Kroger Co.

National Labor Relations Board - Board Decisions

Feb 5, 1974

208 N.L.R.B. 928 (N.L.R.B. 1974)

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Houston Division of the Kroger Co. and Retail Clerks
International Association Local No. 455, AFL-CIO
and Amalgamated Meat Cutters & Butcher Work-
men of North America , District Local 40&
AFL-CIO. Cases 23-CA-4304 and 23-CA-4419
February 5, 1974
DECISION AND ORDER
On February 7, 1973, Administrative Law Judge
Maurice S . Bush issued the attached Decision in this
proceeding, to which thereafter the Respondent-filed
exceptions and a supporting brief, and the Charging
Parties filed a brief in answer to the Respondent's
exceptions.
The Board has considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and briefs and has decided to reverse the
Administrative Law Judge's conclusion that Respon-
dent has violated Section 8(a) (5) of the Act by
refusing to recognize and bargain with Retail Clerks
Local 455 and Meat Cutters Local 408 with respect
to certain employees in two of its stores which were
recently transferred from one of its administrative
divisions to another. However, we affirm the Admin-
istrative Law Judge's findings of fact to the extent
consistent herewith.
Respondent is engaged in the operation of a chain
of retail food stores in Texas and 19 other States. The
Company's retail food chain store operations are
divided for managerial and operational purposes into
geographical areas or "Divisions" as designated by
the Company. The Company's "Houston Division"
covers approximately the southern halves of Texas
and Louisiana, while the "Dallas Division" corre-
sponds roughly to the northern halves of these two
States.
The initial status of a multistore unit of Retail
Clerks within the Houston Division was established
in 1956 when the Board certified the incumbent
Union, Retail Clerks Local 455, as the-representative
of all employees within the forerunner of the
Houston Division operating in Texas. Meat Cutters
Local 408 has been recognized as bargaining agent
for nearly 40 years for a unit of meat employees at all
Kroger stores within its Houston Division.
Respondent's contracts with Retail Clerks Local
455 since 1963 have contained language virtually the
same as that within the current contract as follows:
A. The Union shall be the sole and exclusive
bargaining agent for all employees employed by the
Houston Division of Kroger Food Stores in stores
operating in the state of Texas, excluding all
persons employed in the meat departments ....
[Emphasis supplied.]
The pertinent contract between the Meat Cutters
Local and Kroger, which expired April 14, 1973,
contains the following language:
A. The Employer recognizes Meat Cutters Local
No. 408 as the exclusive and collective-bargaining
agent for all employees in the meat department in
all of Employer's retail stores located in the state of
Texas operated by the Houston Division of the
Kroger Co.
B. The parties agree that this contract shall
cover and the Union which is a party hereto shall
have jurisdiction over all meat department em-
ployees in retail stores that are, or will be, owned,
leased, or operated by the Employer. [Emphasis
supplied.]
Although there are obvious differences in language
between the two contracts, they both purport to add
after-acquired stores to the existing multistore units
of the Respondent's Houston Division. We shall
characterize this type of clause as an additional-store
clause.
The dispute in the instant case arose from an
administrative transfer of two of the Respondent's
stores, viz, the Nacogdoches and Lufkin stores, from
the Dallas to the Houston Division. The Unions
contended that the above-quoted contract language
brought these two stores, theretofore unrepresented
as far as the clerks at both stores and the meatcutters
at Nacogdoches were concerned , into the existing
multistore units. Furthermore, the Retail Clerks
Local claimed to represent a majority of clerk
employees at both stores and the Meat Cutters Local
to represent a majority of meat employees at the
Nacogdoches store.' Admittedly, the Unions accom-
panied their respective recognition demands on
March 22, 1972, for the Retail Clerks Local and on
May 26, 1972, for the Meat Cutters Local with an
offer of proof of majority support in the form of
authorization cards . It is not disputed that the
Unions possessed genuine cards signed by a majority
of the employees at the time of these demands.
Respondent, however, rejected the demands for
recognition and petitioned for separate elections
among clerk employees at the two stores. The
Regional Director dismissed these petitions on
August 30, 1972, presumably because of the pending
of unfair labor practice proceedings which are the
subject of this case.2
During the period from November 15, 1966,
1 Meat Cutters Local 4th did not seek to represent meat employees in the
Lufkin store because they are already represented by a sister local.
2 It does not appear that a petition was filed for meat employees at.either
store.
208 NLRB No. 122
THE KROGER CO.
through August 25, 1972, the Company consistently
and without question recognized the two locals as the
representatives of the employees in each of 27
different newly constructed stores it opened in that
period by virtually automatic agreement and without
Board-conducted representative elections.
We have held that the individual retail stores of a
large retail chain may constitute individual appropri-
ate units, depending on the facts and circumstances
of the case.3 We are in agreement with the Adminis-
trative Law Judge that the Nacogdoches and Lufkin
stores constituted independent appropriate units for
the reasons whicl- were given in his opinion.
We have held that we will not permit parties to
include employees in a newly created presumptively
appropriate unit into a larger unit without a proper
assessment of employee sentiment as to representa-
tion.4 As we stated in the Melbet decision:
We will not, however, under the guise of accre-
tion, compel a group of employees, who may
constitute a separate appropriate unit, to be
included in an overall unit without allowing those
employees the opportunity of expressing their
preference in a secret election or by some other
evidence that they wish to authorize the Union to
represent them.
In Melbet, the Board found violations of the Act by
the parties' having caused the accretion of a third
store to an existing two-store unit in accordance with
an additional-store clause in the current labor
agreement. Critical to these findings was the fact that
the third store was an appropriate unit by itself and
that the union lacked majority support in such
separate unit. Had the requisite majority support
been found, a different result undoubtedly would
have obtained.
Voluntary recognition is an acceptable procedure
so long as majority support is demonstrated in some
reasonable form. An employer may lawfully recog-
nize a union under circumstances which do not
require recognition of the union. Whether he may do
so requires one test; whether he must is a different
matter.
