The Kroger Co.

National Labor Relations Board - Board Decisions

Oct 19, 1976

226 N.L.R.B. 512 (N.L.R.B. 1976)

512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kroger Company and Retail Clerks Union Local
No. 1583 , AFL-CIO. Case 26-CA-5891
October 19, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On April 20, 1976, Administrative Law Judge Eu-
gene George Goslee issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleges that Respondent violated
Section 8(a)(1) and (5) of the Act by refusing to fur-
nish the Union with requested data relating to the
arbitration of a grievance filed by the Union on April
7, 1975. The Administrative Law Judge dismissed the
8(a)(1) and (5) allegations since he concluded (1) that
the complaint herein is barred by the Board's Spiel-
berg doctrine,' and (2) Spielberg aside, the General
Counsel failed to prove a violation of the Act inas-
much as there was substantial compliance with the
Union's request and inasmuch as all the information
requested by the Union was available to it by con-
tractual right which the Union failed to exercise.
Contrary to the Administrative Law Judge, and for
the reasons set forth below, we conclude that the
complaint herein is not barred by the Board's Spiel-
berg doctrine and, further, that Respondent failed
and refused to furnish information requested by the
Union in violation of Section 8(a)(5) and (1) of the
Act.
A. Facts
On April 7, 1975,2 the Union filed a grievance al-
leging that Respondent's implementation of a new
24-hour work schedule at some of its stores and its
pay practices thereunder violated provisions of its
collective-bargaining agreement with the Union.'
' Spielberg Manufacturing Company, 112 NLRB 1080 (1955)
2 Hereinafter all dates refer to 1975 unless otherwise specified.
The dispute was not resolved under the grievance
procedure of the contract, and was subsequently
scheduled for arbitration on September 3.
On June 18, the Union's attorney, Youngdahl, by
letter, requested, inter alia, that Respondent furnish
the Union with a list of stores where the schedule
change was effected, "including the dates of such
1975 change, number of employees affected, etc."
Respondent did not reply to the June 18 request. By
letter dated August 21, the Union 'again requested
information on the grounds of need to prepare for
the September 3 arbitration hearing. The Union stat-
ed it wanted to know the stores and employees af-
fected by the pay practices it was grieving and the
dates on which such practices for each began. Re-
spondent did not furnish any of the information re-
quested by the Union either prior to the arbitration
hearing or during the course of those proceedings.
The arbitration proceeding occurred on schedule. As
more fully described infra, the Union did complain
to the arbitrator that it had not received the informa-
tion requested.
The arbitrator issued his award on October 27; he
affirmed in part and denied in part the Union's griev-
ance and, noting a lack of information, remanded the
case to the parties for the purpose of determining
which, if any, employees were entitled to backpay.
On November 3, the Union filed the instant charge.
On December 10, Respondent furnished the Union
with a list of three stores which had implemented the
24-hour operating plan, the dates on which the plan
became effective, and the names and classifications
of employees there employed who worked through
midnight into a second calendar day. However,
Respondent's labor relations coordinator, Michael
Jameson, testified that since March 1975 as many as
five to six of Respondent's stores had implemented
24-hour schedules necessitating cross-midnight work
schedules.4
By letter dated December 16, the Union notified
Respondent that the information contained in its De-
cember 10 letter was insufficient to assess entitlement
under the arbitration award inasmuch as it did not
state the hours worked by each employee,' and the
3 Respondent's 24-hour work schedule, implemented in March 1975, was
first adopted in 3 to 4 of Respondent's 40 stores and was later extended to
1 or 2 others The 24-hour schedule in some instances required employees to
work across midnight into a second calendar day According to the Union,
any employee required to work a second shift within the second 24-hour
period was entitled to premium pay
4 Jameson further testified that , at the time of the hearing , "probably"
four stores were still on 24-hour schedules , that only three stores currently
maintain such schedules , and that of those three only two had worked on a
continual 24-hour schedule.
