King Soopers, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 2005

344 N.L.R.B. 842 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 104
842
King Soopers, Inc. and United Food and Commercial
Workers Union, Local No. 7. Cases 27–CA–
16902–1, 27–CA–16914–1, and 27–CA–16914–2
June 17, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 22, 2001, Administrative Law Judge James L.
Rose issued the attached decision. The Respondent and
the General Counsel each filed exceptions, supporting
briefs, answering briefs, and reply briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs1 and has decided to affirm the judge’s rulings,
findings,2 and conclusions only to the extent consistent
with this Decision and Order, and to adopt the judge’s
recommended Order as modified below.3

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
The General Counsel filed a motion to strike the affidavit of the Re-
spondent’s counsel, Emily F. Keimig, certain attachments to that affi-
davit, and any references thereto from the Respondent’s reply brief.
The Respondent filed an opposition to the motion to strike. We agree
with the General Counsel that the affidavit and exhibits attached
thereto, with the exception of the Respondent’s June 8, 1999 memoran-
dum concerning union information requests, were not introduced as
evidence at the hearing and, therefore, cannot be introduced into the
record at this point. See Sec. 102.45(b) of the Board’s Rules and Regu-
lations. Accordingly, we grant the General Counsel’s motion to strike
the affidavit, the attached exhibits and references thereto from the Re-
spondent’s reply brief, with the exception of the Respondent’s memo-
randum on information requests. S. Freedman Electric, Inc., 256
NLRB 432 fn. 2 (1981).
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 preponder-
ance of the relevant evidence convinces us that they are incorrect.
Standard 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 judge’s findings.
3 We shall modify the judge’s recommended Order to conform to the
requirements of Indian Hills Care Center, 321 NLRB 144 (1996), as
revised in Excel Container, Inc., 325 NLRB 17 (1997). We shall also
substitute a new notice in accordance with our decision in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th
Cir. 2004).
We find that the Respondent has not demonstrated a proclivity to
violate the Act and we accordingly agree with the judge that a broad
cease-and-desist order is not warranted. We note that the Respondent’s
unfair labor practices found here and in King Soopers, Inc., 344 NLRB
No. 103 (2005), also decided today, involve refusals to provide re-
quested information. However, in each instance, the Respondent had
an arguably meritorious reason for refusing to provide the requested
information. Furthermore, the Respondent has contracts with at least
five unions representing thousands of employees at over 60 stores in
Colorado, processes at least 900 grievances annually, and, as the judge
noted, complies with virtually all of the many information requests

made with regard to these grievances. Our colleague, in arguing for a
broad order, notes that the Board has found the Respondent guilty of
unfair labor practices in other cases. However, the instant case in-
volves a refusal to provide information; only one other case involves
this kind of violation. In these circumstances, and given the aforemen-
tioned overall record in a large enterprise, we are not persuaded that the
General Counsel has met the evidentiary burden for a broad Board
order. See NLRB v. Express Publishing Co., 312 U.S. 426 (1941);
Consolidated Coal Co., 307 NLRB 976 fn. 2, 978 (1992); Postal Ser-
vice, 314 NLRB 227 (1994).
Member Liebman, unlike her colleagues, would grant a broad cease-
and-desist order under Hickmott Foods, Inc., 242 NLRB 1357 (1979)
(finding that a broad order is warranted “when a respondent is shown to
have a proclivity to violate the Act or has engaged in such egregious or
widespread misconduct as to demonstrate a general disregard for the
employees’ fundamental statutory rights”). Based on the violations
found in this proceeding, and the violations found in other proceedings
before the Board, she would find that the Respondent has demonstrated
a proclivity to violate the Act. See, e.g., King Soopers, Inc.,supra, 344
NLRB No. 103 (2005), also decided this day (refusal to provide, and
delay in providing information); King Soopers, Inc., 340 NLRB 628
(2003) (failure to bargain before implementing the use of new technol-
ogy by represented employees); King Soopers, Inc., 334 NLRB No. 38
(2001) (not reported in bound volumes) (refusal to bargain with the
union); King Soopers, Inc., 332 NLRB 23 (2000), affd. 275 F.3d 978
(10th Cir. 2001) (threatening the job tenure of an employee because of
his union activities, discriminatorily refusing to permit the posting of
union information on a bulletin board, and refusing to furnish requested
information to the union); King Soopers, Inc., 332 NLRB 32 (2000),
enfd. 254 F.3d 738 (8th Cir. 2001) (withdrawing recognition from, and
refusing to apply the collective-bargaining agreements with, two unions
and associated 8(a)(5) violations).
