Albertson's LLC

National Labor Relations Board - Administrative Judge Opinions

Feb 2, 2010

28-CA-022546 (N.L.R.B. Feb. 2, 2010)

JD(ATL)–01–10
El Paso, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
ALBERTSON’S LLC
and CASE 28–CA–22546
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION,
LOCAL 640, AFL–CIO,CLC1
Liza Walker–McBride, Esq.,
for the Government. 2
Charles C High, Jr., Esq.,
for the Company.3
G. William Baab, Esq.
for the Union4
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This is a refusal to provide
information case which I heard in trial in El Paso, Texas on December 1, 2009. The case
originates from a charge filed on June 1, 2009, by United Food and Commercial Workers
International Union, Local 540, AFL–CIO, CLC (Union). The prosecution of the case was
formalized on August 31, 2009, when the Regional Director for Region 28 of the National
Labor Relations Board (Board), acting in the name of the Board’s General Counsel, issued a
Complaint and Notice of Hearing (Complaint) against Albertson’s LLC (Company).

1 The Complaint reflects the Local Union as “640.” The Certification of Representative in Case 28-RM-
615 reflects the Local Union as 540. Except for the caption of the case, I have reflected the Local
Union as “540” in accordance with the certification.
2 I shall refer to Counsel for General Counsel as Counsel for the Government and General Counsel as the
Government.
3 I shall refer to Counsel for the Company as Counsel for the Company and shall refer to the Respondent
as the Company.
4 I shall refer to Counsel for the Union as Union Counsel and refer to the Charging Party as the Union.
JD(ATL)–01–10
El Paso, TX
The Company, in a timely filed answer to the Complaint, denied having violated the
Act in any manner alleged in the Complaint.
Specifically it is alleged that on or about April 30, 2009, the Union by letter requested 5
the Company furnish the Union with certain information set forth in the letter and that since
on or about April 22, 20095, the Company, by its counsel, has failed and refused to furnish
the requested information. It is alleged by this conduct the Company has been failing and
refusing to bargain collectively and in good faith with the exclusive collective–bargaining
representative of certain of its employees in violation of Section 8(a)(1) and (5) of the 10
National Labor Relations Act, as amended (Act).
The parties were given full opportunity to participate, to introduce relevant evidence,
to examine and cross–examine witnesses, and to file briefs.6 I carefully observed the
demeanor of the two witnesses as they testified. I have studied the whole record, the post 15
trial briefs, and the authorities cited therein. Based on more detailed findings and analysis
below, I conclude and find the Company violated the Act as alleged in the complaint.
Findings of Fact
20
I. Jurisdiction, Labor Organization Status, Bargaining Unit and
Supervisory Status
The Company is a Delaware limited liability corporation with offices and places of
business in various states of the United States, including facilities located at 2200 North 25
Yarbrough Drive , 9111 Dyer Street, and 7022 North Mesa Street in El Paso, Texas, (the
Company’s facilities), where it has been and continues to be engaged in the retail sale of
groceries, meat, and related items. During the past twelve months ending June 1, 2009, a
representative period, the Company purchased and received directly from points located
outside the State of Texas goods valued in excess of $50,000. During the same period of 30
time it also had gross revenues in excess of $500,000. The parties admit, and I find, the
Company is an employer engaged in commerce within the meaning of Section 2(2), (6) and
(7) of the Act.
The parties admit, and I find, the Union is a labor organization within the meaning of 35
Section 2(5) of the Act.
Company Director of Labor Relations Danny Ma is a supervisor and agent of the
Company within the meaning of Section 2(11) and (13) of the Act. Felipe Mendez is
Secretary–Treasure for the Union and participates in labor negotiations including negotiations 40
for the unit employees herein.

5 The Union orally requested certain information during a bargaining session on April 22, 2009.
6 By letter dated January 13, 2010, Counsel for the Union advised that he would not file a brief but would
defer to the brief filed by the Government.
