NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Ralphs Grocery Company and United Food and Commercial Workers Union, Local No. 135,[1] and United Food and Commercial Workers Union,
Local No. 324 and United Food and Commercial Workers Union, Local No. 770 and
United Food and Commercial Workers Union, Local No. 1036 and United Food and
Commercial Workers Union, Local No. 1167 and United Food and Commercial Workers
Union, Local No. 1428 and United Food and Commercial Workers Union, Local No.
1442. Cases
31–CA–27160, 31–CA–27475, and 31–CA–2768
February 19, 2008
DECISION AND ORDER
By Members Liebman and Schaumber
On June 14, 2007, Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent filed exceptions and a supporting brief; the General Counsel filed a brief answering the exceptions; the Charging Party Unions filed cross-exceptions and a brief supporting the cross-exceptions and answering the exceptions.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions as modified[3] and to adopt her recommended Order[4] as modified and set forth in full below.[5]
The Unions’ Request for Audit Information
The Respondent and the Unions were parties to successive collective-bargaining contracts, the most recent of which expired on October 5, 2003. During negotiations for a new contract, the Respondent locked out the 19,000 bargaining unit employees from October 12, 2003, through February 26, 2004, when the parties reached agreement on a new contract. During the lockout, the Respondent continued operations and hired temporary replacements. It also rehired several hundred unit employees under false identities—that is, using false names and social security numbers.
Sometime before September 2004 the U.S. Attorney began investigating allegations regarding the Respondent’s rehiring of unit employees under false identities. Shortly thereafter, the Respondent directed a law firm to conduct an audit regarding the Respondent’s hiring practices during the lockout. On December 14, 2004, June 6, and October 25, 2005, the Unions requested that the Respondent provide the Unions with the audit information. The Respondent refused to provide the audit information, contending that the information was within the attorney-client and attorney work-product privileges.
The judge found that the Respondent violated Section 8(a)(5) by refusing to provide the audit information and ordered the Respondent to provide it. The judge, however, stated that the Respondent could litigate its privilege contentions in compliance. In their respective exceptions, the Respondent and the Unions contend, among other things, that the judge erred in deferring to compliance litigation of the privilege contentions. The Respondent contends that the audit information falls within the privileges and the Unions contend that it does not.
We find that the Respondent timely raised its privilege contentions and that the parties had an adequate opportunity to litigate issues relating to those contentions. We discern no reason why these issues are better suited to resolution at the compliance stage. Accordingly, the judge erred in deferring to compliance litigation and resolution of the Respondent’s privilege contentions.
The attorney work-product privilege applies to documents
prepared by a party or his representative in anticipation of litigation. See Central
Telephone Co. of
The General Counsel and the Unions contend that the Respondent waived the attorney work-product privilege. In support, they cite a document titled “Limited Waiver of Attorney-Client Privilege and Protections of Attorney Work Product Doctrine” that the Respondent executed in a federal criminal proceeding. However, as the judge noted, the Limited Waiver document, by its terms, applies only to “material requested or inquired into by the [U.S. Attorney],” and there is no evidence that the audit information was requested or inquired into by the U.S. Attorney. Accordingly, the record does not demonstrate that the Respondent waived the attorney work-product privilege regarding the audit information.
Having concluded that the requested audit information is within the attorney work-product privilege, we then balance the Respondent’s confidentiality interests against the Unions’ need for the requested information in determining whether the Act requires its disclosure. See BP Exploration, supra, 337 NLRB at 888; Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). Here, the Respondent has a strong confidentiality interest in material falling within the attorney work-product privilege. See Central Telephone, supra, 343 NLRB at 990; BP Exploration, supra, 337 NLRB at 889. Further, to the extent that the requested audit information addresses the Respondent’s hiring of bargaining unit employees during the lockout, it contains information that our Order requires the Respondent to provide in response to the Unions’ other information requests. Accordingly, we find that a balancing of the competing interests supports non-disclosure of the audit information. Similarly, we find that the Respondent is not obligated to provide a summary of the audit information where our Order already requires the Respondent to provide information relevant to the hiring of unit employees during the lockout.[7]
For these reasons, we find that the Respondent did not violate Section 8(a)(5) by refusing to disclose the audit information.
