Shoppers Food Warehouse

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 258 (N.L.R.B. 1994)

258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shoppers Food Warehouse Corporation and United
Food and Commercial Workers Local 400, a/w
United Food and Commercial Workers Inter-
national Union, AFL—CIO, CLC. Cases 5—CA-
23249 and 5—CA-23394
September 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On April 25, 1994, Administrative Law Judge Ste-
phen J. Gross issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
and supporting briefs. The Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member.
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings, and conclusions,
and to adopt the recommended Order, only to the ex-
tent consistent with this Decision and Order.
The pertinent facts are as follows. The Respondent
operates a chain of retail food stores. The Union rep-
resents the Respondent's employees within a 25-mile
radius of Washington, D.C., and has been signatory to
a series of collective-bargaining agreements with the
Respondent for many years. The agreement in effect
during the events at issue contained a successorship
clause which stated that the agreement would be bind-
ing on all signatories as well as their successors and
assigns and that the Respondent promised not to trans-
fer operations without first securing the successor's
agreement to assume the Respondent's contractual ob-
ligatic5ns. The agreement also contained article 2.2,
which stated that "if [the Respondent] should establish
a new food store, or stores this agreement shall
apply to such new store or stores."
In July 1992, the Union heard rumors that the Re-
spondent was going to open a discount beer and wine
store within the Union's jurisdiction. Earman, a union
official, 1 questioned Kaplan, an official of the Re-
spondent, who confirmed the existence of the new
store but stated that it had nothing to do with the
Union. When pressed, Kaplan said that the Respond-
ent's personnel would be handling the new store's hir-
ing, training, and payroll, but he disputed Earman's
contention that its employees would be part of the bar-
gaining unit.
When the Union subsequently renewed its conten-
tion in writing to the Respondent that employees of the
new store would be part of the unit, the Respondent
At one point in his decision, the judge inadvertently referred to
Earman as an official of the Respondent. We correct this factual
error, which does not affect our decision.
315 NLRB No. 35
restated its position that the new store would be a sep-
arate operation and not a food store, a reference to the
collective-bargaining agreement's article 2.2. The
Union demanded to arbitrate the applicability of the
contract to the new store, and the Respondent refused.
The new store, which was named Total Beverage by
the time it opened, began operating in October 1992.
Subsequently, the Union received documents indicating
that some items sold to Total Beverage were billed to
it "c/o Shoppers Food Warehouse" and that some
goods were transferred from a Shoppers Food Ware-
house store to the Total Beverage store, which, accord-
ing to undisputed record evidence, was designated Re-
spondent's store #99. Meanwhile, the Union was en-
gaged in litigation in Federal district court to compel
arbitration of the dispute, during which the Respond-
ent's attorney admitted that the Respondent, through a
subsidiary, "owned, managed, and operated" Total
Beverage prior to February 28, 1993. On that date, the
Respondent, which itself is affiliated with the Dart
Group, sold Total Beverage to a wholly owned sub-
sidiary of the Dart Group.
During the same time period, the parties began con-
tract negotiations for a successor agreement. On March
11, 1993, the Respondent submitted its proposal for a
new agreement in which it, inter alia, proposed to
eliminate the successorship provision contained in the
expiring agreement. According to Earman, this led the
Union to be concerned that the Respondent was going
to attempt to move some of its operations to nonunion
entities. The Respondent withdrew this proposal at a
later bargaining session.
On March 12, 1993, the day following the Respond-
ent's bargaining proposal, the Union requested the Re-
spondent to furnish certain information concerning
who owned, managed, and operated Total Beverage
from its inception to that date because, as stated in the
request, the Union believed such information was rel-
evant to a determination of whether the Respondent
was in violation of article 2.2 of the parties' agree-
ment. The Respondent refused to provide the informa-
tion.
The judge noted that the burden was on the Union
to demonstrate relevance where, as here, the informa-
tion it requested concerned matters outside the bargain-
ing unit. He concluded that the Union did not dem-
onstrate that the requested information was relevant,
essentially finding that the Union did not have a rea-
sonable basis for requesting the information sought.
Thus, he dismissed the complaint allegation that the
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to furnish the information. For the reasons
set forth below, we find merit to the General Counsel's
and the Charging Party's exceptions to the judge's
conclusion.
SHOPPERS FOOD WAREHOUSE

259
As the judge noted, it is well settled that an em-
ployer, on request, must provide a union with informa-
tion that is relevant to its carrying out its statutory du-
ties and responsibilities in representing employees.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
This duty to provide information includes information
relevant to contract administration and negotiations.
Barnard Engineering Co., 282 NLRB 617, 619 (1987);
and Leland Stanford Junior University, 262 NLRB
136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983).
