Safeway Stores, Inc. v. N.L.R.B.
| Citation | 691 F.2d 953 |
| Decision Date | 27 October 1982 |
| Docket Number | No. 80-2175,80-2175 |
| Parties | 111 L.R.R.M. (BNA) 2745, 30 Empl. Prac. Dec. P 33,115, 95 Lab.Cas. P 13,823 SAFEWAY STORES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
T. H. Eskridge of Boesche, McDermott & Eskridge, Tulsa, Okl., for petitioner.
Victoria A. Higman, Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Collis Suzanne Stocking, Atty., N. L. R. B., Washington, D. C., with her on the brief), for respondent and cross-petitioner.
Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.
Safeway Stores, Inc. (Safeway) seeks to set aside and the National Labor Relations Board (NLRB) seeks to enforce an NLRB order requiring Safeway to provide information to the Retail Clerks Union, Local No. 73, Retail Clerks International Association, AFL-CIO (Union) concerning the race and employment status of Tulsa, Oklahoma area Safeway employees.
At the time of the actions giving rise to this case, Safeway and Union were parties to a collective bargaining agreement covering 1500 employees. Article 26 of the agreement provided:
26.1 The Company (Safeway) and its representatives shall not discriminate against any employee on account of race, sex, creed, nationality, color, religion, age or on account of Union affiliation or on account of any legitimate Union activity.
26.2 The Union, its officers, and members shall not discriminate against any employee on account of race, sex, creed, nationality, or age.
On November 10, 1978 Union President Charles M. Nobles requested the following information from Safeway:
(1) The number of male and female employees, blacks, handicapped, Indians, and Spanish surnamed employees in each classification for all units covered by a contract between Safeway Stores, Inc. and this Local Union.
(2) The hourly wage rate for each such employee.
(3) The number of employees by race, sex, handicapped, and Spanish surname, who have less than 1 years' seniority, 1-2 years' seniority, 3-4 years' seniority, 5-9 years' seniority, 10-19 years' seniority, and 20 or more years' seniority.
(4) The number of persons hired in each classification during the 12-month period immediately preceding the effective date of the information covered in items 1 through 3 above, with a breakdown as to sex, race, handicap, and Spanish surname, showing the sex of all black and Spanish surnamed persons.
(5) The number of promotions or upgrades for the same 12-month period, broken down by race, sex, and Spanish-surnamed persons showing the job level of each upgraded employee prior to and subsequent to each such upgrade and the race, sex, and whether Spanish-surnamed for each of these upgraded employees.
(6) A list of all complaints and charges filed against Safeway Stores, Inc., Tulsa Division, under the Equal Pay Act, Title VII of the Civil Rights Act of 1964, Executive Order 11246, and state fair employment practices law and copies of each complaint or charge relating to employees in bargaining units covered by this Local Union, along with any related documents pertaining to the status of such charges, provided that you may delete therefrom the names of the charging parties.
(7) Copies of the most recent work force analyses filed under Executive Order 11246 and Revised Order 4 of the Office of Federal Contract Compliance Programs for or covering each store or location covered by this Local Union.
(R., Vol. II, at pp. 118-119).
On November 13, 1978, in response to Nobles' request, Paul D. Johnson, branch manager of the Safeway Industrial Relations Department, asked Union to divulge the specific nature of the grievance giving rise to the request. Nobles informed Johnson that the information was necessary to ensure that Safeway was complying with the requirements of Article 26. Further, Nobles assured Johnson that Union would not publicly disclose any confidential information and would assume the photocopying costs. Despite these assurances, however, on February 9, 1979, Johnson informed Union that Safeway would provide none of the information.
Thereafter, on March 16, 1979, Union filed an unfair labor charge contending that Safeway, by refusing to comply with Union's request, had failed to bargain collectively in violation of Sections 8(a)(1) and (5) of the National Labor Relations Act, codified at 29 U.S.C.A. §§ 158(a)(1) and (5) (West). 1 The complaint was argued before an Administrative Law Judge (ALJ) who determined, on February 26, 1980, that Safeway was in violation of §§ 8(a)(1) and (5). Safeway excepted to the ALJ's findings and sought review before the NLRB. On September 30, 1980, the NLRB affirmed the ALJ's determination and ordered Safeway to produce the requested information.
On appeal Safeway contends that the NLRB's findings are erroneous because the information is not relevant to collective bargaining and because compiling the information would be unduly burdensome.
Unless unsupported by substantial evidence in the record considered as a whole, factual findings of the NLRB are binding and will not be disturbed on appeal. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Meredith Corp. v. NLRB, 679 F.2d 1332 (10th Cir. 1982); Crane Sheet Metal, Inc. v. NLRB, 675 F.2d 256 (10th Cir. 1982); American Safety Equip. Corp. v. NLRB, 643 F.2d 693 (10th Cir. 1981).
Safeway argues that, because Union has no duty under the National Labor Relations Act (NLRA) to uncover undetected discrimination, the information was not relevant to collective bargaining and Safeway could not be guilty of an unfair labor practice. A union, as a bargaining representative, is entitled to receive any information which is relevant to its obligation to administer a collective bargaining agreement. NLRB v. Whitin Machine Works, 217 F.2d 593 (4th Cir. 1954), cert. denied, 349 U.S. 905, 75 S.Ct. 583, 99 L.Ed. 1242 (1955). The test of relevancy is whether, under a liberal discovery-type standard, the information would aid the union in performing its statutory duties. NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). Even when the information is objectively relevant, however, a union's request may be denied if its compilation would be unduly burdensome or if the employer's interest in its confidentiality outweighs the union's interest. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956); Shell Oil Co. v. NLRB, 457 F.2d 615 (9th Cir. 1972); Emeryville Research Center, Shell Dev. Co. v. NLRB, 441 F.2d 880 (9th Cir. 1971).
The ALJ found, and the NLRB agreed, that the requested information was relevant to the administration of the collective bargaining agreement and therefore obtainable. In reaching this conclusion, the ALJ and the NLRB relied upon the reasoning in Westinghouse Electric Corporation, 239 N.L.R.B. 106 (1978), enforced as modified, Intern. Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC v. NLRB, 648 F.2d 18 (D.C.1981), which involved a request for information nearly identical to the request in the present case. In Westinghouse the NLRB found that information concerning the ethnic background, sex, and employment status of employees, as well as lists of complaints and work force analyses was obtainable by a union to ensure that an anti-discrimination clause in the bargaining agreement was enforced. The NLRB's findings were modified and enforced in Intern. Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC v. NLRB, supra. We agree with the NLRB's determination that the information was relevant.
Article 26 of the collective bargaining agreement provides that Safeway will not discriminate against its...
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