JD(ATL)–01–10
3
II. The Facts
It is admitted the meat department employees at three of the Company’s eight El
Paso, Texas, facilities constitute an appropriate unit7 for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. It is admitted the Union has been designated 5
the exclusive collective–bargaining representative of the unit employees since at least July
19, 1993, and has been recognized as such by the Company. It is admitted that at all times
since July 19, 1993, and, based on Section 9(a) of the Act, the Union has been the exclusive
collective–bargaining representative of the unit employees.
10
The party’s most recent collective bargaining agreement expired in April 2002. The
parties thereafter participated in negotiations but to date have failed to arrive at a successor
collective bargaining agreement. In January 2009 a representation petition, Case 28–RM–
615, was filed and an election among the unit employees was held on February 12 and 13,
2009. The tally of ballots reflects a majority of the eligible voters favored continuation of 15
representation by the Union. The results of the election were certified by the Board in late
February 2009.
Following the RM petition being filed, but before the election was conducted, the
parties engaged in various campaign activities. The Union’s request for information from 20
the Company centers around a Company campaign flyer dated February 6, 2009. Union
Official Mendez testified the flyer was posted at the Company’s three El Paso, Texas
unionized stores around February 6.
In as much as the Union bases its information request, in large part, on the content of 25
the Company’s February 6, 2009, campaign flyer, I set the flyer forth in full:
TO ALL MEAT DEPARTMENT ASSOCIATES
AT STORES 932, 933 AND 934
30
Recently, a majority of you told us that you no longer wanted the UFCW to
represent you. That is not surprising since history shows the union has been less than
diligent in these negotiations. You have been working without a new contract since
2002, and your last wage adjustment was in May 2001. The law requires that we give
no wage increases without the union’s agreement. We have been trying to get a deal 35
done with the union but it has been difficult. You have seen the correspondence. The
Company filed a charge with the National Labor Relations Board in 2005 because the
union refused to meet and bargain in good faith, and we had to threaten to file a
similar charge in 2008 before they would get back to us.
40

7 The unit description is: All full–time and regular part–time journeymen and apprentices in the
classifications of meatwrapper, meatcutter, butcher block clerk, butcher block manager, meat deli clerk
and assistant head meatcutters employed by the Company at its stores located at 2200 North Yarbrough
Drive, 9111 Dyer Street, and 7022 North Mesa Street in El Paso, Texas; excluding all other store
employees, including but not limited to office clerical employees, head meatcutters (a/k/a meat
department managers), service deli employees, direct store delivery clerks, guards and supervisors as
defined in the Act.
JD(ATL)–01–10
4
Upon learning of your desire, we asked the Board to conduct a secret ballot
election so you could vote “Yes” or “No” on keeping the UFCW. That election is
scheduled for February 12 and 13. Between now and the election, you will hear many
things. You will have to decide who to believe– the union or the Company. Some of
you told me that the UFCW has said that without a union, the meat market managers5
will be free to fire people they do not like, and the Company will reduce the wages of
every meat department here in El Paso. There is no factual basis for their claims.
Albertsons has a long track record of treating our associates well. Look at it.
Talk to associates in our union–free stores. Listen to them. We treat all of our 10
associates fairly and with dignity and respect. That is true whether they are union or
union free. Our long–standing practice is that every discipline action is to be
reviewed carefully by the Associate Relations team to guard against retaliation and
favoritism. That will not change. Ever since 2002, when the contract expired, the
arbitration clause expired, too. Since that time, we could have fired you without 15
having to justify the reason to an arbitrator. Have we done so? Of course not.
As to wages, Albertsons has never reduced wages when store associates have
voted to go non–union. I have never seen any other major grocery company do that.
It is bad for morale and if they did, the employees would not trust them anymore. So, 20
if the union is telling you that your wages could be decreased if you vote to be union
free, all I can say is, don’t believe everything the union tells you. They are trying to
scare you. If our objective is to reduce El Paso meat associates wages and the union is
what is stopping us, why would we continue to raise the wages of the union free meat
associates in El Paso to the point that the gap is as much as $1.80 an hour? The union 25
free meat associates were already being paid a higher wage in 2001 than the union
meat associates. There would have been no reason for Albertsons to give them raises
in 2004, 2005 and 2008 since the union wages were not being adjusted. Think about
it.