5 Under the terms of the award, any employee who worked in excess of 8
hours on any calendar day was entitled to premium pay for each hour
worked in excess of 8. Similarly , any employee who worked in excess of 40
hours on 5 calendar days would be entitled to premium pay for hours
worked in excess of 40 hours on the sixth calendar day. Thus, in order to
226 NLRB No. 77
THE KROGER COMPANY
Union therefore initiated a second request. Respon-
dent denied the December 16 request and supplied
no further information.
B. Application of Spielberg
The Administrative Law Judge concluded that the
Board's Spielberg doctrine bars the complaint herein
inasmuch as the proceedings conformed with the
Board's standards of regularity enumerated therein
and since both Respondent and the Union exercised
the opportunity to present the unfair labor practice
issue at the hearing and to argue the issue in their
briefs to the arbitrator. The General Counsel and
Charging Party contend that deferral to the award
herein is improper inasmuch as the award does not
resolve the unfair labor practice issue presented for
consideration by the parties. We find merit in this
position.
A review of the arbitration proceedings reveals
that the award touched only tangentially upon the
issue of Respondent's obligation to furnish requested
data to the Union. Although the Union did protest
the refusal of Respondent to supply the information,
nowhere does the arbitrator deal with the issue on its
merits. Rather, the arbitrator simply acknowledges
the presence of the issue by noting that the lack of
specific information as to employees affected and
dates involved precluded any determination as to
amounts of backpay owing. Accordingly, he remand-
ed the case to the parties to determine which, if any,
employees were entitled to payment in accordance
with the principles set forth in his award.
Thus, it is clear that, in lieu of resolving the sub-
stantive issue of Respondent's duty to furnish infor-
mation, the arbitrator treated the Union's request for
information as a matter of compliance with the terms
of the award best left for resolution by the parties.
We thus conclude that the award herein does not
resolve the unfair labor practice issue which the
Board is called upon to decide 6 Accordingly, we do
not regard the award as controlling.7
compute backpay owing, it was necessary to obtain records of the hours
worked by each employee in any given week in those stores which adopted
the 24-hour operating plan.
6 Moreover, assuming, arguendo, that deferral is appropriate with respect
to the Union's informational requests submitted prior to issuance of the
award, in no event is deferral proper with respect to requests made subse-
quent thereto , since (1) it is by definition not possible to pass upon the
propriety of requests made in futuro, and (2) the arbitrator did not purport
to retain jurisdiction for the ,purpose of resolving future disputes over re-
quests for information.
Monsanto Chemical Company, 130 NLRB 1097 (1961). General Counsel
sets forth several other grounds in support of his contention that this case is
not a proper one for deferral under the Board's Spielberg doctrine. In view
of our holding herein, we find it unnecessary to pass on these contentions.
513
C. Respondent's Other Defenses
Turning to the merits, we find that the evidence
amply establishes that Respondent violated Section
8(a)(5) by its failure to furnish the Union with infor-
mation necessary to the proper administration of its
collective-bargaining contract and resolution of dis-
putes thereunder. Thus, Respondent supplied no in-
formation to the Union prior to arbitration proceed-
ings and subsequently furnished the Union with data
neither complete nor otherwise sufficient to de-
termine backpay under the award on December 10,
some 6 months following the Union's initial request.
Indeed, Respondent did not make any response to
the request until the arbitration hearing, when it for
the first time asserted that the request was burden-
some.
The Administrative Law Judge concludes, howev-
er, that, even assuming Respondent's failure to com-
ply with the Union's informational requests, Respon-
dent is relieved of its duty to furnish requested data
inasmuch as all the information requested by the
Union was available to it by contractual right which
the Union failed to exercise.' Thus he finds that,
since the necessary data was available to the Union
from a review of employee timecard records, and
since section A, article 19, of the parties' collective-
bargaining, agreement assures the Union access to
such records, the Union itself thereby incurred an
obligation to request and review such records. We
disagree.
