Jerry's Finer Foods

National Labor Relations Board - Board Decisions

Apr 12, 1974

210 N.L.R.B. 52 (N.L.R.B. 1974)

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collage Enterprises, Inc. d/b/a Jerry's Finer Foods
and Retail Clerks Union Local 1540, Retail Clerks
International Association, AFLr-CIO. Case 38-
CA-1415
April 12, 1974
DECISION AND ORDER
On July 12, 1972 , Administrative Law Judge' Paul
E. Weil issued his original Decision in this proceed-
ing. On July 31, 1972 , pursuant to a motion filed by
the Respondent , the Board remanded the case to the
Administrative Law Judge for acceptance and
consideration of Respondent's brief and for further
consideration of his Decision in the light of such
brief . On September 21, 1972 , the Administrative
Law Judge issued his Supplemental Decision . There-
after, the Respondent filed an exception to the
remedy recommended in the Administrative Law
Judge's Decision and a supporting brief, and the
General Counsel filed a brief in support of the
Administrative Law Judge 's Decision.
The Board has considered the record and the
attached Decisions in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
In December 1971 the Respondent , Gerald Coll-
inge, an area supervisor for the Kroger Company,
entered into an agreement with a third party whereby
the third party was to try to purchase a retail grocery
store in Harvard , Illinois , which was being operated
by the Kroger Company and then sell the store to the
Respondent . Subsequently , the transactions were
accomplished in the latter part of February 1972.
Kroger continued to operate the store until February
26. Kroger removed all of the supplies bearing its
name as well as the meat and produce.
A week or two before the store was closed by
Kroger, Kroger's manager, Richard Goad , told the
employees of the impending change in ownership
and what they could expect in the way of wages if
they accepted employment with the Respondent. All
of the proferred wages were below those paid by
Kroger . All six of the Kroger employees were offered
employment by the Respondent and five of them
accepted.
On February 27 the Respondent began the clean-
ing and restocking of the shelves in the store, using
the five employees who had worked for Kroger. The
store manager for Kroger, Goad , was retained in the
same capacity by the Respondent . Respondent
reopened the store for business on March 1.
On February 29, two union representatives, Hook-
er and Huseby, visited the store . They told Collinge
that they wanted to negotiate a contract which
maintained the insurance , pension, and rates of pay
of the five employees working in the store . Collinge
replied that he was not interested in any union.
Thereafter Collinge again refused to bargain when
requested to do so by a letter from the Union.
Also during the interim period between February
26 and March 1, Collinge discussed wages and
benefits with employees . On February 29 he told
employee Dail he wanted her to work for him and
asked if the offer by Store Manager Goad of $2 an
hour was satisfactory . Dail told him that she and
other employees thought it was unfair , and that she
had talked it over with the Union but that she still
wanted to work there . She also stated that the
employees wanted insurance . Collinge said he would
try to get the employees some insurance and would
speak to her again.
About 15 minutes later Collinge again talked to
Dail and told her he could pay her $2 .75 an hour.
Dail said that was a lot better and again mentioned
insurance. Collinge said that he was looking into it
and was going to get insurance for the employees.
During the same interview period Collinge offered
employee Dowey $2.75 an hour instead of the $2
originally offered by Goad, and employee Ehle $3
instead of the original $2 . 75 an hour.
During the same interim period the Respondent's
store manager, Goad , committed several violations
of Section 8(a)(1) by interrogating employees regard-
ing the Union and the reasons for their loyalty to it,
by a statement that the Union had driven Kroger out
of business , and by a threat of a reduction in hours.
All five of the employees continued to pay their
union dues through the month of March.
The Administrative Law Judge found the Respon-
dent to be a successor to Kroger, found the violations
of Section 8(a)(1) set forth above , and found that the
Respondent refused to bargain in violation of
Section 8(aX5). In applying the Supreme Court's
decision in Burns2 he found that this case fell within
that category in which an employer is required
initially to consult the Union before changing the
employment conditions of his employees . In drafting
a remedy, however, he required the Respondent to
make restitution with respect to only those benefits
which he found to be direct and monetary such as
wages, overtime pay, vacation pay, and sick pay. He
further held that the Respondent must make restitu-
tion for any loss sustained by any employee due to
1 The title of `Thal Exammer" was changed to "Adnumstrative Law 2 Burns International Security Services , Inc., 406 U.S. 272 ( 1972).
Judge" effective August 19, 1972.
