Safeway, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 2020

369 N.L.R.B. 30 (N.L.R.B. 2020)

369 NLRB No. 30
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.
Safeway, Inc. and United Food and Commercial
Workers, Local 5, United Food and Commercial
Workers, AFL‒CIO. Case 20‒CA‒221482
February 13, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On July 9, 2019, Administrative Law Judge Amita
Baman Tracy issued the attached decision. The Respond-
ent filed exceptions with supporting argument, and the
General Counsel filed an answering brief.
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,1 and conclusions2 and to
adopt the judge’s recommended Order as modified and set
forth in full below.3
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3.
“3. The Respondent violated Section 8(a)(5) and (1) of
the Act by failing and refusing to provide the Union with
information requested since April 26, 2018, which was
necessary and relevant to the Union’s performance of its
duties as the collective-bargaining representative of the
unit employees, or failing and refusing to bargain in good
faith with the Union in an attempt to reach an accommo-
dation of interests in response to the Union’s request for
relevant information that the Respondent considers confi-
dential.”
2. Substitute the following for paragraph 4.
“4. By delaying in providing responses to the Union’s
April 26, 2018 request until June 26, 2018, the Respondent
has violated Section 8(a)(5) and (1) of the Act.”

1 The Respondent excepts to the judge’s statement that in its April 23,
2018 email to the Union, it told the Union that the witness evidence did
not support the Union’s information request. The judge’s statement does
not affect the result, and we do not rely on it.
2 In adopting the judge’s conclusion that the Respondent violated Sec.
8(a)(5) and (1) of the Act by refusing to provide the Union a vendor ser-
vice contract and unreasonably delaying in informing the Union that two
other vendor contracts did not exist, we find that the Union established
relevance with its April 26, 2018 request. In that request, the Union ex-
plained that it needed the contracts in its investigation of whether the
Respondent was using the vendors to perform bargaining-unit work,
which, we note, is broadly defined in the parties’ collective-bargaining
ORDER
The National Labor Relations Board orders that the Re-
spondent, Safeway, Inc., Eureka, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Food
and Commercial Workers, Local 5, United Food and
Commercial Workers, AFL‒CIO (the Union) by failing
and refusing to furnish it with requested information that
is relevant and necessary to the Union’s performance of
its functions as the collective-bargaining representative of
the Respondent’s unit employees, or failing to seek an ac-
commodation in response to the Union’s request for rele-
vant information that the Respondent considers confiden-
tial.
(b) Refusing to bargain collectively with the Union by
unreasonably delaying in responding to requests for rele-
vant information by the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union, in a timely manner, the infor-
mation requested by the Union since April 26, 2018, or
bargain in good faith with the Union to reach an accom-
modation of interests in response to the Union’s request
for relevant information that the Respondent considers
confidential.
(b) Within 14 days after service by the Region, post at
its Northern California facilities where the Union repre-
sents its employees, copies of the attached notice marked
“Appendix.”4 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 the Respondent and maintained for 60 consecu-
tive days in conspicuous 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
agreements. Accordingly, we find that the Respondent’s violations date
from April 26, 2018.
3 We have amended the judge’s conclusions of law and modified the
judge’s recommended Order consistent with our findings herein and to
conform to the Board’s standard remedial language. We shall further
modify the judge’s recommended Order in accordance with our decision
in Excel Container, Inc., 325 NLRB 17 (1997). We shall substitute a
new notice to conform to the Order as modified.
4 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 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 BOARD2
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ties involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice
to all current and former employees employed by the Re-
spondent at its Northern California stores at any time since
April 26, 2018.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 20 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C., February 13, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain collectively with United
Food and Commercial Workers, Local 5, United Food and
Commercial Workers, AFL‒CIO (the Union) by failing
and refusing to furnish it with requested information that
is relevant and necessary to the Union’s performance of
its functions as the collective-bargaining representative of
our employees, or failing to seek an accommodation in re-
sponse to the Union’s request for relevant information that
we consider confidential.
WE WILL NOT refuse to bargain collectively with the Un-
ion by unreasonably delaying in responding to requests for
relevant information from the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union since April 26, 2018,
or WE WILL bargain in good faith with the Union to reach
an accommodation of interests in response to the Union’s
request for relevant information that we consider confi-
dential.
SAFEWAY, INC.
The Board’s decision can be found at
https://www.nlrb.gov/case/20-CA-221482 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., Washington, D.C.
20570, or by calling (202) 273‒1940.
