Safeway, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 9, 2019

20-CA-221482 (N.L.R.B. Jul. 9, 2019)

JD(SF)–20–19
Eureka, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SAFEWAY, INC.
Respondent
and Case 20–CA–221482
UNITED FOOD AND COMMERCIAL
WORKERS, LOCAL 5, UNITED FOOD AND
COMMERCIAL WORKERS, AFL-CIO
Charging Party
Yaromil Ralph, Esq., for the General Counsel.
John Zenor, Esq., for Respondent.
Andrew Baker, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case was tried based on a joint
motion and stipulation of facts approved by Associate Chief Judge Gerald M. Etchingham; I
independently also approve the joint motion and stipulation of facts.
The United Food and Commercial Workers Union, Local 5, United Food and
Commercial Workers, AFL–CIO (the Union or the Charging Party) filed the original charge on
June 1, 2018.1 The General Counsel issued the complaint on September 19, 2018. Safeway, Inc.
(Respondent) filed a timely answer denying all material charges.
The complaint alleges Respondent violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act) by failing and refusing and unreasonably delaying providing the Union
with requested information relevant and necessary for the Union to discharge its duties.
On the entire record, and after considering the briefs filed by the General Counsel and
Respondent, 2 I make the following

1 All dates hereinafter are in 2018, unless otherwise noted.
2 Abbreviations used in this decision are as follows: “Jt. Exh.” for joint exhibit; “GC Br.” for the
General Counsel’s brief; and “R. Br.” for Respondent’s brief.
JD(SF)–20–19
2
FINDINGS OF FACTS
I. JURISDICTION
At all material times, Respondent, a Delaware corporation, is part of a corporate family 5
that operates supermarkets and other types of food stores in Northern California. Respondent
Safeway and Albertsons share the same parent company. Respondent has a place of business in
Eureka, California (Respondent’s facility). During the 12-month period ending August 31,
Respondent in conducting its business operations received gross revenues in excess of $500,000,
and purchased goods valued in excess of $5000 which originated from points outside the State of 10
California. The parties admit and I find that Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES15
A. The Union and the Relevant Collective Bargaining Agreement Provisions
Since at least 2011, Respondent has recognized the Union as the exclusive collective
bargaining representative of the employees covered by the unsigned North Coast collective 20
bargaining agreement (North Coast CBA) and the unsigned Local 5 Northern California
collective bargaining agreement (Northern California CBA) (collectively, “the Units”). The
recognition has been embodied in the collective bargaining agreements between Respondent and
the Union concerning the terms and conditions of employment of the Units’ employees.
25
The North Coast CBA, dated October 12, 2014, to October 13, includes relevant
provisions of Sections 1 and 18 and Appendix E, as stipulated by the parties. Section 1
(Recognition and Contract Coverage) of the North Coast CBA identifies Respondent’s
employees who constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. Section 1.1 (Recognition) identifies the bargaining unit as:30
All employees working in the Employer’s retail food stores within the
geographical jurisdiction of the Union covering Del Norte and Humboldt
counties, excluding meat employees and supervisors.
35
(Jt. Exh. F.)
The Northern California CBA, dated October 12, 2014, to October 13, includes relevant
provisions of Sections 1 and 18 and Appendix F, as stipulated by the parties. Section 1
(Recognition and Contract Coverage) of the Northern California CBA identifies Respondent’s 40
employees who constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. Section 1.1.1 and 1.4 identify the bargaining unit as:
All employees working in the Employer’s retail food stores within the
geographical jurisdiction of the Union, except supervisors within the meaning of 45
the National Labor Relations Act, as amended.
JD(SF)–20–19
3
(FOOD): Alameda County; Contra Costa County; Marin County; Monterey/San
Benito/Santa Cruz Counties; Napa/Solano County; San Mateo County; Santa
Clara County.
All Head, Journey, and Apprentice Meat Cutters working within the following 5
geographical jurisdiction of the Union:
(MEAT): Alameda County, including meat in the cities of El Cerrito, El Sobrante,
Kensington, Richmond and San Pablo of Contra Costa County; Humboldt/Del
Norte Counties; Lake/Mendocino/Sonoma & Marin Counties south to and 10
including Novato; Marin County north to Novato; San Francisco County and the
cities of Daly City, Colma, Brisbane, South San Francisco and Pacifica; The
Retail Markets and Frozen Food Locker Plants of the Employer in Santa
Clara/San Benito/Monterey/Santa Cruz Counties.