210 NLRB No. 8
JERRY'S FINER FOODS 53
the loss of hospitalization or sick benefits. He
eliminated such provisions as the union shop,
grievance and arbitration, and transfer provisions of
the existing contract. He did not order the Respon-
dent to make payments to the health and welfare and
pension funds since these funds were administered
by trusts to which Respondent was not a party and
payments to them might thus be in violation of
Section 302(c) of the Act. In a supplemental decision
he found that these conclusions were in accord with
the Board's decision in the Howard Johnson case.3
The Respondent did not except to the Administra-
tive Law Judge's findings that it had violated Section
8(a)(1) and conceded that it had refused to bargain
when the Union requested it to do so on February
29, 1972. It excepted to his remedy, however,
contending that it was entitled to make unilateral
changes in the terms and conditions of employment
which had obtained under the former employer
without the liability imposed upon it by the remedy
fashioned by the Administrative Law Judge. We
affirm the Administrative Law Judge's findings that
the Respondent violated Section 8(a)(1) by its
conduct set forth in his Decision and we find that the
Respondent unlawfully refused to bargain after it
had hired the predecessor's employees. But we do not
agree that the Respondent was obligated to consult
with the union representative before changing the
wages or working conditions of the employees which
had obtained under the predecessor employer prior
to its actual employment of them.
The Respondent does not challenge the Adminis-
trative Law Judge's finding that it was a successor
employer and, in any event, the record clearly
supports such a conclusion. It is therefore necessary
to assess the Respondent's obligations in the light of
the decision in the Burns case, supra, in which the
Supreme Court delineated the rights and duties of a
successor employer with respect to the predecessor's
employees.
In the Burns case the Supreme Court established
the general rule that a successor employer is
ordinarily free to initially set the terms and condi-
tions of employment on which it will hire its
predecessor's employees. The Court, however, carved
an exception to the general rule stating:
[T]here will be instances in which it is perfectly
3 Howard Johnson Company, 198 NLRB No 98
It is on this point that we find this case distinguishable from the
Howard Johnson Company case, supra, relied on by the Administrative Law
Judge, and the later case of Good Foods Manufacturing & Processing
Corporation, Chicago Lamb Packers, Inc.Division, 200 NLRB No 86. In
those cases the successor employer unilaterally changed the terms and
conditions of employment after having already hired almost all of the
predecessor's employees . The obligation to bargain had therefore already
attached before the unilateral changes were made.
s Spruce Up Corporation, 209 NLRB No. 19; Ranch Way, Inc, 203
clear that the new employer plans to retain all of
the employees in the unit and in which it will be
appropriate to have him initially consult with the
employees' bargaining representative before he
fixes terms.
The Administrative Law Judge concluded that the
Respondent "planned to retain all of the employees
in the unit" and that this case therefore falls within
the exception to the general rule enunciated by the
Supreme Court. We do not agree that the evidence
supports his conclusion.
The record discloses that in hiring the predecessor's
employees the Respondent did not hire the employ-
ees and then present his terms and conditions of
employment .4 On the contrary, they were told that
the Respondent could not afford to continue the
predecessor's terms and conditions of employment
from an economic standpoint and were offered terms
considerably less advantageous than those prevailing
under the predecessor. One of the employees did not
accept the new terms and was not employed by the
Respondent when it reopened the store. It is
apparent that the Respondent thus did no more than
give preference in employment to employees experi-
enced in the operation of the store and that their
retention as employees was contingent upon their
acceptance of the terms offered by the Respondent.
Such tentative offers of employment do not, in our
opinion, make it "perfectly clear that the new
employer plans to retain all of the employees in the
unit" as we interpret the opinion of the Supreme
Court.5
We conclude, therefore, that the conduct of the
Respondent in this case does not fall within the
exception to the general rule that the successor
employer is ordinarily free to set the initial terms of
employment on which he will hire the predecessor's
employees. It follows that the Respondent did not
violate Section 8(a)(5) of the Act by its offers of
employment to the predecessor's employees made
prior to the reopening of the store.
The Respondent's conduct after it began opera-
tions at the store on February 27, 1972, clearly
violated the Act, however. On that date all of its
employees were former employees of the predecessor
and all had demonstrated their continued adherence
to the Union which had represented them while they
NLRB No. 118. Member Fanning does not agree that the offers of
employment were tentative and did not reveal an intention to hire the
employees of the predecessor . See his separate opinion in Spruce Up
Corporation, supra. Though he would find that such offers and the
employees' acceptance of them gave rase to an obligation on the part of
Respondent to bargain upon request of the Union about the establishment
of those terms poor to the time the employees went to work for Respondent,
no such request was made , and he therefore finds no violation of the
bargaining obligation in Respondent's putting the employees to work under
those terms.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been employed by the predecessor. At that paint
in time the Union therefore represented a majority of
its employees and the Respondent's duty to bargain
had matured. At this juncture the Respondent's
obligation to bargain was similar to that of any
employer whose employees had selected a collective-
bargaining representatives It could not, as it did,
negotiate with the individual employees regarding
the obtaining of insurance nor could it raise the
wages of the employees without consultation with the
collective-bargaining representative. By doing so it
violated its obligation to bargain exclusively with the
collective-bargaining representative in contravention
of Section 8(a)(1) and (5). Because the employees
sustained no monetary loss due to the Respondent's
violation of the Act, however, there is no basis for
reimbursing the employees, but nothing in our Order
should be construed as requiring the Respondent to
revoke any wage increases or other employee
benefits previously granted.?