Without regard to the additional-store clauses
herein, Respondent could have recognized the
Unions for the additional stores, because there was
3 Sav-On Drugs, Inc., 138 NLRB 1032 (1962).
4 Melbet Jewelry Co, Inc, and I D S-Orchard Park, Inc, 180 NLRB
107, 110 If there is a true accretion, the desires of employees are not the
critical factor in issue . On the other hand, the employees' wishes become
critical if the new unit, as here, is not in fact an accretion.
5 Linden Lumber Diwsion, Summer & Co., 190 NLRB 718.
6 Arthur F Dersc, Sr, President, and Wilder Mfg Co., Inc., 198 NLRB
No. 123, reviewed and remanded sub nom. Textile Workers Union of America
v. N.L.R B. 487 F.2d 1099 (C.A.D.C., 1973).
929
proof of a card majority. However, in our view, the
Respondent was not required to do so.5 It would have
been able to, and did, seek Board elections. It could
have agreed to a card check, which it did not do. It
could have insisted that the Union establish its
majority status in Board-conducted elections or have
remained in a stand-pat positions We do not think
the additional-store language waives or eliminates
the Respondent's above options.
In Snow & Sons,7 the Board held that the employer
violated the Act by reneging on an agreement to
honor a majority card check. That case involved a
specific agreement to honor a card check in the
context of a specific demand for recognition in a
specific unit. There the employer essentially extended
voluntary recognition after having full opportunity to
make a considered assessment of the situation.
In contrast, the additional-store clauses herein
involve general language, unspecified future stores,
and the absence of specific facts and circumstances.
We believe this language should be construed
differently than the specific agreement in Snow &
Sons.
We do not view an additional-store clause as
tantamount to an advance agreement to honor a card
majority. The contract language omits all reference
to the question of majority support obtained by any
means; indeed, it is dubious whether the parties held
this subject within their contemplation.8 We believe
our language in Linden Lumber9 is appropos here:
We repeat for emphasis our reliance here upon
the additional fact that the Respondent and the
Union never voluntarily agreed upon any mutual-
ly acceptable and legally permissible means, other
than a Board-conducted election, for resolving
the issue of union majority status. By such
reliance we recognize and encourage the principle
of voluntarism but at the same time insure that
when voluntarism fails the "preferred route" of
secret ballot elections is available to those who do
not find alternative route acceptable.
We stated in Wilder: io
[We have] refused to enter a bargaining order on
the basis of cards or other circumstantial evidence
of majority status, where there has been no
7 Fred Snow, Harold Snow and Tom Snow, d/b/a Snow & Sons, 134
NLRB 709, enfd . 308 F.2d 687 (C A 9, 1962)
R This is where the dissenters seriously err , the contract does not contain
any agreement as to how majority status shall be established ; in the absence
of any such agreement , surely access to NLRB procedures cannot be said to
have been consciously waived.
9 Supra at 721.
io Supra.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voluntary agreement or a means of resolving
majority status ... .
We find that as in the Linden and Wilder cases
there has been no voluntary agreement upon a
legally permissible means of resolving the issue of
majority status. We believe that preserving free
access to our orderly election machinery, in the
absence of a specific agreement to determine
majority status by an acceptable and legally permis-
sible alternative method, is an essential duty of this
Board in administering this Act.
We do not purport to treat additional-store clauses
as surplusage nor to minimize their importance when
applied with due regard for the rights of self-
determination of employees in the new store and the
rights of all parties to avail themselves of our election
machinery when majority status at that store is
properly put in issue. We interpret this variety of
clause as a lawful agreement so long as it is not used
to foreclose either the right to self-determination or
free access to our processes. Thus, such agreements
may control the ultimate unit in which future
bargaining should occur and the scope of future
contract coverage, but the initial question of majority
status in the unit to be added cannot, in our view, be
disregarded or rendered moot by such clauses.
We regard Smith's Management Corporation d/b/a
Frazier's Market " as fully consistent with our
decision herein. There we held that the Respondent
could not, consonant with its statutory duties, refuse
to execute a negotiated, written contract for the sole
reason that it contained an additional-store clause.
Since we do not regard such clauses, properly
applied, as in contravention of the Act, we reaffirm
the rationale of the Smith's Management decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBERS FANNING AND JENKINS, dissenting:
Unlike our majority colleagues, we would find that
Respondent reneged on its contractual commitment
to recognize Retail Clerks Local 455 and Meat
Cutters Local 408 as the bargaining representatives
of designated categories of employees at all stores
operated by Respondent's Houston Division in the
State of Texas and that, in the circumstances
presented here, such a refusal constitutes a violation
of Section 8(ax5) of the Act.
" 197 NLRB 1156.
Is The meat department employees at the Lufkin store are presently
represented by a sister local of Meat Cutters Local 408 and were not
The facts are uncomplicated. Respondent has
separate collective-bargaining agreements with Re-
tail Clerks Local 455 and Meat Cutters Local 408. In
each of these collective-bargaining agreements,
Respondent has agreed to recognize the union
signatory as the exclusive bargaining representative
of employees in designated classifications at all
stores operated by ;Respondent's Houston Division
in the State of Texas. Recognition clauses of a similar
nature have appeared in prior collective-bargaining
agreements, executed by the parties and, over the
years, the parties' practice has been to treat stores
newly added to the division as accretions to the
contract units. The instant controversy had its
beginning in March 1972, when Kroger Co. decided,
for administrative purposes, to shift its stores at
Nacogdoches and Lufkin, Texas, from its Dallas to
its Houston Division. As might be expected, the
Unions took the position that they were entitled to
recognition as the bargaining representatives of these
employees under the terms of their collective-bar-
gaining agreements with Respondent. The Unions
formally demanded recognition on March 22, 1972,
and, although their claims were based on the
recognition clauses in their respective contracts, both
Unions offered to submit proof that they had card
majorities among the employees at the Nacogdoches
and Lufkin stores.12 Respondent rejected both the
claim for recognition under the collective-bargaining
agreements and the offer to prove majority status on
the basis of cards. It is undisputed that, at the time
the recognition requests were made, the Unions
possessed valid card majorities among the employees
sought.
Initially we note agreement with the majority that
the principles of accretion do not resolve the issue
herein inasmuch as the stores in question have a
sufficient separate existence to constitute separate
appropriate units.13 But the Unions' claimed right to
recognition is predicated not on the application of
our accretion doctrine, but upon rights which are the
product of the parties' contractual agreements.