15
(Jt. Exh. G,)
In addition, Section 1.2 of both the North Coast CBA and the Northern California CBA
states, “The work covered by the Agreement shall be performed only by members of the
appropriate unit as defined in Section 1 hereof and such work shall consist of all work and 20
services connected with or incidental to the handling or selling of all merchandise offered for
sale to the public in the Employer’s retail food stores including the demonstration of such
products [….]” (Jt. Exh. F and G,)
Section 18 of both the North Coast CBA and the Northern California CBA (Adjustment 25
and Arbitration of Disputes) contains the parties’ dispute resolution process. Also, Appendix E
of the North Coast CBA and Appendix F of the Northern California CBA (both titled, “Order
Selectors (Safeway.com)”), which applies to on-line order selection employees, are provisions
applicable to this proceeding and in arbitration proceedings concerning multiple pending
grievances the Union filed against Respondent, alleging that vendors (Boar’s Head, DSD, and 30
InstaCart) are performing work falling within the exclusive jurisdiction of the Units’ employees.
B. Union’s Grievances
On March 5, the Union sent Respondent’s labor relations manager Mike Leary (Leary)3 a 35
letter demanding that Respondent comply with Section 1.2 of the parties’ North Coast CBA,
cease utilizing nonbargaining unit persons (InstaCart workers)4 to perform clerks’ work and post
the order selector positions as outlined in the CBA; the letter also served as notice of intent by
the Union to refer the matter to the parties’ dispute resolution process (Jt. Exh. H).5 The letter
included attachments of photos: one photo shows a store display indicating that customers could 40

3 The parties stipulated that Leary is an agent of Respondent within the meaning of Section
2(13) of the Act.
4 InstaCart in-store shoppers receive customer orders via an application on their smartphone and
thereafter, shop for and bag these customer orders for pick up (Jt. Exh. O).
5 On April 3, the Union revised its grievance letter to include the allegation that Respondent
allowed InstaCart to perform bargaining unit work “jurisdiction wide” (Jt. Exh. J).
JD(SF)–20–19
4
order groceries via Respondent’s website with delivery in as little as two hours, and two other
photos are of the InstaCart website which shows that InstaCart partners with Respondent and
deliveries may be made in as little as an hour. In addition, Respondent’s website offers various
ways for customers to order groceries including receiving flexible delivery, driving up to the
store to pick up pre-ordered groceries, and rush delivery “powered by InstaCart” (Jt. Exh. N). 5
From March 30 onwards, the Union filed against Respondent multiple, pending
grievances, which alleged that Boar’s Head, DSD,6 and InstaCart performed work that fell within
the exclusive jurisdiction of the Units’ employees. Regarding the allegation that Boar’s Head is
performing bargaining unit work, an arbitrator heard the dispute on October 8, and no award has 10
been yet made. The disputes concerning DSD and InstaCart have not yet been heard by an
arbitrator.
C. Timeline of Events Regarding the Union’s Information Request
15
After filing the aforementioned grievance on March 5, on March 30, John Frahm
(Frahm), the Union’s North Coast Director and agent, requested via email that Respondent
provide it with the following information: The contracts between Respondent and Boar’s Head,
DSD, and InstaCart. The Union requested this information “in connection with the many
grievances pending regarding Safeway’s use of vendor employees to perform work in stores 20
under Local 5’s jurisdiction” (Jt. Exh. I). The Union stated that to the extent Respondent claimed
the requested information to be confidential, the Union was prepared to enter discussions to
address any legitimate concerns.