Absent special circumstances, a union's right to in-
formation is not defeated merely because the union
may acquire the needed information through an in-
dependent course of investigation.' The union is un-
der no obligation to utilize a burdensome procedure
of obtaining desired information where the employer
may have such information available in a more con-
venient form. The union is entitled to an accurate
and authoritative statement of facts which only the
employer is in a position to make.'° It is thus clear
that where a request for relevant information' ade-
quately informs the employer of the data needed, the
employer either must supply such information or ad-
8 The Administrative Law Judge also notes that the Union had recovered
some of the needed information pursuant to its own course of investigation.
However , the fact that the Union has recovered part of the requested infor-
mation does not relieve the Employer of its duty to furnish complete infor-
mation
9American Beef Packers, Inc., 193 NLRB 1117, 1120 (1971). Cf Building
Construction Employers Association of Lincoln, Nebraska, 185 NLRB 34
(1970), Robert J Weber and Richard K. Weber d/bla Weber Veneer & Ply-
wood Company, 161 NLRB 1054, 1056 (1966).
10 S H. Kress & Co., 108 NLRB 1615, 1620-21 (1954). Moreover, assum-
ing, arguendo, that the Union unknowingly already possessed all of the nec-
essary information, Respondent would at least be obligated to notify the
Union that it could furnish no information which the Union did not already
possess
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equately set forth the reasons why it is unable to
comply." Furthermore, we are unable to perceive
how the Union's failure to plead specifically its right
to information under the terms of the contract re-
lieves the Respondent of any obligation to respond
thereto. The mere fact that-the Union's right to infor-
mation under Section 8(a)(5) of the Act may, in addi-
tion, be codified under the terms of the parties' col-
lective-bargaining agreement does not create an
obligation on the part of the Union to plead entitle-
ment under the contract when formulating its infor-
mational request.
Respondent contends that compliance with the
Union's request would be unduly burdensome in that
it would require the examination and analysis of
thousands of employee timecards in order to furnish
the data requested. We are unclear as to the basis for
Respondent's argument. The record evidence indi-
cates that a maximum of 5 stores adopted the 24-
hour operating plan for varying periods of time dat-
ing from March 1, 1975. The information furnished
by Respondent on December 10 indicates that, for 3
of the 5 stores which adopted the plan, only 20 em-
ployees were-affected by implementation of the new
schedule practice. We are thus not persuaded, even
taking two additional locations into account, that
Respondent would be required to examine thousands
of timecards in order to comply with the Union's
request. Even assuming, arguendo, that such an inves-
tigation would be required and, further, that it would
constitute an undue burden on Respondent, that
would, at best, constitute a defense only as to the
failure to comply with that part of the request which
necessitated a review of employee timecards, and
then only if Respondent so informed the Union." In
any event, the Respondent was not excused from fur-
nishing the Union with information pertaining to the
remainder of the Union's request and which was in
no way burdensome to produce.
In sum, we are not persuaded that Respondent was
relieved of its duty to furnish information either by
the fact that the Union retained independent access
to the information sought or by the Respondent's
unsupported assertion that compliance would be un-
duly burdensome. Accordingly, we conclude that Re-
spondent violated Section 8(a)(5) of 'the Act by fail-
ing to supply the Union with requested information
pertinent to preparation of its grievance for arbitra-
tion and to implementation of the arbitrator's award.