Specifically then, we are compelled to consider
whether or not Respondent has, by contract, obligat-
ed itself to accept the union's claim of representative
status in such unit if the union in fact has a majority
and demonstrates it and, if so, whether giving effect
to such an agreement would be in conformity with
the principles and policies expressed in our Act.
In White Front Stores, Inc.,14 the Board considered
the union's representative status on the basis of the
contractual rights flowing to it under the language of
the "accretion" clause in the existing collective-
included in the Unions' demand for recognition.
13 Melbetlewerly Co., Inc., andl.D.S.-Orchard Park,Inc.,180 NLRB 107.
14 192 NLRB 240.
THE KROGER CO.
bargaining agreement. Although the Board recogniz-
ed that White Front Newark, the newly opened store,
was not an accretion in the true sense of the word, it
nevertheless chcse to give full effect to the contractu-
al agreement of the parties upon being satisfied that
the employees of White Front Newark were not
being denied their right to have a say in the selection
of their bargaining representative. In reaching this
conclusion, the Board explained that, although in
prior cases it had refused to give controlling weight
to such a clause, this was only because of the Board's
legitimate concern over the protection of the rights of
self-determination by employees. But when it is clear
that employee self-determination rights have in fact
been protected and exercised so that the union has a
majority and has established it by valid cards, the
Board's policy is to give full effect to the contractual
commitment of the parties. This statement of policy,
although first expressed in the White Front Stores
decision, has since been reaffirmed in a more recent
decision.15 The employees at the Nacogdoches and
Lufkin stores have had a full opportunity to express
their desires with respect to representation and, by
executing valid authorization cards, they have
indicated a desire to be represented by the Unions
involved herein. Having done so, the only issue then
is the effect to be given to the contractual agreement
of the parties.
But, one might legitimately ask, what is the Board's
intent and purpose in examining clauses granting the
Unions recognition as the exclusive bargaining
representatives at all stores operated by Respondent
in the State of Texas? From the Board's previous
decisions it is clear that the only reason these clauses
have not been given a literal reading is that to do so
forecloses employee self-determination. Once this is
accomplished, no reason exists for not applying
them. As the majority correctly points out, in Melbet
the Board refused to give effect to such a clause
because the union lacked a majority in the separate
unit. The majority then goes on to acknowledge that:
... . Had the requisite majority support been
found, a different result undoubtedly would have
obtained.
Voluntary recognition is an acceptable proce-
dure so long as majority support is demonstrated
in some reasonable form.
if the majority's interpretation of these clauses means
that the employer can voluntarily recognize the
union or demand an election, then such an interpre-
tation renders these clauses totally meaningless and
15 Smith's Manage-new Corporation, d/h/a Frazier's Market, 197 NLRB
1156.
16 Linden Lumber Division, Summer & Co., 190 NLRB 718, Member
931
without effect, for the Unions need no contract
authorization to establish their representation status
in a Board-conducted election.
The clauses herein can be read to require recogni-
tion upon proof of majority status by the union. As
we have shown, there is no need to hold these clauses
totally invalid simply because they do not contain an
explicit condition that the Unions must represent a
majority of the employees in the new store, inasmuch
as the Board will impose such a condition as a matter
of law. It is evident that under circumstances as are
present in this case, the Unions have lived up to the
requirements imposed by the Board and therefore
the agreements between them and the Employer
should be enforced. Also, contrary to our majority
colleagues, we see no inherent conflict between our
interpretation of the instant clauses and the policies
expressed by the Board in its decision in Linden
Lumber.16 In Linden Lumber, the Board recognized,
as a general proposition, the right of an employer to
insist upon a Board election as the means of
resolving questions concerning the union's represent-
ative status. However, as that decision itself makes
clear, the application of such a rule contemplates,
among other things, an absence of any agreement
between the parties to resolve the question of
representation by means other than a Board-con-
ducted election.
In our judgment, the parties here have, by their
contractual agreements, evidenced their intention to
forgo their right to resort to the use of the Board's
election process in determining these issues and we
do not believe one of them should be permitted to
claim the very right which it has forgone, perhaps in
return for concessions in other areas. Since the
Unions' majority is conceded by all concerned, there
is no reason of policy not to give effect to the parties'
contractual agreements. The fact that the literal
language of the agreements themselves goes beyond
what the Board would permit, in determining by
contract that an accretion had occurred when in fact
the contract cannot resolve this issue, provides little
reason for invalidating the entire agreement when it,
plus the conduct of the Unions, can reasonably be
read as we have read it. Indeed, what the majority
explicitly holds is that, while an employer may agree
in advance of a card count to recognize a union on
the basis of a card majority, it may not contract with
the union to do so in advance of the time the union
has commenced organization. Our colleagues have
offered no explanation of this anomaly, and we
perceive none.
For the foregoing reasons, we would, in the
Fanning dissenting ; remanded sub nom Truck Drivers Union Local No 413,
Teamsters v. N LR B , 487 F 2d 1099 (C A.D.C., 1973).
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances present here , give full effect to
contractual agreements of the parties and find that
Respondent 's refusal to honor its commitment to
recognize the Unions as the exclusive bargaining
representatives in such units violated Section 8(a)(5)
of the Act.17
17 Cf. Fred Snow, Harold Snow and Tom Snow d/bla Snow & Sons, 134
NLRB 709.
DECISION
STATEMENT OF THE CASE
MAURICE S. BusH , Administrative Law Judge : In early
1972, The Kroger Co. transferred for all operational and
management purposes two of its unorganized or nonunion
retail stores in the State of Texas from its Dallas division to
its Houston division which for many years has had
multistore unit bargaining agreements with accretion
clauses with the two Unions here involved under which
any new Texas store within the Houston division almost
automatically became covered by such agreements. There-
upon, the two Unions requested recognition for the two
transferred stores based hoth on the accretion clauses in
their respective multistore unit agreements and on offers to
show by a card check that the involved employees in both
of the transferred stores had designated them as their
collective-bargaining representatives.
The Company declined recognition on the ground that
each of the two transferred stores constitute separate units,
apart and separate from the multistore bargaining units
defined in the collective-bargaining agreements.
