King Soopers, Inc.

National Labor Relations Board - Board Decisions

Sep 13, 2000

332 N.L.R.B. 23 (N.L.R.B. 2000)

KING SOOPERS, INC. 23
King Soopers, Inc. and Jenny Tilton and Lucinda
Casados and United Food and Commercial
Workers, Local No. 7 and Bakery, Confection-
ery, Tobacco Workers and Grain Millers Inter-
national Union Local #26, AFL–CIO. Cases 27–
CA–14882, 27–CA–14883, 27–CA–15420, 27–
CA–15444, 27–CA–15474, 27–CA–15610, 27–
CA–15641, 27–CA–16023, and 27–CA–16177–1
September 13, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On January 14, 2000, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respondent
filed exceptions1 and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, King
Soopers, Inc., Lakewood, Greely, and Bellevue, Colo-
rado, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.

1 The Respondent has requested oral argument. The request is de-
nied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
The Respondent has excepted to the judge’s finding that Bakery
Workers Local 26 is a labor organization. No merit has been found in
the Respondent’s exception to the same finding in King Soopers, Inc.,
332 NLRB 29 (2000). In that proceeding, we adopted the judge’s
finding that the affiliation of each of the locals of the Bakery Workers
International Union, including Bakery Workers Local 26, with the
Bakery, Confectionery, Tobacco Workers and Grain Millers Interna-
tional Union did not raise a question concerning representation of em-
ployees represented by Local 26. Accordingly, we find no merit in the
Respondent’s parallel exception in this proceeding.
Member Hurtgen finds it unnecessary to pass on whether store 4
Manager Linda Pickett’s directive to employee Pam Peek to clear mate-
rials with the store manager or human relations department before
posting them on the union bulletin board independently violated Sec.
8(a)(1). Member Hurtgen notes that this incident is not separately
alleged to be a violation, and, in any event, would be cumulative and
would not affect the Order or notice.
3 We have modified the recommended Order to comport with the re-
quirements of Excel Container, Inc., 325 NLRB 17 (1997).
Substitute the following for paragraph 2(b).
“(b) Within 14 days of service by the Region, post at
its Colorado facilities where violations have been found,
copies of the attached notice marked ‘Appendix.’3 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 27, after being signed by the Respon-
dent’s authorized representative, shall be posted for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be take by the Respon-
dent to ensure the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the attached notice to
all current and former employees employed by the Re-
spondent at any time since June 23, 1997.”

Barbara E. Greene and Angie Harmeyer, Esqs., for the General
Counsel.
Raymond M. Deeny, Emily F. Keimig, and Ted C. Tow III
(Sherman & Howard), of Colorado Springs and Denver,
Colorado, for the Respondent.
Michael J. Belo, of Wheat Ridge, Colorado, for United Food
and Commercial Workers Union, Local 7.
Walter C. Brauer III (Brauer, Buescher, Valentine, Goldham-
mer, Kelmer & Eckert), of Denver, Colorado, for Bakery
Workers Local 26.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Denver, Colorado, on various dates beginning on
April 8, 1999, and ending on August 3, 1999. On September
27, 1996, Jenny Tilton (Tilton) filed the charge in Case 27–
CA–14882 alleging that King Soopers, Inc. (Respondent or the
Employer) committed certain violations of Section 8(a) (1) and
(3) of the National Labor Relations Act (the Act). Tilton filed
the first amended charge on January 28, 1999. On September
29, 1996, Lucinda Casados (Casados) filed the charge in Case
27–CA–14883 against Respondent. Casados filed the first
amended charge on January 22, 1999. On August 8, 1996,
United Food and Commercial Workers Union, Local No. 7
(UFCW Local 7) filed the charge in Case 27–CA–14763
against Respondent. An amended charge was filed in that case
on January 20, 1999. UFCW filed the charge in Case 27–CA–
15420 on July 28, 1997. UFCW filed the charge in Case 27–
CA–15420 on July 28, 1997. The charge in Case 27–CA–
15474 was filed by UFCW Local 7 on August 29, 1997. On
March 24, 1998, UFCW Local 7 filed the charge in Case 27–
CA–15610. The charge in Case 27–CA–15641 was filed by
UFCW Local 7 on December 29, 1997. On December 16,
332 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24
1998, UFCW Local 7 filed the charge in Case 27–CA–16177–
1. On August 27, 1998, Case 27–CA–16023 was filed by Bak-
ery, Confectionery, Tobacco Workers and Grain Millers Inter-
national Union Local #26 (Bakery Workers Local 26). The
Regional Director for Region 27 of the National Labor Rela-
tions Board issued six consolidated complaints and notices of
hearing against Respondent alleging that Respondent violated
Section 8(a)(1), (3), and (5) of the Act. Respondent filed
timely answers to the complaints, denying all wrongdoing.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with various offices and facilities,
in the State of Colorado, where it has been engaged in the retail
sale of groceries and related items. Respondent annually derives
gross revenues in excess of $500, 000 and purchases and receives
goods and materials valued in excess of $5000 from outside the
State of Colorado. Accordingly, Respondent admits and I find
that Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits and I find that the UFCW Local 7 is a labor
organization within the meaning of Section 2(5) of the Act.
Based on a merger of the Bakery, Confectionery, Tobacco
Workers and Grain Millers International Union with the Grain
Millers International Union, Respondent denied the labor organi-
zation status of the Bakery Workers Local # 26. In King Soopers,
Inc., 332 NLRB No. 5 (2000), I found that the merger of the two
International Unions did not raise a question concerning represen-
tation. I again find that Bakery Workers Local # 26 is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Respondent operates over 80 retail grocery stores in the State
of Colorado. In many of these facilities, the grocery clerks are
represented by UFCW Local 7 and the bakery department em-
ployees are represented by Bakery Workers Local # 26. In
addition to representing store clerks, UFCW Local 7 represents
meat department employees in bargaining units separate and
apart from the grocery clerks units. Respondent operates a
meat plant at which the employees are represented by UFCW,
Local 7. The Bakery Workers Local 26 represents employees
of the bakery department at stores in the Denver metropolitan

