King Soopers, Inc. - Decision Summary
King Soopers, Inc. (27-CA-16902-1, et al.; 344 NLRB No. 104) Colorado Springs, CO June 17, 2005. The Board affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(5) of the Act by refusing to furnish Food & Commercial Workers Local 7 necessary and relevant information concerning bargaining unit employees. This case arose from information requests by the Union concerning (1) a grievance filed by the Respondent against the Union and (2) the Respondent’s reopening of store #53.
Regarding the first issue, the Board agreed with the judge that the Respondent unlawfully refused to furnish requested financial information that was relevant to the Union’s defense against the grievance. It also found that the Respondent unlawfully refused the Union’s request for a copy of the letter of understanding upon which the Respondent in part based its grievance (the Behlke-Mercer agreement), and other nonfinancial information concerning the Respondent’s grievance.
As for the request for information concerning the opening of store #53, the Board affirmed the judge’s finding that the Respondent refused to furnish certain items, but it also found, contrary to the judge, that the Respondent unlawfully failed to provide the requested timecards of employees from other stores who worked at store #53 during the week of that store’s reopening. The Union had filed a grievance, alleging that the Respondent failed to apply article 10 of the parties’ collective-bargaining agreement in scheduling employees to work at store #53 during the week it reopened.
Chairman Battista and Member Schaumber agreed with the judge that a broad cease-anddesist order is not warranted because the Respondent has not demonstrated a proclivity to violate the Act. They noted that the Respondent’s unfair labor practices found here and in King Soopers, Inc., 344 NLRB No. 103 (2005), involve refusals to provide requested information. In support of their ruling, Chairman Battista and Member Schaumber wrote that the Respondent has contracts with at least five unions representing thousands of employees at over 60 stores in Colorado, processes at least 900 grievances annually, and, as the judge noted, complies with virtually all of the many information requests made with regard to those grievances.
Member Liebman, unlike her colleagues, would grant a broad cease-and-desist order under Hickmott Foods, Inc., 242 NLRB 1357 (1979). Based on the violations found here and in other proceedings before the Board, she would find that the Respondent has demonstrated a proclivity to violate the Act.
Chairman Battista believes that the test of Hickmott, properly applied, is consistent with the Supreme Court’s decision in Express Publishing Co., 312 U.S. 426 (1941), and with Section 10(c) of the Act. In his opinion, the Board has the power to issue broad orders but that power should be exercised sparingly, and then only in the most egregious cases. He does not believe that this is such a case.
Member Schaumber noted that the Board’s decision in Hickmott was in response to the Supreme Court’s decision in Express Publishing, in which the Supreme Court admonished the Board for issuing an order restraining “any” violation of the Act; the Board’s “broad order.” He wrote that the Hickmott standard has not been met here.
Charges filed by Food & Commercial Workers Local 7; complaint alleged violation of Section 8(a)(5). Hearing at Denver, Feb. 20-21, 2001. Adm. Law Judge James L. Rose issued his decision May 22, 2001.