Albertson's, Inc., 254 (2007)

Docket Number27-CA-13390

Albertson’s, Inc. and United Food and Commercial Workers Union Locals 4, 7, 8, 44, 99r, 101, 120, 135, 325, 367, 368A, 373, 381, 394, 428, 555, 588, 770, 839, 870, 1036, 1105, 1167, 1428, 1439, and 1442, affiliated with United Food and Commercial Workers International Union1

Albertson’s, Inc. and International Brotherhood of Teamsters, Local 537

Albertson’s, Inc. and Bakery, Confectionery, and Tobacco Workers’ Union, Local 119, Bakery, Confectionery and Tobacco Workers International Union, AFL–CIO, CLC

Albertson’s, Inc. and Stuart Fishman. Cases 27–CA–13390, 27–CA–14469, 27–CA–14507, 27–CA–14925–2, 27–CA–15106, 27–CA–15106–2, 27–CA–15157, 27–CA–15433, 27–CA–15677, 27–CA–15677–2–8, 27–CA–15677–10–19, 27–CA–15677–22–25, 27–CA–15733, and 27–CA–15865

September 29, 2007

DECISION AND ORDER

By Members Schaumber, Kirsanow, and Walsh

On July 3, 2002, Administrative Law Judge Clifford H. Anderson issued the attached decision. Several affiliated local unions of United Food and Commercial Workers Union (UFCW Local Unions) filed joint exceptions and a joint supporting brief. The Respondent filed exceptions, a supporting brief, and an answering brief to the UFCW Local Unions’ exceptions. The General Counsel and International Brotherhood of Teamsters, Local 537 (Teamsters Local 537) filed separate answering briefs to the Respondent’s exceptions. The Respondent filed reply briefs to the answering briefs.2 Bakery, Confectionery, and Tobacco Workers’ Union, Local 119 joined the UFCW Local Unions’ exceptions and supporting brief and the General Counsel’s and Teamsters Local 537’s answering briefs. The UFCW Local Unions also joined the General Counsel’s and Teamsters Local 537’s briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions3 and briefs and has decided to affirm the judge’s rulings, findings,4 and conclusions as modified5 and to adopt the recommended Order as modified and set forth in full below.

This proceeding involves the Respondent’s interactions with a number of unions that represent different units of its employees at certain facilities located in the Respondent’s Western Region and Rocky Mountain Division. The amended consolidated complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to satisfy its obligation to provide relevant information to several unions at various locations on many occasions, and also violated Section 8(a)(5) and (1) by instituting a unilateral change and by dealing directly with employees. The complaint also alleges a number of independent 8(a)(1) violations based on statements by certain Respondent officials or certain work rules that the Respondent maintained. Lastly, the complaint alleges that written warnings to two employees violated Section 8(a)(3) and (1). The judge found numerous violations, but dismissed other allegations of the complaint. He also recommended a number of extraordinary remedies. Except as explained below, we adopt the judge’s findings of violations and his dismissals but we substantially modify the remedy to be imposed.6

1. Complaint paragraphs 58(c) and 65(a)(iii)

Complaint paragraph 58(c) involves UFCW Local 394’s request for certain information relating to a pending grievance about the Company’s pension plan, including minutes of a meeting allegedly held to discuss and pass an amendment to that plan. Christopher Yost, an attorney working at the Respondent’s labor relations department in Boise, Idaho, credibly testified at the hearing that no such meeting occurred and that no meeting minutes existed. However, Yost never notified the Union of that fact.

Complaint paragraph 65(a)(iii) concerns Teamsters Local 537’s request for information relating to a grievance involving employee Martin Tara. The Teamsters asked for “copies of documents, witness statements and/or supervisor reports upon which the company believes it had cause to discipline Mr. Tara.” In response, Barbara Newell, a Boise labor relations department contract administrator, provided some information but no witness statements. Such documents never existed. Several months later, Newell notified the Teamsters, for the first time, that there were no witness statements concerning Tara’s discipline.