Penny Schumacher (Schumacher), Respondent’s Director of Labor Relations,7 via an 25
April 23 email refused to furnish the information request by the Union on March 30. Schumacher
stated that Respondent was not obligated to furnish the information as the Union had not
demonstrated relevance by objective evidence (Jt. Exh. K). Schumacher further stated that the
work performed by the vendors pertains to the “type of product” and the contracts have no
bearing on whether the work should be performed by bargaining unit employees (Jt. Exh. K). 30
On April 26, Frahm responded via email reiterating the Union’s need for the requested
information. Frahm wrote,
The Union currently has grievances pending regarding the alleged performance of 35
bargaining unit work by each of these vendors. Our evidence in this regard to
date is anecdotal, based on witness observations. The vendor contracts requested
are relevant to the Union’s continuing investigation of these grievances in that
vendor contract may well (a) corroborate our anecdotal, witness observations; and
(b) establish that the anecdotal violations are not accidental or isolated, but 40
instead the result of a deliberate business plan engaged in by [Respondent]. The

6 Board’s Head and DSD are vendors that stock products at Respondent’ stores (Jt. Exh. K).
7 The parties stipulated that Schumacher is an agent of Respondent within the meaning of Sec.
2(13) of the Act.
JD(SF)–20–19
5
later point, relevant in and of itself, is also relevant insofar as an appropriate
remedy is concerned.
(Jt. Exh. K.)
5
Thereafter, on June 26, Schumacher again refused to furnish the Union with its requested
information alleging that Respondent was not obligated to furnish the information. Respondent
claimed that the Union had not demonstrated relevance. Of pertinence, the email from
Respondent to the Union states,
10
[I]t is the collective bargaining agreement that controls all grievance issues.
Vendor contracts cannot in any way “corroborate” witness observation of alleged
collective bargaining agreement violations. [Respondent] does not dispute that
Boar’s Head and DSD are vendors who stock products at its stores. Its position is
that the collective bargaining agreement gives these particular vendors the 15
contract right to stock product. So no “corroboration” of this fact is needed.
Whatever the vendor contracts say about vendor rights will not serve to excuse
any collective bargaining agreement violations. Likewise, whether or not
[Respondent’s] allowing vendor performance of unit work is intentional, 20
negligent, or otherwise is not relevant to determining a contract violation or
appropriate remedy. Either way, what a vendor contract may say on vendor rights
and services is completely irrelevant.
(Jt. Exh. K.) Also on June 26, Respondent stated that no contract exists between Boar’s Head and 25
Respondent, or between DSD and Respondent. Respondent claimed that InstaCart retains
individuals to shop on behalf of customers, and “is not any different than any other customer
buying groceries” (Jt. Exh. K.) Finally, Respondent stated that a contract exists between
Albertsons Companies, which shares a parent company with Respondent, and InstaCart but
claimed confidentiality and proprietary interests and was “not willing to disclose it” (Jt. Exh. K.) 30
On July 2, the Union again asked for the requested information. Frahm stated that the
Union was entitled to the information due to its pending grievances regarding the InstaCart,
Boar’s Head, and DSD contracts. The Union clarified that it sought copies of any documents,
including electronic and/or stored documents, that reflect the nature and/or details of the 35
agreement or arrangement between Respondent and Boar’s Head (including Boar’s Head
purveyors and Golden Bear Provisions) as well as with DSD Merchandisers Inc. (Jt. Exh. K).
The Union expressed disbelief that no documentation existed between Respondent and Boar’s
Head and DSD (Jt. Exh. K). The Union sought the InstaCart contract to determine whether the
work InstaCart was performing violated the parties’ CBA (Jt. Exh. K). The Union again offered 40
to bargain with Respondent as to any confidentiality claims.
On July 31, Frahm sent an email to Schumacher, informing her that InstaCart employees
purchasing alcohol on behalf of customers were requesting that Respondent’s employees verify
that the customers were legally permitted to purchase alcohol per the vendor contract between 45
Respondent and InstaCart (Jt. Exh. L). As a result, Frahm again requested a copy of all
agreements between Respondent and InstaCart (Jt. Exh. L).
JD(SF)–20–19
6
On August 27, Leary responded, denying that any documents existed regarding Boar’s
Head and DSD work and supplying of products to Respondent (Jt. Exh. M).
Since March 30 through the present, Frahm has taken the position that the requested 5
information will enable the Union to carry out its representational duties in the pending
grievances it has relating to InstaCart performing bargaining unit work. The parties stipulated
that if Frahm were called to testify, he would testify as follows:
 Frahm believes that the parameters of any direction or control Respondent has 10
with respect to InstaCart in-store shoppers, and any relationship Respondent has
with InstaCart will be revealed in the requested information.