Yaromil Ralph, Esq., for the General Counsel.
John Zenor, Esq., for Respondent.
Andrew Baker, 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
approved by Associate Chief Judge Gerald M. Etchingham; I in-
dependently also approve the joint motion and stipulation of
facts.
The United Food and Commercial Workers Union, Local 5,
United Food and Commercial Workers, AFL–CIO (the Union or
SAFEWAY, INC. 3
the Charging Party) filed the original charge on June 1, 2018.1
The General Counsel issued the complaint on September 19,
2018. Safeway, Inc. (Respondent) filed a timely 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 and unreasonably delaying providing the Union
with requested information relevant and necessary for the Union
to discharge its duties.
On the entire record, and after considering the briefs filed by
the General Counsel and Respondent, 2 I make the following
FINDINGS OF FACTS
I. JURISDICTION
At all material times, Respondent, a Delaware corporation, is
part of a corporate family that operates supermarkets and other
types of food stores in Northern California. Respondent Safe-
way and Albertsons share the same parent company. Respond-
ent has a place of business in Eureka, California (Respondent’s
facility). During the 12-month period ending August 31, Re-
spondent in conducting its business operations received gross
revenues in excess of $500,000, and purchased goods valued in
excess of $5000 which originated from points outside the State
of California. The parties admit and I find that Respondent has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Union and the Relevant Collective-Bargaining Agree-
ment Provisions
Since at least 2011, Respondent has recognized the Union as
the exclusive collective-bargaining representative of the employ-
ees covered by the unsigned North Coast collective-bargaining
agreement (North Coast CBA) and the unsigned Local 5 North-
ern California collective-bargaining agreement (Northern Cali-
fornia CBA) (collectively, “the Units”). The recognition has
been embodied in the collective-bargaining agreements between
Respondent and the Union concerning the terms and conditions
of employment of the Units’ employees.
The North Coast CBA, dated October 12, 2014, to October 13,
includes relevant provisions of Sections 1 and 18 and Appendix
E, as stipulated by the parties. Section 1 (Recognition and Con-
tract Coverage) of the North Coast CBA identifies Respondent’s
employees who constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the
Act. Section 1.1 (Recognition) identifies the bargaining unit as:
All employees working in the Employer’s retail food stores
within the geographical jurisdiction of the Union covering Del
Norte and Humboldt counties, excluding meat employees and
supervisors.

1 All dates hereinafter are in 2018, unless otherwise noted.
2 Abbreviations used in this decision are as follows: “Jt. Exh.” for
joint exhibit; “GC Br.” for the General Counsel’s brief; and “R. Br.” for
Respondent’s brief.
(Jt. Exh. F.)
The Northern California CBA, dated October 12, 2014, to Oc-
tober 13, includes relevant provisions of Sections 1 and 18 and
Appendix F, as stipulated by the parties. Section 1 (Recognition
and Contract Coverage) of the Northern California CBA identi-
fies Respondent’s employees who constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act. Section 1.1.1 and 1.4 identify the bar-
gaining unit as:
All employees working in the Employer’s retail food stores
within the geographical jurisdiction of the Union, except super-
visors within the meaning of the National Labor Relations Act,
as amended.
(FOOD): Alameda County; Contra Costa County; Marin
County; Monterey/San Benito/Santa Cruz Counties;
Napa/Solano County; San Mateo County; Santa Clara County.
All Head, Journey, and Apprentice Meat Cutters working
within the following geographical jurisdiction of the Union:
(MEAT): Alameda County, including meat in the cities of El
Cerrito, El Sobrante, Kensington, Richmond and San Pablo of
Contra Costa County; Humboldt/Del Norte Counties;
Lake/Mendocino/Sonoma & Marin Counties south to and in-
cluding Novato; Marin County north to Novato; San Francisco
County and the cities of Daly City, Colma, Brisbane, South San
Francisco and Pacifica; The Retail Markets and Frozen Food
Locker Plants of the Employer in Santa Clara/San Benito/Mon-
terey/Santa Cruz Counties.
(Jt. Exh. G.)
In addition, Section 1.2 of both the North Coast CBA and the
Northern California CBA states, “The work covered by the
Agreement shall be performed only by members of the appropri-
ate unit as defined in Section 1 hereof and such work shall con-
sist of all work and services connected with or incidental to the
handling or selling of all merchandise offered for sale to the pub-
lic in the Employer’s retail food stores including the demonstra-
tion of such products [….]” (Jt. Exh. F and G.)
