Nob Hill General Stores, Inc. v. NLRB ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOB HILL GENERAL STORES, INC., No. 19-72429
Petitioner, NLRB No. 20-CA-209431
v.
MEMORANDUM*
NATIONAL LABOR RELATIONS
BOARD,
Respondent,
______________________________
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 5,
Intervenor.
NATIONAL LABOR RELATIONS No. 19-72523
BOARD,
NLRB No. 20-CA-209431
Petitioner,
v.
NOB HILL GENERAL STORES, INC.,
Respondent,
______________________________
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL 5,
Intervenor.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted November 18, 2020
San Francisco, California
Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit
Judges.
Nob Hill General Stores, Inc. (“Nob Hill”) petitions for review of an order of
the National Labor Relations Board (“the Board”). The Board determined that
Nob Hill violated Section 8(a)(5) and (1) of the National Labor Relations Act by
failing to provide information requested by Intervenor United Food and
Commercial Workers Union, Local 5 (“the Union”) for the purpose of
administering the collective bargaining agreement (“CBA”). The Board cross-
petitions for enforcement of the order. We deny Nob Hill’s petition for review and
grant the Board’s cross-petition.
1. It is an unfair labor practice for an employer to refuse to provide a union
with information relevant to its duties, including the administration of a CBA.
NLRB v. Associated Gen. Contractors of Cal., Inc., 633 F.2d 766, 770 (9th Cir.
1980). “The Board may order production of information relevant to a dispute if
there is some probability that it would be of use to the union in carrying out its
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statutory duties and responsibilities” under the CBA, even when there is a dispute
as to whether the underlying CBA issue could give rise to a potentially meritorious
grievance. NLRB v. Safeway Stores, Inc., 622 F.2d 425, 430 (9th Cir. 1980).
Although we interpret CBAs de novo, see Int’l Longshore & Warehouse Union,
Local 4 v. NLRB, 978 F.3d 625, 640–41 (9th Cir. 2020), where the issue is
information production, we need only determine that there is “some probability”
that the information would be useful to administration of the CBA. Safeway
Stores, Inc., 622 F.2d at 430.
Nob Hill contends that the language of its CBA with the Union entirely
forecloses any probability that the information requested in this case could be
useful to the Union in administering the CBA. For this position, Nob Hill relies on
the “notwithstanding clause” in section 1.13, which reads, in relevant part:
“Notwithstanding any language to the contrary contained in this Agreement
between the parties, it is agreed this Agreement shall have no application
whatsoever to any new food market or discount center until fifteen (15) days
following the opening to the public of any new establishment.”
As Nob Hill stresses, “a ‘notwithstanding’ clause clearly signals the drafter’s
intention that the provisions of the ‘notwithstanding’ section override conflicting
provisions of any other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18
(1993). But a “notwithstanding” clause is necessarily tethered to other language
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that determines its scope; the clause has no independent meaning. Here, the
“notwithstanding” clause precludes the application of the CBA “to any new food
market or discount center” for fifteen days after opening. But the provisions that
the Union sought to administer, such as section 4.9, governing transfers of
employees, and section 1.11, relating to individual contracts between covered
employees and Nob Hill, applied to currently covered employees. That the issues
here involve changes resulting from the new store does not necessarily mean that
applying those provisions to current employees is equivalent to applying the CBA
to the new store.
Nob Hill argues that the Board erred in reading section 1.13 as an “after
acquired stores clause,” affecting only Nob Hill’s obligation to recognize the
Union for the new store under section 1.1 of the CBA after 15 days have passed.
See Alpha Beta Co., 294 NLRB 228, 229 (1989). The clause may apply more
broadly, delaying other CBA provisions as well as section 1.1. See Raley’s, 336
NLRB 374, 377 (2001) (describing section 1.13 as “delay[ing] application of the
other provisions . . . to new stores”). Nob Hill asserts, for instance, that the Union
cannot enforce section 1.13’s requirement for a new store to be staffed by a cadre
that includes current employees until after the store has been opened for fifteen
days. The Union argues that the section applies by its language to current
employees and includes a provision continuing trust fund contributions for
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employees in the “cadre,” demonstrating its continuous application. But disputes
of this kind over whether a grievance alleging potential violations before and after
the fifteen-day period could succeed do not foreclose the Board’s relevance
determination for information production purposes. See Safeway Stores, Inc., 622
F.2d at 430. Neither this Court nor the Board is required to “decide whether a
contract violation would be found” to determine that an information request is
relevant to contract administration. Dodger Theatricals Holdings, 347 NLRB 953,
970 (2006). “[W]hen it order[s] the employer to furnish the requested information
to the union, the Board [is] not making a binding construction of the labor
contract.” NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967).
The “notwithstanding” clause therefore does not allow Nob Hill to refuse to
provide information relevant to current employees’ interests under the CBA in
connection with the future opening of a new store.
2. Substantial evidence supports the Board’s determination that the Union’s
information request was relevant to administering the CBA. The Union bears the
burden of showing relevance for information concerning employees outside the
bargaining unit, but that showing is subject to “a liberal, ‘discovery-type’
standard,” Press Democrat Publ’g Co. v. NLRB, 629 F.2d 1320, 1325 (9th Cir.
1980) (quoting Acme, 385 U.S. at 437), and requires only a “probability that the
desired information was relevant, and that it would be of use to the union in
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carrying out its statutory duties and responsibilities,” Acme, 385 U.S. at 437.
“[T]he Board’s determination as to whether the requested information is relevant in
a particular case is given great weight by the courts.” San Diego Newspaper
Guild, Local No. 95 v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977).
Applying the deference due the Board’s determination, we uphold the
Board’s conclusion that information about the classifications and numbers of
positions at the new store and the unit and non-unit employees who requested and
were offered transfers, could be useful to assess the application of the CBA’s
transfer and staffing provisions to unit employees. Information about how unit
members could request a transfer and how members could be hired at the new store
relate to the terms of transfer of currently represented employees. See Kansas
Educ. Ass’n, 275 NLRB 638, 640 (1985). Pay scales, benefit plans, and the
employee handbook of the new store could have been of use to the Union’s
enforcement of section 1.11’s prohibition on individual employment agreements
that reduce wages and benefits of covered employees.
Given the “great weight” afforded the Board in determining whether the
Union met its burden, San Diego Newspaper Guild, 548 F.2d at 867, the Board’s
relevance conclusion was not erroneous.1
1
Nob Hill does not contest the Board’s determination that Nob Hill’s nearly three-
month delay in providing some of the requested information was unreasonable and
a separate violation of Section 8(a)(5) and (1) of the National Labor Relations Act.
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The petition is DENIED, and the Board’s order is ENFORCED.
As we affirm the Board’s relevance conclusion, the Board is entitled to
enforcement of its decision and order as to the delay.
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