30
All other Albertsons associates in El Paso and most other Albertsons
associates are union–free. We believe they choose to be union free because they are
treated fairly and enjoy good wages and benefits without a union. But this is your
decision, so vote in the way you believe is best for you and your family. Please, do
not make your decision based on false union claims and scare tactics. This will be a 35
secret ballot. Take a hard look at the facts. And please exercise your right to vote. A
majority of those who show up to vote will decide the outcome. You can vote in any
of the three scheduled elections, even if it is not at your home store.
Thank you for your time. If you have any questions or concerns, please feel 40
free to contact me at (602) 382–5323.
Danny Ma. February 6, 2009.
The first negotiating session, after the February 2009 election, was March 17 and the 45
second, on April 22, 2009. Union Official Mendez testified that at the April 22 session he
told Company Attorney Charles High, the Company’s chief spokesperson, and Danny Ma,
Director of Labor Relations the Company used information during the election campaign that
compared the wages, benefits, and terms and conditions of employment of employees in its
non–union stores with those at its unionized stores and the Union was requesting information50
JD(ATL)–01–10
5
related thereto be provided to the Union. Mendez testified the campaign material he was
referring to when he made his oral information request, on April 22,was Director of Labor
Relations Ma’s February 6, 2009, memorandum or flyer directed to unionized employees
wherein Ma asked them to compare their wages, benefits and working conditions to those of
the non–union employees. Mendez testified he specifically stated, “what we said that the 5
Union was requesting, the information from non–bargaining unit stores in El Paso, in
reference to wages, benefits, and terms or working conditions.” According to Union Official
Mendez Company Counsel High asked what the relevance of the information was and stated
the Union needed to follow up with its request in writing for the Company to consider.
10
Union Official Mendez followed up on his April 22, 2009, oral information request by
sending the Company, as Company Counsel High had requested, a written request for
information on April 30. Mendez’s letter addressed to Company Director of Labor Relations
Ma outlined 37 types of information the union was requesting. Pertinent portions of
Mendez’s letter of request for information follows:15
Dear Mr. Ma:
This letter is a follow up of our verbal request for information made during
our last bargaining session held on April 22, 2009, in reference to non–bargaining unit
employees and pursuant to the forthcoming collective bargaining process between the 20
parties, the Union is hereby requesting the following necessary information in
preparation thereof:
1. Individual rates of pay and classification for each bargaining unit employee;
2. Updated copies of Company rules, regulations and attendance policies 25
applicable to new bargaining unit employees;
3. Copy of job and crewing standards;
4. Copy of job evaluations methods;
5. Copy of employee insurance plan or plans, employee summary plan
description, monthly premium cost to the company, monthly premium 30
cost to the employees. If the plan provides for family coverage and single
coverage, for example, the appropriate monthly cost and cents per hour
for each. A breakdown of how many employees have family coverage
and single coverage, listed separately, etc.;
6. Copy of employee pension plan(s), employee summary plan description, and 35
all Company’s related cost, title and names of all pension plan trustees;
7. Copy of profit sharing plan, and all Company related costs;
8. Copy of 401K plan, and all Company related costs;
9. A list of paid holidays and the number of hours employees are compensated
for each holiday;40
10. A total breakdown of all job classifications and job descriptions, along with
the rates of pay for each job;
11. Starting rates of pay for new hires and the progression schedule for wage
increases;
12. A total description on the method of resolving employee grievances and/or 45
complaints;
13. A total description on the method of earning paid vacation time, up to the
maximum;
JD(ATL)–01–10
6
14. A total description of any formula or methods used to pro–rate paid vacation
time;
15. A total description of Company policies regarding any unpaid leave of
absence from work;
16. Total annual expense for FICA and unemployment compensation for the past 5
two (2) years and year to date, listed yearly;
17. Total number of overtime hours worked by employees in the past two (2)
years to date, listed yearly;
18. Total expense for all overtime hours paid to employees for the past two (2)
years to date, listed yearly;10
