Safeway, Inc. v. NLRB ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAFEWAY, INC., No. 20-71006
No. 20-71230
Petitioner,
NLRB No. 20-CA-221482
v.
NATIONAL LABOR RELATIONS MEMORANDUM*
BOARD,
Respondent,
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 February 8, 2021
San Francisco, California
Before: WARDLAW and BEA, Circuit Judges, and ROSENTHAL,** District
Judge.
Safeway, Inc. (“Safeway”) petitions for review of an order of the National
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
Labor Relations Board (“the Board”), and the Board cross-petitions for
enforcement of the order. The Board determined that Safeway violated Section
8(a)(5) and (1) of the National Labor Relations Act (“NLRA”) by failing to
provide information requested by United Food and Commercial Workers Local 5,
United Food and Commercial Workers, AFL-CIO (“the Union”) for the purpose of
investigating grievances alleging violations of the collective bargaining agreement
(“CBA”). We have jurisdiction under 29 U.S.C. § 160(e) and (f). We deny
Safeway’s petition for review and grant the Board’s cross-petition for enforcement.
1. An employer’s duty to bargain collectively and in good faith under
Section 8(a)(5) and (1) of the NLRA “includes a duty to provide relevant
information needed by a labor union for the proper performance of its duties as the
employees’ bargaining representative.” Detroit Edison Co. v. NLRB, 440 U.S.
301, 303 (1979); see also 29 U.S.C. § 158(a)(5), (1). Here, substantial evidence
supports the Board’s determination that the requested vendor contract between
Safeway and Instacart was relevant to the Union’s enforcement of its members
rights under the CBA.
When a union requests information concerning non-union employees, such
as the third-party contracts here, the union bears the burden of showing relevance
to the labor dispute. San Diego Newspaper Guild, Local No. 95 v. NLRB, 548 F.2d
863, 867–68 (9th Cir. 1977). This burden is subject to “a liberal, ‘discovery-type’
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standard of relevancy.” Press Democrat Publ’g Co. v. NLRB, 629 F.2d 1320, 1325
(9th Cir. 1980) (quoting NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967)); see
also Retlaw Broad. Co. v. NLRB, 172 F.3d 660, 669 (9th Cir. 1999). A union need
show only a “probability that the desired information was relevant, and that it
would be of use to the union in carrying out its statutory duties and
responsibilities,” Acme, 385 U.S. at 437, including the duty to investigate
grievances, see id. at 436–38; NLRB v. Associated Gen. Contractors of Cal., Inc.,
633 F.2d 766, 770 (9th Cir. 1980).
We give “great weight” to the Board’s findings of relevance. See San Diego
Newspaper Guild, 548 F.2d at 867. Applying the deference due the Board’s
determination, we uphold the Board’s conclusion that the Union met its burden of
demonstrating the contract was relevant to the resolution of its bargaining unit
employees’ grievances. The Union indicated to Safeway that it had witness
accounts of Instacart employees seeming to perform bargaining-unit work in
violation of the CBA. The Union explained that the requested contract would
allow the Union to corroborate these accounts and determine whether the alleged
violations were accidental and isolated or whether they were part of an intentional
business plan. Thus, the Union demonstrated it was not merely speculating about
“some unknown contract violation,” id. at 868, and that the requested information
would “aid” its investigation of the identified violations, Associated Gen.
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Contractors, 633 F.2d at 772. Because the requested information was relevant,
Safeway’s refusal either to produce the information or to enter good-faith
negotiations regarding confidentiality violated the NLRA. See Retlaw, 172 F.3d at669–70.
2. Safeway does not challenge the Board’s finding that Safeway violated
the NLRA by delaying its response to the Union regarding additional requested
contracts with Boar’s Head and DSD. Because Safeway does not challenge this
finding, the Union is entitled to summary enforcement of the relevant portion of
the order. See, e.g., Sparks Nugget, Inc. v. NLRB, 968 F.2d 991, 998 (9th Cir.
1992).
Safeway’s petition is DENIED, and the Board’s petition for enforcement of
its order is GRANTED.
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