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Collinge Enterprises,
Inc. d/b/a Jerry's Finer Foods, Harvard, Illinois, its
officers, agents, successors , and assigns, shall take the
action set forth in said recommended Order, as
modified.
1. Delete Section 2(b) of the recommended Order,
renumbering the succeeding paragraphs consecutive-
ly.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER PENELLO , dissenting in part, concurring in
part:
Contrary to my colleagues, I would find, for the
reasons set forth in my dissent in Spruce Up
Corporation, 209 NLRB No. 19, that this also is a
case in which, under the Supreme Court's holding in
Burns, "[I]t is perfectly clear that the new employer
plans to retain all of the employees in the unit and in
which it will be appropriate to have him initially
consult with the employees' bargaining representa-
tive before he fixes terms."8 Thus, 1 or 2 weeks
before the predecessor's operation was terminated,
all of the employees in the unit who had been
employed by the predecessor were specifically asked
to continue working for Respondent, albeit at a
lower wage . This voiced intent to retain the employ-
ees became a reality when all but one agreed to stay
on under the new management . In addition, Respon-
dent discussed wages individually with the employ-
ees. In some instances the employees said that they
considered the wage offer too low and, after brief
consideration, Respondent agreed to pay more but,
in each case, less than they had received under the
union contract. Respondent also agreed with at least
one employee that he would try to get insurance
coverage for the employees.
In these circumstances I conclude that Respondent
having manifested an intent to hire all of the
employees in the unit violated Section 8(a)(5) and (1)
by refusing to bargain with the Union prior to
establishing its wages and in bypassing the Union
and dealing directly with the employees as individu-
als both initially and thereafter about matters as to
the negotiation of which the employees had a
legitimate right and interest to be represented by
their bargaining agent , and concerning which the
Union had sought bargaining.9
6 NLRB v. Bachrodt Chevrolet Co., 468 F.2d 963 (C.A. 7, 1972) vacated
and remanded 411 U.S. 912 (1973), decision on remand 205 NLRB No. 122;
Ranch Way, Inc., supra.
1 Exchange Parts Co., 375 U .S. 405 ( 1964); Yale Rubber Manufacturing
Company, 193 NLRB 141.
8 Burns, supra at 294-295.
9 While the language of the Supreme Court in Burns is sometimes subject
to differing interpretations, the Court clearly stated that the obligation is on
the employer to consult with the union in circumstances where it is perfectly
clear he intends to retain all of his predecessor's employees as here.
Contrary to Member Fanning, I take this to mean a union request is not
necessary in this situation . Moreover, this view makes sense as otherwise the
union would have to read the employer's mind in order to know whether he
intends to set initial terms and conditions which differ from those of his
predecessor and thus whether it is necessary to demand bargaining before
the employer puts these unilateral terms into effect . Finally, Member
Fanning's view produces a particularly arbitrary result in this case, as here
the Respondent was aware of the Union's status before it took over;
Respondent demonstrated union animus by threatening to cut hours if the
Union remained in the picture and by interrogating employees about the
Union during the interim period; and the Union did seek to bargain about
the establishment of Respondent 's initial terms which it was unaware was
already a fait accompli due to the Union's lack of clairvoyance.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice, and we
intend to carry out the Order of the Board and abide
by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their choosing.
To act together for collective bargaining
or other mutual aid or protection
JERRY'S FINER FOODS
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
or restrains or coerces employees with respect to
these rights.
WE WILL NOT threaten to reduce the hours of
our employees if we have to bargain with the
Union.
WE WILL NOT coercively interrogate our em-
ployees about their union sentiments or activities.
WE WILL, on request of Retail Clerks Union,
Local 1540, Retail Clerks International Associa-
tion, AFL-CIO, bargain with the Union concern-
ing the wages, hours, and working conditions of
out full-time and regular part-time employees
excluding the manager, meat department employ-
ees, professional employees, guards and supervi-
sors and WE WILL sign a contract with the Union
embodying any agreement we reach with it.
