Ralphs Grocery Company

National Labor Relations Board - Administrative Judge Opinions

Jun 14, 2007

31-CA-027160 (N.L.R.B. Jun. 14, 2007)

JD(SF)-20-07
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
RALPHS GROCERY COMPANY
and Cases Nos. 31-CA-27160
31-CA-27475
31-CA-27685
United Food and Commercial Workers
Union, Local No. 135,
United Food and Commercial Workers
Union, Local No. 324,
United Food and Commercial Workers
Union, Local No. 770,
United Food and Commercial Workers
Union, Local No. 1036,
United Food and Commercial Workers
Union, Local No. 1167,
United Food and Commercial Workers
Union, Local No. 1428, and
United Food and Commercial Workers
Union, Local No. 1442.
Rudy L. Fong-Sandoval, Atty.,
for the General Counsel,
Los Angeles, California.
Timothy F. Ryan, Atty.,
Morrison & Foerster, LLP
for the Respondent,
Los Angeles, California.
Laurence D. Steinsapir and Susan M. Swan, Attys.,
Schwartz, Steinsapir, Dohrmann & Sommers LLP,
for the Charging Parties, Los Angeles, California.
Jeffrey S. Wohlner, Atty.,
Wohlner, Kaplon, Phillips, Young & Cutler,
for Charging Parties, Locals 324 and 1167,
Los Angeles, California.
DECISION
I. Statement of the Case
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LANA H. PARKE, Administrative Law Judge. This matter was tried in Los Angeles,
California on February 27, 2007 upon an Order Consolidating Cases, Consolidated Complaint
and Notice of Hearing (the Complaint) issued December 20, 20061 by the Acting Regional
Director of Region 31 of the National Labor Relations Board (the Board) based upon charges
filed by the above-named Locals of the United Food and Commercial Workers Union
(collectively the Charging Parties and individually Local plus respective number). The
Complaint alleges Ralph’s Grocery Company (the Respondent) violated Sections 8(a)(1) and (5)
of the National Labor Relations Act (the Act). The Respondent essentially denied all allegations
of unlawful conduct.
No oral testimony was presented; the record consists of a Joint Stipulation of Facts and
certain documents2 introduced into evidence by the Charging Parties.3
II. Issue
Whether the Respondent failed and refused to bargain collectively with the Charging
Parties as the exclusive collective-bargaining representatives of its employees by failing and
refusing to furnish the Charging Parties with requested information necessary for, and relevant
to, the Charging Parties’ performance of its collective-bargaining duties.
III. Jurisdiction
At all relevant times, the Respondent, a corporation with an office and places of
business throughout California (the Facilities), and a subsidiary of the Kroger Company, the
headquarters of which are in Cincinnati, Ohio, has been engaged in the operation of retail
grocery markets. The Respondent annually derives gross revenues in excess of $500,000 from
its business operations and purchases and receives at the Facilities goods or services valued in
excess of $50,000, directly from points outside the State of California. Respondent admits, and
I find, it has at all relevant times been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and the Charging Parties are labor organizations within the
meaning of Section 2(5) of the Act.4
III. Findings of Facts

1 All dates herein are 2005 unless otherwise specified.
2 Charging Parties Exhibits 3 and 4 were received into evidence post-hearing. They are,
respectively, attachments to the Respondent’s June 2006 Plea Agreement pursuant to the June
2004 Grand Jury Indictment of the Respondent: Statement of Facts and Limited Waiver of
Attorney-Client Privilege and Protections of Attorney Work-Product Doctrine. The Charging
Parties’ post-hearing motion for reconsideration of the ruling rejecting Charging Parties’ Exhibits
1, 2, and 6 is hereby denied.