1 The credibility resolutions here have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
area and at other stores in Colorado. In addition Bakery Work-
ers Local # 26 represents bakery employees at Respondent’s
bakery plant.
1. From May 13, to June 24, 1996, employees represented
by UFCW Local 7 engaged in a strike against Respondent.
Casados and Tilton, both employed at Respondent’s meat plant,
participated in the strike. They both picketed at the meat plant
and at a grocery store. In this case, the General Counsel alleges
that Respondent threatened and disciplined Tilton and Casados
because they engaged in the strike and/or other protected con-
certed activities.
2. Willard Foster is an all-purpose clerk at Respondent’s
store 60 in Lakewood, Colorado. In this case, the General
Counsel alleges that Respondent through Donna Riggin, Fos-
ter’s store manager, intimated, coerced, and threatened Foster
because he performed duties as a shop steward.
3. Employee Pam Peek worked as a service desk clerk at
store 22. Peek sent a letter to Respondent’s president in 1996
concerning a work-related problem. The General Counsel con-
tends that Store Manager Donna Riggin unlawfully interrogated
Peek about this letter.
4. UFCW Local 7 represents only the meat department em-
ployees at Respondent’s store 32 in Greely, Colorado. In
March 1997, in connection with the grievance of a meat de-
partment employee, Union Representative Kevin Schneider
requested attendance records for employees employed at that
store. Respondent permitted Schneider access to the records
for union-represented employees but denied him the informa-
tion for employees outside the bargaining unit. The General
Counsel argues that since June 1998, Respondent has unlaw-
fully failed and refused to provide relevant information to
UFCW Local 7 in violation of Section 8(a)(5).
5. The General Counsel alleges that Respondent maintained
an overly broad solicitation rule and restriction on posting in-
formation on the union bulletin board. Respondent argues that
its rule was consistent with its collective-bargaining agreement
with UFCW Local 7.
6. The General Counsel alleges that Respondent unlawfully
promulgated and maintained a rule restricting internal union
campaigning at its grocery stores. Respondent contends that its
rule was consistent with past practice and agreed to by the
president of UFCW Local 7.
7. The General Counsel alleges that Respondent unlawfully
caused a citation to be issued to Union Representative James
Hobson for engaging in union activities at store 35.
8. Bakery Workers Local 26 represents Respondent’s work-
ers at the Employer’s bakery plant and at various bakery de-
partments in Respondent’s retail grocery stores. In June 1998,
Bakery Workers sought information concerning a grievance
over the backpay due certain employees. In this grievance,
Bakery Workers sought backpay for bargaining unit employees
who allegedly lost wages because supervisors had performed
bargaining unit work. Respondent agreed to permit the em-
ployees to work the extra hours. The Union on the other hand,
sought backpay for the employees without the hours having to
be worked. In support of its position the Bakery Workers
sought Respondent’s bargaining notes regarding the “remedies
for errors” provision of the collective-bargaining agreement.
KING SOOPERS, INC. 25
Respondent refused to furnish the notes. The General Counsel
alleges that Respondent violated Section 8(a)(5) of the Act by
failing and refusing to furnish copies of the Employer’s bar-
gaining notes.
The allegations concerning Lucinda Casados and Jenny Tilton
The Facts
As stated earlier, Casados and Tilton engaged in UFCW Lo-
cal 7’s strike against Respondent from May 13 to June 24,
1996. These two employees picketed at the meat plant where
they work and also at one of Respondent’s supermarkets. The
strike ended on the signing of a strike settlement agreement.
The strike settlement agreement provided for the reinstate-
ment of employees who had been terminated during the strike
for misconduct. In exchange, Respondent received provisions
that would secure an orderly return to work. The purpose was
to prevent harassment of employees and to avoid work disrup-
tions that had occurred after previous strikes. The strike set-
tlement agreement established a special grievance and arbitra-
tion procedure, separate and apart from the procedures under
the collective-bargaining agreement, for the resolution of dis-
putes under the settlement agreement.
Following the execution of the settlement agreement, Re-
spondent issued a work rule setting forth the antiharassment
restrictions that been agreed by the parties. Upon their return to
work, employees were asked to sign and date a copy of these
