5, 19, and 27, described as follows:
(1) Please provide a list of classifications and the number of
employees in each classification to be initially hired in the
store. Let us know how many in each classification will be
full time (40 hours per week) and part time.
(3) Provide a list of those employees who are currently work-
ing in the bargaining unit who have been asked to work in the
new store. We want the names of those employees and the
dates that they were asked to work in the store.
(4) Please provide a list of all current employees who have in-

10 The Union requests that a wide variety of non-traditional reme-
dies, including those remedies recommended due to special circum-
stances (CP Br. at 5–6). However, I decline to recommend such reme-
dies as the factual scenario in this matter does not warrant such reme-
dies.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
dicated their willingness to work in the store or have agreed to
work in the store as of the date of this request and as of the
date of your reply. Provide the classifications they will be
working in and the wage rates promised them.
(5) Please provide a copy of any handbook that [Respondent]
intend[s] to apply to the employees in the store.
(6) Please provide a statement of the ranges of rates to be paid
to each classification of employee in the store.
(7) Please provide a copy of any benefit plans to be applicable
to employees in the store.
(8) When will employees begin actually working in the store?
What is the projected opening date?
(b) Within 14 days after service by the Region, post at its
facility in Santa Clara, California, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current and former employees em-
ployed by Respondent at any time since September 25, 2017.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. January 31, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in each of the notices referenced herein reading
“Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to furnish the United Food and
Commercial Workers Union, Local 5 (the Union) with the in-
formation requested on September 25, 2017, and repeated on
October 31, December 5, 19, and 27, 2017, which is relevant
and necessary to the Union’s performance of its duties as the
collective-bargaining representative of our employees in the
bargaining unit.
WE WILL NOT unreasonably delay in providing responses to
requests for relevant information from the Union from Septem-
ber 25, 2017, to December 13, 2017.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the National Labor Relations Act.
WE WILL, in a timely manner, furnish the Union with the in-
formation requested on September 25, 2017, and repeated on
October 31, December 5, 19, and 27, 2017, described as fol-
lows:
(1) Please provide a list of classifications and the number of
employees in each classification to be initially hired in the
store. Let us know how many in each classification will be
full time (40 hours per week) and part time.
(3) Provide a list of those employees who are currently work-
ing in the bargaining unit who have been asked to work in the
new store. We want the names of those employees and the
dates that they were asked to work in the store.
(4) Please provide a list of all current employees who have
indicated their willingness to work in the store or have agreed
to work in the store as of the date of this request and as of the
date of your reply. Provide the classifications they will be
working in and the wage rates promised them.
(5) Please provide a copy of any handbook that [Respondent]
intend[s] to apply to the employees in the store.
(6) Please provide a statement of the ranges of rates to be paid
to each classification of employee in the store.
(7) Please provide a copy of any benefit plans to be applicable
to employees in the store.
(8) When will employees begin actually working in the store?
What is the projected opening date?
NOB HILL GENERAL STORES, INC.
The Board’s decision can be found at www.nlrb.gov/case/10-
CA-178112 or by using the QR code below. Alternatively, you
can obtain a copy of the decision from the Executive Secretary,
National Labor Relations Board, 1015 Half Street, S.E., Wash-
ington, D.C. 20570, or by calling (202) 273-1940.