3 The parties agreed to change references to “the Unions” in the Joint Stipulation of Facts to
“the Charging Parties. The Charging Parties sought to add to the statement of central
issue in the Joint Stipulation (Page 10) the following: “and whether or not the
Respondent violated the Act in any other manner,” which request has been denied
by separate written ruling. Post-hearing, the Charging Parties moved for
reconsideration of said ruling. For the reasons set forth in the original ruling, the
request for reconsideration is denied.
4 Where not otherwise explained, the findings of fact herein are based on party admissions,
the Joint Stipulation of Facts, and the Charging Parties Exhibits 3 and 4.
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A. The 2003-2004 Labor Dispute
The Respondent and the Charging Parties have been signatory to successive collective-
bargaining agreements for decades, the penultimate of which was effective by its terms from
October 4, 1999 through October 5, 2003 (the 1999-2003 Agreement) and covered a unit of
numerous employee classifications described in Article 1, Section A, paragraph 1 and
Appendices “A” through “H” of the 1999-2003 Agreement (the Unit).
In the course of negotiations between the Charging Parties and the Respondent for a
collective-bargaining agreement to succeed the 1999-2003 Agreement, the Respondent,
beginning October 12, 2003, locked out more than 19,000 bargaining unit employees from
about 325 of its grocery markets. Thereafter, the Respondent allegedly surreptitiously rehired
more than 1,000 bargaining unit employees (the Lockout Hirings), requiring the employees to
work under false identities and falsifying relevant governmental and union employment reports.
On February 26, 2004, the Respondent and the Charging Parties agreed upon the terms of a
new collective-bargaining agreement (the 2004-2007 Agreement) and unit employees returned
to work.
B. The Kasper Letters and
the Respondent’s Internal Investigation/Audit
During September and October, 2004, the Respondent sent mailings to certain unit
employees over the signature of Mary M. Kasper, Respondent’s vice president and senior
counsel (the Kasper letters), containing the following communications:
Letter of September 13, 2004. The Respondent notified the employee addressees of an
investigation by the United States Attorney’s into false payroll reports generated during the
2003-2004 labor dispute. The Respondent assured the addressees that no disciplinary actions
would be taken against them for working during the lockout under inaccurate names and/or
Social Security numbers and requested them voluntarily to complete and return an enclosed
questionnaire providing correct personnel information, which might be furnished to
governmental agencies.
Letter of October 1, 2004. The Respondent sent a second request to the addressees of the
September 13, 2004 letter, limiting the previous questionnaire request to employees who
worked during the labor dispute under another’s or fictitious personnel information. The
Respondent informed the addressees that the information they furnished, “although
confidential,” would be provided to the government.
Investigation and Audit. The Respondent conducted an internal investigation/audit (the Audit) of
the Lockout Hirings. No specifics of the contents of the Audit were adduced at the hearing; by
letter of June 22, the Respondent informed the Charging Parties that the Audit had not been
completed and that no final investigative report had been prepared.
C. Indictment of the Respondent and Guilty Plea
On December 15, 2005, a federal grand jury in Los Angeles indicted the Respondent for,
inter alios, false representation of Social Security numbers and false employment reporting. On
July 26, 2006, the Respondent, by Mary M. Kasper (Ms. Kasper), Vice President of Legal
Services, pled guilty to the following felony counts: conspiracy, use of false Social Security
numbers, identity fraud, falsifying and concealing material facts in matters within the jurisdiction
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of the Internal Revenue Service and the Social Security Administration, and concealment of
facts from an employee benefit plan. Under the terms of its plea agreement, the Respondent
paid a criminal fine and a restitution sum that included reimbursement to the Charging Parties
for financial assistance given to the employees during the labor dispute. Further, any officer
and/or agent of the Respondent owing fiduciary duty to any employee benefit funds was
required to participate in a fiduciary training and compliance program.