Amended Conclusions of Law
1. The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. Each of the Charging Party Unions is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(5) and
(1) of the Act by failing to provide the Charging Party Unions with the
following relevant information.
(a) For each employee who worked under a false
name or social security number during the 2003–2004 lockout, the employee’s
true name and social security number, the false name and social security
number, the dates employed under a false identity, the positions in which the
employee worked during the lockout, the employee’s straight-time rates of pay
during the lockout, and the store numbers at which such employment took place.
(b) A description of all documents provided by employees
in response to the September 13 and October 1, 2004 letters from Respondent
Vice President Mary M. Kasper that related to work by employees under false
identities or employee refusals to work under false identities, complete
photocopies of such documents, or a written proposal denoting a specific time
and place for the inspection and copying of such documents.
(c) The names and titles of all of the
Respondent’s employees or representatives who communicated in writing with
bargaining unit employees concerning the information requested in the Kasper
letters, the dates of all such communications, and if such communications were
written, a description of the documents in detail, as well as complete
photocopies, or a written proposal denoting a specific time and place for the
inspection and copying of such documents.
4. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated the Act in
any other manner except as specifically found herein.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth below and
orders that the Respondent, Ralphs Grocery Company,
1. Cease and desist from
(a) Refusing to provide
the Charging Party Unions with the requested information described herein that
is relevant and necessary to their responsibilities as exclusive
collective-bargaining representatives of the Respondent’s employees.
(b) In any like or
related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
(a) Within 14 days from the date
of this Order, provide the Charging Party Unions with the information requested
by them and described herein, including information relating to the Respondent’s
hiring of bargaining unit employees under false names during the 2003–2004 lockout.
(b) Within 14 days
after service by the Region, post at its facilities throughout
(c) Within 21 days after service by the
Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that 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.
Dated,
Wilma
B. Liebman,
Member
Peter
C. Schaumber,
Member
(seal) National
Labor Relations Board
APPENDIX
Notice to Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
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 GIVE 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 refuse to provide your collective-bargaining representative with requested information that is relevant and necessary to its responsibilities as your collective-bargaining representative.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will provide your collective-bargaining representative with the information requested by it relating to our hiring of bargaining unit employees under false identities during the 2003–2004 lockout.
Ralphs Grocery Co.
Rudy L. Fong-Sandoval, Atty., for the General Counsel.
Timothy F. Ryan, Atty. (Morrison &
Foerster, LLP), of
Laurence D. Steinsapir and Susan M. Swan, Attys. (Schwartz,
Steinsapir, Dohrmann & Sommers LLP), of
Jeffrey S. Wohlner, Atty. (Kohlner, Kaplon,
Phillips, Young & Cutler), of
DECISION
Statement of the Case
Lana H. Parke, Administrative Law Judge. This matter was tried in Los Angeles, California, on February 27, 2007, upon an Order Consolidating Cases, Consolidated Complaint, and notice of hearing (the complaint) issued December 20, 2006,1 by the Acting Regional Director of Region 31 of the National Labor Relations Board (the Board) based upon charges filed by the above-named Locals of the United Food and Commercial Workers Union (collectively the Charging Parties and individually Local plus respective number). The complaint alleges Ralph’s Grocery Company (the Respondent) violated Sections 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent essentially denied all allegations of unlawful conduct.
No oral testimony was presented; the record consists of a Joint Stipulation of Facts and certain documents2 introduced into evidence by the Charging Parties.3
Issue
Whether the Respondent failed and refused to bargain collectively with the Charging Parties as the exclusive collective-bargaining representatives of its employees by failing and refusing to furnish the Charging Parties with requested information necessary for, and relevant to, the Charging Parties’ performance of its collective-bargaining duties.