 Frahm believes that the scope of the InstaCart in-store shopper activities—both
geographically and in frequency—within the stores covered by the North Coast
CBA and Northern California CBA will be revealed by the requested information.15
Respondent has not provided any of the documents or information requested (the
contracts between Respondent and Boar’s Head, DSD, and InstaCart). Moreover, Respondent
has not offered to bargain an accommodation over its assertion of confidentiality of the InstaCart
contract.20
ISSUES PRESENTED
The parties stipulated as to the following:
25
1. Whether Respondent violated Section 8(a)(1) and (5) of the Act by failing and
refusing to furnish the Union with the information it requested beginning on March
30, identified in subparagraphs 7(a) and 7(d) of the complaint, and as follows:
7(a) About April 26, the Union, by email, has requested that Respondent 30
furnish it with the following information: the contracts between
Respondent and Boar’s Head, DSD, and InstaCart.
7(d) Since about April 26, Respondent has failed and refused to furnish the
Union with the Safeway-InstaCart contract or to bargain over an 35
accommodation.
2. Whether Respondent violated Section 8(a)(1) and (5) of the Act by unreasonably
delaying in furnishing the Union with the information it requested beginning on
March 30, identified in subparagraphs 7(a) and 7(c) of the complaint pertaining to 40
DSD and Boar’s Head, and as follows:
7(a) About April 26, the Union, by email, has requested that Respondent
furnish it with the following information: the contracts between
Respondent and Boar’s Head, DSD [….]45
JD(SF)–20–19
7
7(c) From about April 26 through June 26, Respondent unreasonably delayed
in responding to the Union’s request for the Boar’s Head and DSD
contracts.
DISCUSSION 5
A. Respondent Failed to Provide Relevant and Necessary Information to
the Union In the Performance of Its Duties as the Collective-Bargaining
Representative of the Unit Employees
10
The General Counsel argues that Respondent violated the Act by failing to provide the
Union information it requested in connection to grievances regarding the Units. Specifically, the
Union requested information as to the Boar’s Head and DSD contracts due to the Union’s
grievance allegation that these vendors performed bargaining unit work. The General Counsel
also argues that the Union requested the InstaCart contract due to the Union’s grievance 15
allegation that Respondent violated Sections 1.2 and Appendix E and F of the North Coast CBA
and Northern California CBA (GC Br. at 11–12). In contrast, Respondent argues that the Union
failed to provide objective evidence to support its claim for the requested relevant information
(R. Br. at 9).
20
Each party to a bargaining relationship is required by Section 8(a)(5) of the Act to
bargain in good faith. An employer’s duty to bargain includes a general duty to provide
information needed by the bargaining representative to assess claims made by the employer
relevant to contract negotiations as well as administration of the contract. In addition, an
employer is required to furnish the union representing its employees with information that is 25
relevant to the union in the performance of its collective-bargaining duties. Piggly Wiggly
Midwest, LLC, 357 NLRB 2344, 2355 (2012); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–
436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). This also includes information
necessary to decide whether to file or process grievances on behalf of unit employees. Acme
Industrial, supra at 435-439; Disneyland Park, 350 NLRB 1256, 1257 (2007). 30
Generally, a union’s request for information pertaining to employees in the bargaining
unit is presumptively relevant and an employer must provide the information. CVS Albany, LLC,
364 NLRB No. 122, slip op. at 2 (2016). However, where the information requested concerns
non-unit employees, the union bears the burden of establishing relevancy. Disneyland Park, 35
supra; Public Service Electric & Gas Co., 323 NLRB 1182, 1186 (1997). A union satisfies its
burden to do so, if it demonstrates either “a reasonable belief, supported by objective evidence,
that the requested information is relevant,”8 or “a ‘probability that the desired information was
relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities,’”9 The required showing is subject to a liberal, “discovery-type standard” and is 40
not an exceptionally heavy one. DirectSat USA, LLC, 366 NLRB No. 40, slip op. 1, fn. 2 (2018).
The union need only show a probability that the desired information was relevant, and would
only be used by the union to carry out its statutory duties and responsibilities. But “[t]he union’s

8 Disneyland Park, supra at 1257–1258.
9 Kraft Foods North America, Inc., 355 NLRB 753, 754 (2010) (quoting NLRB v. Acme
Industrial Co., supra at 437).