D. The Charging Parties’ Information Requests
and Respondent’s Responses5
1. The Charging Parties’ December 14, 2004 Information Request
By letter dated December 14, 2004, the Charging Parties requested the Respondent
provide, inter alia the following: (1) names, employee numbers, store numbers and store
addresses of all current and former bargaining unit employees who provided information in
response to the Kasper letters, (2) for each employee who provided information in response to
the Kasper letters, the information provided, including real names and Social Security numbers,
false names and Social Security numbers, dates employed under a false identity, store numbers
at which such employment took place, and a description of all documents, (3) copies of any
documents or records provided in response to the Kasper letters, and (4) a detailed explanation
of the scope of the Respondent’s internal investigation and audit of work performed by
employees during the lockout and its findings.
By letter dated December 23, 2004, the Respondent refused the Charging Parties’
December 14, 2004 request on grounds that the information sought was not presumptively
relevant to the bargaining relationship between the parties and raised confidentiality, privacy,
and, with regard to the Audit, attorney-client and attorney work product privilege concerns.
By letter dated December 29, 2004, the Charging Parties expressed their willingness to
meet and discuss the Respondent’s confidentiality concerns and asserted, inter alia:
The information we seek is in fact directly relevant to the enforcement of various
aspects of the collective-bargaining agreement…Moreover, the requested
information is needed to pursue unfair labor practice charges before the Board.
By letter dated January 11, the Respondent again requested that the Charging Parties
explicate the relevance of the requested information so the Respondent could determine its
obligations, if any, to respond.
The Respondent furnished no information to the Charging Parties pursuant to the
Charging Parties’ December 14, 2004 request.

5 As the parties concede the communications detailed herein were sent and/or received by
authorized communicants, I have not identified specific addressors/addressees.
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2. The Charging Parties’ May 12 Grievance
On May 12, 2005, the Charging Parties filed a grievance against the Respondent in
accordance with the 2005-2007 Agreement alleging that since the lockout ended,
“Ralphs…[has] discriminated against locked-out workers in favor of workers who agreed to work
during the lock-out with respect to various terms and conditions of employment…” (the
Grievance).6
By letter dated May 26, the Respondent notified the Charging Parties that it considered
the Grievance defective because it did not give “written notice setting forth the exact nature of
the grievance.”
3. The Charging Parties’ June 2005 Information Requests
By letter dated June 6, the Charging Parties further explicated the basis of the Grievance
and requested information, as follows:
Our Grievance includes, but is not limited to, the following conduct by Ralphs:
a) Retaliation against bargaining unit employees who provided information
about Ralphs’ potential criminal conduct or who refused to work during the
lockout.
b) Favorable treatment for employees who worked during the lockout.
c) Retaliation or favorable treatment arising in connection with bargaining unit
members’ responses to [the Kasper letters].
To assist the Local Unions in their investigation of this Grievance, we
request…the following information:

2) [sic] For each employee who worked under a false name or Social
Security number, the employee’s true name and Social Security number, the
false name and Social Security number, the dates employed under a false
identity, the positions in which the employee worked during the lockout, the
employee’s straight-time rates of pay during the lockout, and the store numbers
at which such employment took place.
3) A description of all documents provided in response to [the Kasper
letters] that relate to work by employees under false identities or employee
refusals to work under false identities. Alternatively, please provide complete
photocopies, or…arrange a mutually-convenient time and place for their
inspection and copying.
4) The names and titles of all Ralphs’ employees or representatives who
communicated in writing with bargaining unit members concerning the
information requested in [the Kasper letters], and the dates of all such
communications. If such communications were written, please describe the
documents in detail, provide complete photocopies, or…arrange a mutually-
convenient time and place for their inspection and copying.

6 Perhaps inadvertently, the May 12 grievance cover letter did not list Local 135 as one of
the grieving locals.
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5)…a complete copy of [the internal investigation and audit of work
performed by employees during the lockout] with all attachments or…arrange a
mutually-convenient time and place for the inspection and copying.