rules. Those employees who refused to sign, including Casados
and Tilton, were advised that they were nevertheless obligated
to follow the rules.
Over the following weeks, over a half dozen employees were
disciplined for violating the strike agreement, including making
inappropriate comments between employees. At one store, 16
employees were discharged for violating the agreement.
UFCW Local 7 challenged these terminations and the dispute
was submitted to arbitration under the special procedure set
forth in the strike settlement agreement. The arbitrator reduced
the terminations to 2-week suspensions.
On September 5, 1996, Supervisor Larry McGinty escorted
Casados and Tilton to the office of Jerry Martinez, production
supervisor. Martinez directed Casados and Tilton to reread the
rules regarding the orderly return to work. Martinez then told
Casados and Tilton that they were accused of calling another
employee a scab. He told the employees that under the rules
they could not harass employees or call them scabs. Martinez
informed the two employees that if they again used the word
scab, they would be disciplined. While Martinez did not for-
mally issue a warning to the employees, copies of his notes of
this conversation were ultimately placed in the files of the two
employees.
The evidence establishes that this was not a disciplinary in-
terview. The employees were informed that this was not a
disciplinary meeting. Rather, Martinez reminded the employ-
ees of the rule against harassment because he had been told that
they had harassed a fellow employee.
On September 21, Casados and Tilton were each summoned
to Martinez’ office. First, Casados went to Martinez’ office. In
the presence of Union Steward Dave Thompson, Martinez told
Casados that she was accused of calling employee Joan Joiner a
scab and that Joiner had quit her job because of the incident.
Casados denied calling anyone a scab. Martinez said he had
two witnesses. Martinez gave Casados a written warning stat-
ing, “Cindy has been warned that this type of behavior would
not be tolerated and that if the issue came up again that disci-
plinary action would be taken.” After, Casados left the office,
Tilton was brought in to speak with Martinez. With the union
steward present, Martinez told Tilton that she and Casados had
been accused of causing Joiner to quit her job by calling Joiner
a scab. Tilton denied even knowing Joiner. Martinez then
informed Tilton that he was giving her a written warning be-
cause she had previously been warned about using the word
scab.
The September 21 meetings were disciplinary interviews and
Martinez secured the presence of a union steward to assist the
two employees. Martinez had two witnesses, one of which was
a leadman, tell him that Joiner had quit because of statements
by Tilton and Casados. Martinez did not believe stronger dis-
cipline was necessary.
There were no further incidents involving Casados or Tilton
until July 1997. On July 8, 1997, Martinez issued Casados a 5-
day final warning suspension. The written notice states that
Casados had mistreated and cursed a fellow employee. The
notice made reference to the fact that Casados had received
prior warnings concerning misconduct in the workplace. The
July 8 warning was based on an incident in which Casados had
told another employee, “to get her own fucking trays.” Casa-
dos testified that the other employee had been hollering for
trays and had grabbed Casados’ leg.
Martinez received this information from the employee whom
Casados had cursed. Casados admitted to Martinez that she had
cursed the employee. Casados had been disciplined twice be-
fore for harassing fellow employees and for using profane lan-
guage toward a fellow employee. Based on these prior warn-
ings, Martinez issued Casados a warning and suspension.
Preliminary Conclusions
The General Counsel contends that the use of the word scab
is protected under Section 7 of the Act. That argument is fun-
damentally incorrect. It is well established that in the context
of a labor dispute, the use of the word scab is not so egregious
as to forfeit the protections of Section 7 of the Act. Teledyne
Still-Man, 295 NLRB 161, 171 (1989), enfd. 911 F.2d 1214
(6th Cir. 1990). However, the word scab does not enjoy any
special privilege under the Act. Further, there is nothing in the
Act which bars a union and an employer from bargaining col-
lectively a strike settlement agreement which prohibits employ-
ees from insults and epithets, including the word scab.
The General Counsel contends that the use of the term
“scab” is protected by Section 7 of the Act. In support of this
argument the General Counsel cites the following excerpt from
Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 58
(1966):