JD(SF)–20–19
8
explanation of relevance must be made with some precision; and a generalized, conclusory
explanation is insufficient to trigger an obligation to supply information.” Disneyland Park,
supra at 1258, fn. 5 (2007). The determination of relevance “depends on the factual
circumstances of each particular case.” San Diego Newspaper Guild, Local No. 95 v. NLRB, 548
F.2d 863, 867 (9th Cir. 1977). 5
I find that Respondent violated Section 8(a)(5) and (1) of the Act when it failed to
provide the Union with the requested information. In this matter, the Union filed grievances
against Respondent alleging that Respondent violated the CBA by permitting specific vendors to
perform bargaining unit work. Thereafter, the Union sought the contracts between Respondent 10
and vendors Boar’s Head, DSD, and InstaCart. Since the information request does not concern
subjects directly related to the bargaining unit, the Union must establish relevance, which it has.
The Union repeatedly explained that it sought the vendor contracts to corroborate anecdotal
witness observations as well as to establish that Respondent engaged in a “deliberate business
plan” rather than an accidental or isolated violation of the parties’ CBA which could affect any 15
remedy sought in arbitration (Jt. Exh. K). The Union is not required to show that the information
triggering its request was accurate or ultimately reliable and may be based on hearsay. United
States Postal Service, 337 NLRB 820, 822 (2002). “Even rumors may be pursued, providing
that there is at least some demonstration that the request for information is more than pure
fantasy.” Cannelton Industries, Inc., 339 NLRB 996, 1005 (2003).20
In addition, as to the InstaCart contract, the Union clearly explained that it sought such
information to determine whether the work performed by InstaCart violated Section 1.2 and
Appendix E of the North Coast CBA, and Section 1.2 and Appendix F of the Northern California
CBA. The Union explained the relevancy of such information to its statutory duties and 25
responsibilities via written correspondence with Respondent from April to August. The Union
continued to support its request by providing photographs of Respondent’s advertisements and
connections to the InstaCart service. The Union provided Respondent with an example as to
how the InstaCart agreement with Respondent affected its bargaining unit employees. The
General Counsel also presented Frahm’s stipulated testimony regarding additional reasons the 30
Union needed the information.10
Throughout the written exchanges between the Union and Respondent, Respondent
declined to provide any information, claiming that the vendor contracts had no bearing on
whether Respondent violated the parties’ CBA. Respondent claimed that these vendor contracts 35
only related to the type of product. Respondent also rejected the Union’s claim that it had

10 Respondent argues that it would have objected to Frahm’s stipulated testimony at a hearing as
his additional relevancy arguments were not raised at the time of the Union’s information
requests (R. Br. at 13–14). However, the Board has held that a union is not obligated to disclose
at the time of the information request the underlying facts establishing its belief that the
requested information is relevant. Cannelton Industries, supra at 997. It is enough that the
General Counsel demonstrate at the hearing that the Union had a reasonable belief during the
time it requested the information. Id. The General Counsel has provided these additional
reasons via the stipulated record, and further established that the Union had a reasonable belief
for the vendor contracts. But even if I disregarded Frahm’s stipulated testimony, I find that the
Union met its burden to establish why the information requested was relevant.
JD(SF)–20–19
9
anecdotal witness evidence as this evidence was not objective. Two months after its initial
response to this information request, Respondent again declined to provide any information
sought—specifically, Respondent declined to provide the InstaCart contract and stated for the
first time that no contract existed between Respondent and Boar’s Head or DSD. Respondent
stated that the Union failed to provide any valid reasons for the information. The vendor 5
contracts could not corroborate witness observations and would not have any effect on whether
Respondent violated the CBAs.
