Kroger Texas L.P. (16-CA-267525)

Cases 15-CA-267430; 16-CA-267525, et al.

- 2 -

Employer’s Houston and Dallas Divisions.2 For the past 20 years, the Employer has

provided its employees with the non-contractual benefit of allowing them to enroll in,

modify, or review health insurance benefits by using a computer in each store that

allows them to access their personal accounts on the healthcare portal/website.

Since February 2020, negotiations for successor collective-bargaining agreements

(“CBAs”) have been ongoing in the Houston Division, but negotiations for the Dallas

Division will not commence until after agreements have been reached for the Houston

Division.3 Historically, healthcare benefits have been provided to unit employees in

both the Houston and Dallas Divisions through the South Central Trust Fund (“the

Fund”), a Union-sponsored healthcare plan that is jointly administered with the

Employer. During negotiations, however, the Employer objected to continued use of

the Fund and proposed an Employer-administered healthcare plan, whereas the

Union proposed continued use of the Fund or that it be merged with another Union-

sponsored fund. The CBAs for the Houston Division expired on August 15. The

Employer claims that the parties reached impasse in negotiations for that division on

August 19—a claim the Union denies. The CBAs for the Dallas Division expired on

August 29.

In late September, employees at stores in both Texas and Louisiana who

attempted to access the healthcare portal via an in-store computer discovered that the

website was blocked without explanation. Upon investigation, the Union determined

that most, if not all, of the in-store computers in the Employer’s Houston and Dallas

Divisions could not access the healthcare portal

on

August 29.

In late September, employees at stores in both Texas and Louisiana who

attempted to access the healthcare portal via an in-store computer discovered that the

website was blocked without explanation. Upon investigation, the Union determined

that most, if not all, of the in-store computers in the Employer’s Houston and Dallas

Divisions could not access the healthcare portal. Employees could still access the

healthcare portal through their personal computers or smartphones; however, many

employees were accustomed to relying on the in-store computers to enroll in, modify,

or review health insurance coverage, print important documents, and ask co-workers

or management for assistance performing these tasks.

The Union immediately notified the Employer that employees could not access

the healthcare portal via in-store computers, and, on September 30, the Employer

restored access to the stores in the Dallas Division. On October 1, the Union filed

grievances protesting the change and submitted information requests for “any and all

communications by memo, email, or any other means, dealing with store computer

access to the [healthcare portal] between and among anyone in Kroger management

and Kroger I.T. and/or Kroger Corporate Information Security.” Over the course of

the next several weeks, the Union also filed charges in both Region 15 and 16 alleging

2 Each division includes stores located in Louisiana and Texas.

3 All dates are in 2020 unless otherwise noted.

computer

access to the [healthcare portal] between and among anyone in Kroger management

and Kroger I.T. and/or Kroger Corporate Information Security.” Over the course of

the next several weeks, the Union also filed charges in both Region 15 and 16 alleging

2 Each division includes stores located in Louisiana and Texas.

3 All dates are in 2020 unless otherwise noted.

Cases 15-CA-267430; 16-CA-267525, et al.

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that the Employer had violated Section 8(a)(5) and (1) by unilaterally blocking in-

store access to the healthcare portal4 and refusing to comply with the Union’s request

for information.5 On October 14, the day before the scheduled beginning of the open

enrollment season for the Fund, the Employer restored access to the healthcare portal

in the Houston Division.6

In late October, the Employer responded to the Union’s grievances. The

Employer’s October 27 response to the grievances for the Dallas Division, where there

was no ongoing bargaining, stated that in-store access to the healthcare portal was

neither a negotiated benefit nor a subject covered by the relevant CBAs. The

Employer further denied having any knowledge of access issues, asserting that if

access had been blocked “by the Company,” it had been restored. The Employer’s

October 30 response to the grievances for the Houston Division, where there had been

bargaining but the Employer declared impasse over two months earlier, denied the

loss-of-access grievance on similar grounds. In this later response, the Employer also

rejected the Union’s information request on the bases that the information sought was

neither relevant nor necessary to the Union’s role as a bargaining agent, and the

information contained privileged materials. The Employer also stated that it is not in

possession of any documents responsive to the request

loss-of-access grievance on similar grounds. In this later response, the Employer also

rejected the Union’s information request on the bases that the information sought was

neither relevant nor necessary to the Union’s role as a bargaining agent, and the

information contained privileged materials. The Employer also stated that it is not in

possession of any documents responsive to the request.