Labor disputes are ordinarily heated affairs: the lan-
guage that is commonplace there might well be deemed
actionable per se in some state jurisdictions. Indeed, rep-
resentation elections are frequently characterized by bitter
and extreme charges, counter-charges, unfounded rumors,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26
vituperations, personal accusations, misrepresentations
and distortions. Both labor and management often speak
bluntly and recklessly, embellishing their respective posi-
tions with imprecatory language.

The Supreme Court went on to state at 383 U.S. at 60–61:

We note that the Board has given frequent considera-
tion to the type of statements circulated during labor con-
troversies, and that it has allowed wide latitude to the
competing parties . . . . Likewise, in a number of cases, the
Board has concluded that such epithets such as “scab,”
“unfair,” and “liar” are commonplace in these struggles
and are not so indefensible as to remove them from the
protection of Section 7, even though the statements are er-
roneous and defame one of the parties to the dispute.

The cases cited by the General Counsel do not establish that
an employee calling another employee a scab is engaged in
activity protected by the Act. Rather, these cases hold that an
employee engaged in Section 7 activity, such as organizing or
striking, does not lose the protection of the Act by using the
word “scab” or other language which might be offensive in
another context. The cases protecting the wearing of union
insignia do not establish a right of an employee to call another
employee a “scab” or any other name. Rather, these cases es-
tablish the right of employees to wear union insignia at work
absent special circumstances that outweigh the employees Sec-
tion 7 rights. See, e.g., Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945). They do not establish the right of employees
to confront fellow employees at work.
In Canandaigua Plastics, 285 NLRB 278 (1987), the Board
held that the employer who had discharged a union adherent for
harassing a fellow employee did not violate the Act. In Canan-
daigua Plastics, the alleged discriminatee had called a fellow
employee names. The employee had been warned that if she
did not stop the harassment, she would be disciplined. The
Board held that the discharge for such harassment was lawful.
The issue remains whether Respondent disciplined Casados
and Tilton because those employees engaged in the strike. In
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board an-
nounced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violations of Section 8(a)(1) turning
on employer motivation. First, the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
decision. Upon such a showing, the burden shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). In Manno Electric, 321
NLRB 278, 280 fn. 12 (1996), the Board restated the test as
follows: The General Counsel has the burden to persuade that
antiunion sentiment was a substantial or motivating factor in
the challenged employer decision. The burden of persuasion
then shifts to the employer to prove its affirmative defense that
it would have taken the same action even if the employees had
not engaged in protected activity.
In the instant case, Tilton and Casados engaged in union and
protected activity during the strike. Numerous other employees
engaged in these same activities. The September 5 incident
alleged to be violative was not a warning. Rather, the credible
evidence shows that upon hearing that the employees had har-
assed another employee, Martinez reminded Casados and
Tilton about the rules against such harassment. Union activities
were not a factor in his conduct.
On September 21, Casados and Tilton were issued written
warnings by Martinez. Martinez based the discipline on evi-
dence provided by two witnesses, one of which was a leadman.
Based on this information and the previous conversation with
Casados and Tilton on September 5, Martinez warned both
employees. I cannot find that union activity or protected con-
duct was a motivating factor in Martinez’ decision.
In July 1997, a year after the strike ended, Martinez issued
Casados a warning and suspension. Casados admitted to curs-
ing the fellow employee. She had three warnings in her file for
harassing or cursing fellow employees. Again, I find that Mar-
tinez’ discipline of Casados was not based on union activity.
B. The Alleged Coercion of Willard Foster
The Facts
Willard Foster is an all-purpose clerk and a shop steward at
Respondent’s store 60 in Lakewood. Foster testified that on
November 11, 1997, Foster, while on an assigned 10-minute
break, approached Donna Riggin, store manager, to request an
appointment to discuss union business. Riggin said she was too
busy to talk to Foster but Foster said they would have to have a
discussion that day concerning an employee’s pay. Riggin then
stated they could discuss the matter on Foster’s breaktime.
Foster described the employee’s pay issue and requested relief
for the employee. Riggin denied the request. Foster then pre-
sented Riggin with a form he had previously filled out showing
that Riggin and Foster had just unsuccessfully completed step
one of the grievance procedure. Riggin became upset and
yelled an insult at Foster. Riggin called the assistant manager
to take her place and told Foster to meet her at the upstairs of-
fice. In the office, Riggin yelled at Foster and called him stu-
pid. Foster said he was there to discuss a grievance. Riggin
told Foster that she had “never had such an insolent employee”
and stated, “I won’t have anybody like you working for me in
this store or in King Soopers.” She added, “[Y]our future with
this company is limited.” Foster stood up to leave but Riggin,
who is much smaller than Foster, blocked the door. Riggin told
Foster that he couldn’t leave until she was finished with him.
Foster said he was leaving and that he was taking his break.
Riggin responded that Foster didn’t deserve a break. Foster
said he was going to file a labor charge and Riggin responded,
“[Y]ou know a lot about that, don’t you.”
Riggin testified that when Foster told her that he needed to
speak with her, she had no time to speak with him that day.
Thus, Riggin would not sign a form indicating that they had a
step one meeting. Riggin testified that she took Foster upstairs
to her office to inform Foster that step one meetings should be
scheduled in advance. Riggin denied making any threats to
Foster and denied blocking the office door. Riggin also denied
that Foster was on his break when this dispute took place. I
KING SOOPERS, INC. 27
found Foster to be a forthright and credible witness. Riggin, on
the other hand, seemed more intent on denying Foster’s accusa-
tions than on testifying to the facts. Accordingly, I credit Fos-
ter’s testimony over Riggin’s denials.
Preliminary Conclusions