Jurisdiction
At all relevant times, the Respondent, a corporation with
an office and places of business throughout California (the Facilities), and a
subsidiary of the Kroger Company, the headquarters of which are in Cincinnati,
Ohio, has been engaged in the operation of retail grocery markets. The Respondent annually derives gross
revenues in excess of $500,000 from its business operations and purchases and
receives at the Facilities goods or services valued in excess of $50,000,
directly from points outside the State of
Findings of Fact
A. The 2003—2004 Labor Dispute
The Respondent and
the Charging Parties have been signatory to successive collective-bargaining
agreements for decades, the penultimate of which was effective by its terms
from October 4, 1999, through October 5, 2003 (the 1999–2003 Agreement), and covered
a unit of numerous employee classifications described in Article 1, Section A,
paragraph 1 and Appendices “A” through “H” of the 1999–2003 Agreement (the
Unit).
In the course of negotiations between the Charging Parties and the Respondent for a collective-bargaining agreement to succeed the 1999–2003 Agreement, the Respondent, beginning October 12, 2003, locked out more than 19,000 bargaining unit employees from about 325 of its grocery markets. Thereafter, the Respondent allegedly surreptitiously rehired more than 1000 bargaining unit employees (the Lockout Hirings), requiring the employees to work under false identities and falsifying relevant governmental and union employment reports. On February 26, 2004, the Respondent and the Charging Parties agreed upon the terms of a new collective-bargaining agreement (the 2004–2007 Agreement) and unit employees returned to work.
B. The
Kasper Letters and the Respondent’s Internal
Investigation/Audit
During September and October 2004, the Respondent sent mailings to certain unit employees over the signature of Mary M. Kasper, Respondent’s vice president and senior counsel (the Kasper letters), containing the following communications:
Letter of
September 13, 2004. The Respondent notified the employee addressees
of an investigation by the United States Attorney’s into false payroll reports
generated during the 2003–2004 labor dispute.
The Respondent assured the addressees that no disciplinary actions would
be taken against them for working during the lockout under inaccurate names
and/or social security numbers and requested them voluntarily to complete and
return an enclosed questionnaire providing correct personnel information, which
might be furnished to governmental agencies.
Letter of
October 1, 2004. The Respondent sent a second request to the
addressees of the September 13, 2004 letter, limiting the previous
questionnaire request to employees who worked during the labor dispute under
another’s or fictitious personnel information.
The Respondent informed the addressees that the information they
furnished, “although confidential,” would be provided to the government.
Investigation
and Audit. The Respondent conducted an internal
investigation/audit (the audit) of the Lockout Hirings. No specifics of the contents of the audit
were adduced at the hearing; by letter of June 22, the Respondent informed the
Charging Parties that the audit had not been completed and that no final
investigative report had been prepared.
C. Indictment of the Respondent and Guilty Plea
On December 15, 2005, a federal grand jury in
D. The Charging Parties’ Information
Requests and Respondent’s Responses5
1. The
Charging Parties’ December 14, 2004 information
request
By letter dated
December 14, 2004, the Charging Parties requested the Respondent provide, inter
alia the following: (1) names, employee numbers, store numbers and store addresses
of all current and former bargaining unit employees who provided information in
response to the Kasper letters, (2) for each employee who provided information
in response to the Kasper letters, the information provided, including real
names and Social Security numbers, false names and Social Security numbers,
dates employed under a false identity, store numbers at which such employment
took place, and a description of all documents, (3) copies of any documents or
records provided in response to the Kasper letters, and (4) a detailed
explanation of the scope of the Respondent’s internal investigation and audit
of work performed by employees during the lockout and its findings.
By letter dated
December 23, 2004, the Respondent refused the Charging Parties’ December 14,
2004 request on grounds that the information sought was not presumptively
relevant to the bargaining relationship between the parties and raised confidentiality,
privacy, and, with regard to the Audit, attorney/client and attorney work
product privilege concerns.
By letter dated
December 29, 2004, the Charging Parties expressed their willingness to meet and
discuss the Respondent’s confidentiality concerns and asserted, inter alia:
The information we seek is in fact directly relevant to the enforcement of various aspects of the collective-bargaining agreement . . . Moreover, the requested information is needed to pursue unfair labor practice charges before the Board.
By letter dated
January 11, the Respondent again requested that the Charging Parties explicate
the relevance of the requested information so the Respondent could determine
its obligations, if any, to respond.
The Respondent
furnished no information to the Charging Parties pursuant to the Charging
Parties’ December 14, 2004 request.
