1The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3652/3948

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Supervalu, Inc.-Pittsburgh *

Division d/b/a Uniontown *

County Market, *

*

Petitioner/Cross-Respondent, *

* On Petition for Review and

v. * Cross-Application for Enforcement

* of an Order of The National Labor

* Relations Board

National Labor Relations Board, *

*

Respondent/Cross-Petitioner. *

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Submitted: April 23, 1999

Filed: July 19, 1999

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Before BEAM, HANSEN, Circuit Judges, and MOODY,1 District Judge.

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MOODY, District Judge.

Petitioner Supervalu, Inc.-Pittsburgh Division d/b/a Uniontown County Market

(the Company), seeks a reversal of a September 23, 1998 Decision and Order of the

National Labor Relations Board ("the Board") finding that the Company violated
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Section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 151, et seq., ("the

Act") by refusing to furnish the United Food and Commercial Workers International

Union, Local Union 23, AFL-CIO, CLC, ("the Union") with a copy of the sales

agreement entered into between the Company and the purchaser of one of its grocery

stores. The Board made cross-application to enforce its Decision and Order against

the Company. Because the Union's request for the sales agreement was for relevant

information and made in good faith, the Company's petition for review will be denied

and the cross-application of the Board to enforce its order will be granted.

The Company is in the retail food business. Between about May 1995 and

October 1996, the Company owned and operated a grocery store in Uniontown,

Pennsylvania, under the name Uniontown County Market ("the Store"). Prior to that

time, the Store was owned by Cherry Tree Food Mart, Inc. ("Cherry Tree"). Cherry

Tree and the Union had entered into a collective-bargaining agreement effective by its

terms from November 1993 to February 1997 ("the Agreement"). The Agreement

obligated Cherry Tree, upon sale of the Store, to make a "good faith" effort to persuade

the purchaser of the Store to abide by the terms of the Agreement. When the Company

assumed possession of the store in the spring of 1995, it recognized the Union as the

employees' representative, and the Company and the Union agreed to be bound by the

Agreement.

On October 6, 1996, the Company announced to the employees that it was

selling the Store. It told the employees that the purchaser was Nikae Foods, owned by

Tom Jamieson. The Company also informed the employees that they would be offered

employment by the new owner, and that it would not be necessary for them to apply

for such employment. The Union business representative, upon hearing the

announcement, reported the details to the Union's director of collective bargaining.

By letter dated October 14, 1996, the Company officially notified the Union that

it was closing the Store, effective October 19. It invited the Union to contact it for the
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purpose of engaging in bargaining over the effects of the closing. As announced, the

Company closed the Store on October 19. On October 27, the new owner reopened

the Store under the name Uniontown Shop 'n Save ("Shop 'n Save"). The new owner

hired all new employees, not any of which were the previous employees, and refused

to recognize the Union.

On October 30, the Union requested negotiations to discuss the decision to close

the Store and the effects of such closing on the Union's bargaining unit. The Union,

in an effort to prepare for negotiations, specifically asked for copies of any sales

agreements relating to the sale of the Store; information regarding how the employees

were notified of the closing; and information regarding any efforts made by the

Company to comply with the Federal Worker Adjustment and Retraining Notification

Act, 29 U.S.C. § 2101 et seq, ("WARN").

The Company responded by letter to the Union's request for information. The

Company asserted it had no obligation to bargain over its decision to close the Store.

With respect to the request for information relevant to bargaining over the effects of the

closing, the letter stated as follows:

"You are well aware that verbal notice of the sale was given to the

Union and the employees two weeks before the sale took effect. You are

also well aware that the store's assets were purchase by NIKAE FOODS,

INC. In line with Article 1.2 of the labor agreement, an attempt was

made by SUPERVALU prior to the sale to have NIKAE FOODS abide

by the labor agreement. An updated seniority list as of October 19, 1996,

is also enclosed, as you requested."

Appendix at 187.
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On December 4, 1996, the Union filed unfair labor practice charges against the

Company. The charges alleged that the Company violated the Act in refusing to

bargain with the Union.

The parties met on December 10, 1996, to bargain over the effects of the Store's

closing. At the meeting, the Union renewed its request for the Agreement. The

Company refused to provide it, asserting that the Company had no obligation to do so.

In light of the Company's failure to give the affected employees the statutory 60 days

notice of the closing, the parties also engaged in a discussion at that time of the

Company's responsibilities under WARN. See 29 U.S.C. § 2102. The Company

stated that its obligations under the terms of sale pursuant to WARN had passed to

the purchaser, Jamieson.

A second bargaining session took place on January 7, 1997. At that meeting, the

Union asked for the Agreement in connection with determining the accrued vacation

pay owed to the former employees. Although some agreements were reached, the

parties did not resolve the dispute over whether certain employees had met the

contractual eligibility requirement of one year of "continuous service". The Union

asserted that "continuous service" ran from the date of hire to the date of sale, and that

the Agreement was necessary to determine whether the disputed individuals had met

the requirement. The Company took the position that continuous service ended on the

date the Company closed the Store and continued to refuse to provide a copy of the

Agreement.