Section 18 of both the North Coast CBA and the Northern
California CBA (Adjustment and Arbitration of Disputes) con-
tains the parties’ dispute resolution process. Also, Appendix E
of the North Coast CBA and Appendix F of the Northern Cali-
fornia CBA (both titled, “Order Selectors (Safeway.com)”),
which applies to on-line order selection employees, are provi-
sions applicable to this proceeding and in arbitration proceedings
concerning multiple pending grievances the Union filed against
Respondent, alleging that vendors (Boar’s Head, DSD, and In-
staCart) are performing work falling within the exclusive juris-
diction of the Units’ employees.
B. Union’s Grievances
On March 5, the Union sent Respondent’s labor relations man-
ager Mike Leary (Leary)3 a letter demanding that Respondent
3 The parties stipulated that Leary is an agent of Respondent within
the meaning of Section 2(13) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
comply with Section 1.2 of the parties’ North Coast CBA, cease
utilizing nonbargaining unit persons (InstaCart workers)4 to per-
form clerks’ work and post the order selector positions as out-
lined in the CBA; the letter also served as notice of intent by the
Union to refer the matter to the parties’ dispute resolution pro-
cess (Jt. Exh. H).5 The letter included attachments of photos: one
photo shows a store display indicating that customers could or-
der groceries via Respondent’s website with delivery in as little
as two hours, and two other photos are of the InstaCart website
which shows that InstaCart partners with Respondent and deliv-
eries may be made in as little as an hour. In addition, Respond-
ent’s website offers various ways for customers to order grocer-
ies including receiving flexible delivery, driving up to the store
to pick up pre-ordered groceries, and rush delivery “powered by
InstaCart” (Jt. Exh. N).
From March 30 onwards, the Union filed against Respondent
multiple, pending grievances, which alleged that Boar’s Head,
DSD,6 and InstaCart performed work that fell within the exclu-
sive jurisdiction of the Units’ employees. Regarding the allega-
tion that Boar’s Head is performing bargaining unit work, an ar-
bitrator heard the dispute on October 8, and no award has been
yet made. The disputes concerning DSD and InstaCart have not
yet been heard by an arbitrator.
C. Timeline of Events Regarding the Union’s Information
Request
After filing the aforementioned grievance on March 5, on
March 30, John Frahm (Frahm), the Union’s North Coast Direc-
tor and agent, requested via email that Respondent provide it
with the following information: The contracts between Respond-
ent and Boar’s Head, DSD, and InstaCart. The Union requested
this information “in connection with the many grievances pend-
ing regarding Safeway’s use of vendor employees to perform
work in stores under Local 5’s jurisdiction” (Jt. Exh. I). The Un-
ion stated that to the extent Respondent claimed the requested
information to be confidential, the Union was prepared to enter
discussions to address any legitimate concerns.
Penny Schumacher (Schumacher), Respondent’s Director of
Labor Relations,7 via an April 23 email refused to furnish the
information request by the Union on March 30. Schumacher
stated that Respondent was not obligated to furnish the infor-
mation as the Union had not demonstrated relevance by objective
evidence (Jt. Exh. K). Schumacher further stated that the work
performed by the vendors pertains to the “type of product” and
the contracts have no bearing on whether the work should be per-
formed by bargaining unit employees (Jt. Exh. K).
On April 26, Frahm responded via email reiterating the Un-
ion’s need for the requested information. Frahm wrote,
The Union currently has grievances pending regarding the al-
leged performance of bargaining unit work by each of these
vendors. Our evidence in this regard to date is anecdotal, based

4 InstaCart in-store shoppers receive customer orders via an applica-
tion on their smartphone and thereafter, shop for and bag these customer
orders for pick up (Jt. Exh. O).
5 On April 3, the Union revised its grievance letter to include the al-
legation that Respondent allowed InstaCart to perform bargaining unit
work “jurisdiction wide” (Jt. Exh. J).
on witness observations. The vendor contracts requested are
relevant to the Union’s continuing investigation of these griev-
ances in that vendor contract may well (a) corroborate our an-
ecdotal, witness observations; and (b) establish that the anec-
dotal violations are not accidental or isolated, but instead the
result of a deliberate business plan engaged in by [Respondent].
The later point, relevant in and of itself, is also relevant insofar
as an appropriate remedy is concerned.
(Jt. Exh. K.)