2. The Charging Parties’ May 12 grievance
On May 12, 2005,
the Charging Parties filed a grievance against the Respondent in accordance
with the 2005–2007 Agreement alleging that since the lockout ended, “Ralphs
. . . [has] discriminated against locked-out workers in favor of workers who
agreed to work during the lock-out with respect to various terms and conditions
of employment . . .” (the Grievance).6
By letter dated
May 26, the Respondent notified the Charging Parties that it considered the
Grievance defective because it did not give “written notice setting forth the exact nature of the grievance.”
3. The Charging Parties’ June 2005 Information Requests
By letter dated
June 6, the Charging Parties further explicated the basis of the grievance and
requested information, as follows:
Our grievance
includes, but is not limited to, the following conduct by Ralphs:
(a) Retaliation against bargaining unit employees who provided information about Ralphs’ potential criminal conduct or who refused to work during the lockout.
(b) Favorable treatment for employees who worked during the lockout.
(c) Retaliation or favorable treatment arising in connection with bargaining unit members’ responses to [the Kasper letters].
To assist the local
Unions in their investigation of this grievance, we request . . . the following
information:
(2) [sic] For each employee who worked under a false name or Social Security number, the employee’s true name and Social Security number, the false name and Social Security number, the dates employed under a false identity, the positions in which the employee worked during the lockout, the employee’s straight-time rates of pay during the lockout, and the store numbers at which such employment took place.
(3) A description of all documents provided in response to [the Kasper letters] that relate to work by employees under false identities or employee refusals to work under false identities. Alternatively, please provide complete photocopies, or . . . arrange a mutually-convenient time and place for their inspection and copying.
(4) The names and titles of all Ralphs’ employees or representatives who communicated in writing with bargaining unit members concerning the information requested in [the Kasper letters], and the dates of all such communications. If such communications were written, please describe the documents in detail, provide complete photocopies, or . . . arrange a mutually-convenient time and place for their inspection and copying.
(5) . . . a complete copy of [the internal investigation and audit of work performed by employees during the lockout] with all attachments or . . . arrange a mutually-convenient time and place for the inspection and copying.
By letter dated
June 22, the Respondent informed the Charging Parties that it would not provide
the requested information because the grievance failed to meet specificity requirements
(i.e. dates, locations, employees involved, social security numbers, incidents
pertaining to the Grievance, terms of employment, specific transfers and hours
of work) and the information sought was not presumptively relevant and was
confidential. Regarding the Charging Parties’
request for a copy of the “investigation,” the Respondent declined to produce
any documents generated during the continuing investigation, as they were
protected by attorney/client and attorney work product privileges.
The Respondent
furnished no information to the Charging Parties pursuant to the Charging
Parties’ May and June 2005 requests. In
the ensuing months, the Charging Parties declined to meet with the Respondent
to discuss the grievance because the requested information had not been
furnished.
4. The Charging Parties’ October 2005 information request
By letter dated
October 25, the Charging Parties renewed and repeated their June 6 request for
information, explaining each item’s relevance to the Charging Parties’ investigation
and processing of the grievance, as follows:
1. For each employee who worked under a false name or Social Security number, the employee’s true name and Social Security number, the false name and Social Security number, the dates employed under a false identity, the positions in which the employee worked during the lockout, the employee’s straight-time rates of pay during the lockout, and the store numbers at which such employment took place.
Relevance: This information is presumptively relevant, as it pertains to the identities and and terms and conditions of bargaining unit members. Moreover, it is directly relevant to the Grievance, as it pertains to the identities of employees who worked at Ralphs during the lockout.
2. A description of all documents provided in response to [the Kasper letters] that relate to work by employees under false identities or employee refusals to work under false identities. Alternatively, please provide complete photocopies, or . . . arrange a mutually-convenient time and place for their inspection and copying.