On November 5, the Union objected to the Employer’s denial of the grievances,

renewed its October 1 information requests, and expanded on those requests by

asking that the Employer provide, “communications with employees informing them

of how to access the enrollment portal.” On November 16, the Employer reiterated

the same reasons previously given for denying the Houston and Dallas grievances. In

that response, the Employer provided a timeline of events in which it acknowledged

that it had blocked access to the healthcare portal on in-store computers in both

divisions on September 21 but returned access to the Dallas Division on September

30, and to the Houston Division on October 14. The Employer further reiterated that

the dispute was not covered by the CBAs and stated the dispute was moot, that

4 Regions 15 and 16 received a charge alleging the unlawful unilateral change on

October 7 and 26, respectively.

5 Regions 15 and 16 received the charge protesting the Employer’s failure to comply

with the Union’s request for information on October 13 and 7, respectively.

6 The open enrollment period, during which employees may enroll in, modify, or cancel

health insurance benefits, had been scheduled to run from October 15 to December 15;

however, the parties agreed to extend the closing date to December 31 to account for

the Employer’s prior blocking of access to the healthcare portal on in-store computers.

nformation on October 13 and 7, respectively.

6 The open enrollment period, during which employees may enroll in, modify, or cancel

health insurance benefits, had been scheduled to run from October 15 to December 15;

however, the parties agreed to extend the closing date to December 31 to account for

the Employer’s prior blocking of access to the healthcare portal on in-store computers.

Cases 15-CA-267430; 16-CA-267525, et al.

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internal communications about blocking access to the healthcare portal were

privileged, and it had no record of communications with employees that would be

responsive to the Union’s new information request.

Shortly thereafter, the Employer filed position statements with each Region in

which it revealed that it had “blocked access to the Fund administrator’s enrollment

website, based on concerns that the Union would use the site to confuse associates

regarding the status of ongoing contract negotiations as they pertain to open

enrollment in healthcare and where to sign up for coverage in 2021.” Based on this

statement, on January 5, 2021 and April 12, 2021, the Union amended its charges in

Region 15 and 16, respectively, to allege that the Employer’s conduct also had violated

Section 8(a)(3).

ACTION

We conclude that the Employer violated Section 8(a)(5) and (1) by unilaterally

blocking employee access to the healthcare portal on in-store computers because

terminating that past practice constituted a material, substantial, and significant

change to a mandatory subject of bargaining. We further conclude that the Employer

violated Section 8(a)(3) and (1) by this unilateral action because it was tantamount to

retaliation against the employees for their Union’s refusal to acquiesce to the

Employer’s bargaining demand to abandon the Fund as the employees’ healthcare

insurance

ce constituted a material, substantial, and significant

change to a mandatory subject of bargaining. We further conclude that the Employer

violated Section 8(a)(3) and (1) by this unilateral action because it was tantamount to

retaliation against the employees for their Union’s refusal to acquiesce to the

Employer’s bargaining demand to abandon the Fund as the employees’ healthcare

insurance. Finally, we conclude that the Employer violated Section 8(a)(5) and (1) by

refusing to provide the Union with requested information that was relevant to the

Union’s collective bargaining responsibilities.

I.

The Employer violated Section 8(a)(5) and (1) by unilaterally blocking

employee access to the healthcare portal on in-store computers.

After a CBA expires, an employer has “a duty to maintain the status quo” while

bargaining for a successor agreement by not unilaterally changing those employment

terms in the expired CBA that involved mandatory subjects of bargaining.7 The

obligation to maintain the post-expiration status quo includes any past practices that

7 KOIN-TV, 369 NLRB No. 61, slip op. at 3 (2020), enforced, 4 F.4th 801 (9th Cir.

2021); see Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 199, 206 (1991)

(holding that after a contract expires, most “terms and conditions continue in effect by

operation of the NLRA. They are no longer agreed-upon terms; they are terms

imposed by law”; also noting that certain mandatory subjects, such as no-strike

clauses, do not extend beyond contract expiration).

801 (9th Cir.

2021); see Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 199, 206 (1991)

(holding that after a contract expires, most “terms and conditions continue in effect by

operation of the NLRA. They are no longer agreed-upon terms; they are terms

imposed by law”; also noting that certain mandatory subjects, such as no-strike

clauses, do not extend beyond contract expiration).

