Nob Hill General Stores, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 31, 2019

20-CA-209431 (N.L.R.B. Jan. 31, 2019)

JD(SF)–02–19
Santa Clara, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
NOB HILL GENERAL STORES, INC.
Respondent
and Case 20–CA–209431
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 5
Charging Party
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 approved 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 timely answer denying all material charges.

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 proceeding. 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 during 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.
JD(SF)–02–19
2
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 Union to discharge its duties.
On the entire record, and after considering the briefs filed by the General Counsel, the 5
Charging Party, and Respondent, 4 I make the following
FINDINGS OF FACTS
I. JURISDICTION10
At all material times, Respondent, a California corporation with an office and place of
business in West Sacramento, California (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 15
excess of $500,000, and purchased and received goods valued in excess of $5,000 directly from
sources 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.
20
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
Respondent, a separate corporation, is part of a corporate family that operates 25
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 categorized 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-30
supervisory employees, represent some non-supervisory employees, or represent no non-
supervisory employees. Raley’s, a California corporation, provides various corporate support
services including labor and human relations services to all of these stores, and directly operates
some of the stores.5
35

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.
5 During the relevant time period, Mark Foley (Foley) held the position of Executive Vice
President and Chief People Officer for Raley’s and was a supervisor and agent of Respondent
within the meaning of Sections 2(11) and 2(13) of the Act. Also Tara Locaso (Locaso) held the
position of Labor Relations Manager for Raley’s and was an agent of Respondent within the
meaning of Section 2(13) of the Act. Finally, Henry Telfeian (Telfeian) was the legal
representative of Respondent and an agent of Respondent within the meaning of Section 2(13) of
the Act.
JD(SF)–02–19
3
With respect to Respondent’s stores which have opened previously in the Union’s (or its
predecessor local unions) jurisdiction, Respondent staffed each new store with a cadre of
employees, 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 5
notified all of its existing unit employees, represented by the Union, of the opportunity to
transfer to and request a transfer to a new store. Respondent also notified the employees
working in non-unit stores of the opportunity to transfer and request to transfer to the new store.
Respondent did not require or force any employee to transfer to a new store. All employees who
requested a transfer were considered for transfer, but not all employees who requested a transfer 10
were granted a transfer.
B. The Union
The following employees of Respondent constitute a unit appropriate for the purposes of 15
collective bargaining within the meaning of Section 9(b) of the Act and constitute 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 jurisdiction of the Union, as described in the collective-20
bargaining agreement between the Union and Respondent effective by its terms from
October 12, 2014 to October 11, 2017 and extended by the parties to February 8, 2018.
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 25
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. 30
J).
Of relevance in this matter, Section 1.1 concerns union recognition; Section 1.11
concerns individual agreements; Section 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 35
Union’s jurisdiction; Section 2.5 concerns 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 subsequently available; Section 4.9 concerns transfers; Section
4.10 concerns part-time employees; and Section 5.9 concerns union business (Jt. Exh. J).
40
Specifically, Section 1.11, Individual Agreements, states: The Employer agrees that no
employee covered by this Agreement shall be compelled or allowed to enter into any individual

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.
JD(SF)–02–19
4
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, except by
written agreement of the Employer, the employee and the Union. Section 1.13 of the CBA
states:
5
[…] 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 opening to the public of
any new establishment. [….]
10
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 necessary 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 15
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.
[….] 20
(Jt. Exh. J). Section 4.9, Transfers, states: No employees shall be required to accept a permanent
transfer outside the jurisdiction of this Local Union unless approved by the Union. Requests for
transfers, within the Union’s geographical jurisdiction, so an employee may work nearer his
home will be given proper consideration and will not be refused arbitrarily. Similarly, an 25
employee will not be arbitrarily or capriciously transferred. 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 30
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.
35
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 employees working in that
new store, on a date subsequent to the new store’s opening. All Respondent’s stores within the
Union’s jurisdiction, except the Santa Clara, California Nob Hill General Store (Santa Clara 40
Store), are covered by the parties’ CBA.
C. Santa Clara Store
From September 15 through September 22, Respondent posted at store numbers 315, 45
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
JD(SF)–02–19
5
Clara, California (Santa Clara Store) (Jt. Exh. S). The open positions listed in the flyer were
non-supervisory positions normally included in the bargaining unit. In addition, Respondent
posted a notice on Raley’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” website. These Santa 5
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 10
opening to December, and then finally opened to the public on January 10, 2018. As of January
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 Jt. Exh. W was eligible to request a
transfer to the Santa Clara Store. The 13 employees who requested to transfer consisted of the
following:15
1 Unit employee from Store 615 was not offered a transfer.
1 non-Unit employee from Store 236 accepted a transfer offer.
20
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.25
1 Unit employee from Store 620 accepted a transfer offer, but employment terminated
prior to the transfer date.
1 Unit employee from Store 628 accepted a transfer offer.30
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.
35
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 accepted transfers.
40
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 operation 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 45
employees then on “lay-off” status for lack of work during the pendency of the Union’s
JD(SF)–02–19
6
information requests. Any positions or work hours vacated by unit employees transferring to the
Santa Clara Store have become 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 5
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,
Respondent, 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.
10
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”:
15
(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 20
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 25
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.30
(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 35
store.
(8) When will employees begin actually working in the store? What is the projected
opening date?
40
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 employees who are currently
working in the bargaining unit may transfer into the store and under what
circumstances.45
JD(SF)–02–19
7
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 arrangements for them to be hired.
The Union explained that the above information is necessary and relevant to administer the 5
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 10
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).
15
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 employees 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). 20
Again on December 5, the Union via letter requested the information it first requested on
September 25. The Union reiterated 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, 25
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
protects the current bargaining unit by allowing them to staff a new store. When a new store
opens it often compete [sic] with existing stores and the right to transfer and the staffing
obligation protects current employees and the bargaining unit” (Jt. Exh. N).730
On December 13, Respondent via letter again refused to furnish the information the
Union first requested on September 25. Respondent reiterated that it was not obligated to
provide the information (Jt. Exh. O). However, in this letter, Respondent did answer the
following unnumbered requests from the Union: 35
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.
40
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 arrangements for them to be hired.