Relevance: This information, too, is presumptively relevant. The requested information concerns employee responses to [the Kasper letters] . . . Moreover, the information is directly relevant to the Grievance, and is necessary for the Local Unions’ investigation and evaluation of the Grievance [which] concerns Ralphs’ discrimination with respect to whether employees worked at Ralphs during the lockout. As this is precisely what Ms. Kasper inquired of in her letters, the information contained in employee responses is immediately relevant to the Grievance. The Grievance also concerns Ralphs’ discrimination on the basis of bargaining unit employees’ responses to the Kasper letters. For this reason, too, copies of employee responses to Ms. Kasper’s correspondence are immediately relevant to the Unions’ investigation and evaluation of the Grievance.
3. The names and titles of all Ralphs’ employees or representatives who communicated in writing with bargaining unit members concerning the information requested in [the Kasper letters], and the dates of all such communications. If such communications were written, please describe the documents in detail, provide complete photocopies, or . . . arrange a mutually-convenient time and place for their inspection and copying.
Relevance: This information is also directly relevant to the Local Unions’ ability to effectively police the Collective Bargaining Agreement. As with request two, above, this request is directly relevant to the Grievance as it concerns discrimination on the basis of employees’ response to the Kasper letter. In order to fully investigate and evaluation this aspect of the Grievance, the Local Unions obviously require copies of all communications between bargaining unit employees and Company representatives. Moreover, the information is relevant as it pertains to the identities of witnesses with knowledge of the facts at issue in the Grievance.
4. [The Kasper letters], as well as other correspondence from Ralphs, indicates that Ralphs is conducting an internal investigation and/or audit of work performed by Ralphs employees during the lockout, under either false identities of their own names, as well as of Ralphs’ employment of Albertsons and Vons employees during the lockout. We request a complete copy of the investigation with all attachments, or, if the investigation is still ongoing a complete copy of all existing drafts, attachments, and evidence used in conducting and/or preparing the investigation. If Ralphs claims that its investigation(s) are privileged under the attorney-client or attorney work-product privileges, we alternately request that Ralphs furnish a complete summary of the investigation and factual findings. Alternately, please propose in writing a specific time and place for our inspection and copying of such documents.
Relevance: This information is also directly relevant to the Local Unions’ ability to effectively police the Collective Bargaining Agreement. Essential to the Local Unions’ investigation and evaluation of the Grievance is complete information of the identities of the employees against and in favor of whom Ralphs is now discriminating. The full picture of Ralphs’ lockout recall of bargaining unit employees is still unknown to the Local Unions, and the Local Unions do not have complete information regarding the employees who worked during the entire recall, worked during portions of the recall, and/or were solicited, but declined, to work during the recall. For this reason, Ralphs’ investigation of the matter is of immediate relevance.
The Respondent did
not respond to the Charging Parties’ October 25 letter and furnished none of
the requested information.
A. Positions of the Parties
The General
Counsel and the Charging Parties contend that the information sought by the
Charging Parties is presumptively relevant to the Charging Parties’ obligation
to represent unit employees and to administer and police an existing collective-bargaining
agreement.
The Respondent,
while recognizing its obligation to provide relevant information to unions
representing its employees, argues that the Charging Parties have no right to
the information they seek in this instance.
The Respondent contends that the Charging Parties have not met their
burden of establishing the relevance of the information sought, that the
Charging Parties seek the information for the improper purpose of pursuing
pending unfair labor practice charges, that the Charging Parties manufactured a
grievance to provide an otherwise factitious basis for the requested
information, and that some of the information requested was protected by the
attorney/client privilege.
B. The Charging Parties’ Requests for
Information and the Respondent’s
refusals
No party disputes
the existence of a “general obligation of an employer to provide information
that is needed by the bargaining representative for the proper performance of
its duties.” NLRB v. Acme Industrial Co.,
385
In situations where
a collective-bargaining representative
must demonstrate the relevance of the requested information to its representational
duties, the burden is not severe.
The relevance standard is a liberal, “discovery-type standard.” NLRB v.
Acme Industrial Co., supra at 437; Southern
California Gas Co., supra (2006); Quality
Building Contractors, 342 NLRB 429, 430 (2004). Accordingly, information that is “potentially
relevant and will be of use to the union in fulfilling its responsibilities as
the employees’ exclusive bargaining representative” must be produced. Pennsylvania Power & Light Co., 301
NLRB 1104, 1104–1105 (1991). The requested information need not be dispositive
of the issue for which it is sought but need only have some bearing on it.