The General Counsel’s complaint paragraphs 58(c) and 65(a)(iii) allege that the Respondent unlawfully delayed, failed, and refused to furnish the “meeting minutes” and “witness statements” to the requesting Unions. The complaint contained no alternative allegation that the Respondent failed to timely inform the Unions that the requested “meeting minutes” and “witness statements” did not exist. Nevertheless, based on the complaint paragraphs, the judge found that the Respondent had violated Section 8(a)(5) and (1) of the Act by “silent nondisclosure” to Local 394 and “delayed disclosure” to the Teamsters.

We reverse the judge and find that he erred in finding violations of the Act that were not encompassed by the complaint allegations. Under the standard set forth in Raley’s Supermarkets, 349 NLRB 26, 28 (2007), the General Counsel must specifically allege that the failure to inform the union that requested documents do not exist (or the delayed communication of that fact) was unlawful. The instant complaint, which does not even mention the nonexistence of the documents, plainly fails to satisfy this pleading requirement. Thus, we decline to adopt the 8(a)(5) and (1) violations found by the judge with respect to the meeting minutes and the witness statements.7

2. Complaint paragraph 58(d)

On December 4, 1996, UFCW Local 394 President Tom Johnson sent the Respondent a letter requesting on-going notification of new hires, transfers in and out of the bargaining unit, employee terminations, and employee leaves of absences affecting store 845 in Rapid City, South Dakota. On February 3, 1997, the Respondent’s attorney, Yost, responded by directing Johnson to contact Randy Stewart, the store director, for the purpose of obtaining the requested information at the store level. Several times in the following months, Johnson obtained the requested information directly from Stewart. The judge found that the Respondent unlawfully delayed furnishing the requested information to the Union, as alleged by paragraph 58(d) of the amended consolidated complaint. We disagree.

We interpret Johnson’s information request as seeking notification of several kinds of personnel actions “within 10 days” of their occurrence, and an on-going process for the Respondent’s future provision of such information to Local 394. Regarding the first aspect of Johnson’s request, we find that the General Counsel failed to establish that the Respondent delayed or acted unreasonably in directing Johnson to contact the store director in February. There is no evidence in the record showing that any hires, transfers, terminations, or leaves of absences, i.e., the triggering events identified by Johnson’s letter, occurred between December 4 and February 3 to warrant an earlier response from the Respondent. The judge attempted to finesse this evidentiary problem by assuming that “the size of the bargaining unit is such on this record that change is statistically inevitable and that the Union could reasonably expect reported updates more often than every two months.” Without any underlying facts about store 845’s actual operations during this 2-month period, however, the judge’s assumption was unfounded and cannot serve as a substitute for proof that any triggering events actually occurred. Absent evidence that the Respondent was obligated to respond to the Union before February 3, we find no violation regarding the Respondent’s response to this aspect of Johnson’s request for information.

With respect to the second part of Johnson’s request, the record contains substantial evidence that Johnson and Stewart worked together successfully regarding future, regular transmittals of the requested personnel data to Local 394. Johnson never complained that his dealings with Stewart on this matter were protracted, unproductive, uncooperative, or unsatisfactory. In fact, the on-going notification system that Stewart and Johnson mutually developed was promptly implemented and apparently worked well thereafter. Thus, we reverse the judge’s finding that the Respondent’s conduct was unlawful and dismiss the entire complaint allegation.

3. Complaint paragraph 69

On February 18, 1997, UFCW Local 7 requested information relating to the remedy for a grievance involving employee Amos Varos, and asked that the information be supplied by April 21, 1997. On March 5, 1997, the Respondent claimed that the information sought by Local 7 was “confidential” to Varos, and directed the Union to seek a “signed and notarized approval” from Varos to release the requested information. Local 7 refused to do so, and it filed an unfair labor practice charge against the Respondent on March 11, 1997. On March 20, 1997, the Respondent provided the requested information concerning Varos to the Union.

The judge found that the Respondent’s March 5 letter unlawfully imposed, by mistake, a precondition on the submission of the information to the Union. He also found that the Respondent retracted its mistake and turned over the requested information approximately 9 days after the filing of Local 7’s charge. The judge found that the presence of numerous other information request violations by the Respondent in this case prevented him from finding that the Respondent’s March 5 conduct was de minimis or was remedied by the Respondent’s subsequent March 20 production of information to the Union, and thus he found a violation.

The Respondent argues that it fully satisfied Local 7s information request and that its March 5 letter did not impose any precondition (improper or otherwise) on the release of the requested...

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