19. Most current list of names, social security numbers, addresses and phone
numbers of all non bargaining unit employees;
20. A total breakdown of sex and age of each non bargaining unit employee;
21. The number of paid relief periods issued to employees in a normal scheduled
worked day and duration of such relief period;15
22. The method of the distribution of overtime opportunities within a work group
or department when the entire group is not required to work the overtime;
23. The Company policy regarding equipment, tools and clothing issued to
employees and the laundry for such clothing and the party responsible for
the cost;20
24. The method for determining a workweek for payroll purposes. (The beginning
and ending of a work week);
25. The number of layoffs and the number of non bargaining unit employees
affected by each layoff in the past two (2) years and year to date, listed
yearly;25
26. The current scheduled start times for all non bargaining unit shifts and night
premium pay qualifications;
27. The Company policy regarding pay for holiday work and Saturday and
Sunday work or scheduled days off in lieu of Saturday or Sunday;
28. The current method for promotions to higher paying jobs, shift preference, 30
vacation preference, layoffs and job transfers;
29. Total number of straight time hours worked by the non bargaining unit in the
past two (2) years to date, listed yearly;
30. Seniority list;
31. Number of weeks vacation each employee is eligible for year to date;35
32. OSHA 300 logs;
33. Copies of employee handbooks and/or employee benefit booklets;
34. Declaration of all past practices not covered in employee handbook or
employee benefits booklets;
35. Annual income statements and balance sheets for the last three (3) years and 40
year to date;
36. Company documents showing the wages and benefits of all employees at all
of its locations;
37. List names of all non–bargaining unit personnel with titles and areas of
responsibility for this area location.845

8 The Government does not seek in the Complaint to have the Company furnish the information
requested in items number 4, 5, 12, 19 and 20.
JD(ATL)–01–10
7
Union Official Mendez testified he, on May 7, 2009, received a written response from
Company Attorney High to his April 30, 2009, request for information. Company Attorney
High’s responsive letter in part states;
This is in response to your letter of April 30, 2009, in which you request 37 different 5
categories of information concerning Albertson’s “non–bargaining unit employees.”
Although not clear from your letter, we assume the information you are requesting is
for all non–bargaining unit employees in Albertson’s eight El Paso stores, including
both meat and non–meat employees, as well as managerial employees. If this is
incorrect, please let me know.10
In you letter, you state that the requested information is “requested pursuant to the
forthcoming collective bargaining process between the parties.” This, we assume, is a
reference to the ongoing negotiations between Local 540 and Albertson’s for a new
agreement covering associates in the three meat departments at Stores 932, 933, and 15
934 in El Paso, which are represented by Local 540
Company Attorney High further writes that after reviewing the request the Company
does not believe the requested information “all of which is for non–unit employees, is needed
by the Union to fulfill its statutory duties as the exclusive bargaining representative for the 20
meat department associates at Stores 932, 933, and 934.” Company Attorney High further
writes, “information regarding the wages and benefits of non–bargaining unit employees is
not ‘presumptively relevant’ and need not be produced by an employer absent a showing by
the union that it is relevant to bargainable issues.” Company Attorney High concludes his
letter by expressing that the Company does not see the relevance of the information and until 25
such time as the Union establishes the relevance the Company would deny the Union’s
request and not supply the information.
The day after the Union received Company Attorney High’s responsive letter the
parties met for bargaining. Union Official Mendez told High he had received High’s letter 30
and explained the information requested was relevant because the Company had compared
the wages, benefits and working conditions of the non–unit employees with the unionized
employees and the information was “necessary for these negotiations.” Mendez said he again
told High the requested information was “for the non–bargaining unit employees.” Mendez
said High told him the Company was not going to provide the information but did not say 35
why. Mendez advised High if the Company did not provide the information the Union would
go to the Board, to which High responded “the Union could do whatever they wanted to do.”