By letter dated June 22, the Respondent informed the Charging Parties that it would not
provide the requested information because the Grievance failed to meet specificity requirements
(i.e. dates, locations, employees involved, social security numbers, incidents pertaining to the
Grievance, terms of employment, specific transfers and hours of work) and the information
sought was not presumptively relevant and was confidential. Regarding the Charging Parties’
request for a copy of the “investigation,” the Respondent declined to produce any documents
generated during the continuing investigation, as they were protected by attorney-client and
attorney work product privileges.
The Respondent furnished no information to the Charging Parties pursuant to the
Charging Parties’ May and June 2005 requests. In the ensuing months, the Charging Parties
declined to meet with the Respondent to discuss the Grievance because the requested
information had not been furnished.
4. The Charging Parties’ October 2005 Information Request
By letter dated October 25, the Charging Parties renewed and repeated their June 6
request for information, explaining each item’s relevance to the Charging Parties’ investigation
and processing of the Grievance, as follows:
1. For each employee who worked under a false name or Social Security
number, the employee’s true name and Social Security number, the false name
and Social Security number, the dates employed under a false identity, the
positions in which the employee worked during the lockout, the employee’s
straight-time rates of pay during the lockout, and the store numbers at which
such employment took place.
Relevance: This information is presumptively relevant, as it pertains to the
identities and and terms and conditions of bargaining unit members. Moreover, it
is directly relevant to the Grievance, as it pertains to the identities of employees
who worked at Ralphs during the lockout.
2. A description of all documents provided in response to [the Kasper letters]
that relate to work by employees under false identities or employee refusals to
work under false identities. Alternatively, please provide complete photocopies,
or…arrange a mutually-convenient time and place for their inspection and
copying.
Relevance: This information, too, is presumptively relevant. The requested
information concerns employee responses to [the Kasper letters]…Moreover, the
information is directly relevant to the Grievance, and is necessary for the Local
Unions’ investigation and evaluation of the Grievance [which] concerns Ralphs’
discrimination with respect to whether employees worked at Ralphs during the
lockout. As this is precisely what Ms. Kasper inquired of in her letters, the
information contained in employee responses is immediately relevant to the
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Grievance. The Grievance also concerns Ralphs’ discrimination on the basis of
bargaining unit employees’ responses to the Kasper letters. For this reason, too,
copies of employee responses to Ms. Kasper’s correspondence are immediately
relevant to the Unions’ investigation and evaluation of the Grievance.
3. The names and titles of all Ralphs’ employees or representatives who
communicated in writing with bargaining unit members concerning the
information requested in [the Kasper letters], and the dates of all such
communications. If such communications were written, please describe the
documents in detail, provide complete photocopies, or…arrange a mutually-
convenient time and place for their inspection and copying.
Relevance: This information is also directly relevant to the Local Unions’ ability
to effectively police the Collective Bargaining Agreement. As with request two,
above, this request is directly relevant to the Grievance as it concerns
discrimination on the basis of employees’ response to the Kasper letter. In order
to fully investigate and evaluation this aspect of the Grievance, the Local Unions
obviously require copies of all communications between bargaining unit
employees and Company representatives. Moreover, the information is relevant
as it pertains to the identities of witnesses with knowledge of the facts at issue in
the Grievance.
4. [The Kasper letters], as well as other correspondence from Ralphs, indicates
that Ralphs is conducting an internal investigation and/or audit of work performed
by Ralphs employees during the lockout, under either false identities of their own
names, as well as of Ralphs’ employment of Albertsons and Vons employees
during the lockout. We request a complete copy of the investigation with all
attachments, or, if the investigation is still ongoing a complete copy of all existing
drafts, attachments, and evidence used in conducting and/or preparing the
investigation. If Ralphs claims that its investigation(s) are privileged under the
attorney-client or attorney work-product privileges, we alternately request that
Ralphs furnish a complete summary of the investigation and factual findings.
Alternately, please propose in writing a specific time and place for our inspection
and copying of such documents.