Member Schaumber notes that the Board’s decision in Hickmott, su-
pra, 242 NLRB at 1357, was in response—albeit a long-delayed re-
sponse—to the Supreme Court’s decision in Express Publishing, supra,
312 U.S. at 426. In the latter case, the Supreme Court admonished the
Board for issuing an order restraining “any” violation of the Act; the
Board’s “broad order.” The Court found the issuance of such an ex-
traordinary order inconsistent with the express language of the statute
[Section 10(c) permits the Board to order a party who has been found to
have committed an unfair labor practice “to cease and desist from such
unfair labor practice” (emphasis added)], the structure of the statute
with its separate and carefully defined unfair labor practices, and the
due process standards governing the issuance of an injunction by a
court. See, e.g., Fed.R.Civ.P. 65(d). At the conclusion of its decision,
the court said: “[T]o justify an order restraining other violations it must
appear that they bear some resemblance to that which the employer has
committed or that danger of their commission in the future is to be
anticipated from the course of conduct in the past.” 312 U.S. at 437
(emphasis added). Extant Board law relies on this language as warrant
for the Board to issue orders restraining “any violations.” Without
commenting on the reasonableness of this construction, in Member
Schaumber’s view, at a minimum, the Board’s Hickmott standard must
be interpreted and applied consistent with the Court’s decision in Ex-
press Publishing. He agrees for the reasons stated by the majority, the
Hickmott standard has not been met here. Member Schaumber ex-
presses the further view that Hickmott’s somewhat ambiguous standard
meets the specificity requirements for injunctive relief expressed by the
Supreme Court in Express Publishing only in cases where the viola-
tions are severe, numerous and cut across the various categories of
unfair labor practices defined by Congress in the Act. In other words,
the inherent vagueness of an order restraining “any violations” of the
Act may be clarified by the breadth of a respondent’s misconduct.
Absent the foregoing, he believes, a narrow order enjoining the viola-
KING SOOPERS, INC. 843
I. INTRODUCTION
This case arises from several information requests by
the Union concerning (1) a grievance filed by the Re-
spondent against the Union and (2) the Respondent’s
reopening of store #53.4 For the reasons described by the
judge, we find that the Respondent violated Section
8(a)(5) by refusing to furnish financial information re-
quested that was relevant to the Union’s defense against
the grievance. We also find, however, that the Respon-
dent unlawfully refused the Union’s request for a copy of
the letter of understanding upon which the Respondent in
part based its grievance (the Behlke-Mercer agreement),
and other nonfinancial information concerning the Re-
spondent’s grievance.
As for the request for information concerning the re-
opening of store #53, we agree with the judge’s finding,
for the reasons he states, that the Respondent violated
Section 8(a)(5) by refusing to furnish certain items. We
also find, however, that the Respondent unlawfully failed
to provide the requested timecards of employees from
other stores who worked at store #53 during the week of
that store’s reopening.
II. INFORMATION REQUESTS RELATED TO THE
RESPONDENT’S GRIEVANCE
A. Facts
On March 14, 2000,5 Ray Deeny, the Respondent’s
counsel, notified Local No. 7 President Ernest Duran, by
letter, that the Respondent was filing a grievance against
the Union, alleging that the Union had breached a confi-
dentiality agreement between the parties by publishing
confidential sales data in its “Voice of 7” monthly news-
letter. In response, Duran requested the following infor-
mation from the Respondent to evaluate the grievance:
any documents that the Respondent relied on in asserting
the grievance; any documents that supported the Re-
spondent’s assertions, allegations, and grievance; any

tions found and “any like and related” misconduct serves as an ade-
quate restraint, and is both consistent with the Act and Express Publish-
ing.
Chairman Battista believes that the test of Hickmott, supra, 242
NLRB at 1357, properly applied, is consistent with the Supreme
Court’s decision in Express Publishing, supra, 312 U.S. at 436, and
with Sec. 10(c). In his opinion, the Board has the power to issue broad
orders but that power should be exercised sparingly, and then only in
the most egregious cases. He does not believe, for the reasons cited
earlier, that this is such a case.
4 There was also a request for information concerning the Respon-
dent’s closing of store #23. Because there were no exceptions to the
judge’s dismissal of the complaint allegations concerning store #23, we
find it unnecessary to pass on the Respondent’s exceptions to certain
findings by the judge in connection with this allegation, which will not
be further discussed in this decision.
5 All dates are in 2000, unless otherwise indicated.
information relating to the notice the Union was given
concerning the confidential nature of the Respondent’s
sales data; the Respondent’s sales and profit figures by
store, throughout Colorado, from January 25 to date; and
documents reflecting the Respondent’s claim of lost
revenue and costs.