COLLINGE ENTERPRISES,
INC. D/B /A JERRY'S
FINER FOODS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Savings Center Tower 10th Floor,
411 Hamilton Boulevard, Peoria, Illinois 61602,
Telephone 309-673-9061, Extension 282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On March 9 1 Retail
Clerks Union, Local 1540, Retail Clerks International
Association, AFL-CIO, hereinafter called the Union, filed
a charge with the Officer-in-Charge of Subregion 38 of the
National Labor Relations Board, hereinafter called the
Board, alleging that Collinge Enterprises, Inc., d/b/a
Jerry's Finer Foods, hereinafter called the Respondent,
engaged in conduct in violation of Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended. On
April 11 the said Officer-in-Charge, on behalf of the
General Counsel of the Board, issued a complaint alleging
that Respondent violated Section 8(a)(5) and (1) of the Act
by various acts and conduct, including Respondent's
refusal to bargain with the Union, the collective-bargaining
representative of the majority of Respondent's employees
55
in a unit appropriate for collective-bargaining within the
meaning of the Act. By its duly filed answer Respondent
denied the commission of any unfair labor practices. The
matter came on for hearing before me on June 8, 1972, at
Harvard, Illinois . All parties were present or represented
by counsel, and had an opportunity to call and examine
witnesses, and to adduce relevant and material eyidoce.
The parties waived oral argument at the close of .
Briefs have been received from the General CoUMd and
the Union.
Upon the entire record in this matter, and in c ontem-
plation of the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Collinge Enterprises, Inc., doing business as Jerry's Finer
Foods, operates a retail food store in the city of Harvard,
Illinois . It commenced business operations on March 1,
1972 , purchases substantial quantities of goods from
outside the State of Illinois, and has gross sales which,
extended to a calendar year basis, would exceed $50000
annually . Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Background
Through Saturday, February 26, 1972, the Kroger
Company, a multistate enterprise, operated a food store in
Harvard, Illinois, under its own name. In December 1971
Gerald Collinge who had been an area supervisor for the
Kroger Company entered into an agreement with Certified
Grocers Co-Op of Madison, Wisconsin, pursuant to which
Certified agreed to attempt to purchase the equipment and
leasehold improvements constituting the retail grocery
store from the Kroger Company and sell them to Collinge.
Subsequently, Certified Grocers Co-Op of Madison,
Wisconsin, assigned its agreement to Wisill, Inc., a
corporation set up by the co-op to operate in Illinois.
Subsequently, Wisill entered into an agreement with
Kroger to buy equipment, fixtures, and some stock from
Kroger, and entered into an agreement with Respondent to
purchase the fixtures, equipment, leasehold, and stock and
operate the retail food store. Kroger continued to operate
the food store through Saturday, February 26, at which
time Collinge took over. Kroger moved out all of the
grocery supplies bearing its name, as well as the meat and
produce. Commencing at the close of business February 26
and until March 1, Collinge restocked and cleaned the
store and opened for business on March 1.
Commencing 2 weeks before February 26, Richard
Goad, who had been Kroger's manager of the premises
I All dates hereinafter are in the year 1972 unless otherwise specifically
stated.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and had agreed to continue managing the store for
Respondent, commenced talking to employees asking them
to stay on under the new management . At the time Kroger
operated the store the employees, other than meat
department employees, were Kurt Ulmer, Nancy Dowey,
Kenneth Grider, Janet Dail, Jewell Ehle and Jean Noland.
In addition there may have been some part-time employ-
ees. Respondent asked all of the employees who had
worked for Kroger to continue working for him, and all of
those named above, with the exception of Kurt Ulmer,
agreed to do so.
For at least 15 years prior to its relinquishment of the
store the Kroger Company had a collective-bargaining
agreement with the Union covering the employees of the
store, and at the time Respondent took the store over a
contract was in existence which provided that all employ-
ees should become and remain members of the Union.
Either personally or through Manager Goad, Collinge
offered each of the employees wage rates that differed
from the wages that they had formerly been paid under the
union contract. In some instances the employees said that
they considered the wage offer too low, and after brief
consideration, Collinge agreed to pay more, but in each
case, less than they had received under the union contract.
In addition Collinge agreed with at least one employee that
he would attempt to get insurance coverage for the
employees.
As Kroger's supervisor, Collinge had been aware of the
union contract, and it was apparently in his mind at the
time that he took over operation of the Harvard store. On
the day before the store opened, Manager Goad had a
conversation with Janet Dail in which he asked her if she
had talked to a union agent and what had been said. Miss
Dail told Goad that she was going to continue to pay dues
to the Union and that the Union wanted to continue to
represent the employees. Goad wanted to know why she
was going to continue to pay dues and Miss Dail told him
that the Union had been good to her and until things were
decided she wouldn't be out much money if she did pay
dues. On the same day Miss Dail had a conversation with
Collinge in which she told him that she was tom between
working for the store and continuing with the Union
because she wanted to stay on with the Union.