Relevance: This information is also directly relevant to the Local Unions’ ability
to effectively police the Collective Bargaining Agreement. Essential to the Local
Unions’ investigation and evaluation of the Grievance is complete information of
the identities of the employees against and in favor of whom Ralphs is now
discriminating. The full picture of Ralphs’ lockout recall of bargaining unit
employees is still unknown to the Local Unions, and the Local Unions do not
have complete information regarding the employees who worked during the
entire recall, worked during portions of the recall, and/or were solicited, but
declined, to work during the recall. For this reason, Ralphs’ investigation of the
matter is of immediate relevance.
The Respondent did not respond to the Charging Parties’ October 25 letter and
furnished none of the requested information.
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V. Discussion
A. Positions of the Parties
The General Counsel and the Charging Parties contend that the information sought by
the Charging Parties is presumptively relevant to the Charging Parties’ obligation to represent
unit employees and to administer and police an existing collective-bargaining agreement.
The Respondent, while recognizing its obligation to provide relevant information to
unions representing its employees, argues that the Charging Parties have no right to the
information they seek in this instance. The Respondent contends that the Charging Parties
have not met their burden of establishing the relevance of the information sought, that the
Charging Parties seek the information for the improper purpose of pursuing pending unfair labor
practice charges, that the Charging Parties manufactured a grievance to provide an otherwise
factitious basis for the requested information, and that some of the information requested was
protected by the attorney/client privilege.
B. The Charging Parties’ Requests for Information
and the Respondent’s refusals
No party disputes the existence of a “general obligation of an employer to provide
information that is needed by the bargaining representative for the proper performance of its
duties." NLRB v. Acme Industrial Co., 385 U.S. 432, 435-436 (1967). This obligation extends to
information in furtherance of, or which would allow the union to decide whether to process, a
grievance. Id. at 436; Bickerstaff Clay Products, 266 NLRB 983 (1983). Information pertaining
to employees within the bargaining unit is presumptively relevant to a union's representational
duties, including that necessary to decide whether to proceed with a grievance or arbitration.
Thus, employee personnel information, job descriptions, pay-related data, employee benefits,
and policies that relate thereto are all presumptively relevant, as is similar information regarding
employee hires, including strike replacements. Bargaining representatives are not required to
make a specific showing of the relevance of requested information unless the employer has
rebutted the presumption of such. Presumptively relevant information must be furnished on
request to employees’ collective-bargaining representatives unless the employer establishes
legitimate affirmative defenses to the production of the information. Beverly Enterprises-
Minnesota, Inc. d/b/a Golden Crest, 349 NLRB No. 37 (2007); JHP & Associates, LLC d/b/a
Metta Electric, 349 NLRB No. 101 (2007 ); Finch, Pruyn & Company, Inc., 349 NLRB No. 28,
FN 28 (2007); Southern California Gas Company, 346 NLRB No. 45, slip op. 1 (2006); Beverly
Health And Rehabilitation Services, Inc., 346 NLRB No. 111, slip op. 9 (2006); River Oak Center
for Children, Inc., 345 NLRB No. 113, slip op. 3 (2005); Postal Service, 332 NLRB 635 (2000);
Mathews Readymix, Inc., 324 NLRB 1005, 1009 (1997), enfd. in relevant part, 165 F.3d 74
(D.C. Cir. 1999).
In situations where a collective-bargaining representative must demonstrate the
relevance of the requested information to its representational duties, the burden is not severe.