At a meeting held on April 6, the Respondent’s labor
relations manager, Stephanie Bouknight, informed Union
Representative Kim Cordova that the Union had violated
the collective-bargaining agreement as well as a letter of
understanding by publishing the Respondent’s sales data
in the “Voice of 7” newsletter. Bouknight explained that
the letter of understanding was signed by Ed Behlke, a
former labor relations manager for the Respondent, and
Charlie Mercer, a former Local No. 7 president. She did
not disclose when the letter of understanding was signed
and executed.6 She then informed Cordova that the Re-
spondent would not provide the financial information
demanded by the Union until the parties had executed
and signed a confidentiality agreement.7 The Union
agreed to keep the information confidential. The Re-
spondent wanted a signed agreement with sanctions, but
it never proffered such an agreement. The next day,
Cordova sent Bouknight a letter renewing Duran’s in-
formation request and also demanding a copy of the
Behlke-Mercer agreement.
Because the Respondent had still not provided the Un-
ion with any of the requested information by late April,
Cordova refused to hold a step 2 meeting on the Respon-
dent’s grievance with Ted Tow, the Respondent’s coun-
sel. Nor had the Respondent provided the Union with
any of the requested information, financial or otherwise,
before the hearing in this proceeding in February 2001.
We agree with the judge that the Respondent violated
Section 8(a)(5) in regard to the financial information. In
part B below, we reverse the judge and find that the Re-
spondent violated Section 8(a)(5) by not providing a
copy of the agreement. In part C below, we find that the
Respondent violated Section 8(a)(5) by failing to provide
nonfinancial information.
B. The Behlke-Mercer Agreement
The judge found that the Respondent did not violate
the Act by failing and refusing to furnish the Union with

6 Bouknight testified that she told Cordova at this meeting that the
Behlke-Mercer agreement had been provided to the Union in a recent,
unrelated Federal lawsuit involving retiree picketing. Cordova’s testi-
mony disputed this assertion, and claimed that the reference to the
federal litigation occurred during another grievance relating to retiree
picketing, and did not include any reference to the Behlke-Mercer
agreement. The judge did not resolve this conflict, which he termed an
immaterial factual dispute.
7 According to Bouknight, the Respondent did not rely solely on the
Behlke-Mercer agreement in asserting its grievance against the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD844
a copy of the Behlke-Mercer agreement. In dismissing
this allegation, the judge reasoned that, “it stretches cre-
dulity” that the Union did not have a copy of this “impor-
tant” document in its files, which it helped to create and
to which it was a party.8
It is well established that “absent special circum-
stances, a union’s right to information is not defeated
merely because the union may acquire the needed infor-
mation through an independent course of action.”
Kroger Co., 226 NLRB 512, 513 (1976). See also B. P.
Exploration (Alaska), Inc., 337 NLRB 887, 889 (2002);
Detroit Newspaper Agency, 317 NLRB 1071, 1072
(1995).
Applying that standard here, we find that the Respon-
dent’s duty to provide the Union with a copy of the
Behlke-Mercer agreement was not satisfied merely be-
cause the Union might have been able to locate the
document in its records. The evidence reveals that the
Behlke-Mercer agreement was signed in 1986, 14 years
before the events in this proceeding. Further, it was not
incorporated into the parties’ most recent collective-
bargaining agreement, as were several other letters of
understanding dating back to 1980. Under the terms of
the collective-bargaining agreement, any letter of under-
standing not incorporated was deemed null and void. In
view of this express contractual provision and the Re-
spondent’s failure even to inform the Union of the date
of the letter, we find that there is no basis on which to
conclude that the Union had ready access to this letter,
even assuming that this document was located some-
where in its records.9 In these circumstances, and be-
cause the Behlke-Mercer letter of understanding was
readily available to the Respondent, we conclude that the
Respondent was obligated under Section 8(a)(5) to pro-
vide it to the Union pursuant to its request.10
C. Other Nonfinancial Information
Likewise, we also find that the Respondent violated
Section 8(a)(5) by not furnishing the Union with the
other requested nonfinancial information (i.e., documents
upon which the Respondent relied in asserting its griev-
ance, documents that supported the Respondent’s claims,
and information related to notice provided to the Union

8 Cordova testified that she had been unable to locate the agreement
referred to by Bouknight.
9 As to the Respondent’s contention that it had provided the Union
with that document in connection with the unrelated Federal litigation,
this assertion is contradicted by Cordova’s testimony.