Nancy Dowey testified that on Monday before the store
opened Goad asked her if representative Hooker from the
Union had called her. Goad asked Miss Dowey whether
Hooker had said anything about setting up picket lines or
asked her to sign anything. Miss Dowey said that if they
asked her to vote for the Union she would do so, to which
Goad answered that if the Union got in she wouldn't be
able to work 40 hours a week because the store couldn't
afford the wages and he said that the Union had put
Kroger out of business.
Jewell Ehle testified that sometime between February 26
and March 1 Goad asked her if she was still paying union
dues . When she answered in the affirmative, he asked why.
She answered that she wanted to protect her pension and
Goad said that he could understand that.
Business Representative Robert C. Hooker and a fellow
representative of the Union met with Collinge on February
29 at the store. Hooker testified that he told Collinge that
they were there to talk about maintaining the benefits for
the people in the store and they wanted him to sign a
contract and maintain the insurance, pensions, and rates of
pay for the employees that worked in the store. Collinge
said he wasn't interested in any union. The union agents
attempted to make an appointment with Collinge, but he
answered that he had no comment.
Kenneth Rada, the president of the Union, thereafter
sent a letter to the store.2 In the letter Rada stated his
opinion that Respondent was a successor to the Kroger
Company and called on it to maintain the conditions of the
collective-bargaining agreement for the employees in the
store.
According to Collinge his conversation with Hooker was
very brief. Hooker wanted to know whether he was ready
to negotiate a contract and he answered that he had no
comment. He denied saying that he was not interested.
The employees, Dale, Dowey, Ehle, Rider, and Nolan all
maintained their union memberships through the payments
of dues at least through March.
Discussion and Conclusions
The General Counsel contends that Respondent is a
successor to Kroger and that accordingly it has a duty to
bargain with the Union. The General Counsel additionally
contends that the duty to bargain includes a duty not to
change working conditions in existence at the time
Respondent took over the operation of the store. Accord-
ingly the General Counsel contends that an order should
issue providing that Respondent make the employees
whole for the difference between what they would have
earned under the contract and what they were paid by
Respondent.3
Respondent contends that it is not Kroger's successor
and accordingly, has no duty to bargain with the Union,
and in any event that if it had a duty to bargain with the
Union it had no duty to maintain the Kroger conditions of
employment. Respondent, in this regard, relies upon the
language in the Burns decision in which the Supreme-Court
declined to find a violation in the employer's changing of
working conditions established in the union contract with
Bums' predecessor employer.
I conclude that, in fact, Respondent is a successor to
Kroger in the operation of the Harvard , Illinois, store. All
of the important factors which the Board has considered
are present in this case. Respondent is continuing the same
line of business, selling groceries, in the same store with the
same equipment, the same employees and the same
supervision, as did Kroger. The only substantial change is
the name over the door and the fact that Kroger-labeled
merchandise, which comprised some 40 percent of the
stock during Kroger's administration of the store, is no
2 The letter was misaddressed to Collins rather than Collinge . However the complaint was issued , but before hearing, the decision of the Supreme
Respondent admitted its receipt . Court in N.LR B v. Burns International Security Services, Inc., 406 U.S.
3 The General Counsel originally prayed for an order requiring , 272(1972), was issued At the opening of the hearing the General Counsel
Respondent to adopt the terms and conditions of the Kroger contract . After moved to dismiss that portion of the complaint . The motion was greased.
JERRY'S FINER FOODS
longer sold , but has been supplanted with other , similar
merchandise.
All employees were represented by the Union prior to
the change-over. All employees continued to be represent-
ed by the Union after the change-over and it appears that
by its interrogation of the employees, Respondent knew
that at least three of them proposed to continue their union
membership after the change-over. Accordingly, Respon-
dent, even if it were not a successor, has had a duty to
bargain with the Union, whom it knew to represent a
majority of its employees in a unit which it does not
contend is inappropriate, consisting of all employees
excluding the meat department employees, guards, and
supervisors as defined in the Act.
The General Counsel contends, and I find, that the
interrogations of the employees by Goad and Collinge
violate Section 8(axl) of the Act. They were unaccompa-
nied by any assurances of a business need for the
information or as to the job security of the employees who
answered the questions asked of them, and in one instance,
the interrogation was accompanied by Goad's statement
that the employee's hours would be cut if a union were
recognized.