Thereafter, on June 26, Schumacher again refused to furnish
the Union with its requested information alleging that Respond-
ent was not obligated to furnish the information. Respondent
claimed that the Union had not demonstrated relevance. Of per-
tinence, the email from Respondent to the Union states,
[I]t is the collective bargaining agreement that controls all
grievance issues. Vendor contracts cannot in any way “corrob-
orate” witness observation of alleged collective bargaining
agreement violations. [Respondent] does not dispute that
Boar’s Head and DSD are vendors who stock products at its
stores. Its position is that the collective bargaining agreement
gives these particular vendors the contract right to stock prod-
uct. So no “corroboration” of this fact is needed.
Whatever the vendor contracts say about vendor rights will not
serve to excuse any collective bargaining agreement violations.
Likewise, whether or not [Respondent’s] allowing vendor per-
formance of unit work is intentional, negligent, or otherwise is
not relevant to determining a contract violation or appropriate
remedy. Either way, what a vendor contract may say on vendor
rights and services is completely irrelevant.
(Jt. Exh. K.) Also on June 26, Respondent stated that no contract
exists between Boar’s Head and Respondent, or between DSD
and Respondent. Respondent claimed that InstaCart retains in-
dividuals to shop on behalf of customers, and “is not any differ-
ent than any other customer buying groceries” (Jt. Exh. K.) Fi-
nally, Respondent stated that a contract exists between Albert-
sons Companies, which shares a parent company with Respond-
ent, and InstaCart but claimed confidentiality and proprietary in-
terests and was “not willing to disclose it” (Jt. Exh. K.)
On July 2, the Union again asked for the requested infor-
mation. Frahm stated that the Union was entitled to the infor-
mation due to its pending grievances regarding the InstaCart,
Boar’s Head, and DSD contracts. The Union clarified that it
sought copies of any documents, including electronic and/or
stored documents, that reflect the nature and/or details of the
agreement or arrangement between Respondent and Boar’s Head
(including Boar’s Head purveyors and Golden Bear Provisions)
as well as with DSD Merchandisers Inc. (Jt. Exh. K). The Union
expressed disbelief that no documentation existed between Re-
spondent and Boar’s Head and DSD (Jt. Exh. K). The Union
sought the InstaCart contract to determine whether the work
6 Board’s Head and DSD are vendors that stock products at Respond-
ent’ stores (Jt. Exh. K).
7 The parties stipulated that Schumacher is an agent of Respondent
within the meaning of Sec. 2(13) of the Act.
SAFEWAY, INC. 5
InstaCart was performing violated the parties’ CBA (Jt. Exh. K).
The Union again offered to bargain with Respondent as to any
confidentiality claims.
On July 31, Frahm sent an email to Schumacher, informing
her that InstaCart employees purchasing alcohol on behalf of
customers were requesting that Respondent’s employees verify
that the customers were legally permitted to purchase alcohol per
the vendor contract between Respondent and InstaCart (Jt. Exh.
L). As a result, Frahm again requested a copy of all agreements
between Respondent and InstaCart (Jt. Exh. L).
On August 27, Leary responded, denying that any documents
existed regarding Boar’s Head and DSD work and supplying of
products to Respondent (Jt. Exh. M).
Since March 30 through the present, Frahm has taken the po-
sition that the requested information will enable the Union to
carry out its representational duties in the pending grievances it
has relating to InstaCart performing bargaining unit work. The
parties stipulated that if Frahm were called to testify, he would
testify as follows:
 Frahm believes that the parameters of any direction or
control Respondent has with respect to InstaCart in-
store shoppers, and any relationship Respondent has
with InstaCart will be revealed in the requested infor-
mation.
 Frahm believes that the scope of the InstaCart in-store
shopper activities—both geographically and in fre-
quency—within the stores covered by the North Coast
CBA and Northern California CBA will be revealed
by the requested information.
Respondent has not provided any of the documents or infor-
mation requested (the contracts between Respondent and Boar’s
Head, DSD, and InstaCart). Moreover, Respondent has not of-
fered to bargain an accommodation over its assertion of confi-
dentiality of the InstaCart contract.
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 infor-
mation it requested beginning on March 30, identified in sub-
paragraphs 7(a) and 7(d) of the complaint, and as follows:
7(a) About April 26, the Union, by email, has re-
quested that Respondent furnish it with the fol-
lowing information: the contracts between Re-
spondent and Boar’s Head, DSD, and InstaCart.
7(d) Since about April 26, Respondent has failed and
refused to furnish the Union with the Safeway-
InstaCart contract or to bargain over an accom-
modation.