10 See Illinois-American Water Co., 296 NLRB 715, 724 (1989),
enfd. 933 F.2d 1368 (7th Cir. 1991) (even though requested informa-
tion is available to a labor organization through other sources, including
its own records, an employer is not relieved of its bargaining obligation
to supply the requested information to the labor organization in a con-
venient form).
of the confidential nature of the published information),
the relevance of which is not disputed. Further, there is
no contention that this demand was overly burdensome,
or that the information was not available. Bouknight
admitted during the hearing that the Respondent had re-
lied not only on the Behlke-Mercer agreement but also
other information in asserting its grievance against the
Union.11 Thus, the Union was entitled to this other non-
financial information pursuant to its request, so that it
could properly evaluate the merits of the Respondent’s
grievance.12
III. INFORMATION REQUESTS RELATED TO STORE #53
GREIVANCE
In May 1999, the Respondent reopened its store #53 in
Colorado Springs. On May 28, 1999, Business Agent
Keith Hardin filed a grievance, alleging that the Respon-
dent had failed to apply article 10 of the collective-
bargaining agreement in scheduling employees to work
at store #53 during the week it reopened. In the griev-
ance, Hardin alleged that the Respondent had failed to
comply with the required article 10 “Select-A-Shift”
work scheduling procedures13 by instead using employ-
ees from other stores to work approximately 60 hours
that were not included on the “Select-A-Shift” list for the
week of the reopening.
On June 2, 1999, Hardin requested the following in-
formation from store #53 Manager Reggie Winston in
connection with the grievance: the date of the posting of
the select-a-shift for the week of the reopening; the date
that management commenced contacting other stores for
additional employees; the shifts available for employees
of other stores; copies of the timecards for employees
from other stores who worked at store #53; and a copy of
the original select-a-shift schedule from which employ-
ees selected their shifts. During a step 2 meeting held on
August 10, 1999, Hardin informed Bouknight that he had
not received any of the information he had requested
from Winston. During the next 9 months, the Union

11 Bouknight did not identify the other documents upon which the
Respondent relied in asserting its grievance.
12 In rejecting the Respondent’s contention that it had no such non-
financial information to provide in response to the Union’s request, we
note that Respondent Labor Relations Manager Bouknight testified that
the Respondent did not provide any of the requested information. She
did not testify that the Respondent had no such information to provide.
13 Under this procedure, 10 days before the start of a workweek,
management will post a list of the available shifts for each department.
Employees then select their preferred shifts from the posted list, in
seniority order. Once the employees have selected their shifts, man-
agement prepares a master work schedule and posts it on the Friday
morning preceding the start of the next work week. Employees who
are interested in working additional hours are permitted to sign up on
the additional hours list posted by management.
KING SOOPERS, INC. 845
renewed its information request covering the timecards
on at least four other occasions.
The judge found that, with the exception of the Re-
spondent’s refusal to provide the timecards, the Respon-
dent’s refusal to provide the requested information vio-
lated Section 8(a)(5). We agree with this finding of a
8(a)(5) violation. However, we disagree with the judge’s
finding that the Respondent’s refusal to provide the time-
cards did not violate Section 8(a)(5).
In finding that the Respondent did not violate the Act
by refusing to furnish copies of the timecards, the judge
observed that “Hardin made no effort to secure those
cards from other stores” and that “Hardin did not take all
reasonable and necessary steps to secure the time cards
he wanted.” The judge, however, ignored the well-
established Board precedent discussed above that a un-
ion’s ability to obtain requested information elsewhere
does not excuse an employer’s obligation to provide the
requested information. See, e.g., B. P. Exploration
(Alaska), Inc., supra, 337 NLRB at 889; Detroit Newspa-
per Agency, supra, 317 NLRB at 1072; Kroger Co., su-
pra, 226 NLRB at 513.
Here, the Respondent did not dispute the presumption
that the timecards are relevant. Nor did it claim that as-
sembling the timecards would be burdensome. Instead,
the Respondent claims that Hardin, in requesting the
timecards from Store Manager Winston rather than from
Labor Relations, did not follow the proper protocol for
obtaining the timecards. Because the Respondent’s pro-
tocol was disseminated to store managers by a memoran-
dum dated June 8, 1999,14 approximately 1 week after
Hardin’s information request to Winston, we find it is
irrelevant to the Respondent’s statutory duty to provide
the requested information.15 In any event, we find that
by contacting Bouknight directly on August 2, 1999, and
thereby renewing the Union’s earlier request for informa-
tion, including the timecards, Hardin had, in fact, com-
plied with the Respondent’s protocol. According to
Bouknight, she subsequently contacted store #53 Man-
ager Winston to ask if he knew which employees from
other stores had worked at store #53 the week of the re-
opening and he replied he did not. She admitted that no
further effort was made to furnish the timecards Hardin
had requested. In these circumstances, we find that the
Respondent did not provide access to the requested time-
cards and thereby violated Section 8(a)(5).

14 The protocol states that store managers are responsible for facili-
tating access to “certain Company information” requested by a union
and that “broad requests” such as “time cards that relate to more than
one employee . . . should be directed to Labor Relations.”
15 This memorandum does not reflect that the Union was involved in
the formulation of the protocol.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, King Soopers,
Inc., Denver, Colorado, its officers, agents, successors,
and assigns shall take the action set forth in the Order as
modified below.16
1. Substitute the following for paragraph 2(a) of the
recommended Order.