Cases 15-CA-267430; 16-CA-267525, et al.

- 5 -

involved mandatory subjects.8 “Healthcare insurance benefits, like wages and hours,

are a mandatory subject of collective bargaining and, as such, . . . an employer may

not alter them without bargaining to agreement or to a good-faith impasse.”9 The

Board heavily scrutinizes unilateral changes to healthcare benefits and has found

violations where the employer changes the identity of the health insurance provider,

impairs employee choice or discretion, or alters the employees’ share of the cost.10

Indeed, as an indicator of the importance that the Board places on all aspects of

healthcare benefits being subject to bargaining, it has held that the procedures for

notifying employees of and enrolling them in health insurance plans are also

mandatory subjects of bargaining.11

8 See ABF Freight Systems, Inc., 369 NLRB No. 107 slip op. at 2 (2020); Raytheon

Network Centric Systems, 365 NLRB No. 161, slip op. at 16, 18 (2017); Sunoco, Inc.,

349 NLRB 240, 244 (2007).

9 E.I. Du Pont de Nemours, 364 NLRB No. 113, slip op. at 7 (2016), overruled on other

grounds, Raytheon Network Centric Systems, 365 NLRB No. 161, slip op. at 1-2; see

also Caterpillar, 355 NLRB 521, 522 (2010), enforced per curiam, 2011 WL 2555757

(D.C. Cir. 2011); United Hospital Medical Center, 317 NLRB 1279, 1281 (1995)

slip op. at 16, 18 (2017); Sunoco, Inc.,

349 NLRB 240, 244 (2007).

9 E.I. Du Pont de Nemours, 364 NLRB No. 113, slip op. at 7 (2016), overruled on other

grounds, Raytheon Network Centric Systems, 365 NLRB No. 161, slip op. at 1-2; see

also Caterpillar, 355 NLRB 521, 522 (2010), enforced per curiam, 2011 WL 2555757

(D.C. Cir. 2011); United Hospital Medical Center, 317 NLRB 1279, 1281 (1995).

10 See, e.g., Seiler Tank Truck Service, 307 NLRB 1090, 1100 (1992) (“The identity of

the health insurance carrier is as much a mandatory subject of bargaining as is the

level of benefits to be enjoyed by employees.”); Caterpillar, 355 NLRB at 523

(concluding that the employer’s unilateral implementation of a “generic first” model

usurped the employees’ discretion to decide between generic and brand-name

prescriptions and also increased the cost; therefore, it constituted a material,

substantial, and significant change). An employer violates Section 8(a)(5) and (1) even

by unilaterally implementing improved healthcare benefits. See Orchids Paper

Products Co., 367 NLRB No. 33, slip op. at 1 & n.6 (2018) (finding employer violated

Section 8(a)(5) and (1) by unilaterally implementing what appeared to be an improved

healthcare plan that offered employees a broader network, lower premiums, and no

need for physician referrals because “whether the changes were beneficial or

detrimental does not affect the employer’s duty to bargain”).

11 See B&B Trucking, 345 NLRB 1, 5 (2005) (finding employer violated Section 8(a)(5)

by, among other things, unilaterally changing the open enrollment period for health

benefits); Western Cab Co., 365 NLRB No. 78, slip op. at 2, 3 (2017) (finding employer

seeking to comply with terms of Affordable Care Act violated Section 8(a)(5) by failing

to bargain over, among other things, discretionary procedures for notifying and

enrolling employees in a health insurance plan).

(a)(5)

by, among other things, unilaterally changing the open enrollment period for health

benefits); Western Cab Co., 365 NLRB No. 78, slip op. at 2, 3 (2017) (finding employer

seeking to comply with terms of Affordable Care Act violated Section 8(a)(5) by failing

to bargain over, among other things, discretionary procedures for notifying and

enrolling employees in a health insurance plan).

Cases 15-CA-267430; 16-CA-267525, et al.