The Board's Order held that the Company had violated Section 8(a)(5) of the Act

because the Company had given only two weeks notice of the Store's closing to the

affected employees, and because the Company told the Union that all of the Company's

obligation under WARN had passed to the buyer, the Union had a right to see the

Agreement to evaluate the Company's liability under WARN. The Board's Order

required the Company to cease and desist from this unfair labor practice , and
2The Board's Order specifically found that the Union had failed to demonstrate

a need for the Agreement under either its alter ego theory regarding the relationship

between the Company and Jamieson or its theory that the Agreement was necessary to

determine the date of the sale as it pertained to the former employees' vacation benefits.

These findings are not before the Court except for the impact they would have on the

Company's bad faith argument.

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affirmatively required the Company to furnish the Union with a copy of the Agreement

and to post a remedial notice.

On appeal, the Company contends that the Union failed to establish the relevance

of its request for the Agreement to assess the Company's liability under WARN and

that the Agreement was requested in bad faith.2 The Board rejected this argument in

its findings and we review those findings by well settled principles as stated in

N.L.R.B. v. Wachter Const., Inc., 23 F.3d 1378 (8th Cir. 1994). As Wachter states:

[t]he employer has an obligation to supply, upon reasonable

request, to the bargaining representative of its employees relevant

information to assist the union's effective performance of its duties under

a collective bargaining agreement. Detroit Edison Co. v. NLRB, 440

U.S. 301,303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979); NLRB v.

Acme Industrial Co., 385 U.S. 432, 435-436, 87 S.Ct. 565, 567-568, 17

L.Ed.2d 495 (1967). Failure to fulfill that obligation to furnish relevant

materials upon request is a violation of the employer's duty to bargain in

good faith and may violate § 8(a)(5) of the Act. Such conduct "conflicts

with the statutory policy to facilitate effective collective bargaining."

Proctor & Gamble Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir. 1979).

Information sought that does not directly relate to bargaining unit

employees is deemed not to be presumptively relevant. NLRB v. Postal

Service, 888 F.2d 1568, 1570 (11th Cir. 1989); Walter N. Yorder & Sons

v. NLRB, 754 F.2d 531, 535 (4th Cir. 1985); Oil Chemical & Atomic

Workers v. NLRB, 711 F.2d 348, 359 (D.C. Cir. 1983). The ordinary

standard of what is relevant is a "liberal" one of the type sought in

discovery. Acme, 385 U.S. at 437, 87 S.Ct. at 568.
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Id. at 1384-85.

In Acme, the Supreme Court adopted a liberal "discovery-type" standard to

govern the obligation to furnish requested information. Acme, 385 U.S. at 437. Under

that standard, the Board's test of relevancy is simply the "probability that the desired

information is relevant and that it be of use to the union in carrying out its statutory

duties and responsibilities." Proctor & Gamble, 603 F.2d at 1315. Asking for a sales

agreement for the specific purpose of determining whether the information contained

in such agreement would aid an investigation of a WARN cause of action is relevant

and should be discloseable. See Compact Video Service, 319 N.L.R.B. 131, 143

(1995), enforced, 121 F.3d 478 (9th Cir. 1997).

Applying these principles to the facts, the Union has satisfied its burden of

showing that the document requested was relevant to its duties and responsibilities to

the employee members and their rights under WARN. The Company only gave the

employees two weeks notice of its decision to sell the Store. The Union, in response,

sought copies of the Agreement setting out the terms of the transfer to the new owner

and inquired about the Company's efforts to comply with WARN. It is entirely

reasonable to believe that the Agreement was relevant to any efforts made in an attempt

to comply with WARN.

Moreover, the Company's assertion that the Union sought the Agreement "in bad

faith" is without factual support. The Company argues that the Union's predominant

purpose in requesting the Agreement was to assist the Union in its unfair labor charge

filed against Jamieson and the Company. The administrative law judge expressly found

no bad faith on the part of the Union and that finding was adopted by the Board. The

Company has been unable to point to any evidence which contradicts this finding.

Contrary to the Company's assertions, the decision in N.L.R.B. v. Wachter

Constr., Inc., 23 F.3d 1378 (8th Cir. 1994), which made a bad faith finding on the part
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of a union, is distinguishable. In Wachter, we found that in spite of a contractual

provision giving the employers the right to sub-contract work to non-union firms, the

union's requests for voluminous amounts of information regarding the employer's

exercise of the right was not made in "good faith." Id. at 1386-87. We found specific

evidence that the union's intent was to harass the employers. Id. at 1387-88. We

further observed that the request for information attempted to coerce the employers to

do business only with union firms. Id. at 1388. Here, there is no evidence of such

harassment or coercion. The Company could easily have produced the Agreement if

it had so decided.

For the reasons stated, the petition for review is denied and the cross-application

of the Board to enforce its order is granted.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.