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 originally noted by Locaso in the October 18 letter (Jt. Exhs. O, P).
JD(SF)–02–19
8
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
requested 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). 5
On December 23, Respondent responded to the Union’s December 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 10
the information it originally requested 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 information is
relevant and necessary (Jt. Exh. R). Nunes wrote with regard to the September 25 information
request,15
[…] As with Nob Hill and our other contracted Union employers, when new
stores open there are many additional opportunities 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 opportunities 20
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.25
On the other hand, if Raley’s employment recruiters are informing Local 5
members the store will be a non-union operation it is important they have all the
facts before making such an important decision. It is not possible for the Union to
educate 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 30
go to the new store. For example, employees in the pension plan will cease to be
participants which will impact their retirement income and will also have severe
negative effects on their retiree medical eligibility. 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 under the 35
Union Trust Fund plan. […]
(Jt. Exh. R)
Since September 25, Respondent has refused to provide the following information 40
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.45
JD(SF)–02–19
9
(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 indicated their willingness 5
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 10
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.
15
(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?20
ISSUES PRESENTED
The parties stipulated as to the following:
25
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 follows:
(1) Please provide a list of classifications and the number of employees in each 30
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 35
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 40
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.
45
(6) Please provide a statement of the ranges of rates to be paid to each classification
of employee in the store.
JD(SF)–02–19
10
(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 5
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 unnumbered items of subparagraph 9(a) of the complaint, and as 10
follows:
(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.15
(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 arrangements for them to be hired.
20
DISCUSSION
A. RESPONDENT FAILED TO PROVIDE RELEVANT AND NECESSARY INFORMATION TO THE
UNION IN THE PERFORMANCE OF ITS DUTIES AS THE COLLECTIVE-BARGAINING
REPRESENTATIVE OF THE UNIT EMPLOYEES25
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 contracts or agreements providing less benefits than the CBA as covered 30
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 35
provide “specific facts” to support a “viable and valid” claim of breach of contract (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 40
the bargaining representative to assess claims made by the employer relevant to contract
negotiations as well as administration of the contract. In addition, an employer is required to
furnish the union representing its employees 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. 45
Co., 351 U.S. 149 (1956). This includes information which concerns the terms of transfer of
bargaining unit employees. See Kansas Education Assn., 275 NLRB 638, 640 (1985).
JD(SF)–02–19
11
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 5
Electric & Gas Co., 323 NLRB 1182, 1186 (1997). 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 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 10
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 explanation 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, 15
1258, fn. 5 (2007). The determination 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).
As explained below, I find that Respondent failed to provide the information requested by 20
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 effects of its opening. In summary, the Union sought the classifications
and numbers of employees to be hired at the Santa Clara Store along with the full or part-time
status of each position; the Union sought the number of unit employees asked to work at the 25
Santa Clara Store as well as the date these employees 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 employees working in the Santa Clara Store; and the dates of 30
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 statutory duties and responsibilities via written correspondence with Respondent from
September to December. Generally the Union mentioned various contractual provisions as well
as the potential for effects bargaining. 35
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 information. In response, the Union explained that it was entitled to the 40
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
Respondent shall staff such new food market with a combination of both current employees and