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 beginning on March 30, identified in

8 Disneyland Park, supra at 1257–1258.
subparagraphs 7(a) and 7(c) of the complaint pertaining to
DSD and Boar’s Head, and as follows:
7(a) About April 26, the Union, by email, has re-
quested that Respondent furnish it with the fol-
lowing information: the contracts between Re-
spondent and Boar’s Head, DSD [….]
7(c) From about April 26 through June 26, Respond-
ent unreasonably delayed in responding to the
Union’s request for the Boar’s Head and DSD
contracts.
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 Respondent violated the Act
by failing to provide the Union information it requested in con-
nection to grievances regarding the Units. Specifically, the Un-
ion requested information as to the Boar’s Head and DSD con-
tracts due to the Union’s grievance allegation that these vendors
performed bargaining unit work. The General Counsel also ar-
gues that the Union requested the InstaCart contract due to the
Union’s grievance allegation that Respondent violated Sections
1.2 and Appendix E and F of the North Coast CBA and Northern
California CBA (GC Br. at 11–12). In contrast, Respondent ar-
gues that the Union failed to provide objective evidence to sup-
port its claim for the requested relevant information (R. Br. at 9).
Each party to a bargaining relationship is required by Section
8(a)(5) of the Act to bargain in good faith. 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 negotiations as well as administra-
tion of the contract. In addition, an employer is required to fur-
nish the union representing its employees with information that
is relevant to the union in the performance of its collective-bar-
gaining 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
also includes information necessary to decide whether to file or
process grievances on behalf of unit employees. Acme Indus-
trial, supra at 435‒439; Disneyland Park, 350 NLRB 1256, 1257
(2007).
Generally, a union’s request for information pertaining to em-
ployees 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), enfd. 157 F.3d 222 (3d Cir.
1998). However, where the information requested concerns non-
unit employees, the union bears the burden of establishing rele-
vancy. Disneyland Park, supra; Public Service Electric & Gas
Co., 323 NLRB 1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir.
1998). A union satisfies its burden to do so, if it demonstrates
either “a reasonable 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the union in carrying out its statutory duties and responsibili-
ties,’”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), mot. to
intervene denied 366 NLRB No. 141 (2018), enfd. 925 F.3d
1272 (D.C. Cir. 2019). 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 responsi-
bilities. But “[t]he union’s explanation of relevance must be
made with some precision; and a generalized, conclusory expla-
nation is insufficient to trigger an obligation to supply infor-
mation.” Disneyland Park, supra at 1258, fn. 5 (2007). The de-
termination of relevance “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).
I find that Respondent violated Section 8(a)(5) and (1) of the
Act when it failed to provide the Union with the requested infor-
mation. In this matter, the Union filed grievances against Re-
spondent alleging that Respondent violated the CBA by permit-
ting specific vendors to perform bargaining unit work. Thereaf-
ter, the Union sought the contracts between Respondent and ven-
dors Boar’s Head, DSD, and InstaCart. Since the information
request does not concern subjects directly related to the bargain-
ing unit, the Union must establish relevance, which it has. The
Union repeatedly explained that it sought the vendor contracts to
corroborate anecdotal witness observations as well as to estab-
lish that Respondent engaged in a “deliberate business plan” ra-
ther than an accidental or isolated violation of the parties’ CBA
which could affect any remedy sought in arbitration (Jt. Exh. K).
The Union is not required to show that the information triggering
its request was accurate or ultimately reliable and may be based
on hearsay. United States Postal Service, 337 NLRB 820, 822
(2002). “Even rumors may be pursued, providing that there is at
least some demonstration that the request for information is more
than pure fantasy.” Cannelton Industries, Inc., 339 NLRB 996,
1005 (2003).
In addition, as to the InstaCart contract, the Union clearly ex-
plained that it sought such information to determine whether the
work performed by InstaCart violated Section 1.2 and Appendix
E of the North Coast CBA, and Section 1.2 and Appendix F of
the Northern California CBA. The Union explained the rele-
vancy of such information to its statutory duties and responsibil-
ities via written correspondence with Respondent from April to

9 Kraft Foods North America, Inc., 355 NLRB 753, 754 (2010) (quot-
ing NLRB v. Acme Industrial Co., supra at 437).