“(a) Furnish the Union with the information, financial
and otherwise, requested in connection with the Respon-
dent’s grievance against the Union and if the Respondent
requires a written confidentiality agreement, it should
draft and bargain in good faith concerning its contents.
Furnish the information requested concerning the reopen-
ing of store #53, including, but not limited to, copies of
the timecards for all employees from other stores who
temporarily worked at store #53 during the week ending
May 22, 1999.”
2. Substitute the following for paragraph 2(b) of the
recommended Order.
“(b) Within 14 days after service by the Region, post at
store #53 copies of the attached notice marked “Appen-
dix.”6 Copies of the notice, on forms provided by the
Regional Director for Region 27, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed any facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at such closed facility at any time since August 10,
1999.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

16 To the extent that the Respondent has already furnished any of the
requested information, that information need not be refurnished.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD846
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with the United Food
and Commercial Workers Union, Local No. 7 (Union) as
the duly designated representative of our employees by
refusing to furnish necessary and relevant information
concerning bargaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL furnish the Union with information, financial
and otherwise, requested in connection with our griev-
ance against the Union and the information requested
concerning the reopening of store #53, including, but not
limited to, copies of timecards for all employees from
other stores who temporarily worked at store #53 during
the week ending May 22, 1999.
KING SOOPERS, INC.
Daniel J. Michalski, Esq., for the General Counsel.
Emily F. Keimig and Patrick J. Miller, Esqs., of Denver, Colo-
rado, for the Respondent.
Michael J. Belo, Esq., of Wheat Ridge, Colorado, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Denver, Colorado, on February 20 and 21,
2001, upon the General Counsel’s complaint which alleged that
the Respondent refused to furnish the Charging Party certain
information in violation of Section 8(a)(5) of the National La-
bor Relations Act (the Act).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends, as to certain al-
legedly confidential material, that the Union refused to sign a
confidentiality agreement; that as to other information, the
charge was filed before the Respondent reasonably could fur-
nish the information and in any event, it did furnish the infor-
mation and that which the Charging Party did not receive was
the result of the Charging Party not following established pro-
tocol. Finally, it is alleged that a portion of the complaint
should be dismissed as being barred by Section 10(b) of the
Act.
Upon the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I hereby make the
following findings of fact, conclusions of law, and recom-
mended order.
I. JURISDICTION
The Respondent is a corporation engaged in the operation of
retail grocery stores with facilities, among other places, in Den-
ver and Colorado Springs, Colorado. During the course and
conduct of this business the Respondent annually purchases and
receives directly from points outside the State of Colorado,
goods, products, and materials valued in excess of $50,000 and
annually derives gross revenues in excess of $500,000. The
Respondent admits, and I conclude, that it is an employer en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Untied Food and Commercial Workers
Union, Local No. 7 (the Union), is admitted to be, and I find is,
a labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For many years the Union has been the bargaining represen-
tative for various units of the Respondent’s employees in its
retail stores, including those in Denver and Colorado Springs.
The Union and Respondent have been parties to successive
collective-bargaining agreements, the most recent of which is
effective from July 11, 1999, through September 11, 2004.
During the course of this relationship, the parties have had dis-
putes concerning the Respondent’s duty to furnish information
requested by the Union. In praying for a broad, companywide
order, the General Counsel offered evidence that two of these
disputes have resulted in decisions by the Board.1
This case involves three distinct requests for information by
the Union. The first concerns a request for financial informa-
tion in connection with a grievance filed against the Union by
the Respondent, which involves the allegation that the Union
breached an earlier agreement between the parties that the Un-
ion would not disclose financial information received from the
Respondent. The second involves information relating to the
closing of store #23 in Colorado Springs; and the third, the
reopening of store #53 in Colorado Springs. The facts of each
request will be set forth in more detail below.

1 332 NLRB 23 (2000).
KING SOOPERS, INC. 847
B. Analysis and Concluding Findings
1. The Respondent’s grievance
Sometime in early 2000,2 the Union published in its newslet-
ter, Voice of 7, certain sales information it had received from
the Respondent. Believing this was a violation of a confidenti-
ality agreement entered into by the parties some years previ-
ously, and therefore a breach of the collective-bargaining
agreement, the Respondent filed a grievance. During the
course of processing this grievance, the Union’s assigned agent
as well as its president sought, among other things, “Sales and
profit figures by store, throughout Colorado from January 25,
2000, to date.” “All documents that reflect the ‘lost revenue
and costs’ the Company is claiming.”
In discussions between Kim Cordova, the Union’s agent, and
Stephanie Bouknight, the Respondent’s manager of labor rela-
tions, the Respondent took the position that it would not furnish
the requested financial information absent the Union’s agree-
ment to keep the information confidential. And by letter of
April 13, an attorney for the Respondent wrote Union President
Ernest Duran: “We renew our request that Ms. Cordova agree
to keep the data confidential, which is to be used only for this
grievance and arbitration.”