As further noted by the judge, where, as here, the in-
formation sought concerns matters outside the bargain-
ing unit, such as those related to single employer or
alter ego status, a union bears the burden of establish-
ing the relevance of the requested information. Reiss
Viking, 312 NLRB 622, 625 (1993); and Duquesne
Light Co., 306 NLRB 1042 (1992). A union has satis-
fied its burden when it demonstrates a reasonable be-
lief supported by objective evidence for requesting the
information. Knappton Maritime Corp., 292 NLRB
236, 238-239 (1988). See also Postal Service, 310
NLRB 391 (1993).
The Board uses a broad, discovery-type standard in
.determining relevance in information requests, includ-
ing those for which a special demonstration of rel-
evance is needed, and potential or probable relevance
is sufficient to give rise to an employer's obligation to
provide information. Reiss Viking, supra; Children's
Hospital of San Francisco, 312 NLRB 920, 930
(1993); and Pfizer, Inc., 268 NLRB 916, 918 (1984),
enfd. 763 F.2d 887 (7th Cir. 1985). In this regard, the
Board does not pass on the merits of a union's claim
of breach of a collective-bargaining agreement in de-
termining whether information relating to the process-
ing of a grievance is relevant. Reiss Viking, supra; and
Island Creek Coal Co., 292 NLRB 480, 487 (1989),
enfd. mem. 899 F.2d 1222 (6th Cir. 1990).
Applying these principles, we find, contrary to the
judge, that the Union established that the requested in-
formation was relevant to the Union's grievance proc-
essing and collective-bargaining functions. Earman ini-
tially questioned Kaplan based on a rumor Earman had
heard that the Respondent was opening a beer and
wine store within the Union's jurisdiction. Although
Kaplan, in confirming the rumor, denied that employ-
ees of the new store would be covered under the par-
ties' collective-bargaining agreement, he conceded that
the Respondent would perform the new store's person-
nel functions. Additionally, in connection with the
Union's attempts to compel arbitration, it was admitted
that the Respondent owned, managed, and operated
Total Beverage until it was sold to a related affiliate.
The Union was not required to show that the infor-
mation which triggered its request was accurate or ulti-
mately reliable, and a union's information request may
be based on hearsay. Magnet Coal, 307 NLRB 444 fn.
3 (1992). We further note that the Union was not re-
quired to accept the Respondent's response that Total
Beverage was a totally separate operation and not a
food store within the meaning of the contract. By the
same tdken, the Union was entitled to conduct its own
investigation and reach its own conclusions about the
applicability of the agreement. See Reiss Viking, supra.
Thus, as the judge himself concludes, there is no doubt
that the Union had reason to believe under the cir-
cumstances that the ownership of the Respondent and
Total Beverage were closely linked, if not identical.
Furthermore, during approximately the same period
of time, at the parties' first negotiating session for a
new agreement, the Respondent proposed eliminating
existing contact language assuring that the parties'
agreement would be binding on the Respondent's suc-
cessors and assigns in the event of a sale or transfer
of the Respondent's operations. It was imnrdiately
after this event that the Union requested information
concerning the relationship of the Respondent and
Total Beverage. Earman testified in this regard that the
Respondent's proposal led the Union to be concerned
that the Respondent was going to attempt to "spin
off" portions of its operations to nonunion entities.
Contrary to the judge, we cannot conclude that the
Union's concern during collective bargaining was
speculative considering the Respondent's bargaining
stance and its concurrent actions denying any obliga-
tion to apply the expiring agreement to the new oper-
ation.
Additionally, the Union had Teceived documents
from unit employees confirming that the Respondent
performed payroll functions for the Total Beverage
store and further establishing that the Respondent paid
for products shipped to Total Beverage, thus providing
further support for its belief that the two operations
were interrelated. Finally, the Union received two doc-
uments reflecting that products were transferred be-
tween one of the Respondent's stores and Total Bev-
erage. Significantly, this documentation indicated a
transfer of products from "store 25" to "store 99,"
further indicating that the Respondent itself made no
distinction in its designations of Total Beverage and its
other stores. The judge discounted this evidence of
transfer as essentially insufficient to establish a reason-
able basis for the Union's belief that the contract ap-
plied to the Total Beverage store, noting that it in-
volved a transfer of only two boxes of fruit on one oc-
casion. Contrary to the judge, we conclude that the
documented transfer of products on at least one occa-
sion was sufficient objective evidence, together with
the other factors discussed above, to support the
Union's request for information about the interrelation-
ship of Total Beverage and the Respondent's stores.
That information would aid the Union in its determina-
tion of whether the parties' contract had been violated.
260

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In light of all the above, we conclude that the Union
had a reasonable and objective factual basis for its in-
formation request.