Under these admitted but skeletonized facts , the issue
under the pleadings is whether the Respondent is in
violation of Section 8(axl) and (5) of the National Labor
Relations Act by its refusal to recognize and bargain with
the two Unions with respect to the two transferred stores.
This in turn revolves around the question of whether under
the facts and circumstances of this case the two transferred
stores constitute part of the agreed multistore bargaining
units under the accretion clauses as contended by
General Counsel , or constitute separate appropriate units
as contended by Respondent.
The complaint in Case 23-CA-4304 was issued on
August 15, 1972, pursuant to a charge filed and served
upon the Respondent on April 7, 1972. The complaint in
Case 23-CA-4419 was also issued on August 15, 1972, but
pursuant to a charge filed and served upon Respondent on
June 30, 1972. The two complaints were consolidated for
hearing by an order dated August 15 , 1972. Respondent's
answers deny the alleged unfair labor practices.
The case was tried before me on September 12 and 13,
1972, at Nacogdoches , Texas. Briefs duly filed by counsel
for the General Counsel, the Clerks Union, and the
Respondent on November 9, 1972, have been carefully
reviewed and considered.
For reasons hereinafter indicated , Respondent is found
in violation of the Act as alleged in the complaints.
Upon the entire record in the case and from my
observations of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The above-named Respondent, The Kroger Co., Hous-
ton Division, is an Ohio corporation, with its principal
office at Cincinnati , Ohio . The Company is engaged in the
operation of a chain of retail food stores in Texas and in 19
other States in the United States . As here pertinent, the
only Kroger stores involved in this consolidated proceed-
ing are its Retail Store No. 990 , located at Nacogdoches,
Texas, and its Retail Store No. 110, at Lufkin, Texas.
These stores will hereinafter be referred to as the
Nacogdoches and Lufkin stores. During the past 12
months, a representative period, The Kroger Co., in the
course and conduct of its business operations in the State
of Texas , sold and distributed products , the gross value of
which exceeded $500 ,000. During the same period, the
Company purchased products in excess of $50 ,000 from
suppliers located outside the State of Texas, and these
products were delivered to its retail store facilities located
in the State of Texas . By reason of these admitted facts, I
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The above-named Unions, the Charging Parties herein,
are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company's retail food chain store operations are
divided for managerial and operational purposes into
geographical areas, or "Divisions ," as designated by the
Company, which may cross state lines . The Company's
"Houston Division" covers approximately the southern
halves of Texas and Louisiana . The Company's "Dallas
Division" roughly covers the northern half of Texas and
apparently the northern half of Louisiana . Each division,
headed by a vice president and manager of operations, is in
THE KROGER CO.
turn divided into geographical zones headed by zone
managers who report to the manager of operations. Each
zone is comprised of a group of individual stores within the
zone . Each store is headed by a store manager who reports
to the zone manager. The Company's stores fall into two
classifications, the conventional superfood markets and the
so-called "family centers" which, in addition to foods and
related household goods, market and sell an extended line
of general merchandise, such as soft and hard goods,
beauty aids, and hardware items.
The only two Kroger stores involved in this proceeding are
the Kroger "Family Center" store, at Nacogdoches, Texas,
and the Kroger conventional food store at Lufkin, Texas.
The Company has no other stores in these two cities which
are approximately 20 miles apart and appear to be nearly
equidistant from Dallas and Houston, Texas. The Nacog-
doches store was opened as a newly constructed store on
February 23, 1971; the record appears silent as to when the
Lufkin store was opened. At the times here pertinent,' the
Company employed 53 clerk employees and 3 meat
employees at its Nacogdoches stores and 18 clerk employ-
ees at its Lufkin stores. For reasons that will appear below,
the number of meat employees in the Lufkin store is
immaterial to the issues in the case.
Nacogdoches is located in the county of Nacogdoches,
Texas, and Lufkin, in the county of Angelina, Texas. Prior
to March 1972, both the Nacogdoches and Lufkin stores
were part of the Kroger's "Dallas Division" and according-
ly under the management and direction of the Dallas
division. Although the Dallas division has a multistore,
accretion type, collective-bargaining agreement with re-
spect to its clerk employees, effective March 1, 1970,
through March 3, 1973, with Local 368 of the Retail Clerks
International Association, AFL-CIO (not with Local 455
of the same International here involved), that agreement is
expressly restricted to Kroger stores located in Dallas and
Tenant counties, Texas, and in the towns of Sherman and
Gainsville, Texas, and has no application to the counties of
Nacogdoches and Angelina in which the towns of
Nacogdoches and Lufkin are in. Thus the Kroger stores at
Nacogdoches and Lufkin while they were part of the
Dallas division were not under or covered by the
collective-bargaining agreement of the Dallas division with
Local 368. The record by stipulation likewise shows that
the clerk employees in Kroger's Nacogdoches and Lufkin
stores were also not covered by or under any other
collective-bargaining agreement while they were in Kro-
ger's Dallas division and accordingly and admittedly were
unorganized or nonunion stores.
Similarly, it is established by stipulation that prior to
i The "times here pertinent" have reference to the dates that the two
Unions here involved requested recognition as the bargaining representa-
tives of the clerk and meat department employees in the Nacogdoches and
Lufkin stores The record by stipulation shows that on March 22, 1972,
when the Clerks Local 455 requested recognition , there were 53 clerk
employees in the Nacogdoches store It is also established by the undisputed
testimony of a meat department employee , Joe Harkness , and Joint Exh
7(a), that there were 3 regular meat employees in the Nacogdoches store on
May 26 , 1972, when the Meat Local 408 by letter (Joint Exh 7(a)) requested
recognition On May 28 or 29, 1972 , Kroger hired a young man who had
dust graduated from high school to work in the meat department of the
Nacogdoches store He worked in the meat department for about 3 weeks
933
March 1972 the meat employees in the Nacogdoches store
were unrepresented by any local or union.
However, the meat employees in the Lufkin store were
organized and represented prior to March 1972 and still
are represented by Local 5402 of the Amalgamated Meat
Cutters & Butcher Workmen of North America, AFL-CIO
(but not with Local 408 of the same International here
involved).