Duran responded by letter of April 17, “. . . be advised the
financial information will be kept confidential and used only
for the purposes of this case.” Nevertheless, the Respondent
has refused to furnish the information because, according to
Bouknight, “It—the information wasn’t going to get released
until we had a document that was signed by both parties and
dealt with what would happen if this information was released.”
Inasmuch as Duran agreed in his letter of April 17 that the
requested financial information would be kept confidential, the
Respondent’s position is that the Union has refused to sign
some kind of an enforceable document to that effect. However,
the Respondent has never drafted and presented to the Union
such a document.
Unquestionably, the Union has the right to have this infor-
mation in order to defend the Respondent’s grievance. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967); however, the Re-
spondent certainly has the right to have its financial information
treated as confidential. Thus, “(t)he Board balances the union’s
need for the requested information against any ‘legitimate and
substantial confidentiality interests’ of the employer.” Postal
Service, 332 NLRB 635, 638 (2000), and cases cited therein.
Further, the Board requires that this balancing, in the first in-
stance, be accomplished through bargaining. “A party claiming
confidentiality must tell the union of its claim and bargain to
seek accommodation of its interests.” Ibid.
A reasonable accommodation would be the Union’s agree-
ment that the requested information be kept confidential. To
this the Union agreed. The Respondent then suggested that it
would need a signed document containing enforceable sanc-
tions, but it never presented to the Union what it had in mind.
The Union did not reject signing a confidentiality document
because none was ever proffered. In short, the bargaining
process stopped with the Respondent simply stating that it

2 All dates are in 2000, unless otherwise indicated.
wanted something in writing. This, I conclude, was not suffi-
cient to satisfy the Respondent’s duty and place the burden of
further action on the Union.
I reject the Respondent’s argument that the burden was on
the Union to draft a proposed agreement with enforceable sanc-
tions. Since the Respondent sought the agreement, and pre-
sumably knew what would satisfy its needs, I conclude it had
the burden of initiating the drafting process. To require the
Union to make the first draft would boarder on futility since the
Union could not know exactly what would be acceptable to the
Respondent. As the Board noted in Postal Service, supra, the
party claiming confidentiality of its records is required to take
the initiative in negotiating an acceptable accommodation. A
general statement, such as that made by Bouknight to Cordova
that the Respondent required a written agreement does not sat-
isfy this burden.
Nor is the Respondent excused from initiating a draft simply
because such would involve legal expenses, as claimed by
Stephen DiCroce, the Respondent’s director of HR/labor rela-
tions. If the Respondent would incur legal expenses by having
to write the first draft, so would the Union. To put a burden on
the Union for something the Respondent demanded would not
be fair or reasonable.
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(5) in refusing the Union’s demand for financial infor-
mation. If the Respondent wants to preserve the confidentiality
of this information, then it must take steps to negotiate an ac-
commodation with the Union, including making the initial draft
of any agreement it believes necessary. I am mindful, as the
Board noted in Minnesota Mining & Mfg. Co., 261 NLRB 27
(1982), that such an order might bring the parties back before
the Board. Nevertheless, requiring the parties to bargain is the
preferred option under the Act.
Apparently the Union also asked for the agreement which the
Respondent contends the Union breached. This was a 1986
letter of understanding between the Union’s then president and
a labor relations employee of the Respondent, generated on the
Union’s letterhead, and referred to in the record as the
Behlke/Mercer agreement. There is an immaterial factual dis-
pute as to whether this was provided to the Union in connection
with a case in Federal District Court on unrelated litigation.
The Behlke/Mercer agreement is in the record here and in any
event, it stretches credulity that the Union did not in fact have a
copy of this important document, which it apparently created
and to which it is a party, in its files. I conclude that the Re-
spondent did not violate the Act in refusing to furnish a copy of
the Behlke/Mercer agreement.
2. The store #23 closing
By letter dated February 7, DiCroce, the Respondent’s direc-
tor of HR/labor relations advised the Union that store #23
would be closed on April 8. The Union’s business agent typi-
cally handling the affairs of employees of store #23 was Cindy
Lucero. Although Lucero did not testify in this proceeding,
from a Respondent exhibit I find that on April 5 she held a step
1 grievance meeting with the manager of store #23 concerning
a “class action—all King Soopers” grievance. During this
meeting she asked for and was given “a copy of Store #23 em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD848
ployee hire dates and to what store they were transferred to.”
There is no testimony concerning what was discussed at this
meeting and what other information may have been requested
and given; however, the grievance was not resolved and on
April 11 Lucero requested a step 2 meeting.