We. further find that the requested information con-
cerning the interrelationship of the Respondent and
Total Beverage was relevant and necessary to the
Union in its role as the collective-bargaining represent-
ative. In this regard, we find the information was of
potential or probable relevance in aiding the Union in
developing its bargaining positions during negotiations,
noting particularly the timing of the Union's request,
i.e., the day after the Respondent made its initial bar-
gaining proposal to eliminate the "successor" provi-
sion of the expiring agreement. Further, contrary to the
Respondent's argument, the •fact that it subsequently
withdrew this proposal does not render the Union's
concern baseless under all the circumstances set forth
above.2 Additionally, we conclude that the requested
information was necessary to the Union's role in ad-
ministering and enforcing its collective-bargaining
agreement. During the events at issue, the Union was
attempting to arbitrate the Respondent's refusal to
apply the agreement to Total Beverage employees. The
requested information was clearly relevant to its eval-
uation and preparation of its position in anticipation of
the possible, arbitration hearing, whether or not the
Union ultimately prevailed as to all aspects of its arbi-
tration cas'e. on the merits. See Arch of West Virginia,
304 NLRB 1089, 1092 (1991).
We find that the judge's conclusion in effect was
tantamount to a determination on the merits that the
Union did not establish a contract violation. But that
determination properly rests with the arbitrator, not the
Board. Indeed, the Board's discovery-type standard fa-
voring disclosure is intended to facilitate the arbitral
process by permitting a union access to a broad scope
of potentially useful information. See Barnard Engi-
neering, supra, citing Acme Industrial, supra; and
Pfizer, Inc., supra, citing Communications Workers
Local 13 (Detroit Newspaper) v. NLRB, 598 F.2d 267,
271 (D.C. Cir. 1979).
In sum, in light of all the above, we conclude that
the Union's information request concerned relevant
and necessary information and that the Respondent
2 Member Cohen does not find that the information was relevant
to the negotiations for a new contract. In this regard, he notes that
the Union's information request was based solely on the grievance.
However, this is not to say that the Respondent's position in negotia-
tions is irrelevant to this case. The fact that the Respondent sought
to eliminate the successorship clause, considered together with the
other actions of the Respondent described herein, would reasonably
lead the Union to believe that unit work was being transferred to re-
lated entities. The Union's concern about the Total Beverage oper-
ation is to be viewed in this context. Similarly, the grievance con-
cerning Total Beverage and the information sought in connection
therewith is likewise to be viewed in the same context.
violated Section 8(a)(5) by failing to provide the re-
quested information.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Shop-
pers Food Warehouse Corporation, Lanham, Maryland,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
I. Insert the following as new paragraph 1(a) and re-
number the subsequent paragraphs accordingly:
"(a) Refusing to bargain collectively with United
Food and Commercial Workers Local 400, a/w United
Food and Commercial Workers International Union,
AFL—CIO, CLC, by refusing to furnish it with infor-
mation that it requests which is relevant and necessary
to the Union's performance of its functions as the ex-
clusive bargaining representative of employees of the
appropriate unit. The unit is:
All employees, except Store Managers, in the Re-
spondent's retail food stores within a radius of 25
miles of Washington, D.C. and Prince Georges,
Charles, St. Mary's, Calvert, and Montgomery
Counties, and in Ann Arundel County south of
South River from Chesapeake Bay to State High-
way #450, south of State Highway #450 from
South River to Prince Georges County in Mary-
land and the Commonwealth of Virginia."
2. Insert the following as new paragraph 2(a) and re-
number the subsequent paragraphs accordingly:
"(a) Furnish the Union with the information it re-
quested on March 12, 1993."
3. Substitute the attached notice for that of the ad-
ministrative law judge.
3 The Charging Party Union requests that it be awarded attorney's
fees and related e?cpenses for costs it incurred in preparing for and
attending the hearing. The Union argues in support of its request that
the Respondent, in its answer to the complaint, denied the complaint
allegation that it failed to provide information but presented no evi-
dence at the hearing to challenge this allegation. It asserts that the
Respondent's admission of this fact would have obviated the need
for a hearing.
We deny the Union's request. The Board provides for litigation
expenses only in extraordinary cases as a means of discouraging
frivolous litigation. Heck's Inc., 215 NLRB 765, 767-768 (1974). In
this ,case, the complaint allegation denied by the Respondent was
that it had failed to provide information earlier described in another
paragraph of the complaint, which paragraph was referenced in the
allegation itself, as 'necessary for, and relevant to, the Union's per-
formance of its duties as the exclusive bargaining representative.'
Thus, the Respondent's answer is reasonably construed as denying
that it had failed to provide necessary and relevant information.
Under those circumstances, and apart from any other considerations,
we deny the Union's request at lacking in merit.
SHOPPERS FOOD WAREHOUSE 261
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agenecy of the Unitec,1 States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide-by this notice.