10 Respondent argues that it would have objected to Frahm’s stipu-
lated testimony at a hearing as his additional relevancy arguments were
not raised at the time of the Union’s information requests (R. Br. at 13‒
14). However, the Board has held that a union is not obligated to disclose
at the time of the information request the underlying facts establishing
its belief that the requested information is relevant. Cannelton Indus-
tries, supra at 997. It is enough that the General Counsel demonstrate at
the hearing that the Union had a reasonable belief during the time it re-
quested the information. Id. The General Counsel has provided these
additional reasons via the stipulated record, and further established that
the Union had a reasonable belief for the vendor contracts. But even if I
disregarded Frahm’s stipulated testimony, I find that the Union met its
burden to establish why the information requested was relevant.
August. The Union continued to support its request by providing
photographs of Respondent’s advertisements and connections to
the InstaCart service. The Union provided Respondent with an
example as to how the InstaCart agreement with Respondent af-
fected its bargaining unit employees. The General Counsel also
presented Frahm’s stipulated testimony regarding additional rea-
sons the Union needed the information.10
Throughout the written exchanges between the Union and Re-
spondent, Respondent declined to provide any information,
claiming that the vendor contracts had no bearing on whether
Respondent violated the parties’ CBA. Respondent claimed that
these vendor contracts only related to the type of product. Re-
spondent also rejected the Union’s claim that it had anecdotal
witness evidence as this evidence was not objective. Two
months after its initial response to this information request, Re-
spondent again declined to provide any information sought—
specifically, Respondent declined to provide the InstaCart con-
tract and stated for the first time that no contract existed between
Respondent and Boar’s Head or DSD. Respondent stated that
the Union failed to provide any valid reasons for the information.
The vendor contracts could not corroborate witness observations
and would not have any effect on whether Respondent violated
the CBAs.
Based on the parties’ stipulated record, I find that the Union
has satisfied its burden by showing 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. Again,
the Union’s burden is “not an exceptionally heavy one.” SBC
Midwest, 346 NLRB 62, 64 (2005). The vendor contracts are
relevant to the Union’s duties to determine whether the CBA was
being violated by bargaining unit work being performed outside
the unit. The Union cannot reasonably be expected to determine
whether bargaining unit work is being performed outside the unit
without reviewing the contracts between the vendors and Re-
spondent; these contracts could shed light on what actual work
is to be performed by the vendor. In addition, Respondent con-
tinually rejected the Union’s reasoning for the information, in-
sisting that the Union must provide objective evidence and the
anecdotal evidence was not enough. However, as explained pre-
viously, the Union could provide objective evidence or a proba-
bility that the information is relevant, but in either circumstance
the burden is not heavy.11
Moreover, in anticipation of any claim by Respondent that the
11 Respondent cites to two Board decisions to support its position that
requests for contracts are not presumptively relevant (R. Br. at 9). How-
ever, in Station GVR Acquisition, 366 NLRB No. 175, slip op. at 2 fn. 6
(2018), the Board specifically denied summary judgment on the requests
for contract agreements and covenants and remanded the issues to the
Regional Director. In addition, in contrast to the facts presented in this
matter, in Ethicon, A Johnson & Johnson Co., 360 NLRB 827, 832
(2014), the Board affirmed the administrative law judge’s decision that
the Union failed to establish relevancy for information concerning sub-
contracting where the parties’ collective-bargaining agreement permitted
subcontracting, and other information as to the work being performed by
the subcontractors was provided to the Union. Here, the Union satisfied
its burden by setting forth the CBA provisions Respondent appeared to
violate (which cover on-line order selectors) but needed the contracts to
corroborate witness evidence it had received.
SAFEWAY, INC. 7
information requested by the Union was confidential, the Union,
on March 30, offered to enter negotiations with Respondent to
address any concerns. Under Detroit Edison Co. v. NLRB, 440
U.S. 301, 315 (1979), the Board is required to balance a union’s
need for information against any “legitimate and substantial”
confidentiality interest established by the employer. Pennsylva-
nia Power Co., 301 NLRB 1104, 1105–1106 (1991). When an
employer refuses to provide information on confidentiality
grounds, the employer has a duty to seek to bargain toward an
accommodation between the union’s information needs and the
employer’s justified interests. Id. at 1105–1106. However, Re-
spondent simply refused to engage in such bargaining.
For these reasons, Respondent violated Section 8(a)(5) and (1)
of the Act when it failed and refused since March 30 to provide
the InstaCart contract to the Union, or bargain over an accom-
modation to address its confidentiality concerns.12
B. Respondent Unreasonably Delayed Providing Information
to the Union
The General Counsel argues that Respondent violated Section
8(a)(5) of the Act when it failed to timely respond to the Union’s
request for the Boar’s Head and DSD contract (GC Br. at 18–
20). Specifically, on June 26, Respondent informed the Union
that no responsive documents existed between Respondent and
Boar’s Head or DSD. Respondent argues that its delay in in-
forming the Union that no Boar’s Head or DSD contracts existed
was de minimis (R. Br. At 15).