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However, an employer violates Section 8(a)(5) and (1) by unilaterally changing an

employment term involving a mandatory bargaining subject only if the change is

material, substantial, and significant.12 The bar to show that a unilateral change

materially affected employees’ terms and conditions of employment is not particularly

high. Indeed, the Board has characterized a change as material, substantial, and

significant so long as it is not de minimis.13 Even minor increases in the burdens that

employees face, such as eliminating employees’ ability to donate blood while on the

clock twice per year, violate Section 8(a)(5).14

Application of these principles compels finding that the Employer’s unilateral

blocking of employee access to the healthcare portal on in-store computers satisfied

the Board’s modest standard for constituting a material, substantial, and significant

change in employment terms that violated Section 8(a)(5) and (1). For the past

twenty years, many employees relied exclusively on the Employer’s past practice of

providing access to its in-store computers to allow employees to sign-up for, modify,

cancel their healthcare coverage or even just review various aspects of the coverage.

Indeed, the Employer took unilateral action regarding this established procedure to

further its bargaining position by impairing its employees’ ability to enroll in,modify,

or review Fund benefits, which could facilitate a switch to the healthcare plan the

Employer proposed during bargaining for the Houston Division

heir healthcare coverage or even just review various aspects of the coverage.

Indeed, the Employer took unilateral action regarding this established procedure to

further its bargaining position by impairing its employees’ ability to enroll in,modify,

or review Fund benefits, which could facilitate a switch to the healthcare plan the

Employer proposed during bargaining for the Houston Division. As a result,

employees at stores in both divisions attempted to access the portal on in-store

computers in late September only to find they could not. These facts establish that

the Employer effected much more than a minimal change in its employees’ terms and

conditions of employment.

Nevertheless, the Employer proffers several reasons for why the change was not

material and substantial. Each of those reasons lacks merit. Initially, the Employer

emphasizes that its employees still had access to the healthcare portal through their

12 Caterpillar, Inc., 355 NLRB at 522.

13 See Rangaire Co., 309 NLRB 1043, 1043 (1992) (finding employer’s unilateral

withdrawal of an extra 15-minute lunch break once per year on Thanksgiving violated

Section 8(a)(5)), enforced mem., 9 F.3d 104 (5th Cir. 1993); Litton Systems, 300 NLRB

324, 331 n.34 (1990) (finding employer’s unilateral elimination of extra half hour for

lunch on Christmas Eve violated Section 8(a)(5)), enforced, 949 F.2d 249 (8th Cir.

1991), cert. denied, 503 U.S. 985 (1992).

14 See Verizon New York, 339 NLRB 30, 37-38 (2003), enforced, 360 F.3d 206 (D.C. Cir.

2004).

Section 8(a)(5)), enforced mem., 9 F.3d 104 (5th Cir. 1993); Litton Systems, 300 NLRB

324, 331 n.34 (1990) (finding employer’s unilateral elimination of extra half hour for

lunch on Christmas Eve violated Section 8(a)(5)), enforced, 949 F.2d 249 (8th Cir.

1991), cert. denied, 503 U.S. 985 (1992).

14 See Verizon New York, 339 NLRB 30, 37-38 (2003), enforced, 360 F.3d 206 (D.C. Cir.

2004).

Cases 15-CA-267430; 16-CA-267525, et al.

- 7 -

personal computers or smartphones. However, it is not clear how many employees

have those devices or the necessary internet access to reach the healthcare portal,

especially during the COVID-19 pandemic.15 Use of in-store computers to access the

portal was convenient especially during this time because employees, already having

to report to their workplaces, were able to take advantage of the ability to print

confirmations of their transactions or ask co-workers and management for assistance

while navigating the portal to ensure proper updating of their health benefits. These

two substantial attributes of in-store access may not have been available to those who

attempted to access the portal via personal computers or smartphones. It is also

worth noting that the Employer’s unilateral action in and of itself belies its argument

that the ability to access the healthcare portal via personal computer or smartphone

negated the significance of terminating the past practice. If blocking in-store access

would not have significantly inhibited employees from signing up for health benefits

available through the Fund, then there would have been no reason to execute such a

scheme in the first place.

The Employer also asserts that its action was not a material change because

employee access on in-store computers was blocked only for a short period of time that

did not coincide with the yearly open season for enrolling in or modifying health

benefits

up for health benefits

available through the Fund, then there would have been no reason to execute such a

scheme in the first place.