" Cf. M F A Milling Company, 170 NLRB 1079, 1097 (1968). J I Case
Company (Rock Island, Illinois), 118 NLRB 520 (1957), enfd 253 F 2d 149
(C.A 7, 1958)
12 Cf. J I. Case Company, supra at 523 It does not appear that Respon-
dent at any time informed the Union that employee timecards constituted
the only reliable source from which to compute the desired information; nor
did Respondent at any time offer the Union access to such records
The Remedy
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(5) of
the Act, we shall order that it cease and desist there-
from and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that` the Respondent refused the
Union's request for disclosure of data which was
sought for the purpose of administering the collec-
tive-bargaining agreement and determining compli-
ance with the arbitrator's award,. we shall order that
the Respondent furnish the Union with information
as to schedule changes effected by Respondent's im-
plementation of its 24-hour operating plan relevant
and necessary to assist the Union in appraising enti-
tlement of employees to backpay under the terms of
the arbitration award.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board- hereby orders that the Respondent,
The Kroger Company, Little Rock, Arkansas, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail
Clerks Union Local No. 1583, AFL-CIO, as the ex-
clusive bargaining representative of all employees in
the appropriate collective-bargaining unit by failing
and refusing to furnish the Union with relevant in-
formation as to schedule changes effected by Re-
spondent's implementation of its 24-hour operating
plan for use in determining entitlement of unit em-
ployees to backpay under the terms of the arbitration
award.
(b) In any like or related manner interfering with
the efforts of the Union to bargain collectively with it
on behalf of the employees in the appropriate unit.
- 2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Furnish Retail Clerks Union Local No. 1583,
as exclusive bargaining representative of all employ-
ees in the appropriate unit, with the following infor-
mation heretofore requested by the Union for its use
in administering the collective-bargaining agreement
and determining compliance with the terms of the
arbitration award: the number of stores which imple-
mented Respondent's 24-hour operating plan; the
dates on which each store implemented the plan and,
where applicable, the dates on which the plan was
terminated; the names of those employees affected;
and the schedule worked by each employee for each
week during which the plan was in effect.
THE KROGER COMPANY
(b) Post at its stores in the State of Arkansas cop-
ies of the attached notice marked "Appendix." 13
Copies of said notice, on forms_provided by the Re-
gional Director for , Region 26, after being duly
signed by a representative of the Respondent, shall
be posted by the Respondent immediately upon re-
ceipt thereof,-and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to plant employees are cus-
tomarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
13 In the event that 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 B oard."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Retail Clerks Union Local No. 1583, AFL-
CIO, as the exclusive representative of our em-
ployees in the appropriate unit by failing and
refusing upon request to furnish them with in-
formation as to schedule changes effected by
implementation of our 24-hour operating plan,
for use in determining entitlement of unit em-
ployees to backpay under the terms of an arbi-
tration award, issued September 13, 1975.
WE WILL NOT in any like or related manner
interfere with the efforts of the Union to bargain
collectively on behalf of employees in the appro-
priate unit.
WE WILL furnish Retail Clerks Union Local
No. 1583, as exclusive bargaining representative
of all employees in the appropriate unit, with the
following information for its use in administer-
ing the collective-bargaining agreement and de-
termining compliance with the terms of the arbi-
tration award: the number of stores which
implemented our 24-hour operating plan; the
dates on which the plan was implemented, and,
where applicable, the dates on which the plan
was terminated; the names of those employees
affected; and the schedule worked by each em-
515
ployee for each week during which the plan was
in effect.