WE WILL NOT meet with you regarding your griev-
ances. without affording representatives of the Union
an opportunity to be present.
WE WILL NOT refuse to bargain collectively with
United Food and Commercial Workers Local 400, a/w
United Food and Commercial Workers International
Union, AFL-CIO, CLC, by refusing to furnish it with
information that it requests which is relevant and nec-
essary to the Union's performance of its functions as
the exclusive bargaining representative of employees in
the appropriate unit. The unit is:
All employees, except Store Managers, in the Re-
spondent's retail food stores within a radus of 25
miles of Washington, D.C. and Prince George's,
Charles, St. Mary's Calvert, and Montgomery
Counties, and in Ann Arundel County south of
South River from Chesapeake Bay to State High-
way #450, south of State Highway #450 from
South River to Prince George's County in Mary-
land and the Commonwealth of Virginia.
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 furnish the Union with the information it
requested on March 12, 1993.
SHOPPERS FOOD WAREHOUSE COR-
PORATION
Nathan W. Albright, Esq., for the General Counsel.
Edward J. Gutman, and Rochelle S. Eisenberg, Esqs. (Blum,
Yumlcas, Mailman, Gutman & Denick, P.A), of Baltimore,
Maryland, for the Respondent. '
Carey R. Butsavage, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STEF:HEN J. GROSS, Administrative Law Judge. There are
two distinct facets to this case. The first has to do with a
grievance filed by Local 400 of the United Food and COrn-
rnercial Workers Union (the Union or Local 400) on behalf
of Frederick Plummer who, at the time, was an employee of
the Respondent, Shoppers Food Warehouse Corporation
(SFW). The second concerns the refusal of SFW to provide
information to Local 400) I turn first to the Plummer griev-
ance.2
I. FREDERICK PLUMMER'S GRIEVANCE
A. The Facts
The events of interest to us occurred between December
1992 and March 1993. During that period (and for many
years prior to that period) a collective-bargaining agreement
was in effect between SFW and Local 400. The terms of the
agreement included, among other things, a grievance provi-
sion3 and, of course, specified wages for all bargaining unit
employee classifications.'
At all relevant times SFW employed Plummer as a "cour-
tesy clerk" at its store in Clinton, Maryland.5 As such Plum-
mer was a member of the bargaining unit. SFW paid Plum-
mer as a 5-hour-per-week part-time employee. But Plummer
opted to work about 50 hours per week, i.e., 45 hours per
week "off the clock"—in order to garner tips. (Apparently
a number of SFW's courtesy clerks did the same thing,
thereby earning in the neighborhood of $500 per week, Al-
most entirely from tips.)
Early in December 1992 an SFW official told Plummer
that SFW would no longer allow its courtesy clerks to work
off the clock. (The Company was concerned about the pos-
sible illegality of such off-the-clock work.) That led Plummer
to ask a representative of Local 400, Paul Evans, to file a
grievance on his behalf. Plummer told Evans that SFW had
been paying him for 5 hours per week but that he had been
working 50 hours per week. Accordingly, on December 9,
1992, a letter went out from Local 400 to SFW asking that:
The charge in Case 5-CA-23249 .(regarding the Plummer griev-
ance) was filed on January 11, 1993. The complaint in that case is-
sued on February 24, 1993. The charge in Case 5CA-23394 (the
refusal-to-provide-information case) was filed on March 22, 1993,
and was amended on May 12, 1993. The complaint in that case is-
sued on August 30, 1993. The two cases were consolidated for hear-
ing on November 24, 1993. I held a hearing in this matter in Wash-
ington, D.C., on February 24, 1994. The complaint in. Case 5-CA-
23249 .was amended by oral motion at the hearing.
2SFW admits that it is an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the National Labor Rela-
tions Act (the Act), that the Board has jurisdiction over this matter,
and that Local 400 is a labor organization within the meaning of
Sec. 2(5) of the Act. "
3 The grievance provision reads:
In the event a grievance or dispute arises under the terms and
during the. life of this Agreement that cannot be adjusted by the
Union and the employer within a reasonable time, either party
may request that such grievance or dispute be submitted to arbi-
tration [Sec. 19.1 of the collective-bargaining agreement,
G.C. Exh. 2.]
4 The unit:
All employees, except Store Managers, in Respondent's retail
food stores within a radius of twenty-five (25) miles of Wash-
ington, DC and Prince George's, Charles, St. Mary's, Calvert
and Montgomery Counties; and in Anne Arundel County South
of South River from the Chesapeake Bay to State Highway
#450, South of State Highway 450 from"South River to Prince
George's County in Maryland the Commonwealth of Virginia.