The Employer also asserts that its action was not a material change because

employee access on in-store computers was blocked only for a short period of time that

did not coincide with the yearly open season for enrolling in or modifying health

benefits. However, by the Employer’s own admission it blocked access in the Houston

Division for 24 days and in the Dallas Division for nine days. Thus, this was not a

situation where the Employer immediately undid its unilateral change. Indeed, it

may not have restored access but for the Union’s immediate and forceful complaints

on behalf of the unit employees. Moreover, the change involved a complete blockage

on in-store computers rather than a restriction to certain hours or stores, which

meant that employees could not use those computers to simply review their existing

benefits. As noted above, that employees at stores in each division attempted to use

the in-store computers to access the healthcare portal during the relevant times and

complained to the Union about their inability to do so establishes the importance of

this past practice and the impact of the Employer’s unilateral change thereto.

15 Region 15 notes, for example, that Louisiana has one of the lowest percentages of

computer ownership and internet subscriptions in the United States. Region 15 also

notes that employees may have to incur out-of-pocket expenses to access the portal

with their own devices and may not have had access to resources available to the

public, such as computers at public libraries, due to the status of the pandemic in

September and October 2020.

s one of the lowest percentages of

computer ownership and internet subscriptions in the United States. Region 15 also

notes that employees may have to incur out-of-pocket expenses to access the portal

with their own devices and may not have had access to resources available to the

public, such as computers at public libraries, due to the status of the pandemic in

September and October 2020.

Cases 15-CA-267430; 16-CA-267525, et al.

- 9 -

burden of persuasion shifts to the employer to show that it would have taken the

same adverse action even in the absence of any union or protected concerted

activities by its employees.20

Applying a Wright Line analysis, we conclude that the Employer violated Section

8(a)(3) and (1) by unilaterally blocking employee access to the healthcare portal on in-

store computers. The Employer admitted in its position statements to both Region 15

and 16 that it took this unilateral action to prevent employees from supporting the

Union’s bargaining position by enrolling in or modifying benefits available through

the Fund. Specifically, the Employer stated that it “blocked access to the Fund

administrator’s enrollment website, based on concerns that the Union would use the

site to confuse associates regarding the status of ongoing contract negotiations as

they pertain to open enrollment in healthcare and where to sign up for coverage in

2021.”21 This statement reveals the Employer was frustrated by the Union’s refusal

to acquiesce to its proposal during negotiations for the Houston Division to abandon

the Fund’s healthcare plan for one sponsored by the Employer. Thus, the Employer

acted unilaterally to undermine the Union’s bargaining position to maintain the

Fund as the employee’s health insurance plan and, instead, facilitate a switch to the

Employer’s proposed healthcare plan

ted by the Union’s refusal

to acquiesce to its proposal during negotiations for the Houston Division to abandon

the Fund’s healthcare plan for one sponsored by the Employer. Thus, the Employer

acted unilaterally to undermine the Union’s bargaining position to maintain the

Fund as the employee’s health insurance plan and, instead, facilitate a switch to the

Employer’s proposed healthcare plan. Indeed, the timing of the Employer’s

unilateral action further supports this conclusion where it unilaterally discontinued a

twenty-year-old past practice one month after it had declared impasse in negotiations

for the Houston Division, a declaration that the Union disputes.22 In light of the

direct evidence of animus supplied by the Employer and the supporting

circumstantial evidence of animus, the General Counsel can more than satisfy her

initial burden of showing that the Employer unlawfully terminated in-store access to

retaliate against the unit employees’ for the bargaining position taken by their

20 Wright Line, 251 NLRB at 1089.

21 “It is well established Board law that respondent position papers submitted to the

NLRB are admissible and can be construed as admissions.” UPMC, 366 NLRB No.

142, slip op. at 19, n.14 (2018); see also Florida Steel Corp., 235 NLRB 1010, 1011-12

(1978).

22 See, e.g., Murphy Oil USA, 286 NLRB at 1042-43 (finding timing supported

conclusion that employer had unlawful motive for unilaterally changing several work

rules where changes followed employees’ strike activity and the changes altered

“longstanding” workplace practices).

PMC, 366 NLRB No.

142, slip op. at 19, n.14 (2018); see also Florida Steel Corp., 235 NLRB 1010, 1011-12

(1978).

22 See, e.g., Murphy Oil USA, 286 NLRB at 1042-43 (finding timing supported

conclusion that employer had unlawful motive for unilaterally changing several work

rules where changes followed employees’ strike activity and the changes altered

“longstanding” workplace practices).

Cases 15-CA-267430; 16-CA-267525, et al.