According to Mendez, nothing further was said about the information request or High’s
responses at this bargaining session.
40
Union Official Mendez testified he reiterated his request for the information at the
parties May 21, 2009, bargaining session but was again told by High the Company was not
going to provide the information.
On August 31, 2009, Union Attorney G. William Baab faxed Company Attorney 45
High a letter stating he was enclosing “a statement concerning the relevance of individual
items of the information request made over the table and reiterated in Felipe Mendez’s April
JD(ATL)–01–10
8
30, 2009, letter to Danny Ma.” The attachment to Baab’s letter was a copy of his letter to the
Board of that same date that explained to the Board the relevance of each item in the Union’s
request for information sent to the Company on April 30.
Company Director of Labor Relations Ma testified that when Union Official Mendez 5
made his oral request for information at their April 22, 2009, bargaining session he asked for
wages, benefits and working rules types of information for the “non–union El Paso meat
associates.” Ma stated that when Mendez followed up with his written request, as the
Company had asked him to do, it was different in that it was not limited, for example, to the
El Paso associates of the Company and the request was far more comprehensive than Mendez 10
had orally made. Ma said he was “confused” about certain portions of the written request or
“didn’t have enough information to know what Mr. Mendez meant” by certain wording in his
request. Ma acknowledged he did not tell Mendez he was confused nor did he ask Mendez
what he meant by certain of his requests. Ma said the Company never received clarifying
information from the Union even after Attorney High wrote the Union seeking an 15
understanding of the request. Ma testified Mendez did however at their May 8, 2009,
meeting ask where the information was and stated the information was relevant because the
Company had raised the issues during the election campaign.
III. Pertinent Case Law Guidance20
The principle has long been established that an employer is under a duty to provide a
union which represents the employer’s employees with information requested by the union
which is relevant and necessary for the proper performance of the union’s duties in
representing the unit employees. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 25
(1967); NLRB v. Truitt Manufacturing, Co., 351 U.S. 149 (1956). A failure to fulfill the
obligation to furnish relevant information upon request conflicts with the statutory policy to
facilitate effective collective bargaining Proctor & Gamble Mfg. Co. v NLRB, 603 F.2d 1310
at 1315 (8th Cir. 1980). The duty to furnish information turns on the circumstance of the
particular case. Emeryville Research Center v. NLRB, 441 F 2d 880 at 883 (9th Cir. 1971). 30
Where a union’s request is for information pertaining to employees in the bargaining unit that
information is presumptively relevant and the employer must provide the information.
Madison Center, 330 NLRB 1 (2000). Where the requested information pertains to
employees outside the bargaining unit, the burden is on the union to demonstrate the
relevance of the requested information. National Broadcasting Company, 352 NLRB 90, 97 35
(2008), and, Disneyland Park, 350 NLRB 1256, 1257 (2007). The key question in
determining whether information must be produced is one of relevance. The standard for
relevancy is a liberal discovery–type standard both for bargaining unit and outside the
bargaining unit information. In both situations the sought after information need not
necessarily be dispositive of the issue(s) between the parties but rather only of some bearing 40
upon it and of probable use to the labor organization in carrying out its statutory
responsibilities. Bacardi Corp., 296 NLRB 1220 (1989). As the Board noted in Disneyland
Park supra, to demonstrate relevance for non–bargaining unit information the government
must present evidence either that the union demonstrated the relevance of the non–unit
information, or, that the relevance of the information should have been apparent to the 45
employer under the circumstances. Absent such a showing the employer is not obligated to
JD(ATL)–01–10
9
provide the requested information. The Board also noted in Disneyland Park supra at 1258
fn. 5, “The union’s explanation of relevance must be made with some precision; and a
generalized, conclusory explanation is insufficient to trigger an obligation to supply
information. [citations omitted]”
5
IV. Analysis, Discussion and Conclusions
The Complaint, in subparagraph 6(a), alleges the request of the Union for the
information set out in its letter dated April 30, 2009. Subparagraph 6(b) of the Complaint
alleges that the information requested is necessary for, and relevant to, the Union’s 10
performance of its function as the exclusive collective bargaining representative of employees
in the Unit. Subparagraph 6(c), without pleading the Union’s verbal request made on April
22, 2009, alleges that the Company, since “on or about April 22,” has failed and refused to
furnish the Union with the requested information. Insofar as the request alleged in the
Complaint is the written request of April 30, 2009, the Company’s continuing refusal to 15
provide the information began on May 7, 2009, when the Company replied to the Union’s
letter of April 30.