Summarized, the record shows that prior to March 1972
when the Kroger stores at Nacogdoches and Lufkin were
in Kroger's Dallas division the clerk and meat employees
in the Nacogdoches store and the clerk employees in the
Lufkin store were unrepresented and not covered by any
collective-bargaining agreement, but that the meat employ-
ees in the Lufkin store have been at all times here pertinent
and still are covered by a collective-bargaining agreement.
Inasmuch as the meat employees at the Lufkin store are
represented by a sister local, Local 408 does not seek to
represent the same employees and there is no issue in this
proceeding with reference to the meat employees in the
Lufkin store.
On February 28, 1972, Kroger transferred the Lufkin
store and on March 13, 1972, the Nacogdoches store from
its Dallas division to its Houston division for all manageri-
al purposes. Thereafter the two stores had no connection
with the Dallas division.
Shortly following these transfers, the Clerks Local 455
made demands for recognition at both the Nacogdoches
and Lufkin stores and similarly Meat Local 408 made
demand for recognition only at the Nacogdoches store.
These demands for recognition by the two Locals were in
part based upon the recognition-unit-accretion clauses in
their collective -bargaining agreements with Kroger.
Clerks Local 455's current contract with Kroger, effec-
tive September 1, 1971, through September 7, 1974, has the
following recognition-unit-accretion clause:
ARTICLE 1. RECOGNITION OF THE UNION AND THE
BARGAINING UNIT
A. The Union shall be the sole and exclusive
bargaining agent for all employees employed by the
Houston Division of Kroger Food Stores in stores
operating in the state of Texas, excluding all persons
employed in the meat departments, store managers, co-
managers , management trainees , professional employ-
ees, guards, and supervisors as defined in the L.M.R.A.,
as amended. [Emphasis supplied.]
Virtually the same recognition -unit-accretion clause is
present in all the preceding contracts between Kroger and
Local 455 from at least 1963 onward . The above clause
and then was transferred to the produce department Thereafter the meat
department reverted to 3 employees again It is found that the high school
graduate was not employed at the Nacogdoches on May 26, 1972, when
Local 408 made its demand for recognition In any event , it is found that the
high school graduate was a temporary meat department employee in the
Nacogdoches store and accordingly not entitled to be included in a card
check to determine whether the meat department employees by a majority
designation selected Local 408 to represent them
2 The above mentioned local is identified in the record as Local 540 (Tr
321) and in Respondent 's brief as Local 540 (see pages 4 and 5) but
apparently incorrectly referred to as Local 450 in General Counsel's brief
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evolved from a Board certification in 1956, pursuant to a
consent election, under which the Board certified Local
455 as the representative of "all employees employed in
stores of Henke & Pillot, Inc., Division of Kroger presently
operating in Texas ...." 3 with practically the same
exclusions as set forth in the above-quoted clause.
Following the certification, the initial contract was an
agreement between Local 455 and Henke & Pillot, as a
division of The Kroger Co., effective January 21, 1957,
through January 30, 1960.
Similarly the Meat Local 408's current contract with
Kroger, effective November 1, 1970, through April 14,
1973, has the following recognition-unit-accretion clause:
ARTICLE 1. RECOGNITION AND JURISDICTION
A. The Employer recognizes Meat Cutters Local No.
408 as the exclusive and collective-bargaining agent for
all employees in4 the meat department in all of
Employer's retail-stores located in the state of Texas
operated by the Houston Division of the Kroger Co.
B. The parties agree that this contract shall cover and
the Union which is a party hereto shall have jurisdic-
tion over all meat department employees in retail stores
that are, or will be, owned, leased or operated by the
Employer. [Emphasis supplied.]
The pleadings show that Local 408 has represented the
above-described unit of meat employees "in all" of
Kroger's stores in Texas within its Houston division for
nearly 40 years from April 1, 1936, to the present time. The
meat employees unit, as. set forth above from the current
multistore contract, evolved exclusively from negotiations
between Kroger and Local 408 and not from a Board
certification as was the case with the Clerks Local 455.
In addition to their claims for recognition from the
Company based on the above-quoted unit-accretion
clauses in their respective contracts, the two Locals also
claimed recognition based on representation auth-
orization cards they had received from the majority of
their respective constituents in the two stores. It is admitted
that the two Locals made offers of a showing of such cards
to the Company at the time they made their demands for
recognition and that the offers were rejected. As heretofore
noted, the Nacogdoches store, at the time the two Locals
made their respective demands on the Company for
recognition, had in its employment 53 clerks and 3 meat
department employees. At the hearing it was established
that at the date of their recognition demand March 22,
1972, the Clerks Local had duly authenticated and valid
authorization cards from 33 of the 53 employees in the
Nacogdoches store. The record further shows that the
Meat Local on the date of its demand, May 26, 1972, had 2
duly authenticated and valid cards from the 3 meat
employees in the Nacogdoches store. As heretofore also
3 Kroger prior to 1957 had purchased the entire Henke & Allot grocery
chain in Texas and made it a subdivision of the Company.
4 The towns or cities in the southern half of Texas in which Houston
division of the Respondent operates retail stores are for the most part
geographically widely separated.
5 It appears front the brief filed in behalf of Clerks Local 455 that
Respondent's petitions for elections by its clerk employees in its Nacog-
noted, the Lufkin store had 18 clerk employees at the date,
March 22, 1972, that the Clerks Local made demand for
recognition at that store. At the hearing it was established
that the Clerks Local had 14 duly authenticated and valid
authorization cards from the 18 clerks in the Lufkin store
on the date of its demand for recognition . Thus at the times
of the demands , the two Locals had authorizations for
representation from clear majorities of their respective
constituents. (It may be again noted that Meat Local 408
does not seek to represent the meat employees in the
Lufkin store because they are already represented by a
sister local.)
Finally the two Locals also made claim for recognition at
the Nacogdoches and Lufkin stores on the basis of
Kroger's past practice and. custom of according them
recognition on any newly constructed stores Kroger plans
in the State of Texas within its Houston division and to
extend to all clerk and meat department employees in such
new stores the coverage of its current collective-bargaining
agreements with the two Locals . The pertinent facts with
respect to such past practice and custom are largely
stipulated, admitted , and undisputed as set forth below.