“[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 re-
spond to the request as promptly as circumstances allow.” Good
Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). “In eval-
uating 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 information.”
West Penn Power Co., 339 NLRB 585, 587 (2003) (quoting Sa-
maritan Medical Center, 319 NLRB 392, 398 (1995)), enfd. in
relevant part 394 F.3d 233 (4th Cir. 2005).
To determine whether an employer has failed to furnish infor-
mation in a timely manner, the Board considers a variety of fac-
tors, including the nature of the information sought (including
whether the requested information sought is time sensitive); the
difficulty in obtaining it (including the complexity and extent 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

12 As Respondent stated that no Boar’s Head or DSD contract exists
with Respondent, the delay in informing the Union that no responsive
information exists will be discussed in the following section.
(1989).
On March 30, after filing several grievances, the Union re-
quested Respondent’s contracts with Boar’s Head and DSD. On
April 23, Respondent refused to provide these contracts, claim-
ing that the Union failed to provide any relevance by objective
evidence. The Union promptly replied on April 26 to Respond-
ent’s refusal, providing more reasons for its request. Two
months later, Respondent replied to the Union’s April 26 request.
In this correspondence, Respondent claimed that no contracts ex-
isted between Respondent and Boar’s Head or DSD. On July 2,
the Union clarified its request regarding the Boar’s Head and
DSD contracts to ensure that Respondent knew what information
it sought. But again, a little less than two months later, on Au-
gust 27, Respondent again denied any responsive documents ex-
isted. The Union’s request for the Boar’s Head and DSD con-
tracts was simple, and not complex, and the nonexistence of
these contracts could not have been difficult to determine. Re-
spondent claims that the Union was not harmed by its delay in
informing the Union of the nonexistence of these documents (R.
Br. at 15‒16). Again, Respondent relies upon its arguments that
the Union failed to sustain its burden of proof and so any delay
in responding would be de minimis. I disagree. The Union
sought these documents after it filed several grievances concern-
ing whether nonbargaining unit persons were performing bar-
gaining unit work. Such a delay in informing the Union that the
requested documents do not exist prejudices the Union in its rep-
resentational duties. The Board has found that even a 4-week
delay in providing information to a union has been found to be
untimely. Postal Service, 308 NLRB 547, 551 (1992) (unrea-
sonable to delay 4 weeks in providing information that was not
shown to be complex or difficult to retrieve); see also Capitol
Steel & Iron Co., 317 NLRB 809, 813 (1995) (finding a 2-week
delay unreasonable), enfd. 89 F.3d 692 (10th Cir. 1996); Lin-
wood Care Center, 367 NLRB No. 14, slip op. at 5 (2018) (find-
ing 6-week delay unreasonable). Although the Boar’s Head ar-
bitration was held on October 8, Respondent still had an obliga-
tion to timely advise the Union that no responsive documents
existed.
Based on the foregoing, Respondent violated Section 8(a)(5)
and (1) by unreasonably delaying in furnishing the Union from
March 30 to June 26 the Boar’s Head and DSD contracts.
CONCLUSIONS OF LAW
1. Safeway, 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 Local 5, United
Food and Commercial Workers, AFL-CIO (Charging Party or
the Union) is, has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act, and represents the
following bargaining units:
All employees working in the Employer’s retail food stores
within the geographical jurisdiction of the Union covering Del
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Norte and Humboldt counties, excluding meat employees and
supervisors.
All employees working in the Employer’s retail food stores
within the geographical jurisdiction of the Union, except super-
visors within the meaning of the National Labor Relations Act,
as amended.
(FOOD): Alameda County; Contra Costa County; Marin
County; Monterey/San Benito/Santa Cruz Counties;
Napa/Solano County; San Mateo County; Santa Clara County.