The Government argues that the evidence establishes the relevance of the information
requested and that the Union communicated its need for the information at the bargaining 20
table and in its attorney’s letter of August 31, 2009. Furthermore, as pointed out in the
Government’s brief, the Union’s request was a continuing request and, in this case as in
Barnard Engineering Co., 282 NLRB 617, 621-622 (1987), “the relevance of the requested
information to the Union’s performance of its statutory duties was fully clarified at the
hearing.”25
The Company argues that “’[p]arity’ and ‘equivalency’ are not legally magic words
that can, in and of themselves, provide a basis for requiring an employer to furnish non-unit
information.” I agree; however, the record herein establishes that the basis of the Union’s
request was not magic words but the Company’s own representations.30
The flyer issued by the Company stated that the Company “has a long track record of
treating our associates well … whether they are union or union free,” but it then stated that
unrepresented employees were enjoying higher wages, wages rates as much as $1.80 an hour
higher, than unit employees, a significant inequity. The Company, citing Section 8(c) of the 35
Act regarding statements that neither threaten nor promise and Midland National Life
Insurance Co., 263 NLRB 122 (1982), in which the Board held that it would not evaluate the
truth or falsity of representations made in election campaigns, argues that “such statements
[should not] now become subject to ‘verification’ in subsequent proceedings.” Contrary to
that argument, the issue herein is not whether the statements in the flyer were true, false, 40
partially true, or partially false. The issue herein is relevance. The flyer placed the Union on
notice that, although the Company claimed that it treated both “union and union free”
employees “well,” bargaining unit employees did not enjoy parity with unrepresented
employees.
45
JD(ATL)–01–10
10
The Board, in numerous cases, has found information sought regarding nonunit
employees to be relevant when the record established a basis for the request. See Comar,
Inc., 349 NLRB 342, 355 (2007); Frito-Lay, Inc., 333 NLRB 1296 (2001), vacated 51 Fed.
Appx. 482 (5th Cir. 2002); Brazos Electric Power Cooperative, Inc., 242 NLRB 1016 (1979),
enfd 613 F.2d 1100 (5th Cir. 1980). There is no requirement that the relevance of an 5
information request be predicated upon representations made at the bargaining table. In
Frito-Lay Inc., supra, the union’s information request relating to nonunit employees followed
observations made by unit employees at other plants of the company. In Brazos Electric
Power Cooperative, Inc., supra, the request regarding nonunit employees was made after the
union “received information” about a wage increase granted to nonunit employees. In this 10
case, the Union’s information came from the Company flyer. The Company cannot be heard
to complain that the information sought as a result of the statements made in its flyer is not
relevant.
I find, as explained below, the Government established that the Union demonstrated 15
the relevance of the non–unit information it requested and the Government’s evidence even
established that the relevance of the non–unit information was, or should have been, apparent
to the Company under the circumstances herein. A number of factors persuades me that both
tests for relevance of non–unit information has been met. First, Union Official Mendez
credibly testified that at the parties April 22, 2009, bargaining session he explained to 20
Company Attorney High and Director of Labor Relations Ma the need and purpose for the
requested information. Mendez told them that since the Company had, during the recent
representation [RM] election campaign, asked its unionized employees in El Paso to
compared their wages, benefits and terms and conditions of employment with those of its
non–unionized employees the Union needed and was requesting the supporting information 25
the Company was relying on for its claims. The parties were in active contract negotiations
at that time for employees of the Company’s three El Paso unionized stores. I am persuaded
the Company knew, at that time, what information the Union was seeking and why the Union
needed the information. Mendez even explained further that the requested information was
for the non–bargaining unit employees at the other El Paso stores of the Company. Second, 30
the Company surely knew, or should have known, the relevance and purpose of the requested
information on April 22, 2009, in as much as the Company’s campaign flyer asked that the
unionized employees compare their wages, benefits and working conditions with those at its
non–unionized stores and see how well the Company treated its non–unionized employees.