Prior to March 1965, Kroger had approximately 30 retail
food stores in the State of Texas within its Houston
division. Between November 15, 1966, and July 25, 1972,
Kroger opened 27 additional newly constructed stores at
various cities or towns in Texas within the Houston
division . As of March 1972 the Houston division which as
noted has stores in the southern halves of Texas and
Louisiana, had 54 stores in the Texas part of the division 4
and the remaining 14 stores in southern Louisiana. With
reference to 27 additional new stores that Kroger opened
from time to time in Texas in its Houston division, it is
established by stipulation and detailed by testimony that
the clerk employees in these stores as opened were virtually
automatically included in the multistore unit represented
by Clerk Local 455 and that the coverage of the then
collective-bargaining agreement was extended without
question to the clerks in each of such newly constructed
stores . The pleadings and the record as a whole likewise
show that as these 27 new Texas stores were added to the
Houston division , the meat department employees in such
stores were also virtually automatically included in the
multistore unit represented by the Meat Local 408 and
given the coverage of that Local 's current collective-
bargaining agreement.
The Respondent as above noted rejected the written
demands of the two Locals for recognition. At or about the
time these demands were made, the Respondent filed
representation election petitions with the Regional Direc-
tor under which it sought a determination that the clerk
employees in the Company's store in Nacogdoches and at
its store at Lufkin constitute separate appropriate units-5
Following the rejection of their demands for recognition,
the two Locals filed charges against Respondent with the
doches and Lufkin stores were dismissed by the Regional Director on
August 30, 1972, presumably because of the pendency of this unfair labor
practice proceeding. Respondent did not file a similar election petition with
respect to the meat department employees at the Lufkin store , apparently
because such employees in the Lufkin store are already represented by a
sister local.
THE KROGER CO.
Regional Director of unfair labor practices in violation of
Section 8(a)(1) and (5) by reason of the Company's refusal
to bargain collectively with them on the multistore units
they represent under their respective collective -bargaining
agreements with the Company which resulted in the
issuance of the complaint herein.
The record shows that the operations of the Nacogdoch-
es and Lufkin stores are identical with that of all other
Kroger stores of the same type which are covered by the
contracts of the two Locals here involved. The Nacogdoch-
es and Lufkin stores are in zone 6 which has a total of nine
stores. The zone manager, Harold Wallace, of zone 6
testified that the store managers of the Nacogdoches and
Lufkin stores have sole authority to interview and hire
personnel for their stores, but admits that all other store
managers in zone 6 have the same authority. Wallace also
testified that the Nacogdoches and Lufkin store managers
had the authority to fire employees, but admits that this
was true of all other Kroger store managers with the
possible exception- of store managers in the city of
Houston. Wallace's testimony further shows that all store
managers throughout the Houston division have responsi-
bility for ordering merchandise and placing local advertise-
ments. 'He testified that the Nacogdoches -and Lufkin stores
maintain separate bank accounts, but admits that each of
the other seven stores in his zone likewise maintain
separate bank accounts. He also testified that all store
managers must follow company policy and procedures. He
further testified that the store managers at the Nacogdoch-
es and Lufkin stores have the authority to make manage-
ment type decisions and to prepare payroll records, but
admits that all other store managers in his zone have the
same authority. He also testified that all store managers
determined the inventory needs of their particular stores.
Wallace testified that he did not know any essential
difference between the family center store in Nacogdoches
and the conventional store at Lufkin from any other such
stores in the Houston division.
Despite my adjurations as the trier of the facts to counsel
for the Respondent to bring out the differences, not the
similarities, between the Nacogdoches and Lufkin stores,
on the one hand, and all the other Houston division Texas
stores, on the other, no such evidence was produced. I find
that there are no essential differences between the
operations of Kroger's Nacogdoches and Lufkin stores and
all other same type Kroger stores in the Houston division.
The record shows through the testimony of Kroger's
personnel manager for the Houston division, Bob Wash-
tock, that the reason for the transfer of the Nacogdoches
"Family Center" store from the Dallas division to the
Houston division was that the latter division was better
equipped by its larger buying staff to handle the merchan-
dise needs of that type of store than the Dallas division.
His testimony further shows that the transfer of the
Nacogdoches store to the Houston division was also due to
geographical reasons which, although not detailed in the
record, appear to be that Kroger's warehouses at Houston
6 In its brief the Respondent states the issue as follows : "Whether the
employees of the Company's Lufkin and Nacogdoches stores constitute
separate appropriate units or whether the stores are accretions to the
existing multistore unit?"
7 Interestingly, the involved drug store in Say-On Drugs, Inc., supra, was
935
are in easy reach of Nacogdoches. Washtock further stated
that the reason for the transfer of the Lufkin conventional
store to the Houston division was its close proximity to
Nacogdoches, a distance of only 20 miles, and the fact that
merchandise trucks on their way from Houston to
Nacogdoches have to pass through Lufkin.
Summarized , the record shows that the functions and
operations of the Nacogdoches "Family Center" store and
the Lufkin conventional food store are in all ways identical
with that of all other such Kroger stores in Texas within
Kroger's Houston division , and that the reasons for the
transfer of the Nacogdoches and Lufkin stores from the
Dallas division to the Houston division was due solely to
the company decision that the two stores could be better
serviced out of the Houston division than from the Dallas
division.
The Company in a letter dated March 27, 1972, to the
Clerks Local 455 stated the following reasons for refusing
the Union's offer of a card check to show that a majority of
the clerk employees in both the Nacogdoches and Lufkin
stores had designated Local 455 as its bargaining repre-
sentative: "We doubt that you now represent a majority of
employees in those store . . . . It has been our experience
that cards are not a reliable indicator of employee support.
Accordingly, we are refusing your demand for a card
check ." In a letter dated June 7 , 1972, addressed to the
Meat Local No. 408 , the Company declined Local 408's
offer of a card check for the same reasons.
In its same letters to the two Locals, the Company
advised that it was filing representation petitions with the
Board.- For the period November 15, 1966, through August
25, 1972, the Company consistently and without question
recognized the two Locals as the representatives of the
employees in all the 27 different newly constructed stores it
opened in that period by virtually automatic agreement
and without Board conducted representation elections.