Based on the parties’ stipulated record, I find that the Union has satisfied its burden by
showing a probability that the desired information was relevant, and that it would be of use to the 10
union in carrying out its statutory duties and responsibilities. Again, the Union’s burden is “not
an exceptionally heavy one.” SBC Midwest, 346 NLRB 62, 64 (2005). The vendor contracts are
relevant to the Union’s duties to determine whether the CBA was being violated by bargaining
unit work being performed outside the unit. The Union cannot reasonably be expected to
determine whether bargaining unit work is being performed outside the unit without reviewing 15
the contracts between the vendors and Respondent; these contracts could shed light on what
actual work is to be performed by the vendor. In addition, Respondent continually rejected the
Union’s reasoning for the information, insisting that the Union must provide objective evidence
and the anecdotal evidence was not enough. However, as explained previously, the Union could
provide objective evidence or a probability that the information is relevant, but in either 20
circumstance the burden is not heavy.11
Moreover, in anticipation of any claim by Respondent that the information requested by
the Union was confidential, the Union, on March 30, offered to enter negotiations with
Respondent to address any concerns. Under Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 25
(1979), the Board is required to balance a union’s need for information against any “legitimate
and substantial” confidentiality interest established by the employer. Pennsylvania Power Co.,
301 NLRB 1104, 1105–1106 (1991). When an employer refuses to provide information on
confidentiality grounds, the employer has a duty to seek to bargain toward an accommodation
between the union’s information needs and the employer’s justified interests. Id. at 1105–1106. 30
However, Respondent simply refused to engage in such bargaining.

11 Respondent cites to two Board decisions to support its position that requests for contracts are
not presumptively relevant (R. Br. at 9). However, in Station GVR Acquisition, 366 NLRB No.
175, slip op. at 3, fn. 6 (2018), the Board specifically denied summary judgment on the requests
for contract agreements and covenants and remanded the issues to the Regional Director. In
addition, in contrast the facts presented in this matter, in Ethicon, A Johnson & Johnson Co., 360
NLRB 827, 832 (2014), the Board affirmed the administrative law judge’s decision that the
Union failed to establish relevancy for information concerning subcontracting where the parties’
collective bargaining agreement permitted subcontracting, and other information as to the work
being performed by the subcontractors was provided to the Union. Here, the Union satisfied its
burden by setting forth the CBA provisions Respondent appeared to violate (which cover on-line
order selectors) but needed the contracts to corroborate witness evidence it had received.
JD(SF)–20–19
10
For these reasons, Respondent violated Section 8(a)(5) and (1) of the Act when it failed
and refused since March 30 to provide the InstaCart contract to the Union, or bargain over an
accommodation to address its confidentiality concerns.12
B. Respondent Unreasonably Delayed Providing Information to the Union5
The General Counsel argues that Respondent violated Section 8(a)(5) of the Act when it
failed to timely respond to the Union’s request for the Boar’s Head and DSD contract (GC Br. at
18–20). Specifically, on June 26, Respondent informed the Union that no responsive documents
existed between Respondent and Boar’s Head or DSD. Respondent argues that its delay in 10
informing the Union that no Boar’s Head or DSD contracts existed was de minimis
(R. Br. At 15).
“[A]n unreasonable delay in furnishing such information is as much of a violation of
Section 8(a)(5) of the Act as a refusal to furnish the information at all.” Monmouth Care Center, 15
354 NLRB 11, 41 (2009) (citations omitted), reaffirmed and incorporated by reference, 356
NLRB 152 (2010), enfd. 672 F.3d 1085 (D.C. Cir. 2012). “[I]t is well established that the duty to
furnish requested information cannot be defined in terms of a per se rule. What is required is a
reasonable good faith effort to respond to the request as promptly as circumstances allow.”
Good Life Beverage Co., 312 NLRB 1060, 1062 fn. 9 (1993). “In evaluating the promptness of 20
the employer’s response, the Board will consider the complexity and extent of information
sought, its availability, and the difficulty in retrieving the information.” West Penn Power Co.,
339 NLRB 585, 587 (2003) (quoting Samaritan Medical Center, 319 NLRB 392, 398 (1995)),
enfd. in relevant part 394 F.3d 233 (4th Cir. 2005).
25
To determine whether an employer has failed to furnish information in a timely manner,
the Board considers a variety of factors, including the nature of the information sought
(including whether the requested information sought is time sensitive); the difficulty in obtaining
it (including the complexity and extent of the requested information); the amount of time the
party takes to provide it; the reasons for the delay in providing it; and whether the party 30
contemporaneously communicates these reasons to the requesting party. West Penn Power Co.,
339 NLRB 585, 587 & fn. 6, 588 & fn. 9. See also Postal Service, 308 NLRB 547, 551 (1992);
Valley Inventory Service Inc., 295 NLRB 1163, 1166 (1989).