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).
JD(SF)–02–19
12
new hires, in accordance with current industry practices of staffing such stores with a cadre of
current employees possessing the necessary skills, ability and experience, 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 5
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 10
a “fair and equitable manner consistent with the terms of the Union agreement” (Jt. Exh. R). The
Union also provided information that its members 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.
15
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). 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 20
whom could have been unit employees. As such, it appears relevant to the Union’s duties to
determine which positions would be filled by at the Santa Clara Store as well as the work hours
of such positions. 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. 25
The Union listed other CBA provisions which could also impact 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 30
enter into an employment agreement with the Employer which reduces 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 employees 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 35
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 employment. 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 40
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.
45
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
JD(SF)–02–19
13
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
ensure that all provisions are being met. 5
Respondent argues that the CBA, specifically at Section 1.13, does not apply to the Santa
Clara Store, and thus the information requested was not relevant and necessary to the Union’s
representational duties (R. Br. at 9). Respondent elaborates that the CBA only applied to the
Santa Clara Store 15 days after the opening of the store, and thus, Respondent had no existing 10
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 15
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
information 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 20
Union should show a probability that the desired information is relevant. The Board has
affirmed administrative law judge decisions in similar situations involving whether a union is
entitled to requested information to evaluate or process a grievance where the employer 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) (employer 25
unlawfully refused to provide certain information to the union based on its reliance on its own
interpretation of the contract where the employer determined the information was not relevant to
the union’s decision to take a grievance to arbitration). 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 grievance or bargaining issue would only arise in those 30
proceedings, not under these circumstances where the Union seeks information to determine
whether in its view the CBA is being followed 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). 35
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
argument 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 40
[probative of discrimination] before it has made a bargaining demand”). The relevance for the
information requested is clear—the Union sought to ensure that the parties’ agreement regarding
the staffing for the Santa Clara Store was being followed along with other provisions of the CBA
including the transfer provisions.
45
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
JD(SF)–02–19
14
party’s statutory right to be clear and unmistakable. Metropolitan Edison 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, 5
80 (1992). Respondent presented 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 necessary information it requested on September 25, and 10
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 Section 8(a)(5) of the Act when it 15
provided the following information 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. Respondent argues that it did 20
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, 25
354 NLRB 11, 41 (2009) (citations omitted), reaffirmed and incorporated 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 30
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 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); Woodland 35
Clinic, 331 NLRB 735, 736 (2000) (7-week delay).
To determine whether an employer has failed to furnish information in a timely manner,
the Board considers a variety of factors, including the nature of the information sought
(including whether the requested information sought is time sensitive); the difficulty in obtaining 40
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 (1989). 45
JD(SF)–02–19
15
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
difficult to obtain, complex or voluminous. In fact, Respondent did not provide any indication 5
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 significant.
The Board has found that even a 2-month delay in providing information to a union has been
found to be untimely. Gloversville Embossing Corp., 314 NLRB 1258 (1994). Yes, the Santa 10
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 December 13 to provide the following requested information: 15
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
members who are working short hours, not working or who are otherwise available to work in
the new store.
20
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.25
2. United Food and Commercial Workers Union, Local 5 (Charging Party or the Union) is,
and has been at all times material, a labor organization within the meaning of Section 2(5) of the
Act.
30
3. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide
the Union with information requested on September 25, and repeated on October 31, December
5, December 19, and December 27, which was necessary and relevant to the Union’s
performance of its duties as the collective-bargaining representative of the unit employees.
35
4. By delaying in providing responses to the Union’s September 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.40
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 45
JD(SF)–02–19
16
engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.10
On the basis of the foregoing findings of fact and conclusions of law, and the entire
record, I issue the following recommended115
ORDER
Respondent, Nob Hill General Stores, Inc., its officers, agents, successors, and assigns, shall
10
1. Cease and desist from
(a) Failing and refusing to furnish United Food and Commercial Workers Union, Local 5
with information requested on September 25, and repeated on October 31, December
5, December 19, and December 27, that is relevant and necessary to the Union’s 15
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.20
(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 effectuate the policies of the Act:25
(a) Furnish to the Union, in a timely manner, the information requested on September 25,
and repeated on October 31, December 5, December 19, and December 27, described
as follows:
30
(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 working in the bargaining unit 35
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 40

10 The Union requests that a wide variety of non-traditional remedies, including those
remedies recommended due to special circumstances (CP Br. at 5–6). However, I decline to
recommend such remedies as the factual scenario in this matter does not warrant such remedies.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order 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.
JD(SF)–02–19
17
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.5
(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 10
store.
(8) When will employees begin actually working in the store? What is the projected
opening date?
15
(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 conspicuous places including all places where 20
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 25
material. In the event that, during the pendency of these proceedings, Respondent has
gone out of business or closed the facility involved in these proceedings, Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current and
former employees employed by Respondent at any time since September 25, 2017.
30
(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, 201935
____________________
Amita Baman Tracy
Administrative Law Judge40

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.”
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 furnish the United Food and Commercial Workers Union, Local
5 (the Union) with the information requested on September 25, 2017, and repeated on October
31, December 5, December 19, and December 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 September 25, 2017 to December 13, 2017.
WE WILL NOT in any like or related manner interfere with, restrain, 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 information requested on September
25, 2017, and repeated on October 31, December 5, December 19, and December 27, 2017,
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 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 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.
JD(SF)–02–19
(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.
(Respondent)
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, 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.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
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, (415) 356-5183.