In its brief the Respondent no longer claims that it
doubts that the two Locals represent the employees they
claim to represent at the Nacogdoches and Lufkin stores
by virtue of having obtained union authorization cards
from a majority of such employees at the time they made
their demands for recognition.
Discussion and Conclusions
In its brief Respondent seeks to justify its refusal to
accrete the Nacogdoches and Lufkin stores to the existing
multistore unit under its collective-bargaining contracts
solely on the ground that each of the two stores constitute
separate appropriate units by themselves.6
The Company seeks such a decision under the now well-
established rule that a newly added store to a chain of
stores under an accretion type collective-bargaining agree-
ment is presumptively deemed to be a separate appropriate
unit in the absence of evidence to the contrary. Say-On
Drugs, Inc.,7 138 NLRB 1032 (1962); Hagg Drug Company,
Incorporated; 169 NLRB 877 (1968); Melbet Jewelry
a wholly owned administrative subdivision of apparently the same Kroger
Company involved herein as the Respondent . But whereas in the present
case Kroger seeks separate units for both the Nacogdoches and Lufkin
stores, in Sav-On Drugs, Inc., Kroger unsuccessfully sought to include the
single drug store there involved in a multistore unit.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, 180 NLRB 107 (1969); Super Valu Stores, Inc.,
177 NLRB 899 (1969); Warehouse Markets, Inc., 174
NLRB 401 ( 1969); Sheraton-Kauai Corporation v. N.LR.B.,
429 F.2d 1352 (C.A. 9, 1970). The controlling desideratum
for this presumptive rule, the cases show , is the desire to
protect the Section 7 rights guaranteed employees to select
their own union representatives.
As stated by the Board in Melbet Jewelry, supra, the
"excessive ' preoccupation" of the appropriate unit concept
of Section 9(b) of the Act must not lead to the abrogation
of Section 7 rights.
But all of the above-cited cases emphasize that while
there is a presumption in favor of a single store unit, each
case must be decided on the basis of all the circumstances
in the case. Thus, the Board in the Sav-On Drug case, the
first case in which it established the presumption in favor
of the single store unit , stated that "whether a proposed
unit which is confined to one of two or more establish-
ments making up an employer 's retail chain is appropriate
will be determined in the light of all the circumstances of the
case." (Emphasis supplied .) Ten years later the Board in
Smith 's Management Corporation, d/b/a Frazier's Market,
197 NLRB 1156 (1972), reiterated the same , holding in
substantially the same language as follows : "Whether a
group of new employees in a new store operated by the
same employer will accrete to the existing unit is a matter
to be determined by the Board in light of the circumstances
of each individual case ...:. (Emphasis supplied.)
In its consideration of the circumstances under which the
employees of a single store, rather than a multistore unit,
should be the appropriate unit, the Board has held ' that the
degree of local autonomy of the single store manager in
such matters as the hiring and firing of employees and their
daily directions could be the determinative factor in its
decision . Thus, in Haag Drug, supra the Board decided
that the single drug store there involved was an appropriate
unit in itself because of the high degree of autonomy the
manager of that store had with reference to the employee
personnel in that store . But the Board in that same decision
clearly indicated that if such "countervailing factors" had
been present as "an existing, stable bargaining relationship
... in a multistore unit and there is a reasonable
expectation of continued stability in that unit," it would
"find the multistore unit appropriate." 8
In all the above-cited cases and others cited by
Respondent in its brief in which the Board or a court
found the employees of a single new store , as opposed to a
multistore unit, to be the appropriate unit, the question as
to which was the appropriate unit arose from the
opposition of a second union or an individual employee to
the contention of the existing union or the employer that
the store should accrete to the multistore unit set forth in
the current collective-bargaining agreement . In such
situations it is the Board policy to defer to the wishes of the
employees of the newly added chain store either by the
way of an expression of "their preference in a secret
election or by some other evidence ...." (Emphasis
supplied .) Melbet Jewelry, supra
In a more recent case the Board even more explicitly
held that an employer could challenge a union's right
under an accretion clause to represent the employees in a
newly added chain store "by means of a card check or a
Board election or by some other means...." (Emphasis
supplied .) Retail Cler4a Union, Local 870, Retail Clerks
International Association, AFL-CIO, hereafter referred to
as White Front Stores, 192 NLRB 240. In that case the
Board held that the Union under its accretion clause had
the right to represent the employees in a new White Front
store by virtue of a showing under a card check that it
represented the majority of the employees in the new store
and that this showing satisfied the Board's "concern over
protecting the rights of future employees to have a say in
the selection of their bargaining representative."
In the instant case the pivotal and controlling fact is that
the two Locals here involved in connection with their
demands for recognition had offered to show by a card
check that they had been selected by a majority of the
involved employees at the Nacogdoches and Lufkin stores
to represent them . Kroger rejected the offer on the ground
that its experience had shown that such card checks were
unreliable and that instead it desired a Board election
although actually Kroger's experience had been to the
contrary because over a period of about 7 years in
connection with the opening of 27 newly constructed stores
it had accreted the employees in these new stores without
question into the existing multistore unit under the
accretion or recognition clauses of its collective-bargaining
agreements with the two Locals here involved.
At the trial as shown above , it was readily established as
claimed by their proffered card checks that the two Locals
did in . fact have valid authorization cards from the clear
majority of their respective constituents in the two stores.
Under such circumstances controlling effect can be and is
given to the contractual commitments of the parties herein.
White Front Newark, - supra. As shown above, Kroger's
collective-bargaining agreement with Clerks Local 455
provides that "the Union shall be the sole and exclusive
bargaining agent for all employees employed by the
Houston Division of Kroger Food Stores in stores
operating in the State of Texas . . . " Kroger's contract
with the Meat Local 408 not only gives Local 408 the same
representation rights in behalf of Kroger's meat depart-
ment employees in stores in the State of Texas operated by
its Houston Division but in addition expressly gives Local
408 jurisdiction over all meat department employees in
retail stores that are, or will be, owned, leased, or operated by
the Employer. " (Emphasis supplied.)