The relevance standard is a liberal, "discovery-type standard." NLRB v. Acme Industrial Co.,
supra at 437; Southern California Gas Company, 346 NLRB No. 45 (2006); Quality Building
Contractors, 342 NLRB 429, 430 (2004). Accordingly, information that is "potentially relevant
and will be of use to the union in fulfilling its responsibilities as the employees' exclusive
bargaining representative" must be produced. Pennsylvania Power & Light Co., 301 NLRB
1104, 1104-1105 (1991). The requested information need not be dispositive of the issue for
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which it is sought but need only have some bearing on it. Id. at 1105. "An employer must furnish
information that is of even probable or potential relevance to the union's duties." Conrock Co.,
263 NLRB 1293, 1294 (1982).
The Respondent contends that the requested information bears no relationship to any
mandatory subject of bargaining, as the information sought concerns events that occurred
during the hiatus between the 1999-2003 Agreement and the 2004-2007 Agreement. A union’s
collective-bargaining relationship with employees to whom it owes a representational duty is not
defined by the existence of a collective-bargaining agreement; the relationship is as viable in the
absence of a labor contract as during its term. The information sought herein relates to
mandatory subjects and is presumptively relevant. A finding that the requested information is
presumptively relevant resolves the Respondent’s further objection that the Charging Parties did
not adequately explain the relevance of the requested information. As noted above, a union
may rely upon a presumption of the relevance of information pertaining to employees within the
bargaining unit and has no obligation to otherwise explain its significance. Inasmuch as the
Charging Parties were not obliged to explain the relevance of the information they sought, any
asserted deficiencies thereof are immaterial. See Quality Building Contractors, Inc., 342 NLRB
429 (2004), quoting Commonwealth Communications, Inc., 335 NLRB 765, 768 (2001): “When
a union seeks information pertaining to employees within a bargaining unit, the information is
presumptively relevant to the union’s representational duties, and the General Counsel may
establish a violation for the employer’s failure to furnish it without any further showing of
relevancy.”
The Respondent also argues that the Charging Parties were not entitled to the
requested information because they sought it for an improper purpose, i.e. to pursue unfair labor
practice charges before the Board. Because the Board's procedures do not include pretrial
discovery, the Board has found refusals to furnish information lawful where information requests
relate to pending charges. Saginaw Control and Engineering, Inc., 339 NLRB 541, 543-544
(2003). If the request’s timing and the information’s relationship to the charges show the union
sought the information in order to bolster its charges, the Board will not find a refusal to provide
the information unlawful. See Pepsi-Cola, 315 NLRB 882 (1994).
In their December 29, 2004 letter, the Charging Parties stated a twofold purpose in
requesting information from the Respondent: to enforce the collective-bargaining agreement
and to pursue unfair labor practice (ULP) charges before the Board. On January 12, the
Charging Parties filed with the Board the first of the ULP charges herein (31-CA-27160), which
alleged the Respondent had violated Sections 8(a)(1) and (5) of the Act by “failing to provide
information reasonably necessary for collective-bargaining, the investigation of grievances, and
fulfilling other statutory responsibilities of a collective-bargaining representative.” Succeeding
ULP charges filed on August 18 (31-CA-27475) and January 26, 2006 (31-CA-27685)7,
respectively, repeated the same allegations. While the close proximity of the first information
request to the first ULP filing (about two weeks) superficially suggests a linkage, the substance
of all the charges negates any such conclusion. The Charging Parties could not, logically, have
sought the information at issue in order to bolster their ULP charges that the Respondent had
refused to supply the information; no nexus exists between the information requested and the
evidence necessary to support the charges. Consequently, the Respondent has failed to
demonstrate that the Charging Parties sought the information for an improper purpose.

7 The Region inadvertently stated the filing date on 31-CA-27685 as “01/26/05.”
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When, on May 12, the Charging Parties filed a grievance against the Respondent
alleging discrimination against locked-out workers in favor of workers who agreed to work during
the lock-out, the Charging Parties established an additional need for the information they
sought. Although the Respondent argues the grievance was filed solely to mask the Charging
Parties’ true and improper motive for requesting the information, there is no evidence the
Charging Parties were not, in fact, legitimately concerned about the impact of the Respondent’s
felonious conduct on terms and conditions of unit employees’ employment. Indeed, it is
reasonable to expect that any conscientious representative would seek full disclosure of the
circumstances surrounding the Respondent’s criminal acts. Even assuming the Charging
Parties had more than one motive in requesting the information, “it is well established that,
where a union's request for information is for a proper and legitimate purpose, it cannot make
any difference that there may be other reasons for the request or that the data may be put to
other uses.” Associated General Contractors of California, 242 NLRB 891, 894 (1979). When
the information requested is presumptively relevant, “it is well settled that the presumption of
relevance is not rebutted by a showing that the union also seeks the information for a purpose
unrelated to its representative function.” Coca-Cola Bottling Co., 311 NLRB 424, 425 (1993).