The discipline or discharge of employees for filing or process-
ing grievances, whether pursuant to a formal contractual grievance
procedure or informally in the absence of such a procedure, is
generally held to be a violation of Section 8(a)(1). John Sexton &
Co., 217 NLRB 80 (1975); Ernst Steel Corp., 212 NLRB 78
(1974); and Southwestern Bell Telephone Co., 212 NLRB 43
(1974). Because grievance meetings are generally heated and
emotional an employee’s outburst will be protected unless the
conduct is indefensible under the circumstances. Postal Service v.
NLRB, 652 F.2d 409 (5th Cir. 1981); see also Illinois Bell Tele-
phone Co., 259 NLRB 1240 (1982). Here, I find no credible evi-
dence that Foster engaged in insubordination or other indefensible
conduct. While Riggin may have been busy when Foster ap-
proached her, Foster’s request to discuss the grievance did not lose
the protection of the Act.
I find Riggin’s threat to Foster’s employment status tends to re-
strain and coerce Foster in the performance of his duties as a shop
steward and in his Section 7 right to process grievances. Accord-
ingly, I find that Respondent through Riggin violated Section
8(a)(1) of the Act.
C. The Alleged Refusal to Furnish Information to UFCW
Local 7
Facts
Keith Johnson was a meat cutter at Respondent’s store 32 in
Greely, Colorado. On February 18, 1997, Johnson received a
warning for attendance problems. Again on February 25, John-
son received a suspension for attendance infractions. On
March 3, a step-one grievance meeting was held pursuant to a
grievance filed on Johnson’s behalf. Union Representative
Kevin Schneider represented Johnson and UFCW Local 7 at
this meeting. At this meeting Johnson made a verbal request
for information regarding the failure of Respondent to disci-
pline other employees at the store. UFCW Local 7 only repre-
sented the meat department employees at store 32.
Schneider did not receive the information that he had re-
quested. Johnson’s grievances were taken to the second step of
the grievance procedure. At the second-step meeting, Schnei-
der was told that he could have access to the attendance records
of meat department employees only. In fact, Schneider did
receive access to the attendance records of the meat department
bargaining unit employees that day. The issue in this case con-
cerns the attendance records of grocery clerks and other non-
bargaining unit employees.
On March 17, 1997, Schneider spoke with Stephanie
Bouknight, Respondent’s labor relations manager, and re-
quested the attendance records of non-unit employees at store
32. Bouknight told Schneider that he could not have the re-
cords of employees that he did not represent. Schneider stated
that since all employees at the store were covered by the same
policies and attendance rules, he needed the records to see if
there was disparate treatment between Johnson and other em-
ployees of the store. On April 21, 1997, Schneider wrote
Bouknight reiterating that he was requesting the attendance
records of store 32 employees to see if Johnson was receiving
disparate treatment.
On June 9, 1997, Respondent issued Johnson a final warning
for attendance infractions. Based on this discipline, Schneider
filed another grievance on Johnson’s behalf. To process this
grievance, Schneider sent a letter to Bouknight requesting at-
tendance records, timesheets, schedules, and discipline records
related to attendance for seven-named employees and the entire
night crew, and schedules and time sheets for three inclement
weather dates. UFCW Local 7 did not represent the seven-
named employees or any of the night crew employees. Schnei-
der stated that the purpose of the request was to demonstrate
that Johnson was treated differently from other employees at
store 32. Respondent did not acknowledge this request.
In September 1997, Johnson was discharged. After John-
son’s discharge, Schneider again wrote Bouknight requesting
attendance records for the period of January 1 through July 14,
1997. Schneider explained that he had been informed that the
employees whose records were requested had been observed
clocking in late to work and were not disciplined. Schneider
took the position that all store 32 employees were subject to the
same time and attendance rules. Thus, Schneider argued that
the information was relevant to the issue of disparate treatment.
Bouknight did not respond to this request.
On June 23, 1998, Schneider again requested the same re-
cords from Bouknight. In this request Schneider stated that he
needed the information to determine whether to take Johnson’s
grievances to arbitration. Bouknight replied that Respondent
would not release the records of nonbargaining unit employees.
Bouknight stated that Schneider could have the records for
inclement weather dates but only for bargaining unit employ-
ees.
In February 1999, Johnson’s grievance was submitted to ar-
bitration. The issue of Local 7’s request for the time and atten-
dance records of nonunit employees was submitted to the arbi-
trator. The arbitrator did not rule on production of the re-
quested information. At the time of the instant hearing, the
arbitrator had not yet issued his decision.
Preliminary Conclusions
It is well settled that an employer has a statutory duty to pro-
vide a union, on request, with relevant information the union
needs for the proper performance of its duties as a collective-
bargaining representative. NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967); and Detroit Edison Co. v. NLRB,
440 U.S. 301 (1979). In determining whether an employer is
obligated to supply particular information the question is
whether there is a “probability that the desired information [is]
relevant, and that it would be of use to the union in carrying out
its statutory duties and responsibilities.” NLRB v. Acme Indus-
trial, supra at 437. As the Supreme Court has stated, the dis-
closure obligation is measured by a liberal “discovery-type
standard,” not a trial-type standard, of relevance. Id.
The existence of an arbitration procedure does not relieve an
employer or union from its duty to furnish the other party with
information necessary to determine whether to process a griev-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28
ance to arbitration. Teamsters Local 921 (San Francisco
Newspaper Agency), 309 NLRB 901 (1992); and Jewish Fed-
eration Council, 306 NLRB 507 (1992). The duty to furnish
the information does not terminate when the grievance is taken
to arbitration. Id. In International Harvester Co., 241 NLRB
600 (1979), the Board held that a bargaining agreement which
vested an arbitrator of a grievance with authority to order dis-
closure of information did not require deferral of the unfair
labor practice charges. In Teamsters Local 921, supra, the
Board found a violation by the union for an unlawful delay in
furnishing relevant information although the union furnished