On March 30, after filing several grievances, the Union requested Respondent’s contracts 35
with Boar’s Head and DSD. On April 23, Respondent refused to provide these contracts,
claiming that the Union failed to provide any relevance by objective evidence. The Union
promptly replied on April 26 to Respondent’s refusal, providing more reasons for its request.
Two months later, Respondent replied to the Union’s April 26 request. In this correspondence,
Respondent claimed that no contracts existed between Respondent and Boar’s Head or DSD. On 40
July 2, the Union clarified its request regarding the Boar’s Head and DSD contracts to ensure
that Respondent knew what information it sought. But again, a little less than two months later,
on August 27, Respondent again denied any responsive documents existed. The Union’s request

12 As Respondent stated that no Boar’s Head or DSD contract exists with Respondent, the delay
in informing the Union that no responsive information exists will be discussed in the following
section.
JD(SF)–20–19
11
for the Boar’s Head and DSD contracts was simple, and not complex, and the nonexistence of
these contracts could not have been difficult to determine. Respondent claims that the Union
was not harmed by its delay in informing the Union of the nonexistence of these documents (R.
Br. at 15-16). Again, Respondent relies upon its arguments that the Union failed to sustain its
burden of proof and so any delay in responding would be de minimis. I disagree. The Union 5
sought these documents after it filed several grievances concerning whether nonbargaining unit
persons were performing bargaining unit work. Such a delay in informing the Union that the
requested documents do not exist prejudices the Union in its representational duties. The Board
has found that even a 4-week delay in providing information to a union has been found to be
untimely. Postal Service, 308 NLRB 547, 551 (1992) (unreasonable to delay 4 weeks in 10
providing information that was not shown to be complex or difficult to retrieve); see also Capitol
Steel & Iron Co., 317 NLRB 809, 813 (1995) (finding a 2-week delay unreasonable), enfd. 89
F.3d 692 (10th Cir. 1996); Linwood Care Center, 367 NLRB No. 14, slip op. at 5 (2018) (finding
6-week delay unreasonable). Although the Boar’s Head arbitration was held on October 8,
Respondent still had an obligation to timely advise the Union that no responsive documents 15
existed.
Based on the foregoing, Respondent violated Section 8(a)(5) and (1) by unreasonable
delaying in furnishing the Union from March 30 to June 26 the Boar’s Head and DSD contracts.
20
CONCLUSIONS OF LAW
1. Safeway, Inc. (Respondent) is, and has been at all times material, an employer engaged in
commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7)
of the Act.25
2. United Food and Commercial Workers Local 5, United Food and Commercial Workers,
AFL-CIO (Charging Party or the Union) is, has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act, and represents the following bargaining units:
30
All employees working in the Employer’s retail food stores within the
geographical jurisdiction of the Union covering Del Norte and Humboldt
counties, excluding meat employees and supervisors.
All employees working in the Employer’s retail food stores within the 35
geographical jurisdiction of the Union, except supervisors within the meaning of
the National Labor Relations Act, as amended.
(FOOD): Alameda County; Contra Costa County; Marin County; Monterey/San
Benito/Santa Cruz Counties; Napa/Solano County; San Mateo County; Santa 40
Clara County.
All Head, Journey, and Apprentice Meat Cutters working within the following
geographical jurisdiction of the Union:
45
(MEAT): Alameda County, including meat in the cities of El Cerrito, El Sobrante,
Kensington, Richmond and San Pablo of Contra Costa County; Humboldt/Del
JD(SF)–20–19
12
Norte Counties; Lake/Mendocino/Sonoma & Marin Counties south to and
including Novato; Marin County north to Novato; San Francisco County and the
cities of Daly City, Colma, Brisbane, South San Francisco and Pacifica; The
Retail Markets and Frozen Food Locker Plants of the Employer in Santa
Clara/San Benito/Monterey/Santa Cruz Counties.5
3. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide
the Union with information requested since March 30, which was necessary and relevant to the
Union’s performance of its duties as the collective-bargaining representative of the unit
employees, or to bargain in good faith with the Union in an attempt to reach an accommodation 10
of interests in response to the Union’s request for relevant information that Respondent considers
confidential.