The Company’s flyer noted that in some cases the non–unionized employees were being paid 35
$1.80 per hour more than like situated unionized employees. The Company’s flyer also
asked that the unionized employees consider the disciplinary practices, working conditions,
and related benefits for its non–unionized employees and see that the Company treated non–
unionized employees “fairly” with “good wages and benefits without a union.” It should
have been clear to the Company the Union was requesting the information in order to be 40
better informed and/or prepared for negotiations at the bargaining table to, for example,
possibly adjust proposals already made or propose new or different proposals in light of the
wages, benefits and working conditions enjoyed by the Company’s non–unionized
employees. To the extent the Company contends the Union had a fixed bargaining position
related to an acceptable successor agreement for the El Paso unionized stores and the 45
information could not, or would not, have been useful to the Union, that contention is without
JD(ATL)–01–10
11
merit. Third, if any ambiguity existed as to exactly what information the Union was
requesting at the bargaining session on April 22, such was cleared up by the Union’s April
30, 2009, letter outlining, as the Company had requested, exactly what the Union was
requesting. The Union’s letter spelled out with specificity that the information requested
related to, among other things; wages, employee classifications, Company rules, attendance 5
policies, job and staffing standards/methods, 401k plans, profit sharing plans, pension plans,
starting rates for new hires, break or relief times, overtime opportunities, required tools,
uniforms and maintenance of the uniforms, shift schedules, vacation times, promotion
policies, holiday and weekend scheduling and pay, safety logs and other items for the non–
unionized employees in El Paso, Texas. The relevance of such requested information should 10
have been obvious to the Company in the circumstances herein where the Company had
requested comparisons be made between the treatment, benefits and working conditions of
unionized versus non–unionized employees especially at a time when the parties are still in
active negotiations toward a successor collective bargaining agreement for the unionized
employees. Fourth, the Company knew the purpose for the requested information related to 15
bargaining. Attorney High, in his May 2009 letter, seems to acknowledge as much in that he
writes that where the Union made reference to forthcoming bargaining in their letter of
request he assumed such was in “…reference to the ongoing negotiations between Local 540
and Albertson’s for a new agreement covering associates in the three meat departments at
stores, 932, 933, and 934 in El Paso…” Company Attorney High also seems to acknowledge 20
the 37 items requested in Mendez’s letter of April 30, 2009, were for the Company’s non–
unionized employees at its El Paso, Texas stores. There is no factual basis for the Company’s
assertion in its May letter that it would “assume” the Union’s request also included
information on managerial employees. It had already been made clear to the Company that it
did not, in that Mendez had told the Company, as early as April 22, the Union only sought 25
information for non–unit employees in El Paso. I am fully persuaded the Company knew
what information the Union was seeking and the relevance should have been apparent to the
Company, but, if it was not, the Union explained the relevance sufficiently for the Company
to be obligated to supply the information. Fifth, assuming even in light of all the above, the
relevance had not been established, the Union by counsel spelled out in great detail the 30
specific relevance of each of the 37 requested items in a letter from Union counsel to
Company Attorney High dated August 31, 2009. To the extent the Company would contend
this August 31, 2009, explanation of relevance was untimely in that it came on the same day
the Government issued the complaint herein is without merit. The obligation to provide
relevant requested information is on going and continuing until the requested relevant 35
information is provided. On and after August 31, 2009, the Company was placed clearly on
notice as to the relevance of each item of the requested information.