The Respondent contends that the requested
information bears no relationship to any mandatory subject of bargaining, as
the information sought concerns events that occurred during the hiatus between
the 1999–2003 Agreement and the 2004–2007 Agreement. A union’s collective-bargaining relationship
with employees to whom it owes a representational duty is not defined by the
existence of a collective-bargaining agreement; the relationship is as viable
in the absence of a labor contract as during its term. The information sought herein relates to mandatory
subjects and is presumptively relevant.
A finding that the requested information is presumptively relevant
resolves the Respondent’s further objection that the Charging Parties did not
adequately explain the relevance of the requested information. As noted above, a union may rely upon a
presumption of the relevance of information pertaining to employees
within the bargaining unit and has no
obligation to otherwise explain its significance. Inasmuch as the Charging Parties were not
obliged to explain the relevance of the information they sought, any asserted
deficiencies thereof are immaterial. See
Quality
Building Contractors, Inc., 342 NLRB 429
(2004), quoting Commonwealth Communications,
Inc., 335 NLRB 765, 768 (2001): “When a union seeks information pertaining
to employees within a bargaining unit, the information is presumptively
relevant to the union’s representational duties, and the General Counsel may
establish a violation for the employer’s failure to furnish it without any
further showing of relevancy.”
The Respondent also argues that the Charging Parties were not entitled to
the requested information because they sought it for an improper purpose, i.e.,
to pursue unfair labor practice charges before the Board. Because the Board’s procedures do not include
pretrial discovery, the Board has found refusals to furnish information lawful
where information requests relate to pending charges. Saginaw Control & Engineering, Inc., 339 NLRB 541, 543–544 (2003). If the request’s timing and the information’s
relationship to the charges show the union sought the information in order to
bolster its charges, the Board will not find a refusal to provide the
information unlawful. See Pepsi-Cola, 315 NLRB 882 (1994).
In
their
December 29, 2004 letter, the Charging Parties stated a twofold purpose in
requesting information from the Respondent: to enforce the collective-bargaining
agreement and to pursue unfair labor practice (ULP) charges before the
Board. On January 12, the Charging
Parties filed with the Board the first of the ULP charges herein (31–CA–27160),
which alleged the Respondent had
violated Sections 8(a)(1) and (5) of the Act by “failing to provide information
reasonably necessary for collective-bargaining, the investigation of
grievances, and fulfilling other statutory responsibilities of a collective-bargaining
representative.” Succeeding ULP charges
filed on August 18 (31–CA–27475) and January 26, 2006 (31–CA–27685),7 respectively, repeated the same
allegations. While the close proximity
of the first information request to the first ULP filing (about 2 weeks)
superficially suggests a linkage, the substance of all the charges negates any
such conclusion. The Charging Parties
could not, logically, have sought the information at issue in order to bolster
their ULP charges that the Respondent had refused to supply the information; no
nexus exists between the information requested and the evidence necessary to support
the charges. Consequently, the
Respondent has failed to demonstrate that the Charging Parties sought the information
for an improper purpose.
When, on May 12,
the Charging Parties filed a grievance against the Respondent alleging
discrimination against locked-out workers in favor of workers who agreed to
work during the lock-out, the Charging Parties established an additional need
for the information they sought.
Although the Respondent argues the grievance was filed solely to mask
the Charging Parties’ true and improper motive for requesting the information,
there is no evidence the Charging Parties were not, in fact, legitimately
concerned about the impact of the Respondent’s felonious conduct on terms and
conditions of unit employees’ employment.