THE KROGER COMPANY
DECISION
STATEMENT OF THE CASE
EUGENE G. GOSLEE, Administrative Law Judge: This case
came on to be heard before me at North Little Rock, Ar-
kansas, on February 5, 1976, upon a complaint 1 issued by
the General Counsel of the National Labor Relations
Board and an answer filed by The Kroger Company, some-
times referred to hereinafter as the Respondent . The issues
raised by the pleadings relate to whether or not the Re-
spondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, by refusing to comply
with the Charging Union's request for data relating to an
arbitration proceeding brought under the terms of a collec-
tive-bargaining agreement. Briefs have been received from
the General Counsel, the Respondent, and the Charging
Union, and have been duly considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. PRELIMINARY MATTERS
(COMMERCE, JURISDICTION, AND LABOR ORGANIZATION)
The complaint alleges, the answer admits, and I find (1)
that the Respondent is engaged in the retail sale of grocer-
ies from its places of business at Little Rock, Arkansas; (2)
that during the 12 months preceding the issuance of the
complaint it had gross revenues in excess of $500,000 and
purchased products in interstate commerce valued in ex-
cess of $50,000; and (3) that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. The complaint also alleges, the answer admits, and
I find that Retail Clerks Union Local No. 1583, AFL-CIO,
hereinafter called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
1 The complaint in this proceeding was issued on December 19, 1975,
upon a charge filed on November 3, 1975, and duly served on the Respon-
dent on that date
2 By a stipulation limited to authenticity, all parties to this proceeding
jointly introduced a large volume of exhibits , reserving, nevertheless in some
instances , objections to the relevancy or materiality of some documents, or
portions thereof Because of the volume and length of the exhibits, I re-
served ruling pending an opportunity for review Having exercised the op-
portunity, I find that many of the documents are neither relevant nor mate-
nal to the single issue present in this case. Accordingly , I sustain the
Respondent's objection to Joint Exhs J-4 through J-7 and J-9 through J-14
I similarly sustain the Charing Union's objection to Joint Exb. J-19 As to
the Charging Union's further objection to Joint Exits. J-20 through J-23, the
objection is sustained to any and all contents of the documents , except those
portions which reflect that requested data was furnished to the Charging
Union. To the extent, moreover, that the beef of the Charging Union is
directed to matters outside the scope of the complaint in this case, the
contents of its brief have not been considered
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE APPROPRIATE UNIT AND THE UNION'S MAJORITY STATUS
The complaint further alleges, the answer admits, and I
find that since approximately 1947 the Union has been the
recognized exclusive bargaining representative of Respon-
dent's employees in the following described unit , and that
the parties are signatory to a current collective-bargaining
agreement:
All full-time and part-time employees in the towns
presently covered by this Agreement at its execution
and in towns where stores may be operated by the
Little Rock Division of The Kroger Co. in the state of
Arkansas, including the Delicatessen Department lo-
cated in the Employer's store at Rodney Parham
Road and Breckenridge Drive, not already covered by
another contract within the jurisdiction of Local
Union #1583 excluding store managers , co-managers,
meat department employees , guards and supervisors
as defined in the L.M.R.A. of 1947 as amended.
The current collective-bargaining agreement between the
parties covers employees in about 40 retail stores in the
State of Arkansas , and the record reveals that the employee
complement varies from store to store from a low of 15 to
a high of -about 120 employees. The essential dispute be-
tween the parties , which is at issue here in the limited
framework of Respondent 's alleged refusal to furnish in-
formation, relates to a change in scheduling work hours
which the Company implemented in March 1975.3 The es-
sential nature of the change was the implementation of a
24-hour schedule, which was first adopted for 3 or 4 of the
total of 40 stores, and later extended to 1 or 2 others. The
24-hour schedule had the effect, at least in some instances,
that employees worked across midnight into a second cal-
endar day, and if a second shift was undertaken within the
second 24-hour period, premium pay would, according to
the Union's contention , be required.
On April 7, based in part on a prior arbitration award of
May 16, 1962, the Union's attorney, James E. Youngdahl,
filed a grievance on grounds that Respondent's new sched-
uling and pay practices violated section B of article 9 of
the collective-bargaining agreement . The dispute was not
resolved in the grievance processes and was subsequently
set down for arbitration at a hearing conducted on Septem-
ber 3.
In the interim on June 18 Youngdahl wrote to the Re-
spondent with respect to the selection of an arbitrator, and
listed the damages sought by the Union for Respondent's
alleged breach of contract . In the letter Youngdahl also
requested that the Company furnish him with a list of the
stores where the schedule change was effected , the dates of
the 1975 change, and the number of employees affected.
In his testimony Youngdahl was unsure whether the re-
quest for information of June 18 was repeated between that
date and August 21, and in the complete absence of any
affirmative evidence , I find that the request was not repeat-
ed. In any event, the Respondent did not reply to the June
18 request , and on August 21 Youngdahl sent a second
letter to the Respondent repeating the request on grounds
3 All dates hereinafter are in 1975 , unless specified to the contrary
of need to prepare for the September 3 arbitration hearing.