Since April 30, 2009, the Union has requested, in writing, that the Company furnish
certain relevant information. Since May 7, 2009, the Company has refused and continues to 40
refuse to provide the information, and its refusal violates Section 8(a)(5) and (1) of the Act
and I so find.
JD(ATL)–01–10
12
CONCLUSIONS OF LAW
By refusing on and after May 7, 2009, to furnish the Union the requested relevant
information it sought, the Company has engaged in unfair labor practices affecting commerce 5
within the meaning of Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Company has violated Section 8(a)(5) and (1) of the Act, it is 10
recommended the Company be ordered to cease and desist, and to forthwith furnish the Union
the information, found relevant, that it requested. It is also recommended the Company be
ordered to post an appropriate notice to its employees in English and Spanish regarding its
unfair labor practices and the action it is taking to remedy such practices.
15
ORDER
The Company, Albertson’s LLC, El Paso, Texas, its officers, agents, successors, and
assigns, shall:
20
1. Cease and desist from:
(a) Failing and refusing to furnish the Union, United Food and Commercial
Workers International Union, Local 540, AFL–CIO, CLC, with information that is necessary
for and relevant to the performance of its duties as the exclusive collective–bargaining 25
representative for the employees in the following appropriate unit:
All full–time and regular part–time journeymen and apprentices in the classifications
of meatwrapper, meatcutter, butcher block clerk, butcher block manager, meat deli
clerk and assistant head meatcutters employed by the Company at its stores located at 30
2200 North Yarbrough Drive, 9111 Dyer Street, and 7022 North Mesa Street in El
Paso, Texas; excluding all other store employees, including but not limited to office
clerical employees, head meatcutters (a/k/a meat department managers), service deli
employees, direct store delivery clerks, guards and supervisors as defined in the Act.
35
(b) 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:
40
(a) Furnish the Union the information it requested in writing on April 30, 2009,
less items 4, 5, 12, 19 and 20.
(b) Post at its El Paso, Texas Stores located at 2200 North Yarbrough Drive, 9111
Dyer Street, and 7022 North Mesa Street copies of the attach notice in English and Spanish 45
marked “Appendix.” Copies of said notice, on forms provided by the Regional Director for
Region 28, after being duly signed by the Company’s authorized representative, shall be
JD(ATL)–01–10
13
posted by the Company and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the
Company has gone out of business or closed the facilities involved in these proceedings, the 5
Company shall duplicate and mail, at its own expense, a copy of the notice in both English
and Spanish to all current and former employees employed by the Company since May 7,
2009.
(c) Within 21 days after service by the Region, file with the Regional Director a 10
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Company has taken to comply.
Dated Washington, D.C., February 2, 2010.
15
____________________________________
William N. Cates20
Associate Chief Judge
25
30
35
40
JD(ATL)–01–10
14
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 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to forthwith furnish the Union, United Food and Commercial
Workers International Union, Local 540, AFL–CIO, CLC, with the April 30, 2009, requested
information that is necessary for and relevant to the performance of its duties as the exclusive
collective–bargaining representative of the employees in the following unit:
All full–time and regular part–time journeymen and apprentices in the classifications
of meatwrapper, meatcutter, butcher block clerk, butcher block manager, meat deli
clerk and assistant head meatcutters employed by the Company at its stores located at
2200 North Yarbrough Drive, 9111 Dyer Street, and 7022 North Mesa Street in El
Paso, Texas; excluding all other store employees, including but not limited to office
clerical employees, head meatcutters (a/k/a meat department managers), service deli
employees, direct store delivery clerks, guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, furnish the Union with the information it requested in writing on about April 30,
2009, (less items 4, 5, 12, 19 and 20).
_ALBERTSON’S, LLC
(Employer)
Dated: _______________________ By: ___________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It
conducts secret–ballot elections to determine whether employees want union representation and it investigates and remedies unfair
labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election petition,
JD(ATL)–01–10
15
you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
2600 North Central Avenue–Suite 1800, Phoenix, AZ 85004-3099
(602) 640–2160, Hours: 8:15 a.m. to 4:45 p.m.(MST)
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER (602) 640–2146