Keith Hardin is another union business agent servicing the
Colorado Springs stores. He testified that he and Lucero split
the stores and employees serviced, but he was the more experi-
enced business agent. He therefore undertook to become in-
volved in the store #23 closing. However, he also testified that
he “did not have much contact” with Lucero concerning this,
was not aware she had filed a grievance or had had a step 1
meeting on April 5, and does not know what information she
requested or received.
On March 31, a few days before Lucero’s scheduled step 1
meeting with the store manager, Hardin wrote Bouknight re-
questing the answers to several questions concerning the store
#23 closing. He was specifically interested in learning whether
the employees were to be transferred or would be given layoff
options. He reiterated this request on April 3, and then on April
20 again wrote Bouknight with additional questions. She did
not answer and he repeated the request on May 1. Then on
May 4, Hardin wrote DiCroce asking for his help in securing
answers to his requests. Hardin also filed three step 2 requests
on April 17, though there is no evidence of step 1 meetings
regarding these grievances. On May 22, the Union requested
arbitration of these grievances.
At their meeting on May 25, Bouknight gave Hardin a packet
which she suggested was responsive to his requests. Specifi-
cally, it is a several page document naming each bargaining
unit employee of store #23, the store to which that individual
was transferred, or, in a few cases, noting the employee was
laid off. By letter of July 20, Hardin informed Bouknight that
in his opinion, the material she furnished was inadequate.
The General Counsel agrees that the information given on
May 25 (if not before) satisfied Hardin’s March 31 request;
however, the General Counsel argues that such did not answer
the questions posed by Hardin on April 20 “whether the Com-
pany gave store 23 employees layoff options in connection with
the closure of store 23, whether the Company placed store 23
employees into other stores under the contract’s transfer lan-
guage, what factors the Company considered in deciding how
to place store 23 employees in connection with the closure of
store 23 and what procedures the Company used in moving
managers covered by the collective-bargaining agreement in
connection with the closure of store 23.” (GC Br. 21.)
Citing WXON-TV, Inc., 289 NLRB 615 (1988), the Respon-
dent argues that the Union filed its charge before making the
request and therefore it should be excused from failing to fur-
nish the information. I disagree because I conclude that
WXON-TV is inapposite. There the information request was
indeed made only one day before the charge was filed and at a
time when the company could not have known of the request.
However, the charge also alleged violations of Section 8(a)(3)
and (5), and the Board concluded that the information request
was not for purposes of collective bargaining but was a discov-
ery device for its other allegations of unfair labor practices.
There is at a minimum an aspect here of the right hand not
knowing what the left is doing, and this concerns with whom
the Respondent must deal and whether it has reasonably ful-
filled its obligations under the Act. Lucero was primarily re-
sponsible for servicing store #23. She began handling the
grievance, and apparently continued to do so. Hardin then
became involved and made a request for information a few
days before Lucero met with the store manager at step 1. And
he subsequently requested information which Lucero had al-
ready been given. Thus when the charge was filed on May 11,
the evidence suggests that the Union had all the information it
had requested at that time concerning the store #23 grievance.
Notwithstanding that Lucero was in charge of this grievance,
and would be the one to have firsthand knowledge of what she
requested and was given on April 5, she was not called as a
witness for the General Counsel. Nor does counsel for the
General Counsel even mention her in his brief. In fact, her
name and position is first mentioned in the record on cross-
examination. I find these omissions to seriously affect the
credibility of the General Counsel’s case. International Auto-
mated Machines, 285 NLRB 1122 (1987).
The Respondent argues that all the information requested
and relevant to the store #23 grievance was furnished by
Bouknight in her meeting with Hardin on May 25. Given the
facts outlined above, I find it difficult to accept Hardin’s mere
opinion that Bouknight was less than forthcoming. I conclude
that in fact the Respondent did furnish all the information nec-
essary and relevant to the store #23 grievance in a timely fash-
ion. Accordingly, I will recommend that the allegations relat-
ing to the store #23 grievance be dismissed.
3. Reopening of store #53
In May 1999, the Respondent reopened store #53 in Colo-
rado Springs after some kind of remodeling. During the week
ending May 22, 1999, apparently, more than the normal em-
ployee/hours were required. Thus employees from other Colo-
rado Springs stores were asked to work some of these hours and
this resulted in a grievance filed by Hardin contending that
those hours should have been made available to store #53 em-
ployees.
The Union’s complaint, as stated on the step 2 form, was:
“Management didn’t post shifts correctly for employees to
select. After the schedule was posted and selected management
added over sixty hours and used people from other store[s].
Current KS #53 worked later shifts and some part time employ-
ees weren’t allowed to select eight hour shifts.” A step 1 meet-
ing was held between Store Manager Reggie Winston and Har-
din on May 25, 1999. The step 2 meeting was held on August
10, 1999, between Bouknight and Hardin. As the matter was
not resolved, Duran demanded arbitration by letter dated Sep-
tember 7, 1999.