4. By delaying in providing responses to the Union’s March 30 request until June 26,
Respondent has violated Section 8(a)(5) and (1) of the Act.15
5. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY20
Having found that Respondent has violated the Act by failing and refusing to furnish the
Union with the information requested, and delaying providing other information, and thereby
engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.25
On the basis of the foregoing findings of fact and conclusions of law, and the entire
record, I issue the following recommended13
ORDER30
Respondent, Safeway, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
35
(a) Failing and refusing to furnish United Food and Commercial Workers Local 5,
United Food and Commercial Workers, AFL–CIO with information requested since
March 30, that is relevant and necessary to the Union’s performance of its functions
as the collective-bargaining representative of Respondent’s unit employees, or
refusing to bargain in good faith with the Union in an attempt to reach an 40
accommodation of interests in response to the Union’s request for relevant
information that Respondent considers confidential.

13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48
of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD(SF)–20–19
13
(b) Unreasonably delaying from March 30 to June 26 in providing responses to requests
for relevant information by the Union.
(c) In any like or related manner interfering with, restraining, or coercing employees in 5
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Furnish to the Union, in a timely manner, the information requested since March 30, 10
or bargain in good faith with the Union to reach an accommodation of interests in
response to the Union’s request for relevant information that Respondent considers
confidential, described as follows: the InstaCart contract.
(b) Within 14 days after service by the Region, post at its facility in Eureka, California, 15
copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 20, after being signed by the
Respondent’s authorized representative, shall be posted by Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to physical posting of paper 20
notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. If, during the pendency of these proceedings, Respondent has gone out of 25
business or closed the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current and former
employees employed by Respondent at any time since March 30, 2018.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn 30
certification of a responsible official on a form provided by the Region attesting to the
steps that Respondent has taken to comply.
Dated, Washington, D.C. July 9, 2019
35
____________________
Amita Baman Tracy
Administrative Law Judge

14 If this Order is enforced by a judgment of a United States court of appeals, the words
in each of the notices referenced herein reading “Posted by Order of the National Labor
Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to furnish the United Food and Commercial Workers Local 5,
United Food and Commercial Workers, AFL–CIO (the Union) with information requested since
March 30, 2018, which is relevant and necessary to the Union’s performance of its duties as the
collective-bargaining representative of our employees in the following bargaining units:
All employees working in the Employer’s retail food stores within the
geographical jurisdiction of the Union covering Del Norte and Humboldt
counties, excluding meat employees and supervisors.
All employees working in the Employer’s retail food stores within the
geographical jurisdiction of the Union, except supervisors within the meaning of
the National Labor Relations Act, as amended.
(FOOD): Alameda County; Contra Costa County; Marin County; Monterey/San
Benito/Santa Cruz Counties; Napa/Solano County; San Mateo County; Santa
Clara County.
All Head, Journey, and Apprentice Meat Cutters working within the following
geographical jurisdiction of the Union:
(MEAT): Alameda County, including meat in the cities of El Cerrito, El Sobrante,
Kensington, Richmond and San Pablo of Contra Costa County; Humboldt/Del
Norte Counties; Lake/Mendocino/Sonoma & Marin Counties south to and
including Novato; Marin County north to Novato; San Francisco County and the
cities of Daly City, Colma, Brisbane, South San Francisco and Pacifica; The
Retail Markets and Frozen Food Locker Plants of the Employer in Santa
Clara/San Benito/Monterey/Santa Cruz Counties.
JD(SF)–20–19
WE WILL NOT unreasonably delay in providing responses to requests for relevant information
from the Union since March 30, 2018.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of your rights under Section 7 of the National Labor Relations Act.
WE WILL, in a timely manner, furnish the Union with the information requested since March 30,
2018, or will bargain in good faith with the Union to reach an accommodation of interests in
response to the Union’s request for the following relevant information that Respondent considers
confidential: the InstaCart contract.
WE WILL bargain in good faith with the Union and timely provide it with information that is
relevant and necessary to its role as your bargaining representative.
SAFEWAY, INC.
(Respondent)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-221482 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5183.