the matter during the arbitration, in a timely matter, after being
ordered to so by the arbitrator.
In the instant case, Respondent argues that UFCW Local 7
never established that the requested information was relevant to
Johnson’s grievance. Further, Respondent apparently contends
that Schneider was required to inform Respondent of non-
hearsay witnesses to justify production of records of nonunit
employees.
The general standard for determining relevance is a liberal
“discovery standard.” NLRB v. Acme Industrial Co., supra.
However, when the requested information deals with matters
outside the bargaining unit, the requesting party must establish
the relevancy and necessity of the information requested. Bar-
nard Engineering Co., 282 NLRB 617 (1987). The requesting
party must show that there is a logical foundation and factual
basis for the request. Postal Service, 310 NLRB 391 (1993).
In Postal Service, supra, cited by the General Counsel, the
charging party union requested information in order to process
grievances regarding the discipline of two employees for atten-
dance problems. The information requested included timecards
of two supervisors. The union stated that the information was
needed to show that the employees were treated disparately.
The basis for this claim was the alleged observation of the un-
ion representative requesting the information. The Board found
that the respondent employer’s refusal to furnish the timecards
of the supervisors was a violation of Section 8(a)(5) and (1) of
the Act. The two supervisors and the two employees were
subject to the same time and attendance rules. The observa-
tions of the union representative were sufficient to establish a
logical foundation and factual basis for the request.
In the instant case, the nonunit employees are subject to the
same time and attendance rules as Johnson. The information
requested by Schneider and UFCW Local 7 could assist the
Union in establishing disparate treatment of Johnson. The in-
formation could also have established that Johnson had no basis
for claiming disparate treatment. In either event, the informa-
tion would have been relevant to the Union’s responsibility of
deciding whether, or how, to process the grievances.
The hearsay nature of Schneider’s justification for requesting
this information does not change the result here. The request-
ing union would not normally have eye witness evidence of
such happenings at the employer’s premises. A union would
have to rely on oral evidence which would normally not be as
accurate as the respondent employer’s records. Further, a union
should not be required to prove the merits of a grievance before
it is entitled to evidence which would tend to prove or disprove
that grievance. Accordingly, I find that Respondent violated
Section 8(a)(5) and (1) of the Act, by not furnishing UFCW
Local 7 with relevant information concerning Johnson’s griev-
ances.
D. The Alleged Interrogation of Pam Peek
The Facts
As indicated above, employees represented by UFCW Local
7 engaged in a strike against Respondent in June 1996. After,
the strike, employee Pam Peek, a service clerk at store 22, sent
a letter to Don Gallegos, president of Respondent. In her letter,
Peek complained that a courtesy clerk was performing work
that should have been assigned to an all purpose clerk and that
an all purpose clerk was sorting trash. Donna Riggin, manager
of store 22, called Peek into her office and told Peek that she
did not like Peek sending letters to Respondent’s president.
Riggin accused Peek of being sneaky. Peek said that she had
informed Riggin of the letters so that she did not believe that
she was being sneaky. Riggin questioned why Peek had not
spoken to her first. Peek answered that she had discussed the
assignment of clerks with Riggin on many occasions and with-
out any result.
Preliminary Conclusions
Interrogation of employees is not unlawful per se. In determin-
ing whether or not an interrogation violates Section 8(a)(1) of the
Act, the Board looks at whether under all the circumstances the
interrogation reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. Rossmore
House, 269 NLRB 1176 (1984); and Sunnyvale Medical Clinic,
277 NLRB 1217 (1985).
Here, I find that the questioning of Peek did not tend to inter-
fere with or restrain Peek in her union activities. First, there is no
background of employer hostility and discrimination against union
activities. Respondent has been party to a series of collective-
bargaining agreements with the UFCW Local 7. The strike had
ended. Thus, this first factor weighs against finding a violation.
Second, the fact that Riggin was seeking to find out why Peek had
bypassed her and gone to Respondent’s president, is a factor
weighing towards restraint. Third, the interrogation took place in
Riggin’s office. However, I find nothing coercive in that location.
It seems reasonable to have such a conversation away from cus-
tomers and other employees. Fourth, while Riggin expressed her
dislike of Peek’s writing to the Respondent’s president, she made
no threats. Fifth, Peek was covered by a grievance and arbitration
procedure. Sixth, Peek felt free to honestly respond to Riggin’s
questions. Under these circumstances, I find that Riggin’s conver-
sation with Peek did not rise to the level of a violation of the Act.
E. The Restriction Imposed on the Bulletin Board
Facts
On November 21, 1998, Pam Peek, then a union steward at
store 4, posted information concerning proposed legislation in
Colorado. The proposed legislation was to make Colorado a
“right to work state” and Peek was strongly opposed to that legis-
lation. The information posted by Peek was removed by the store
manager. Peek posted the information again and the material was
again removed.
KING SOOPERS, INC. 29
Store Manager Lynda Pickett told Peek that the employee could
not post any right-to-work material at the store, even on the
UFCW Local 7 bulletin board. Peek responded that she was not
disturbing anybody and was only talking to employees who were
on break and were willing to speak with her. Pickett insisted that
information had to be approved by Respondent’s director of hu-
man relations. Peek had never before been asked to clear material
with the store manager or human relations department before
posting materials on the union bulletin board.
Pickett testified that the union bulletin board is only for official
union business. The collective-bargaining agreement states, “The
Employer will provide bulletin board space for the posting of
official Union notices.” Pickett argued that handwritten notices
and notices without a union seal are not official union notices.
Pickett took the position that she could decide what could be
placed on the UFCW Local 7’s bulletin board. Peek credibly
testified that the Local 7 bulletin board contained much material
that was not official union business and did not have a union logo.