In view of the fact that the clear majority of the involved
employees in both the Nacogdoches and Lufkin stores
have selected Locals 455 and 408 to represent them in
collective bargaining with the Company , the asserted "high
degree of autonomy under which the [two] stores are
operated,-9 even if true, becomes immaterial on the issue
8 For precedent the Board cited Meyer Supermarkets, Inc., 142 NLRB about the asserted autonomy under which the Nacogdoches and Lufkin
513, and The Great Atlantic & Pacific Tea Co... Inc., 153 NLRB 1549. stores operate because the record shows that each and every store in the
9 It may be again noted, as found above, that there is nothing unusual State of Texas within Kroger's Houston division has identically the same
THE KROGER CO.
of whether the two stores should be found separate
appropriate units because that issue has itself become moot
by the employees' choice through. their union authorization
cards to be represented by Locals 455 and 408 under and
as part of the multistore units they represent in their
contracts with the Respondent. Thus the involved employ-
ees have not been deprived of any of the rights guaranteed
to them under Section 7 of the Act but on the contrary
have freely and fully exercised their rights under Section 7.
In the White Front Stores case, supra, the Board in a
basically parallel factual situation, after commenting on
the identicalness of the retail operations of the two stores
there involved, one organized and the other unorganized
but claimed by the Union, stated:
More important, however, is the contractual agree-
ment between Respondent and White Front Oak
Oakland whereby the parties agreed that any future
White Front stores located within the Respondent's
territorial jurisdiction would be deemed an accretion to
existing bargaining unit . Although we have in past
cases refused to give controlling weight to such a
clause , our only reason for not giving controlling effect
to the contractual commitment of the parties has been
our concern over protecting the rights of future
employees to have a say in the selection of their
bargaining representative. No such problem exists here,
however, because the employees at White Front Newark
[the new store] have already clearly indicated that they
wish to be represented by the Respondent. Therefore, as
the rights of third parties, i.e., the employees of White
Front Newark, have not been jeopardized, we consider
it proper to give full effect to the contractual agreement
of the parties , and on this basis alone conclude that
White Front Newark is an accretion to the existing unit
covered by the collective-bargaining agreement be-
tween Respondent and White Front Oakland. [Empha-
sis supplied.]
The Board reaffirmed its White Front Stores holding in
Smith 's Management Corporation, 197 NLRB 1156. In
Smith 's the Board again held that where an employer and a .
union have a multistore contract with an accretion clause,
the Board "'will give controlling effect to such a contractual
provision and accrete a new group of employees to the existing
unit where they have indicated their clear desire to be
represented by the union representing the other employees."
(Emphasis supplied.)
Similarly in the present case, based on the fact that the
involved employees in the Nacogdoches and Lufkin store
have expressed their clear desire to be represented by the
same two Locals here involved who represent their
counterpart employees in all other Kroger .stores in Texas
within Kroger's Houston division, controlling effect is
given to the accretion clauses in the two collective-
bargaining agreements here involved and to the past
practice and custom of Kroger to accrete new stores in
autonomy (except possibly the stores in Houston where because of the
multiple Kroger stores in Houston there appears to be central authority in
the matter of hiring and discharging employees) and yet all such other
Kroger stores in Texas Within the Houston division are under the collective-
937
Texas as opened within the Houston division to , the
multistore unit set forth in the two contracts.
Consideration has been given to Kroger's further
contention that the Nacogdoches and Lufkin stores should
not be accreted to the Texas based multistore units of its
Houston division because they were transferred stores
from the Dallas division as distinguished from the newly
constructed Texas spores in the Houston division which the
Company has freely accreted over the years to its existing
Texas based multistore units within its Houston division. I
find that contention without merit because, whether new or
old, the Nacogdoches and Lufkin stores after their transfer
to the Houston division became subject in every way to the
identical management and operational controls as that of
all other Texas stores in the Houston division. It is
noteworthy that Kroger in or about 1956 not only took
over by purchase and transfer the stores of the entire
Henke & Pillot grocery chain in Texas but also almost
immediately thereafter entered into a collective-bargaining
agreement with the same Clerks Local 455 here involved
under which Kroger agreed that Local 455 "shall be the
sole and exclusive bargaining agent for employees in the
stores of the Henke & Pillot, Division of the Kroger Co., as
stipulated in NLRB Case 39-RC-1075." Thus there is even
precedent for stores acquired by Kroger by transfer to
become a part of multistore units.
Summarized, I find and conclude under all the circum-
stances of this case that the clerk employees in Kroger's
Nacogdoches and Lufkin stores accreted to Kroger's
existing contract with Clerks Local 455 and that the
employees in the meat department of Kroger's Nacogdoch-
es store accreted to Kroger's existing contract with Meat
Local 408.
Finally I find and conclude that under all the circum-
stances of this case Kroger's refusal to recognize and
bargain with Locals 455 and 408 is in violation of Section
8(a)(5) and (1) of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Houston Division of The Kroger Co., is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The aforementioned Unions, briefly referred to as
Local No. 455 and Local 408, are labor organizations
within the meaning of Section 2(5) of the Act.
3. All employees employed by the Houston division of
Kroger Food Stores in stores operating in the State of
Texas, including the stores at Nacogdoches and Lufkin,
Texas, but excluding all persons employed in meat
departments, store managers, co-managers, management
trainees, professional employees , guards and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. All employees in the meat department in all of
bargaining agreements between Kroger and the two Unions here involved.
The record further shows that except for their routine day-by-day
operations, all stores are controlled by company policy and subject toclose
scrutiny and supervision of zone managers.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's retail stores located in the State of Texas,
operated by the Houston Division of The Kroger Co.,
including the store at Nacogdoches, Texas, exclusive of all
other employees, guards, watchmen and 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.
5. At all times from and after March 22, 1972, Clerks
Local 455 has been and now is the exclusive representative
for the purposes of collective bargaining of the employees
in the unit described in paragraph 3 above, within the
meaning of Section 9(a) of the Act.
6. At all times from and after May 26, 1972, Meat
Local 408 has been and now is the exclusive representative
for the purposes of collective bargaining of the employees
in the unit of meat department employees described in
paragraph 4 above, within the meaning of Section 9(a) of
the Act.
7. By refusing to bargain with Clerks Local 455 on and
after March 27, 1972, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. By refusing to bargain with Meat Local 408 on and
after May 26, 1972, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
other manner infringing upon its employees' Section 7
rights, and that it take certain affirmative action designed
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]