The only issue remaining is whether this case is one
where Respondent is required to maintain the wages,
hours, and working conditions established by its predeces-
sor under the union contract. Respondent contends that
under the language of the Burns decision, no such duty
exists . In Burns, the Court made the following statement:
Although Bums had no obligation to bargain with the
Union concerning wages and other conditions of
employment when the Union requested it to do so, this
case is not like a Section 8(a)(5) violation where an
employer unilaterally changes a condition of employ-
ment without consulting a bargaining representative. It
is difficult to understand how Bums could be said to
have changed unilaterally any pre-existing term or
condition of employment without bargaining, when it
had no previous relationship whatsoever to the bargain-
ing unit, and prior to July 1, no outstanding terms and
conditions of employment from which a change could
be inferred. The terms on which Bums hired employees
for service after July 1 may have differed from the
terms extended by Wackenhut and required by the
collective-bargaining contract, but it does not follow
that Bums changed its terms and conditions of
employment when it specified the initial basis on which
employees were hired on July 1.
The General Counsel, however, relies on the paragraph
next following the above-quoted matter in which the Court
stated:
Although a successor-employer is ordinarily free to set
initial terms on which it will hire the employees of a
predecessor, there will be instances in which it is
4 Business representative Hooker testified on cross-examination that the
contract he asked Respondent to sign was a form contract identical in terms
to the contract between Kroger and the Union
b Hen House Market No 3, 175 NLRB 596, and cases therein cited.
6 The record reveals that there was no change in the job content of any
57
perfectly clear that the new employer plans to retain all
of the employees in the unit, and in which it will be
appropriate to have him initially consult with the
employees' bargaining representative before he fixes
terms.
The General Counsel contends that this is a situation in
which it is perfectly clear that the new employer planned to
retain all of the employees in the unit. Accordingly,
Respondent appropriately should have initially consulted
with the Union before he fixed such terms. Indeed, there is
no question that this is so. All of the employees in the unit
who had been employed by Kroger were asked to continue
working for Respondent. Additionally, Respondent was
aware of the fact that these employees were covered by a
contract and was aware of the terms and conditions
thereof. Finally, the Respondent was asked by the Union
to negotiate a contract as well as to adopt the contract of
its predecessor.4 Accordingly, I find that the General
Counsel has met the only condition recited by the Court in
the Bums decision under which Respondent has the duty
to initially consult with the Union. The Court leaves it to
the Board to fashion a remedy in the event that
Respondent does not fulfill this duty.
Normally, when an employer has a duty to bargain with
the union concerning the working conditions of its
employees and refuses to do so, either establishing working
conditions unilaterally or establishing them after direct
bargaining with the employees, which is in itself an unfair
labor practice under the circumstances, the Board will
order that the working conditions be "rolled back" to the
status quo ante the Employer's unfair labor practice, except
to the extent that the employees have been advantaged by
improved wages or working conditions by the Employer's
unlawful action.5 But, Respondent could argue, inasmuch
as Respondent had no duty to adopt its predecessor's
contract with the Union there is no status quo ante to which
to roll back, other than the terms which Respondent
unilaterally set after negotiation with the employees
individually.
In my opinion, this contention is based on form rather
than substance. Indeed these employees had no break in
service, they finished their work on Saturday, February 27,
as employees of Kroger and resumed work either Sunday
or Monday as employees of Respondent doing essentially
the same work which they had been doing.6 Thus, the
conditions which the employees had enjoyed under the
union contract are easily ascertainable, were known to the
Respondent and necessarily would form a starting point
from which Respondent and the Union could and would
have bargained had Respondent fulfilled its bargaining
duty.
The Court in the Burns decision clearly made a
distinction between situations such as that in Burns where
the employer would not know whether it had a duty to
bargain until it had filled its employee complement and
that in the instant case where the Employer planned to
employee. Although the first days of Respondent's ownership of the store
were spent in restocking and cleaning the shelves, this was work that was
normally done by the employees concerned although not necessarily on a
full-time basis for a period of 2 days.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retain all of the employees in the unit. If no affirmative
orders were entered herein but merely a prospective order
that Respondent should now bargain as it should have
done when it first was requested to do so by the Union,
which is precisely the order that would issue under the
Burns type succession , this would then constitute a
distinction without a difference. I decline to believe that
the Supreme Court meant for this result to follow.