At issue here is Hardin’s June 2, 1999 request for informa-
tion:
1. Date select-a-shift was posted for selection for
week ending May 22, 1999.
2. Date management started calling other stores for
employees.
3. All shifts available for employees at other stores.
KING SOOPERS, INC. 849
4. Copy of time card for every employee who worked
at your store from another store.
5. Copy of original select-a-shift schedule that em-
ployees selected from.
Hardin did not receive this information, and thus he made
subsequent requests on August 8 and September 13, 1999. On
one of these, he added: “6. Need copy of additional hours list
for week ending 5–22–99.”
Hardin testified that during his meeting with Bouknight on
August 10, he told her he had not received the information he
requested. She called Winston then told Hardin that he did not
have the “additional hours request.” Hardin testified that he
told her this was not an additional hours issue (notwithstanding
addendum “6”). That is the extent of his testimony about this
meeting.
Hardin then made periodic followup requests and finally, at a
meeting with Bouknight on May 25, 2000, she gave him certain
documents, but, according to Hardin, she did not provide every-
thing he requested. Included in the packet was the original
select-a-shift schedule but not the additional hours list for the
week ending May 22, 1999; the date the select-a-shift schedule
was posted; the date management began calling other stores for
employees; the shifts available for employees from other stores;
or timecards of employees from other stores.
The Respondent seems to argue that somehow the Union was
not entitled to all the requested information because Hardin
filed a charge 2 weeks before the May 25 meeting, and that his
request to her preceding that meeting was the first she knew
about the problem, that “[u]ntil this time, the request remained
at the store level, as there had been no official request to
Bouknight under the protocol.” (R. Br.) I reject this conten-
tion. Hardin and Bouknight had a step 2 meeting in August
1999, during which this very issue was discussed. Perhaps
Hardin could have been more aggressive in pursuing his re-
quest, but such does not excuse the Respondent from furnishing
information clearly relevant to a grievance.
The Respondent also contends that under a “protocol” issued
by DiCroce to all store managers dated June 8, 1999, Winston
was not “required to do the research and/or make copies” of
timecards, schedules, and the like. The Respondent argues that
Winston did not have the timecards of nonstore #53 employees
and at the August meeting Hardin was so informed. Hardin
made no effort to secure those cards from other stores. I agree
that Hardin did not take all reasonable and necessary steps to
secure the timecards he wanted.
However, as to the other matters requested, I conclude that
the information must have been available to Winston and he
simply did not supply it. Nor did Bouknight. Therefore, I con-
clude that the Respondent breached its duty under Section
8(a)(5) in this respect.3

3 The Respondent also argues that Sec. 10(b) bars an order on this is-
sue since the charge was filed more than 6 months after Hardin’s initial
request. Sec. 10(b) is an affirmative defense which must be timely
plead. Since the Respondent’s answer does not raise the Sec. 10(b)
defense, it will not be considered.
REMEDY
Having concluded that the Respondent has violated the Act
in certain respects, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
The General Counsel has requested a broad, companywide
remedy to include a notice posting at all the Respondent’s
stores. This is based on the General Counsel’s assertion that
the Respondent has a history of repeated violations of its duty
to furnish information and that Bouknight was involved in them
all. Although decisions in two previous cases were made a part
of the record here, and a similar case was heard by me involv-
ing another bargaining unit4 the evidence does not support the
kind of proclivity to violate the Act which the General Counsel
contends. For instance, Harlin testified that as a business agent
in Colorado Springs, he is responsible for approximately 750
employees in about half of the Respondent’s eight stores. He
handles about 50 grievances a year and makes an information
request in half of those. Only in this case, of the many requests
made by Harlin, has the Respondent failed to fully comply.
And Harlin is just one of many business agents for the Union. I
conclude that as a matter of policy and practice, the Respondent
does in fact abide by its obligations under the Act to furnish
relevant information.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, King Soopers, Inc., Denver, Colorado, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union as the duly desig-
nated representative of its employees in appropriate bargaining
units by refusing to furnish the Union on request necessary and
relevant information concerning bargaining unit employees.
(b) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish the Union the financial information requested in
connection with the Respondent’s grievance against the Union
and if the Respondent requires a written confidentiality agree-
ment, it should draft such and bargain in good faith concerning
its contents. Furnish the information requested concerning the
reopening of store #53.
(b) Within 14 days after service by the Region, post at store
#53 copies of the attached notice marked “Appendix.”6 Copies

4 Cases 27–CA–16934–1 and 27–CA–17102–1.
5 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.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD850
of the notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
business or closed any facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all former employees employed by the
Respondent at any closed facility since the date of this Order.
(c) Within 21 days after service of this Order, inform the Re-
gion, in writing, what steps the Respondent has taken to comply
therewith.
(d) The allegations not found to be unfair labor practices are
dismissed.