SFW admits that Local 400 is the exclusive bargaining representa-
tive of the members of the unit.
sPlummer ceased being an SFW employee sometime prior to the
hearing herein.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1) SFW employ Plummer on a full-time basis; and (2) SFW
.pay Plummer back wages for all the off-the-clock hours that
he had worked. Thereafter Evans telephoned two SFW offi-
cials about the Plummer grievance, Julie McWilliams and
Kathy Yarbourough. (McWilliams is SFW's director of per-
sonnel; Yarbourough is SFW's personnel coordinator at the
Clinton store. Both are SFW supervisors and agents within
the meaning of Sec. -2(11) of the Act.) In the course of
Evans' conversation with Yarbourough, Yarbourough told
Evans that she was going to investigate the facts of the mat-
ter. Evans responded that Yarbourough should speak to
Plummer about matters connected with the grievance only
when a union representative was present.
A week or so later McWilliams visited SFW's Clinton
store for reasons unconnected with the Plummer grievance.
On that same day another SFW supervisor, Larry Noell, vis-
ited the Clinton store for reasons having nothing to do either
with McWilliams or with the Plummer grievance. Noell had
previously been the manager of the Clinton store and felt that
he had a good relationship with Plummer. McWilliams and
Noell came across one another in the store, began discussing
the Plummer grievance, and decided to speak about it to
Plummer, who was at work at the store.
Without contacting Local 400, McWilliams and Noell
called Plummer to the store's conference room and asked
Plummer what it would take to have Plummer agree to with-
draw the grievance. Plummer responded that he wanted a
full-time job. McWilliams told Plummer that, if he would
sign a statement to such effect, SFW would put him on full
time. Plummer agreed to do so, McWilliams said that she
would draft‘the appropriate language, and the meeting ended.
Nothing was said by Plummer or either of the two SFW offi-
cials about the grievance's demand for backpay. No rep-
resentative of the Union was present at any time during the
meeting.
On December 24, 1992, Noell met with Plummer at the
Clinton store. Again, Local 400 had not been notified of the
meeting and no representative of the Union was present.
Noell proposed that Plummer sign a statement that read:
I Fred Plummer knowingly and voluntarily have
agreed to accept full time status with Shoppers Food
Warehouse effective December 27, 1992, in full settle-
ment of all known grievances and/or claims against
Shoppers.
I hereby willingly state that Shoppers Food Ware-
house and I fully agree on this settlement. I knowingly
waive any arbitration or further proceedings of such
claims and/or grievances.
Plummer signed the statement. SFW did honor its commit-
ment to employ Plummer on a full-time basis.6
Two days later Plummer called Local 400 and told Union
Official Ronald Reaume that he and SFW had resolved the
issues that had led to the grievance and that he wanted the
Union to drop the grievance. Reaume responded by meeting
twice with Yarbourough on December 30 about the Plummer
grievance. "During the second meeting Reaume told
Yarbourough that Local 400 had "a problem with the Fred
61n fact SFW changed Plummer's employment from part time to
full time as of Plummer's first meeting with McWilliams and Noell.
Plummer situation because we [the Union] should have been
involved." 7
According to McWilliams, upon hearing that Local 400
was concerned about the settlement of the Plummer griev-
ance because it had not participated in the settlement,
SFW—
basically considered it null and void. We
never held them [Local 400] accountable for it.
The record does not, however, indicate that SFW promptly
communicated its "null and void" position to Local 400.
On March 8, 1993, representatives of Local 400 and SFW
met at the Clinton store to consider the Plummer grievance.
The Company did not assert that the grievance had been set-
tled. And neither the General Counsel nor the Union On-
tends that at this juncture there was anything improper in the
way the Company negotiated with Local 400 about the griev-
ance. A day later a union representative telephoned
McWilliams and engaged in further discussions about the
grievance. On various occasions thereafter representatives of
Local 400 and SFW have briefly spoken about the grievance.
But no resolution of the grievance has been reached. The
Union had not asked that the grievance be arbitrated.
B. The Plummer Grievance—Conclusion
Section 9(a) of the Act8 "gives the Union the right to be
present during the adjustment of any grievance (whether or
not its presence is wanted by the employer or the grievant)."
Harowe Servo Controls, 250 NLRB 958, 1049 (1980). Ac-
cord: Circuit-Wise, Inc., 306 NLRB 766 (1992); Van Can
Co., 304 NLRB 1085, 1087 (1991). Here SFW purportedly
settled Plummer's grievance without affording Local 400 that
right to be present, doing so, indeed, even though it was the
Union that had presented the grievance to SFW. SFW there-
by violated Section 8(a)(5). E.g., Circuit-Wise, supra.