The record is clear that up to the time of the arbitration
hearing the Respondent made no written reply to the
Union's requests . Youngdahl testified that on at least six
different occasions he orally repeated his request to Re-
spondent's attorney, James McHaney, but there is no spe-
cificity of the dates of the oral requests , the nature of the
requests , or Respondent 's reply. On September 2, the day
before the arbitration hearing, Youngdahl met with Mc-
Haney and again requested the information . I am unable
to ascertain from the record, however, whether McHaney
provided, some, though not all, of the requested informa-
tion at that time, or whether it was provided at the arbitra-
tion hearing on the following day. The record is clear, nev-
ertheless , that notwithstanding Respondent 's request for a
postponement, the Union chose to proceed with the arbi-
tration, even though it now complains that it lacked suffi-
cient data to prepare for the hearing or to adequately pre-
sent its case.
It is clear from the record testimony, the briefs to the
arbitrator, and the arbitrator's decision , that the issue of
Respondent 's failure to provide information was an issue
in the arbitration hearing, and that both parties agreed that
this issue, as well as the other issues generated by the griev-
ance, was properly before the arbitrator for a final and
binding determination . In stating the Union 's contentions
in his award, the arbitrator included the following:
5. The Company violated Article 1, Section A, and
Article 8 by failing to supply to the Union relevant
facts requested by it during the processing of the
scheduling-overtime grievance.
The record also reflects that the Union had some rele-
vant information concerning the grieved-of schedule
change which it presented as documentary evidence at the
arbitration hearing. Work schedules were introduced at the
arbitration hearing for the three stores which had imple-
mented the schedule change up to the date of the arbitra-
tion hearing, and the Union also presented the names of a
total of 36 employees at these three stores whose pay had
been affected by the schedule change for certain specified
weeks. However, the Union did not submit evidence indi-
cating whether or not the named employees were full-time
or part-time , or evidence for what hours the employees
should be compensated . In the sum result , the arbitrator
affirmed the results of the 1962 arbitration award in part,
and denied it in part. However, because the Union failed to
produce evidence beyond the names of the employees af-
fected by the,schedule change, the arbitrator found that he
could not specify what payments, if any, were due the em-
ployees, and, accordingly, he remanded that portion of the
case to the parties to determine the monetary back pay-
ment.
The arbitrator's award was issued on October 27, and on
November 3 the Union filed the charge in the instant case.
This was followed by an exchange of correspondence, par-
ticularly between the Regional Office and the Respondent,
with respect to the information requested by the Union
and its availability. On December 10, as a result of discus-
sions and the exchange of correspondence , the Respondent
furnished the Union with a list of three stores where work
THE KROGER COMPANY 517
schedules were changed by the implementation of the 24-
hour operating plan, and the dates on which the change
became effective. In addition, Respondent gave the Union
the names and classifications of employees at the three
stores who worked through midnight into a second calen-
dar day. On December 16, the Union advised the Respon-
dent that the information provided was not satisfactory
because it was insufficient to allow the Union to compute
the remedy for the contract violation found by the arbitra-
tor. As a condition of withdrawing the charge the Union
demanded that the Respondent furnish additional infor-
mation with respect to the schedules worked by the em-
ployees named in the December 10 letter, including the
employee's day off, and the weeks involved in the assign-
ment of across-midnight schedules.
It is the contention of the General Counsel and the
Union that information requested by the Union was essen-
tial to both the arbitration process and to the Union's need
to interpret the arbitrator's award and effectuate the reme-
dy. The Respondent contends, to the contrary, - that be-
cause the Union proceeded to arbitration on the issue of
the requested information, the charge here is barred by the
Board's Spielberg doctrine.' Apart from Spielberg, the Re-
spondent argues that the complaint should be dismissed
because it has provided the Union with as much informa-
tion as is available, that the Union had access to the other
information it is now requesting, and that the Respondent
was not obligated to perform the Union's work in comput-
ing data alleged to be necessary to interpret and apply the
arbitrator's award. For reasons related below, I find merit
in Respondent's contentions.
