King Soopers, Inc., 838 (2005)

King Soopers, Inc. and Paper Allied Industrial Chemical and Energy Workers International Union, Local 5-920. Cases 27–CA–16934 and 27–CA–17102

June 17, 2005

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On May 22, 2001, Administrative Law Judge James L. Rose issued the attached decision. The Respondent and the General Counsel filed exceptions, supporting briefs, answering briefs, and reply briefs, and the Charging Party filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judgeÂ’s rulings, findings,2 and conclusions,3 and to adopt the recommended Order as modified below.4

Order

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, King Soopers, Inc., Denver, Colorado, its officers, agents, successors, and assigns shall take the action set forth in the Order as modified below.

1. Â Substitute the following for paragraph 1(a) of the recommended Order.

   “(a) Refusing to bargain with Paper Allied Industrial Chemical and Energy Workers International Union, Local 5-920 (the Union) as the duly designated representative of its employees in appropriate bargaining units by refusing to provide, or unreasonably delaying in providing, on request, necessary and relevant information to the Union concerning bargaining unit employees, including postings and bids for the “floater pool” and management notes and security reports taken in connection with investigations of employees’ alleged violations of the work rules.”

2. Â Substitute the following for paragraph 2(b) of the recommended Order.

   “(b) Within 14 days after service by the Region, post at the stores where employee Kartik Joneja was working at the time of his discharge and all its stores in the northern area, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places, where notices to employees 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed any facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current and former employees employed by the Respondent at any closed facility at any time since May 2, 2000.”

3. Â Substitute the attached notice for that of the administrative law judge.

   APPENDIX

   Notice to Employees

   Posted by Order of the

   National Labor Relations Board

   An Agency of the United States Government

   The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

   FEDERAL LAW GIVES YOU THE RIGHT TO

   Form, join, or assist a union

   Choose representatives to bargain with us on your behalf

   Act together with other employees for your benefit and protection

   Choose not to engage in any of these protected activities.

   We will not refuse to bargain with Paper Allied Industrial Chemical and Energy Workers International Union, Local 5-920 (the Union) as the duly designated representative of our employees by refusing to provide necessary and relevant information concerning bargaining unit employees, including postings and bids for the “floater pool” and management notes and security reports taken in connection with investigations of employees’ alleged work rule violations, or by unreasonably delaying in providing such information.

   We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act.

   We will furnish the Union all management notes in connection with the discharge of employee Kartik Joneja.

   King Soopers, Inc.

   Daniel J. Michalski, Esq., for the General Counsel.

   Emily F. Keimig and Patrick J. Miller, Esqs., of Denver, Colorado, for the Respondent.

   Richard Rosenblatt, Esq., of Englewood, Colorado, for the Charging Party.

   DECISION

   Statement of the Case

   James L. Rose, Administrative Law Judge. This matter was tried before me at Denver, Colorado, on February 21 and 22, 2001, upon the General Counsel’s complaint which alleged that the Respondent refused to furnish, and delayed furnishing certain information to the Charging Party in violation of Section 8(a)(5) of the National Labor Relations Act (the Act).

   The Respondent generally denied that it committed any violations of the Act and affirmatively contends that certain material is covered under the attorney/client privilege and is an attorneyÂ’s work product.

   Upon the record1 as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I make the following findings of fact, conclusions of law, and recommended order.

   i. jurisdiction

   The Respondent is a corporation engaged in the operation of retail grocery stores with facilities, among other places, in cities north of Denver, Colorado. During the course and conduct of this business the Respondent annually purchases and receives directly from points outside the State of Colorado, goods, products, and materials valued in excess of $500,000 and annually derives gross revenues in excess of $50,000. The Respondent admits, and I conclude, that it is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   ii. the labor organization involved

   The Charging Party, Paper, Allied-Industrial, Chemical and Energy Workers International Union, Local 5-920 (the Union) is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act.

   iii. the alleged unfair labor practices

   A. The Facts

   Since 1974 the Union has been the bargaining representative for units of the Respondent’s pharmacy department employees in various retail stores.  The Union and Respondent have been parties to successive collective-bargaining agreements, the most recent of which is effective from January 27, 1997, extended and modified March 29, 1999, to January 25, 2003. While there is no history that the parties have had problems with information requests, the Respondent has had disputes with other labor organizations on this issue. Two of these disputes have resulted in actions before the Board.2

   This case involves two distinct information requests, the first concerning the Union’s grievance over the Respondent’s failure to follow the appropriate procedure in posting bids and assigning individuals to the “floater pool.” The second concerns a grievance over the discharge of a pharmacist for allegedly stealing controlled substances. The facts of each request will be set forth in more detail below.

   B. Analysis and Concluding Findings

1. Â The floater grievance

   In addition to having pharmacists assigned to specific stores, the Respondent utilizes a “floater pool” from which employees are assigned to various stores within a area. In May 2000,3 Union President Mary Newell learned from certain members that, apparently, the Respondent had not properly posted a floater position before offering the job to a new employee. Thus on May 2, Newell filed a grievance report and on that day sent a letter to Stephanie Bouknight, the Respondent’s manager of labor relations...