It is true that SFW proceeded to negotiate with Local 400
about the grievance, treating Plummer's statement as "null
and void." But for several reasons that does not override the
fact of SFW's violation of Section 8(a)(5). First, there is a
substantial likelihood that Plummer's (unrepresented) deci-
sion to accept a full-time job as full settlement of the griev-
ance weakened the Union's position in the subsequent nego-
tiations concerning settlement of the grievance. Second, the
course of action that SFW followed could too easily undercut
a union's position in the eyes of the members of the bargain-
ing unit. Third, SFW failed to take prompt steps to repudiate
its action—to assure "employees that in the future their em-
ployer will not interfere with the exercise of their Section 7
rights." Passavant Memorial Area Hospital, 237 NLRB 138
(1978). Thus there has been no showing that, upon learning
of Local 400's objection to SFW's direct dealings with
7 The quotation is from Yarbourbugh's notes, G.C. Exh. 8.
8 The second and third provisos of Sec. 9(a) read:
any individual employee or a group of employees shall
have the right at any time to present grievances to their em-
ployer and to have such grievances adjusted, without the inter-
vention of the bargaining representative, as long as the adjust-
ment is not inconsistent with the terms of a collective-bargaining
contract or agreement then in effect: Provided further, That the
bargaining representative has been given an opportunity to be
present at such adjustment.
SHOPPERS FOOD WAREHOUSE 263
Plummer, SFW advised the bargaining unit members—or
even just Plummer—of its error.
SFW contends that its violation was so de minimis that its
actions do not merit a remedial order. And the record does
show that SFW's handling of the Plummer grievance was an
aberration. Local 400 files about 25 grievances a month with
SFW—around 300 a year. Virtually all are settled. A few go
to arbitration. Neither the General Counsel nor the Union
contends that in any other grievance has SFW dealt directly
with an employee rather than with a representative of the
Union. Nonetheless, action by an employer-to settle a union-
filed grievance by direct dealings with an employee outside
the presence of the union goes beyond a de tninimis violation
of the Act.
Finally, SFW urges that the matter be deferred to arbitra-
tion citing, e.g., Southern California Edison Co., 310 NLRB
1229 (1993). But SFW's action of concern to us here "does
not involve a problem of contract interpretation or require the
special competence of an arbitrator." R. T. Jones Lumber
Co., 313 NLRB 726 (1994). Deferral thus would be inappro-
priate.
II. THE UNION'S INFORMATION REQUEST
The General Counsel contends that SFW failed to honor
Local 400's request for certain information that is necessary
for and relevant to the Union's performance of its duties as
the exclusive collective-bargaining representative of the unit.
And it is undisputed that SFW did refuse to provide informa-
tion about a store called Total Beverage in Chantilly, Vir-
ginia, which store is within Local 400's jurisdiction; i.e.,
within 25 miles of Washington, D.C.
Sometime in July 1992 the Union heard a rumor to the ef-
fect that SFW was going to open a discount beer and wine
store within Local 400's jurisdiction. That led Local 400's
Mike Earman to ask Ed Kaplan, an SFW official, what con-
nection SFW would have with the staffing of the new store.
Kaplan confirmed the fact of the new store but initially said
that matters pertaining to the store were none of the -Union's
business. Then, after some prodding by Barman, Kaplan said
that SFW personnel were going to handle the hiring and
training of the new store's employees and would thereafter
administer the payroll of the store. When Earman claimed
that the new store's employees would be members of the
bargaining unit (see fn. 4, supra), Kaplan said that that was
not the case.
When the Union again claimed—this time in a letter—that
the employees of Total Beverage (at this point the not-yet-
opened store had a name) would be members of the bargain-
ing unit, SFW wrote back that: (1) the store would be an
"entirely separate operation from Shoppers'; and (2) "it will
not be a 'food store." Local 400 thereupon demanded to ar-
bitrate the question of whether the collective-bargaining con-
tract applied to Total Beverage's employees. SFW refused.
The significance of the term "food store" (to which
SFW's letter referred) stems from the collective-bargaining
agreement between Local 400 and •SFW, which states that
the agreement applies to SFW's "food stores."9
The Total Beverage store opened in October 1992. Within
weeks members of Local 400 began supplying the Union
With copies of invoices showing that at least some items
9 See fn. 4, supra, and art. 2.2 of the agreement, quoted infra.
being sold to Total Beverage were billed to Total Beverage
"c/o" Shoppers Food Warehouse. A month or two later an-
other union member provided documentation of an apparent
"transfer" of some goods from SFW to the Total Beverage
store. (The transferred goods: one case of strawberries; one
case of mixed fruit.)