It is clear from the record that the Union proceeded to
arbitration with knowledge that the Respondent had not
complied with its request for information which it now
contends was essential to both the presentation of its case
before the arbitrator and the interpretation and application
of the award. The Union filed the grievance on April 7,
and in mid-May demanded arbitration. It was not until
June 18, however, that the Union initiated its first request
for information. When the Respondent did not respond to
the initial request, the Union waited until August 21, less
than 2 weeks before the scheduled arbitration, to repeat its
request. Although the Union now contends that the Com-
pany failed to comply, it chose not to seek a postponement
and to proceed with the arbitration schedule.
The record is similarly clear that the issue of Respon-
dent's obligation to furnish the information requested was
before the arbitrator by agreement of the Union and the
Respondent, and the Union exercised the opportunity to
present the issue at the hearing and argue the issue in its
brief to the arbitrator. If the arbitrator failed to decide this
issue in the Union's favor, and if his award is less than a
model of clarity on the issue of the schedule change and its
impact, the Union cannot now complain that the right re-
sult was prevented by Respondent's sins of omission. This
finding is the more apparent because, as found below, the
Union had access by contractual right to all of the infor-
mation necessary to present its case and achieve a mean-
ingful remedy.
4 Spielberg Manufacturing Co, 112 NLRB 1080 (1955).
The Board is not bound, as a matter of law, by an arbi-
tration award. Where, however, all parties acquiesce in the
arbitration proceeding, the proceedings appear to have
been fair and regular, and the arbitrator's decision is not
clearly repugnant to the purposes and policies of the Act,
the Board will, recognize the arbitrator's award as a means
to accomplish the voluntary settlement of labor disputes.'
These conditions have been met in the instant case. The
Union raised the issue of Respondent's failure to supply
information and acquiesced in the decision to submit this
issue to the arbitrator. The arbitration proceeding appears
to have been fair and regular, and it cannot be said that the
arbitrator's decision is repugnant to the purposes and poli-
cies of the Act. Moreover, the issues presented to the arbi-
trator by agreement of the parties are clearly issues of con-
tract interpretation and are appropriate for resolution by
resort to the contractually agreed-upon grievance and arbi-
tration provisions .6
Assuming arguendo, however, that the rule of Spielberg
and later cases should not be applied here, I also find merit
in Respondent's contention that the General Counsel has
not proved any violation of the Act. It is apparent that the
Union had some of the desired information in its posses-
sion at the time of the arbitration, including the stores af-
fected by the schedule change and the names of the em-
ployees affected. On December 10, the Respondent
furnished the Union with a list of three stores, the dates the
schedule changes were instituted, as well as the names and
classifications of employees' who worked shifts across cal-
endar days. This is essentially the same information the
Union possessed when it proceeded to arbitration on Sep-
tember 3.
What the General Counsel and the Union contend, nev-
ertheless, is that the information obtained by the Union
through its own resources, or as provided for by the Re-
spondent, is not sufficient to interpret the arbitrator's
award or to effectuate a complete remedy. At no time dur-
ing the course of this proceeding was the General Counsel
or the Union very specific about what information was
desired. According to Youngdahl's testimony he verbalized
at the arbitration hearing the Union's need for the stores
affected by the schedule changes, the names of the employ-
ees, the hours they worked, and when the schedule change
started and stopped. It is clear that the Union possessed
some of this information, and as best as I can detect the
complaint is now that the information obtained is inade-
quate to interpret the arbitrator's award and to frame a
remedy. More particularly the Union now contends that it
needs more in-depth data to show specifically what hours
the employees worked, the days off scheduled for each em-
ployee, and whether the employees affected worked a full
40-hour week in each of the weeks while the schedule
change was in effect. What the record reflects is that this
information, plus all the information requested by the
Union, was available to it by contractual right, which the
Union failed to exercise. Some of the information could
have been obtained from the weekly work schedule posted
5 Sptelberg, supra at 1081-82.
6Atlantic Richfield Company, 199 NLRB 1224 (1972); Malrite of Wiscon-
sin, Inc, 198 NLRB 241 (1972)
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in each store, and all of the information could have been
obtained from the employees' timecards.