On the other hand, were I to order that Respondent
reestablish all the working conditions under which the
employees worked under the union contract , I would
effectively require that Respondent continue its predeces-
sor's contract for its term. It appears to me that this
remedy is barred by the Court's decision in Burns. In
addition, if Respondent is not viewed as the "alter ego " of
its predecessor, the provisions of the contract with
reference to health and welfare and pension funds are not
available to Respondent since the payment of these funds
is required by the contract to be made to trusts to which
Respondent is not a party, in which case the order would
appear to run afoul of Section 302(c) of the Act. Whether
on negotiating with the Union, pursuant to an order herein,
Respondent becomes a party to pension and health and
welfare trusts and under such circumstances is permitted
under the terms of those trusts to pay retroactively into
them for the period of time during which it was not a party
to such trusts , must necessarily be outside the ken of this
decision . I conclude that under the circumstances herein, a
just requirement of the remedy would be to make the
employees whole to the extent that their wages and other
direct monetary benefits such as overtime pay, vacation
pay, sick pay, and the like have been unilaterally changed
to the disadvantage of the employees. In the event that any
employee has suffered loss by reason of their loss of
hospitalization or sick benefits, Respondent should be
required to compensate them to the extent that they would
have been compensated had such benefits been available
to them under their prior conditions of employment. This
order would thus eliminate the union shop, grievance, and
arbitration provisions, transfer provisions, and such other
"housekeeping" provisions of the contract, as do not
directly affect the payments to the employees for their
services rendered Respondent. Respondent's liability
under such an order would run from Respondent's
accession to the ownership of the store to such time as
Respondent either enters into and gives effect to a contract
with the Union as a result of the bargaining order herein,
or reaches an impasse in bargaining with the Union as a
result of this order, wherein Respondent would, under
existing law, be permitted to make such unilateral changes
in the employees' working conditions. This order will, in
my opinion, effectuate the purposes of the Act with due
consideration to the decision of the Court in Burns,
distinguishing on the one hand, between the mere duty to
bargain imposed under the circumstances in that case and
on the other hand, the adoption of the contract specifically
found by the Court to be an excessive remedy in a bona
fide successorship case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above , have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(axl) and (5)
of the Act , it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act including
making whole its employees in the appropriate unit
represented by the Union by payment to them of all
monetary benefits of which they have been deprived by
reason of Respondent 's refusal to recognize and bargain
with the Union prior to setting wages and working
conditions for said employees for the period from
Respondent's accession to ownership of the store until
such time as Respondent negotiates in good faith with the
Union to a new agreement or impasse.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. Respondent is a successor employer within the
meaning of the Act in its accession to the ownership of the
food store known as Jerry's Finer Foods from the Kroger
Company, the predecessor employer.
4. All full-time and regular part-time employees em-
ployed at Respondent's Harvard, Illinois, facility, exclud-
ing the store manager , meat department employees,
professional employees , guards, and all supervisors as
defined in the Act constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.7
5. The Union has at all times relevant herein represent-
ed a majority of the employees in the unit set forth in
paragraph 4 above.
6. By interrogating its employees and by threatening to
reduce the hours of employment of an employee if the
Employer had to bargain with the Union, Respondent has
interfered with, restrained , and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the
Act thereby engaging in unfair labor practices within the
meaning of Section 8(axl) of the Act.
7. By failing and refusing to bargain in good faith with
the Union as the exclusive bargaining representative of the
unit described above, Respondent has engaged in and is
7 This is the unit which the Union represented under the Predecessor- inappropriate in the unit description . I note that the unit is the normal
Kroger Contract . Although Respondent denied that it is an appropriate grocery store unit approved by the Board in innumerable cases and I find
unit, it produced no evidence regarding what it considered to be that it is an appropriate unit herein.
JERRY'S FINER FOODS 59
engaging in unfair labor practices within the meaning of
Section 8(aX5) and ( 1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case
and pursuant to Section 10(c) of the Act, I make the
following recommended:
ORDERS
Respondent , Collinge Enterprises, Inc. d/b/a Jerry's
Finer Foods , its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing upon request to bargain collectively and in
good faith with the Retail Clerks Union, Local 1540, Retail
Clerks International Association, AFL-CIO, as the exclu-
sive representative of all employees in a unit consisting of
all full-time and regular part-time employees employed at
Respondent 's Harvard, Illinois, facility, excluding the store
manager and the meat department employees, professional
employees , guards , and supervisors as defined in the Act.
(b) Threatening employees that they would have fewer
hours of employment if Respondent had to bargain with
the Union.
(c) Unilaterally changing the wages or working condi-
tions of employees without first consulting or bargaining
with the Union or after bargaining individually with
employees in the unit represented by such union.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively with Retail Clerks
Union, Local 1540, Retail Clerks International Associa-
tion, AFL-CIO, as the exclusive representative of the
employees in the unit set forth above with respect to rates
of pay, wages , hours of employment and other conditions
of employment and if an understanding is reached embody
such understanding in a signed agreement.