The Respondent’s further argument that the grievance was defective in not providing specific
instances or details of discriminatory acts giving rise to the grievance likewise fails. The
Respondent offers no authority for the proposition that a grievance must detail the provenance
of the conduct grieved, but only urges that an inference should be drawn from the generality of
the grievance that its purpose is improper. For reasons stated, I decline to infer an improper
purpose and find the information sought, relating as it does to unit employees’ terms and
conditions of employment, presumptively relevant.8
The Respondent contends that some of the information requested by the Union is
protected by the attorney/client privilege, specifically documents generated by the Respondent’s
outside counsel pursuant to the Audit. The General Counsel asserts the Respondent has not
established that any documents or reports comprising the Audit were privileged and argues that
even assuming any portion of the Audit met privilege requirements, the privilege was waived by
the Respondent’s execution of the Waiver of Privileges in the course of the federal indictment
proceedings (the waiver). The waiver is titled “Limited Waiver of Attorney-Client Privilege and
Protections of Attorney Work-Product Doctrine.” It specifies that the waiver applies to
“communications requested or inquired into by the [United States Attorney]” and provides that
the Waiver “(a) [i]s effective only in the Criminal Investigation and in any criminal prosecutions
that may arise from or relate to the Criminal Investigation; and (b) [d]oes not bind, and is not
enforceable against, RALPHS in any judicial, legislative, administrative, or regulatory
proceedings arising therefrom or relating thereto.”
Once waived, the attorney-client privilege is lost in all forums for proceedings running
concurrent with or after the waiver occurs. Wal-Mart Stores, Inc., 348 NLRB No. 46, slip op 2
(2006), citing Genentech, Inc. v. U.S. International Trade Commission, 122 F.3d 1409, 1416-
1417 (Fed. Cir. 1997) (waiver in district court proceeding operated as a waiver in concurrent
International Trade Commission proceeding). However, neither the General Counsel nor the
Charging Parties have cited any authority for the proposition that a limited waiver of specified
documents constitutes a waiver of entirely different documents, even those arising from the

8 Because I have found the information sought by the Charging Parties is presumptively
relevant, it is unnecessary to address the Respondent’s contention that the Charging Parties
improperly placed conditions on proposed negotiations over the information requests.
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same factual circumstances. It may be that some documents included in the Audit are covered
by the waiver, but, as the Respondent points out, “[t]here is no evidence in the record…that the
information requested by the Union was ‘requested or inquired into by the [U.S. Attorney],”
It appears that the Audit addressed information relating to the Respondent’s hiring
during the lockout. Such information is, for the reasons already stated, presumptively relevant,
and the Respondent is therefore obligated either to produce the Audit or to provide the Union
with a legitimate explanation for its refusal. See U.S. Postal Service, 332 NLRB 635, 636
(2000). The “strong confidentiality interest with respect to a communication that is subject to the
attorney-client privilege, which generally protects from disclosure confidential communications
between attorneys and their clients for the purpose of obtaining or providing legal advice” would
constitute a legitimate explanation and preclude the furnishing of such communications. See In
re BP Exploration (Alaska), Inc., 337 NLRB 887, 889 (2002).