In the meantime Local 400 had begun litigation in a U.S.
district court seeking an order that would compel SFW to ar-
bitrate the dispute about whether the SFW-Local 400 collec-
tive-bargaining contract applied to Total Beverage's employ-
ees. In the course of that litigation the Union subpoenaed
records of an affiliate of SFW, Dart Group Corporation. (I
use the term "affiliate" because the individual who is the
majority shareholder of SFW is also the majority shareholder
of Dart Group.) On March 2, 1993, in a motion to quash,
Dart Group stated that: (1) SFW, through a subsidiary,
"owned, managed, and operated" Total Beverage "prior to
February 28, 1993"; (2) on February 27, 1993, SFW sold
Total Beverage to a wholly owned subsidiary of Dart Group.
While all of this was going on, representatives of SFW
and Local 400 were bargaining about a new collectivetbar-
gaining contract. (The previous contract provided for a Feb-
ruary 4, 1993, expiration date. SFW and the Union had
agreed to extend its terms until May 1993.) On March 11,
1993, SFW proposed that the new SFW-Local 400 contract
not include a successorship provision. The previous contract
did include such a provision.10 That led the Local 400 rep-
resentatives to consider the possibility that SFW was plan-
ning to move some of SFW's operations to other entities
(thereby eliminating bargaining unit jobs). In the words of
SFW's Eannan:
Mhe Union was extremely concerned that Shoppers
was going to attempt to spin off certain parts of [its]
operation and eliminate those operations in the super-
markets to escape the collective-bargaining agreement.
On March 12 (the day following SFW's proposal to elimi-
nate the successorship provision), Local 400 sent the follow-
ing letter to SFW:
Please accept this letter as a formal request for docu-
ments and related information. The documents and in-
formation are necessary to the Union for the purposes
of collective-bargaining and contract administration. As
you know, Article 2.2 of the current contract addresses
new Shoppers facilities. The Union is interested in that
clause and its objectives in our current negotiations.
The information requested below is necessary for the
Union to formulate its contract proposals and establish
its overall objectives. As you also know, the informa-
tion is relevant to any determination of whether SFW
has violated Article 2.2.
1°The successorship clause in the old contract stated, in part:
This Agreement shall be binding upon all signatories hereto, and
their successors and assigns. [1]he Employer promises that
its operations covered by this Agreement or any part thereof
shall not be sold, conveyed or otherwise transferred or assigned
to any successor without first securing the agreement of the suc-
cessor to assume the Employer's obligation under this Agree-
ment to offer employment to all of the Employer's current em-
ployees.
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. Who established the Total Beverage store in
Chantilly, Virginia;
2. Who has owned, and in what shires, Total from
its inception to date;
3. Who has managed and operated Total from its in-
ception to date.
Please also supply documents and other information
concerning the purported recent sale of Total to Total
Beverage G.B., Inc. [the reference is to the subsidiary
of SFW that had owned Total Beverage and the sub-
sidiary of Dart Group that, Dart Group claimed, now
owned Total Beverage], including, but not limited to,
any sales agreements, any documents referred to or ap-
pended to the sales agreement or any documents related
to the sale.
In short, the Union is interested in all pertinent infor-
mation concerning who has owned, managed and oper-
ated Total from its conception to date.
Article 2.2 of the collective-bargaining contract, to which the
Union's letter refers, states, in part that SFW—
further agrees that if [SFW] should establish a new
food store, or stores, within the territories described in
Article 11, paragraph 2.1 (see footnote 4, supra], this
Agreement shall apply to such new store or stores.
As touched "on earlier, SFW has refused to provide any of
the requested information."
Subsequently: (1) Local 400 filed an unfair labor practice
charge alleging, inter alia, that Total Beverage was an alter
ego of SFW, that SFW and Total Beverage were a single
employer, that SFW had violated Section 8(a)(5) by not ap-
plying the collective-bargaining contract to Total Beverage's
employees, and that SFW had failed to provide information
properly sought by the Union;12 (2) SFW withdrew its pro-
posal to eliminate the successorship provision; (3) the
Board's Regional Office advised Local 400 that no complaint
would issue in response to the Union's unfair labor practice
charge except in respect to the refusal-to-provide information
allegation; and (4) the district court ordered SFW to arbitrate
the dispute concerning the applicability of the collective-bar-
gaining contract to the Total Beverage store.
The Information Request—Conclusion
SFW apparently operates what many of us would call "su-
permarkets." Additionally the record informs us that SFW's
stores are "food stores," in the language of the Local 400-
SFW collective-bargaining contract, and that SFW is engaged
"in the retail sale of groceries and other merchandise," in
the words of the complaint. But the record tells us practically
nothing about precisely what is sold at SFW's stores.
The record tells us even less about what Total Beverage
sells. More importantly, the record is virtually silent about
whether Total Beverage sells any of the kinds of products
"Answers to some of the queries had already been set out in Dart
Group's motion to quash (as discussed above). But SFW and Dart
Group are; of course, different entities.