(b) Make whole the employees for any loss of monetary
benefits which they may have suffered by reason of
Respondent's refusal to consult or bargain with the Union
prior to establishing rates of pay, wages, and other
conditions of employment for said employees by payment
to them of such sums, as described above in the section of
this Decision called "The Remedy."
(c) Post at its place of business in Harvard, Illinois,
copies of the attached notice marked "Appendix."9 Copies
of said notice on forms provided by the Officer-in-Charge
of Subregion 38, shall, after being duly signed by the
Respondent , be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places includ-
8 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herem shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
9 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered , defaced,oor
covered by any other material.
(d) Notify the Officer-in-Charge of Subregion 38, in
writing, within 10 days from the date of this order, what
steps have been taken to comply herewith.io
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Boardr
10 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to mad;
"Notify the Officer-in-Charge of Subregion 38, in writmg, within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith.
1 NLRB. v. Burns International Security Services, Inc., 406 U.S.
272(1972).
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Administrative Law Judge: On July 12,
1972, I issued a decision in the above-captioned case and it
was duly transferred to the Board . On that same day a
brief from Respondent was delivered to the Division of
Judges . Inasmuch as I had no jurisdiction over the matter
at that time I rejected and returned the brief . On July 31,
1972, pursuant to a motion on behalf of Respondent, the
Board remanded the proceeding to me for acceptance and
consideration of Respondent 's brief and for further
consideration of my decision in the light thereof . Respon-
dent having refiled his brief, I duly considered the brief
together with the briefs of the other parties which were
timely filed and the entire record in the proceeding. After
due consideration , I conclude that no warrant is shown for
changing the conclusions and recommendations in my
original decision.
Discussion
In my original decision I conclude that Respondent was
a successor-employer to the Kroger Company and had a
duty at all times to bargain with the Union. In its brief
Respondent acknowledges that "whether or not it be
deemed a `successor,' it erred in refusing to recognize and
bargain with the Union ...." Accordingly , no issue in
that regard remains.
Respondent additionally contends in its brief that
notwithstanding that it had a duty to recognize and
bargain with the Union, it did not violate the Act by
bargaining directly and individually with employees,
reasoning, on the basis of the Burns case,' that "a
successor-employer is ordinarily free to set initial terms on
which it will hire the employees of a predecessor."
I dealt with this issue in my initial decision . Respondent
raises no arguments or authority that I did not consider at
that time . In addition, on August 8, 1972 , the Board issued
its decision in Howard Johnson Co. 198 NLRB No. 98,
dealing with the same issue . In that case, as in this, the
employer planned to retain all of the employees in the unit
and the Board found that the retention of all the employees
in the unit obligated Respondent to bargain with the
Union before fixing rates of pay, wages , and terms of
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment and that Respondent by failing to do so
violated Section 8(a)(5) and (1) of the Act. It appears,
therefore, and on reconsideration of the findings in my
initial decision , that they are consistent with the rule
applied by the Board in Howard Johnson Co. and they
therefore shall remain unchanged.
Finally, Respondent contends that if it had a duty to
bargain it did not "mature" until June 8, 1972, the day of
the hearing in this matter, on which occasion the Employer
was asked on the witness stand whether he was then
prepared to bargain with the Union and stated that he was
not. Respondent contends that the Union's letter of
February 29 was inadequate to raise the duty to bargain
because that letter contemplated a meeting based on the
"honor and be bound" philosophy negated in Burns and
accordingly since the Union had no right' to require
Respondent to assume the earlier Kroger contract it had
no duty to respond to the Union's letter.
With regard to the conversation between Collinge and
Business Representative Hooker on February 29 during the
course of which Collinge was asked both to sign a contract
with the Union and maintain the insurance, pension, and
rates of pay for the employees and to make an appoint-
ment to enter into negotiations , but Collinge's answer, "No
comment," does not amount to refusal to bargain,
Respondent contends.
I have already found that Respondent had a duty to
consult with the Union before initially fixing terms and
conditions of employment. This conversation took place
after such terms were fixed . The unfair labor practices had
already been committed . Further the demand, both in the
letter and in the conversation, raised the duty of Respon-
dent to do something more than to say "no comment." The
failure to answer is no less a refusal to bargain than a
stated refusal to bargain in a situation of this nature . I find,
as I found in the initial decision , that an adequate demand
was made on February 29 and a refusal to bargain resulted
therefrom.
With regard to the remedy recommended in my initial
decision I note that it is consistent with that ordered by the
Board in the Howard Johnson case. Accordingly I conclude
that the order heretofore recommended by me is an
appropriate remedy for the violation found and I recom-
mend it to the Board.