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Union.23 In the absence of any evidence of a legitimate justification for the change,

the Employer cannot satisfy its rebuttal burden. Thus, the Employer violated Section

8(a)(3) and (1) by making the unilateral change.24

III. The Employer violated Section 8(a)(5) and (1) by refusing to provide the

information the Union first requested on October 1.

A collective-bargaining representative is entitled to information relevant and

necessary to carrying out its statutory duties and responsibilities, including

negotiating over mandatory bargaining subjects and policing a collective-bargaining

agreement.25 When the requested information deals with the terms and conditions of

employment of bargaining unit employees, the Board will deem the information

presumptively relevant and necessary to the union’s performance of its statutory

duties.26 Once relevance has been established, an employer cannot withhold the

23 Because of the strength of the General Counsel’s case under Wright Line, we need

not decide the alternate theory of whether the Employer’s action was inherently

destructive of employee rights.

24 We note that the Union did not amend the charges in Region 16 to include a Section

8(a)(3) allegation until April 12, 2021, which is outside the Section 10(b) period

thhold the

23 Because of the strength of the General Counsel’s case under Wright Line, we need

not decide the alternate theory of whether the Employer’s action was inherently

destructive of employee rights.

24 We note that the Union did not amend the charges in Region 16 to include a Section

8(a)(3) allegation until April 12, 2021, which is outside the Section 10(b) period.

Nevertheless, in analyzing the facts of this case through Redd-I, Inc., 290 NLRB 1115,

1118 (1988), we conclude that a Section 8(a)(3) charge allegation would be “closely

related” to the timely-filed Section 8(a)(5) charge in Region 16 and, thus, not time

barred under Section 10(b). This stems from the fact that there is a “causal nexus

between the allegations and they are part of a chain or progression of events.” Carney

Hospital, 350 NLRB 627, 630 (2007) (clarifying the second prong of Redd-I); see also

Aldworth Co., 338 NLRB 137, 138-39 (2002) (finding untimely Section 8(a)(5)

allegation regarding unilateral implementation of employee performance

measurement standard to be closely related to timely Section 8(a)(3) allegation

regarding employees’ discharge), enforced sub nom., Dunkin’ Donuts Mid-Atlantic

Distribution Center, Inc. v. NLRB, 363 F.3d 437 (D.C. Cir. 2004). Furthermore, the

Employer is not at a disadvantage because it has been aware of the timely-filed

Section 8(a)(3) charge in Region 15, and it opted not to supplement its original

position statement with any other evidence or arguments.

25 See Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979) (citing NLRB v. Acme

Indus. Co., 385 U.S. 432, 435-36 (1967), and NLRB v. Truitt Mfg. Co., 351 U.S. 149,

152 (1956)).

26 See, e.g., Pennsylvania Power Co., 301 NLRB 1104, 1105 (1991) (citing Curtiss-

Wright Corp., 145 NLRB 152 (1963), enforced 347 F.2d 61 (3d Cir. 1965)); see also

other evidence or arguments.

25 See Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979) (citing NLRB v. Acme

Indus. Co., 385 U.S. 432, 435-36 (1967), and NLRB v. Truitt Mfg. Co., 351 U.S. 149,

152 (1956)).

26 See, e.g., Pennsylvania Power Co., 301 NLRB 1104, 1105 (1991) (citing Curtiss-

Wright Corp., 145 NLRB 152 (1963), enforced 347 F.2d 61 (3d Cir. 1965)); see also

Cases 15-CA-267430; 16-CA-267525, et al.

- 11 -

information by claiming it is confidential or proprietary; instead the employer has an

obligation to propose an accommodation or bargain with the union over the union’s

need for the information in light of the confidentiality issues.27 Furthermore, “the

right of the Union to the information requested must be determined by the situation

which existed at the time the request was made, not at the time the Board or the

courts get around to vindicating that right—otherwise, important rights under the

Act would be lost simply by the passage of time and the course of litigation.”28

Here, the Employer unjustifiably refused to comply with the information request

the Union first made on October 1, which the Union needed to fulfill its statutory duty

to negotiate over mandatory bargaining subjects.29 Upon learning that unit

employees could no longer enjoy a twenty-year-old past practice and access the Fund’s

healthcare portal via in-store computers—merely weeks before open enrollment

season began—the Union naturally sought information from the Employer explaining

how and why this happened. Not only would this information be helpful to the

Union’s pending grievances over the unilateral change, but the information would

also impact the Union’s posture at the bargaining table and, furthermore, adjust its

messaging with its members so that the Employer’s actions did not successfully

undercut the employees’ confidence in their collective-bargaining representative,

especially at a time of ongoing bargaining

rmation be helpful to the

Union’s pending grievances over the unilateral change, but the information would

also impact the Union’s posture at the bargaining table and, furthermore, adjust its

messaging with its members so that the Employer’s actions did not successfully

undercut the employees’ confidence in their collective-bargaining representative,

especially at a time of ongoing bargaining. Thus, while the information’s relevance to