Indeed, it is reasonable to expect that any conscientious representative
would seek full disclosure of the circumstances surrounding the Respondent’s
criminal acts. Even assuming the
Charging Parties had more than one motive in requesting the information, “it is
well established that, where a union’s request for information is for a proper
and legitimate purpose, it cannot make any difference that there may be other
reasons for the request or that the data may be put to other uses.” Associated General Contractors of
The Respondent contends that some of the information requested
by the
Once waived, the attorney/client
privilege
is lost in all forums for proceedings running concurrent with or after the waiver
occurs. Wal-Mart Stores, Inc.,
348 NLRB No. 46, slip op 2 (2006), citing Genentech, Inc. v. U.S. International Trade Commission, 122 F.3d
1409, 1416–1417 (Fed. Cir. 1997) (waiver in district court proceeding operated
as a waiver in concurrent International Trade Commission proceeding). However, neither the General Counsel nor the Charging Parties have cited any authority
for the proposition that a limited waiver of specified documents constitutes a
waiver of entirely different documents, even those arising from the same
factual circumstances. It may be that some documents included in
the audit are covered by the waiver, but, as the Respondent points out, “[t]here
is no evidence in the record . . . that the information requested by the
It appears that the audit addressed information relating to
the Respondent’s hiring during the lockout.
Such information is, for the reasons already stated, presumptively relevant, and the
Respondent is therefore obligated either to produce the audit or to provide the
The
contents of the audit are not expressly known, and no evidence has been adduced
to demonstrate whether any of the documents and/or information comprising the
audit fit within the attorney/client privilege.
However, it does not follow that the Charging Parties are stymied in obtaining such portions of the audit
as fall outside the privilege. Any
dispute as to the privileged nature of the information encompassed by the audit
may be raised and litigated in compliance.
See The Earthgrains Co., 349
NLRB No. 34, fn. 1 (2007).
Accordingly, by refusing to provide the Charging Parties with the requested information described herein, the Respondent has violated Section 8(a)(1) and (5) of the Act.9
1. The Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.
2. Each of the Charging Parties is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the Act by failing to provide the Charging Parties with the following relevant information:
For each employee who worked under a false name or Social Security number during the 2003–2004 lockout, the employee’s true name and Social Security number, the false name and Social Security number, the dates employed under a false identity, the positions in which the employee worked during the lockout, the employee’s straight-time rates of pay during the lockout, and the store numbers at which such employment took place.
A description of all documents provided in response to the Kasper letters that relate to work by employees under false identities or employee refusals to work under false identities, complete photocopies of such documents, or a written proposal denoting a specific time and place for the inspection and copying of such documents.
The names and titles of all Ralphs’ employees or representatives who communicated in writing with bargaining unit members concerning the information requested in the Kasper letters, the dates of all such communications, and if such communications were written, a description of the documents in detail, as well as complete photocopies, or a written proposal denoting a specific time and place for the inspection and copying of such documents.
A complete copy of the Respondent’s internal investigation and/or audit with all attachments that are not shielded under the attorney-client or attorney work-product privileges, of work performed by employees during the 2003–2004 lockout, under either false identities or their own names, as well as of Ralphs’ employment of Albertsons and Vons employees during the lockout. If the investigation is still ongoing, a complete copy of all existing drafts, attachments, and evidence used in conducting and/or preparing the investigation excepting those shielded under the attorney-client or attorney work-product privileges, or a written proposal delineating a specific time and place for the inspection and copying of such documents. As to items that may be found privileged, a complete summary of the investigation and factual findings.
4. The Respondent’s unlawful conduct described in paragraph 3 above affects commerce within the meaning of Section 2(6) and (7) of the Act.
Having found that Respondent has engaged in certain unfair labor practices, it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended10
ORDER
The Respondent, Ralph’s Grocery Company, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to provide the Charging Parties with the requested information described herein, which is relevant and necessary to their responsibilities as exclusive collective bargaining representatives of a unit of the Respondent’s employees
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this order, provide the Charging Parties with the information requested by it and described herein, which is necessary and relevant to their status as exclusive collective-bargaining representative of the Respondent’s employees. As to any portion of the internal investigation and/or audit that the Respondent contends is shielded from production under the attorney/client or attorney work-product privileges, provide such material(s) to the Region for consideration of the applicability of the asserted privileges.
(b) Within 14 days after service by the Region, post at
its facilities throughout
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps Respondent has taken to comply.
Dated, at
APPENDIX
Notice To Employees
Posted By Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not do anything that interferes with these rights. More particularly,
We will not refuse to provide your collective-bargaining representatives with requested information needed to represent and to bargain for you.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will provide your collective-bargaining representatives with the requested information needed to represent and to bargain for you.
Ralph’s Grocery Co.