The contents of the Audit are not expressly known, and no evidence has been adduced
to demonstrate whether any of the documents and/or information comprising the Audit fit within
the attorney-client privilege. However, it does not follow that the Charging Parties are stymied
in obtaining such portions of the Audit as fall outside the privilege. Any dispute as to the
privileged nature of the information encompassed by the Audit may be raised and litigated in
compliance. See The Earthgrains Company, 349 NLRB No. 34, FN 1 (2007).
Accordingly, by refusing to provide the Charging Parties with the requested
information described herein, the Respondent has violated Section 8(a)(1) and (5) of the
Act.9
Conclusions of Law
1. The Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Each of the Charging Parties is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent violated Sections 8(a)(1) and (5) of the Act by failing to provide the
Charging Parties with the following relevant information:
For each employee who worked under a false name or Social Security number
during the 2003-2004 lockout, the employee’s true name and Social Security
number, the false name and Social Security number, the dates employed under a
false identity, the positions in which the employee worked during the lockout, the
employee’s straight-time rates of pay during the lockout, and the store numbers
at which such employment took place.
A description of all documents provided in response to the Kasper letters that
relate to work by employees under false identities or employee refusals to work
under false identities, complete photocopies of such documents, or a written
proposal denoting a specific time and place for the inspection and copying of
such documents.

9 It is unnecessary to distinguish among the various requests for information. By their
information request of October 25, 2005, the Charging Parties particularized all information
sought. An order requiring the Respondent to furnish the information forthwith remedies each of
the Respondent’s unlawful refusals to provide information.
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The names and titles of all Ralphs’ employees or representatives who
communicated in writing with bargaining unit members concerning the
information requested in the Kasper letters, the dates of all such
communications, and if such communications were written, a description of the
documents in detail, as well as complete photocopies, or a written proposal
denoting a specific time and place for the inspection and copying of such
documents.
A complete copy of the Respondent’s internal investigation and/or audit with all
attachments that are not shielded under the attorney-client or attorney work-
product privileges, of work performed by employees during the 2003-2004
lockout, under either false identities or their own names, as well as of Ralphs’
employment of Albertsons and Vons employees during the lockout. If the
investigation is still ongoing, a complete copy of all existing drafts, attachments,
and evidence used in conducting and/or preparing the investigation excepting
those shielded under the attorney-client or attorney work-product privileges, or a
written proposal delineating a specific time and place for the inspection and
copying of such documents. As to items that may be found privileged, a
complete summary of the investigation and factual findings.
4. The Respondent’s unlawful conduct described in paragraph 3 above affects commerce within
the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, it must be
ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended10
ORDER
The Respondent, Ralph’s Grocery Company, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to provide the Charging Parties with the requested information
described herein, which is relevant and necessary to their responsibilities as
exclusive collective bargaining representatives of a unit of the Respondent’s
employees
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the
Act.

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of this order, provide the Charging Parties with the
information requested by it and described herein, which is necessary and relevant to
their status as exclusive collective bargaining representative of the Respondent’s
employees. As to any portion of the internal investigation and/or audit that the
Respondent contends is shielded from production under the attorney-client or
attorney work-product privileges, provide such material(s) to the Region for
consideration of the applicability of the asserted privileges.
(b) Within 14 days after service by the Region, post at its facilities throughout California
copies of the attached Notice marked “Appendix.”11 Copies of the Notice, on forms
provided by the Regional Director for Region 31, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
Notices to employees are customarily posted. Reasonable steps shall be taken by
the 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 business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the
Notice to all current employees and former employees employed by Respondent at
any time since December 23, 2004.
(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 Respondent has taken to comply.
Dated, at Washington, DC, June 14, 2007.
Lana H. Parke
Administrative Law Judge

11 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT refuse to provide your collective-bargaining representatives with requested
information needed to represent and to bargain for you.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL provide your collective-bargaining representatives with the requested information
needed to represent and to bargain for you.
RALPH’S GROCERY COMPANY
(Respondent)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700
Los Angeles, California 90064-1824
Hours: 8:30 a.m. to 5 p.m.
310-235-7352
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 310-235-7123.