Fleming Cos., 332 NLRB 1086, 1086-87 (2000) (finding employer violated Section

8(a)(5) by failing to provide union with grievant’s personnel file, work rules, other

disciplinary actions taken, and a list of names and contact information for all unit

employees employed by respondent’s predecessor).

27 See Detroit Edison Co. v. NLRB, 440 U.S. at 317-18; Finch, Pruyn & Company, Inc.,

349 NLRB 270, 276 (2007) (employer failed to accommodate union’s request for

contracts, including ignoring the union’s proposal to redact confidential financial

terms), enforced 296 F. App’x 83 (D.C. Cir. 2008).

28 Booth Newspapers, Inc., 331 NLRB 296, 300 (2000) (quoting Mary Thompson

Hospital, 296 NLRB 1245, 1250 (1989), enforced 942 F.2d 741 (7th Cir. 1991)).

29 We find that the Employer did not violate Section 8(a)(5) and (1) by not complying

with the information request the Union submitted on November 5 for

“communications with employees informing them of how to access the enrollment

portal.” The Employer stated that it did not have any documents that would be

responsive to that request, and the absence of any indication from unit employees that

they received some communication on this matter from the Employer appears to

corroborate that response. If either Region becomes aware of evidence to the contrary,

it should contact Advice.

them of how to access the enrollment

portal.” The Employer stated that it did not have any documents that would be

responsive to that request, and the absence of any indication from unit employees that

they received some communication on this matter from the Employer appears to

corroborate that response. If either Region becomes aware of evidence to the contrary,

it should contact Advice.

Cases 15-CA-267430; 16-CA-267525, et al.

- 12 -

the Union’s statutory duties is apparent, the Employer’s primary defense—that the

information sought was privileged—is opaque, undeveloped, and unpersuasive. But

not only did the Employer fail to substantiate why the information sought was too

sensitive to be disclosed, it also failed to satisfy its statutory obligation of offering an

accommodation in accordance with Board precedent.30 Indeed, despite the Employer

reversing course and restoring access to the in-store computers after several days or

weeks, that did not negate the fact that the Employer unlawfully refused to provide

the Union with the requested information at a time when some employees still did not

have access to the healthcare portal on in-store computers.31 Equally important,

because of ongoing negotiations between the parties, a key aspect of which involves

disagreement over the selection of a healthcare plan, the requested information

remains relevant to their bargaining relationship.

CONCLUSION

Accordingly, based on the foregoing, each Region should issue complaint, absent

settlement, alleging that the Employer’s unilateral change violated Section 8(a)(5),

cause of ongoing negotiations between the parties, a key aspect of which involves

disagreement over the selection of a healthcare plan, the requested information

remains relevant to their bargaining relationship.

CONCLUSION

Accordingly, based on the foregoing, each Region should issue complaint, absent

settlement, alleging that the Employer’s unilateral change violated Section 8(a)(5),

(3), and (1), and its failure to comply with the information request the Union first

made on October 1 violated Section 8(a)(5) and (1).32

/s/

R.A.B.

ADV.16-CA-267525.Response.KrogerTexas.

30 See supra note 27. The Employer also initially replied to the Union that it did not

have documents responsive to the Union’s request for any communications among the

Employer’s management and information technology or information security

departments regarding the blocked access. To the extent that the Employer continues

to rely on this defense, each Region should be prepared to reject it. Where, as here,

the surrounding circumstances create the reasonable inference that it is implausible

for an employer not to have the requested information, the Board will find a Section

8(a)(5) and (1) violation despite an employer stating it does not have responsive

documents. See, e.g., Queen of the Valley Medical Center, 368 NLRB No. 116, slip op.

at 1-2, 26 (2019).

31 See supra note 28.

32 We note that Region 15 did not request advice on the request for information

charge. Nevertheless, the Region should adhere to the conclusion provided above.

(b) (6), (b) (7)