'2 The allegation regarding failure to provide information was con-
tained in a May 12, 1993, amendment to the Union's unfair labor
practice charge.
that SFW (All we know in this regard is that in the
months that the Union was focusing on Total Beverage, the
Union had reason to believe that on one occasion two boxes
of fruit were transferred from a SFW store to Total Bev-
erage.)14 Did the Union bother to determine what the nature
of Total Beverage's business is? All that would have taken,
after all, would have been a stroll through the Total Bev-
erage store. The record provides no indication that the Union
did undertake this investigation. In this circumstance one
might even make the assumption that the Union must have
checked out the store and discovered that Total Beverage
was not a "food store" and that it sold products that were
different from SFW's.
I conclude that the record fails to show that the Union had
any reasonable basis for believing that SFW and Total Bev-
erage sold the same kinds of products.
That brings us to the Union's information request. The re-
quest concerns the ownership and management of the Total
Beverage store. And there is no doubt that the Union had
reason to believe that the ownership and management of
SFW, on the one hand, and of Total Beverage, on the other,
might be closely linked if not, indeed, identical.
But even assuming such identity of ownership and man-
agement, why would that affect the bargaining unit that the
Union represents? Since, on this record, the Union had no
reason to think that SFW and Total Beverage sold the same
kinds of products, the Union could not reasonably believe
that the operation of Total Beverage would affect the mem-
bers of the SFW bargaining unit. (Of course, if the Union
believed that the nature of Total Beverage's operation was
about to change, different considerations would arise. But
there is no evidence that the Union had reason to be con-
cerned about that either.)
There are the two facts that: (1) in October 1992 SFW es-
tablished and began operating the Total Beverage store; and
(2) in March 1993 SFW proposed that the successorship
clause be eliminated from its collective-bargaining contract
with Local 400. But, again, consider that the Union had no
reason to think that the business of the SFW stores and the
Total Beverage store overlapped. That being the case, it was
wholly speculative for the Union to concern itself about the
possibility that SFW's successorship proposal meant that
SFW was planning to sell or transfer some part of its oper-
ation .and that, if there was such a plan, the purchaser or
transferee would be Total Beverage.
"It is well settled that an employer has a statutory obliga-
tion to provide, on request, relevant information the union
needs for the proper performance of its duties as collective-
bargaining representative." Knappton Maritime Corp., 292
NLRB 236, 238 (1988). The standard for determining the rel-
'3 In the letter by which Region 5 advised Local 400 of the Re-
gion's decision to issue a complaint only in respect to SFW's refusal
to provide information, the Region stated:
Shoppers Food Warehouse is a retail chain engaged primarily in
the sale of groceries. Total Beverage is a retail outlet that sells
some food products, but most of its revenues are derived from
the sale of beverages.
I do not, however, consider that to be evidence of the nature of
SFW's or Total Beverage's business.
141 do not - read the evidence showing that certain items were de-
livered to Total Beverage but were billed to SFW as indicating that
such items were sold by SFW as well as by Total Beverage.
SHOPPERS FOOD WAREHOUSE 265
evancy of the requested information, moreover, is 'a liberal
discovery-type standard." Id. at 238-239, quoting NLRB v.
Acme Industrial Co.; 385 U.S. 432, 437 (1967).
Still, relevance must be shown. And where a union has re-
quested information with respect to matters outside the bar-
gaining unit (as is the case here), the burden is on the union
to demonstrate that the information is relevant. Knappton
Maritime, supra at 238. Here there has been no such dem-
onstration. I accordingly shall recommend that the complaint
be .dismissed insofar as it alleges that SFW unlawfully failed
to provide the information sought by Local 400.
REMEDY
Employee Frederick Plummer asked Local 400 to file a
grievance on his behalf against SFW. The Union did so.
Thereafter SFW and Plummer, at SFW's unlawful
instigation, privately negotiated a settlement of the grievance.
Subsequently SFW did negotiate with the Union concerning
settlement of the grievance. But SFW and the Union have
been unable to resolve the backpay facet of the grievance
and the Union has chosen not to demand arbitration. Plum-
mer is no longer employed by SFW.
Under these circumstances it seems to me that all there is
to do is to order SFW to cease and desist meeting with em-
ployees regarding grievances without affording the Union an
opportunity to be present.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended's
" If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
ORDER
, The Respondent, Shoppers Food Warehouse Corporation,
Lanham, Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Meeting with- employees regarding their grievances
without affording an opportunity to be present to the labor
organization that is the exclusive bargaining representative of
the unit of which the employees are members.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at all of its stores in Clinton, Maryland, copies of
the attached notice marked "Appendix."16 Copies of the no-
tice, on forms provided by the Regional Director for Region
5, after being signed by the Respondent's authorized rep-
resentative, shall be posted by the Respondent inimpdiately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
16 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.'