All Head, Journey, and Apprentice Meat Cutters working
within the following geographical jurisdiction of the Union:
(MEAT): Alameda County, including meat in the cities of El
Cerrito, El Sobrante, Kensington, Richmond and San Pablo of
Contra Costa County; Humboldt/Del Norte Counties;
Lake/Mendocino/Sonoma & Marin Counties south to and in-
cluding Novato; Marin County north to Novato; San Francisco
County and the cities of Daly City, Colma, Brisbane, South San
Francisco and Pacifica; The Retail Markets and Frozen Food
Locker Plants of the Employer in Santa Clara/San Benito/Mon-
terey/Santa Cruz Counties.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to provide the Union with information re-
quested since March 30, which was necessary and relevant to the
Union’s performance of its duties as the collective-bargaining
representative of the unit employees, or to bargain in good faith
with the Union in an attempt to reach an accommodation of in-
terests in response to the Union’s request for relevant infor-
mation that Respondent considers confidential.
4. By delaying in providing responses to the Union’s March
30 request until June 26, 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 requested,
and delaying providing other information, and thereby engaged
in certain unfair labor practices, I shall order it to cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
On the basis of the foregoing findings of fact and conclusions
of law, and the entire record, I issue the following recom-
mended13
ORDER
Respondent, Safeway, Inc., its officers, agents, successors,
and assigns, shall

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
14 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
1. Cease and desist from
(a) Failing and refusing to furnish United Food and Commer-
cial Workers Local 5, United Food and Commercial Workers,
AFL–CIO with information requested since March 30, that is rel-
evant and necessary to the Union’s performance of its functions
as the collective-bargaining representative of Respondent’s unit
employees, or refusing to bargain in good faith with the Union
in an attempt to reach an accommodation of interests in response
to the Union’s request for relevant information that Respondent
considers confidential.
(b) Unreasonably delaying from March 30 to June 26 in
providing responses to requests for relevant information by the
Union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Furnish to the Union, in a timely manner, the information
requested since March 30, or bargain in good faith with the Un-
ion to reach an accommodation of interests in response to the
Union’s request for relevant information that Respondent con-
siders confidential, described as follows: the InstaCart contract.
(b) Within 14 days after service by the Region, post at its fa-
cility in Eureka, California, copies of the attached notice marked
“Appendix.”14 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by the Re-
spondent’s authorized representative, shall be posted by Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily 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 em-
ployees by such means. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. If, during the pendency of these
proceedings, Respondent has gone out of business or closed the
facility involved in these proceedings, Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to all cur-
rent and former employees employed by Respondent at any time
since March 30, 2018.
(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 Re-
spondent has taken to comply.
Dated, Washington, D.C. July 9, 2019
APPENDIX
NOTICE TO EMPLOYEES
“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.”
SAFEWAY, INC. 9
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 notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
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 Local 5, United Food and Commercial
Workers, AFL–CIO (the Union) with information requested
since March 30, 2018, which is relevant and necessary to the Un-
ion’s performance of its duties as the collective-bargaining rep-
resentative of our employees in the following bargaining units:
All employees working in the Employer’s retail food stores
within the geographical jurisdiction of the Union covering Del
Norte and Humboldt counties, excluding meat employees and
supervisors.
All employees working in the Employer’s retail food stores
within the geographical jurisdiction of the Union, except super-
visors within the meaning of the National Labor Relations Act,
as amended.
(FOOD): Alameda County; Contra Costa County; Marin
County; Monterey/San Benito/Santa Cruz Counties;
Napa/Solano County; San Mateo County; Santa Clara County.
All Head, Journey, and Apprentice Meat Cutters working
within the following geographical jurisdiction of the Union:
(MEAT): Alameda County, including meat in the cities of El
Cerrito, El Sobrante, Kensington, Richmond and San Pablo of
Contra Costa County; Humboldt/Del Norte Counties;
Lake/Mendocino/Sonoma & Marin Counties south to and in-
cluding Novato; Marin County north to Novato; San Francisco
County and the cities of Daly City, Colma, Brisbane, South San
Francisco and Pacifica; The Retail Markets and Frozen Food
Locker Plants of the Employer in Santa Clara/San Benito/Mon-
terey/Santa Cruz Counties.
WE WILL NOT unreasonably delay in providing responses to re-
quests for relevant information from the Union since March 30,
2018.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Section
7 of the National Labor Relations Act.
WE WILL, in a timely manner, furnish the Union with the in-
formation requested since March 30, 2018, or will bargain in
good faith with the Union to reach an accommodation of inter-
ests in response to the Union’s request for the following relevant
information that Respondent considers confidential: the Insta-
Cart contract.
WE WILL bargain in good faith with the Union and timely pro-
vide it with information that is relevant and necessary to its role
as your bargaining representative.
SAFEWAY, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20-CA-221482 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273‒1940.