Preliminary Conclusions
The evidence reveals that Pickett removed posted information
from the union bulletin board and told Peek that she could not post
any right to work information in the store. Further, Pickett im-
posed a new rule that material on the UFCW Local 7 board had to
be approved in advance.
Peek was engaged in protected, concerted activities in posting
material of general interest to union members. It is well estab-
lished that there is no statutory right of an employee or a union
to use an employer’s bulletin board. Honeywell, Inc., 262
NLRB 1402 (1982); and Container Corp. of America, 244
NLRB 318 (1979). An employer has a right to restrict the use
of company bulletin boards. However, that right may not be
exercised discriminatorily so as to restrict postings of union
materials. J. C. Penny, Inc., 322 NLRB 238 (1996); and
Guardian Industries Corp., 313 NLRB 1275 (1995).
Respondent discriminatorily enforced its rules regarding the
bulletin board. The board had been used for a variety of purposes
including personal notices. Prior approval was not required until
Peek posted materials regarding the “right to work” issue. Simi-
larly, the requirement of union stationery or a union logo was not
utilized before or after Peek’s attempt to post materials opposed to
the “right to work” legislation. See Central Vermont Hospital,
288 NLRB 514 (1988); and Honeywell, Inc., supra. Accordingly,
I find that Respondent violated Section 8(a)(1) of the Act.
F. The Restriction of Internal Union Election Campaigning
Facts
In August 1997, UFCW Local 7 was holding an election for
union officers. Steve DiCroce, Respondent’s director of human
resources, testified that he spoke with Gary Hakes, then president
of UFCW Local 7, about the locations where campaigning for the
internal union election would be permissible. On August 27,
DiCroce issued a memorandum setting forth that solicitation could
take place outside the store or in the breakroom.
James Hobson, a business agent for Local 7, testified that he
campaigned against the incumbent union president in August
1997. On August 2, 1997, Hobson visited Respondent’s store
35. Hobson did not usually service this store. Hobson distrib-
uted internal union election materials to employees. During
these activities, one store employee, notified Hobson about a
dues question. Hobson asked for more information, handling
the matter as he would if this was one of his assigned stores.
While Hobson was campaigning in the store, Eddie
McClellan, a district investigator in Respondent’s security de-
partment, approached him. Hobson testified that McClellan
told the business agent not to talk to any employees on the sales
floor and that Hobson could only talk to employees in the
breakroom. Hobson argued that as a business agent for Local
7, he could talk to employees anywhere so long as he did not
disrupt or interfere with work. Hobson said he would continue
to talk with employees but would not disrupt work. McClellan
then told Hobson to leave the store or he would call the police.
Hobson did not leave the store but, instead, continued to walk
through the store and campaign for the slate of union officers
that he was backing. McClellan again approached Hobson, this
time with the assistant store manager, Rudy Romero. Romero
told Hobson that the business agent could speak with employ-
ees outside the store or in the breakroom. Romero said Hobson
could distribute his election materials in the breakroom.
Hobson said he would not disrupt the work of any employee
but insisted that he would continue to speak with employees
anywhere in the store. Romero informed Hobson that the po-
lice were on their way and asked Hobson to go upstairs.
Hobson went to the break room and continued to speak with
about the upcoming election. An employee mentioned a
scheduling problem to Hobson and Hobson mentioned the
problem to Romero.
When the police arrived, Hobson explained to the police that,
as a business agent, he believed he had a right to be anywhere
in the store. According to Hobson, he was calm but McClellan
yelled at him. The police gave Hobson a citation for trespass-
ing and required him to leave the store.
Preliminary Conclusions
The General Counsel, alleges that Respondent unilaterally
changed the practice and procedure for union election cam-
paigns. Clearly, Respondent and DiCroce did not act unilater-
ally. The undisputed testimony of DiCroce establishes that he
had discussed the election campaign with the Union’s president
and reached agreement with the union president to limit cam-
paigning so as to minimize disruption to the operation of the
store. The right of access of union agents was a creature of the
bargaining agreement and the parties clarified how that agree-
ment would apply to the intraunion election.
Next, the General Counsel argues that the incumbent Union
could not waive the statutory rights of its opposition slate in the
intraunion election. I find no merit to this argument. An
agreement to restrict campaigning to nonwork areas of a retail
establish is not a waiver of any right. The parties recognizing
the disruptive nature of an election, agreed on reasonable limits
to such solicitations and distributions. However, those limits
are equal to the usual protections of the Act. The limits are
only applicable to extended contractual rights that the parties
have agreed on. The parties to the collective-bargaining agree-
ment may agree to modify the contract, especially, where as
here, there are legitimate business reasons to do so. I find that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30
that Respondent and UFCW Local 7 did not unlawfully restrict
the rights of employees or union agents to campaign against the
incumbent union officers.
G. The Request of the Bakery Workers for Bargaining Notes
Facts
Bakery Workers Local # 26 represents Respondent’s bakery
employees at its bakery plant and at numerous stores. The
latest collective-bargaining agreement between the parties is
effective June 8, 1997, to June 9, 2001. In March 1998, the
parties resolved a grievance concerning bargaining unit work
performed by supervisors. Respondent admitted that the super-
visors performed the work and proposed that employees be
permitted to work extra hours to earn what they would have
earned absent this breach of contract. The Bakery workers
argued that the employees should be made whole by payment
of the amounts not earned, without having to work any hours.
In support of its position, Respondent cited the remedy sec-
tion of the collective-bargaining agreement which clearly states
that in the case of a work dispute, the remedy will be to permit
the employees to make up the time lost. There is no pay for
time not worked in such cases.
In pursuant of a grievance regarding this dispute about the
remedy, David Servold, a business representative, for Bakery
Workers Local # 26, request the following information:

Copies of bargaining notes taken by all of the com-
pany’s members that were in the 1997 negotiations. To be
more specific, I am requesting copies of notes regarding
statements that were made from either side, over the
“remedies for errors” proposal. I am not interested in any
notes regarding the company’s mental impression nor the
company’s strategy.

On June 23, 1998, Bouknight mailed Servold a copy of the
collective-bargaining agreement but not Respondent’s bargain-
ing notes. The Bakery Workers made two further requests for
the bargaining notes but Respondent did not provide its notes.
Prior to the instant hearing, Bakery workers Local # 26 decided
not to pursue the grievance.
Conclusions
It is well settled that an employer has a statutory duty to pro-
vide a union, on request, with relevant information the union
needs for the proper performance of its duties as a collective-
bargaining representative. NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967); Detroit Edison Co. v. NLRB, 440
U.S. 301 (1979). In determining whether an employer is obli-
gated to supply particular information the question is whether
there is a “probability that the desired information [is] relevant,
and that it would be of use to the union in carrying out its statu-
tory duties and responsibilities.” NLRB v. Acme Industrial,
supra at 437. As the Supreme Court has stated, the disclosure
obligation is measured by a liberal “discovery-type standard,”
not a trial-type standard, of relevance. Id.
Here, the contract issue was so clear and unambiguous that
the request for information appears to be of no use to the Un-
ion. Further, the issue became moot when the Union dropped
the grievance. Accordingly, I find that Respondent did not
violate Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. UFCW Local 7 and Bakery Workers Local # 26 are labor
organizations within the meaning of Section 2(5) of the Act.
3. By threatening the job tenure of employee Willard Foster
because of his activities on behalf of the UFCW Local 7, Re-
spondent violated Section 8(a) (1) of the Act.
4. By refusing to furnish to UFCW Local 7 information
relevant to the processing of a grievance, Respondent violated
Section 8(a)(5) and (1) of the Act.
5. By discriminatorily refusing to permit the posting of un-
ion information on the UFCW Local 7 bulletin board, Respon-
dent violated Section 8(a)(1) of the Act.
6. The above-unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
7. Respondent has not otherwise violated Section 8(a)(5)(3)
and (1) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, King Soopers, Inc., Lakewood, Greely, and
Bellevue, Colorado, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge or other reprisals
in order to discourage union activities.
(b) Refusing to furnish information, relevant to grievance
processing, to UFCW Local 7.
(c) Discriminatorily denying access to the UFCW Local 7
bulletin board to information of a general interest to union em-
ployees.
(d) 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 effec-
tuate the policies of the Act.
(a) Within 14 days of a request, make available to the UFCW
Local 7 the attendance records requested in June and September
1997 and June 1998, in connection with the grievances con-
cerning employee Keith Johnson.

2 All motions inconsistent with this recommended Order are denied.
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 pur-
poses.
KING SOOPERS, INC. 31
(b) Within 14 days after service by the Region, post at its
Colorado facilities where violations have been found, copies of
the attached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region 27,
after being signed by Respondent’s authorized representative,
shall be posted for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure the notices are not altered, defaced or covered by other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facilities involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the attached
notice to all current employees and former employees em-
ployed by the Respondent at any time since June 1, 1997.
(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 Re-
spondent has taken to comply.

3 If this Order is enforced by a Judgment of the United States court
of appeals, the words in the notice “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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT threaten employees with discharge or other
reprisals in order to discourage union activities.
WE WILL NOT refuse to furnish information, relevant to
grievance processing, to UFCW Local 7.
WE WILL NOT discriminatorily deny access to the UFCW
Local 7 bulletin board to information of a general interest to
union members.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL, within 14 days of a request, make available to
the UFCW Local 7 the attendance records requested in June
and September 1997 and June 1998, in connection with the
grievances concerning employee Keith Johnson.

KING SOOPERS, INC.