Section C of article 7 of the collective-bargaining agree-
ment between the parties requires Respondent to post
weekly work schedules in each store where the agreement
,is applicable. In addition, the collective-bargaining agree-
ment contains a clause on "Time Cards," which provides
as follows in section A of article 19:
Employees will be responsible for signing in or
punching, their own time cards and will be paid in
accordance with time records on such cards,
When requested to do so, the Employer shall make
such records available at a reasonable time to an au-
thorized representative of the Union for examination.
Insofar as the weekly work schedules are concerned, the
record reveals that the Union had access to data by reason
that its stewards and business agents have access under the
bargaining agreement to the premises of each store. It is
uncontroverted, on the other hand, that the Respondent
does not maintain a record of the weekly work schedules,
and that its computerized pay system is not programmed to
return the information requested by the Union. -
In its entirety, the information the Union alleges was
necessary' to process the grievance and arbitration, and
necessary to interpret and apply the arbitrator's award, was
available from the employees' timecards. As stated above,
the Union has the contractual-right, upon request, to re-
quire the Respondent to produce the timecards for exami-
nation. The Union never made,any such request, and I am
unimpressed with the argument of the General Counsel
and the Union that Respondent's defense is foreclosed by
evidence that the Company failed to volunteer to produce
the timecards. The Union must be presumed to know the
contents of its own collective-bargaining agreement, and its
failure to implement section A of article 19 of the contract
requires the mference that (1) the information It requested
was not really required for collective-bargaining purposes;
or (2) that the Union's request was not for information and
data, but rather for a computation resulting from a review
of the data.
From the record as a whole it is clear that a review, of the
timecards would have produced the information and data
the Union now insists was essential to the processing of the
grievance and the implementation of the arbitrator's
award. It is equally clear that a- review of the timecards was
a major undertaking, which the Union insisted was an obli-
gation of the Respondent. The employer has an obligation
under Section 8(a)(5) of the Act to furnish relevant infor-
mation requested by the employees' representative, but-the
obligation does not entail compliance with the bargaining
agent's demand for computation or analysis of the data. As
the Board has held:
But it does not follow that the union is,entitled to such
information in the- exact form or on the exact terms
requested. "It is-sufficient if the information is made
available in a manner, not so burdensome or time-con-
suming as to impede, the process of bargaining." 7
"Good-faith bargaining requires only that such infor-
mation be made available at a reasonable time and in
a reasonable place and with an opportunity for the
Union to make a copy of such information if it so
desires." 8
In -summary I find and conclude that the complaint in
this proceeding is barred by the Board's Spielberg doctrine.
I further find and conclude, Spielberg to the contrary not-
withstanding,- that on the merits, the General Counsel has
failed to prove that the Respondent violated Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent,- The Kroger Company, is an ',em-
ployer engaged in commerce within the meaning of Section
-2(6) and (7) of the Act.
2. The Union, Retail Clerks Union Local No. 11583,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The General Counsel has not proved that the Respon-
dent violated the National Labor Relations Act in any re-
spect.
[Recommended Order for dismissal omitted from publi-
cation.]
7 Citing The Cincinnati Steel Castings,Company, 86 NLRB 592 , 593 (1949).
8 United Aircraft Corporation (Pratt and Whitney Division), 192 NLRB 382,
389 (1971), enfd sub nom Machinists v United Aircraft Corporation, 534
F.2d 422 (C A 2, 1975 ), citing Lasko Metal Products, Inc, 148 NLRB 976,
979 (1964)