The Kroger Co.

National Labor Relations Board - Board Decisions

Mar 18, 1963

141 N.L.R.B. 564 (N.L.R.B. 1963)

564 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in District No. 8 of the International
Association of Machinists, AFL-CIO, or any other labor organization of our
employees, by discharging or otherwise discriminating against any employee in
regard to his hire, tenure, or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist the above-named Union, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such right
may be affected by an agreement (the execution or application of which is not
prohibited by State law) requiring membership in a labor organization as
authorized by the National Labor Relations Act.
WE WILL offer Walter Sangari immediate and full reinstatement to the position
he formerly held, or its equivalent, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him.
SYMONS MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
The Kroger Co. and Retail Clerks Union , 1550; Retail Clerks
Union , 1540; Retail Clerks Union, 1504; Retail Clerks Union,
1460 ; Retail Clerks Union , 1453; Retail Clerks Union , 98; Re-
tail Clerks International Association , AFL-CIO. Case No.
13-CA-474,0. March 18, 1963
DECISION AND ORDER
On August 14, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the Respondent, the General Counsel, and the Charging
Parties filed exceptions to the Intermediate Report and supporting
briefs.'
1 The Charging Parties have requested oral argument. This request is hereby denied as
the record, the exceptions, and the briefs adequately present the issues and positions of
the parties
141 NLRB No. 46.
THE KROGER CO. 565
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and, finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner insofar as they are consistent
with the following.
The charging locals represent employees of various grocery stores
in the Chicago area, although elections under Board auspices have
never been held among such employees. Since 1945, Respondent
together with other retail grocery store operators in and about Chicago
have bargained collectively with the charging locals on a group basis z
The employers have no formal association, constitution, or binding
rules of procedure. During negotiations from 1945 to 1954, the
unions usually submitted their contract proposals to individual em-
ployers who then met as a group with the unions. Each employer
was represented by one or more individuals. The employer repre-
sentatives usually caucused prior to meetings with the unions to dis-
cuss the union proposals and to agree upon a common front vis a via
the unions. In 1954, representatives of employers and unions partici-
pating in negotiations increased in number to the extent that the
groups became unwieldly. Thereupon, Saunders, representative of
Respondent, without formal designation by other employer representa-
tives, assumed the role of spokesman for the employer group and
continued in this role until the fourth session of the 1961 negotiations.
As the result of the joint negotiations, separate but substantially
similar collective-bargaining contracts were signed between the local
unions and the respective employers.
In the fall of 1961, the unions served notice of contract reopening.
At the first negotiating session the unions proposed, inter alia, a
pension plan. Saunders, acting as spokesman for the employer group,
said that Respondent and A & P had their own pension plans and were
not interested in one which was jointly administered. The unions
insisted upon a pension plan. Respondent was equally adamant in
insisting that it would not agree to such a plan because it already had
one. During the early stages of negotiations, the A & P representa-
tive also strenuously opposed a pension plan for his company. At
the 12th negotiating session held on February 22, 1962, the employer
spokesman, Quirk, a representative of National Tea Company, said
2In 1945 the employer group consisted of Respondent, Atlantic & Pacific Tea Company,
National Tea Company, and Associated Food Retailers , an association of local inde-
pendently owned retail food stores. In 1955, Eagle -Piggly Wiggly , and in 1961, Red Owl
Stores joined the group.
Although there were other locals participating in joint negotiations during the early
history of bargaining, the union group was reduced to the six charging locals due to
merger of seieral smaller locals . All the charging locals are members of Retail Clerks
Chicago Area Council, District 3, except Local 1460, which is a Gary , Indiana, local.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that although the employers were willing to make certain wage
adjustments some of them were unwilling to agree to a pension plan.
The union representatives replied that the parties were bargaining
jointly and each member of the group would be bound by any agree-
ment reached. Quirk disagreed and said that if the unions felt that
Respondent would be so bound, they should notify Respondent's
representative personally. At the next meeting Respondent's repre-
sentative said categorically that his company would be bound only
by an agreement to which it specifically assented, and that it would
not agree to a contract which included a pension plan. At this meet-
ing the unions and the employers, with the exception of Respondent,
reached agreement on terms of a new contract, including a pension
plan. Separate meetings between Respondent and the unions failed
to result in an agreement, the pension plan being the stumbling block.
Thereupon the Unions struck Respondent.
Although as stated, separate but substantially similar contracts
resulted from joint bargaining, there is a history of individual adjust-
ments between separate employers and separate unions which varied
the jointly negotiated terms and conditions of employment. Thus:
1. Respondent's Representative Saunders testified without contra-
diction that in 1952 he separately negotiated with the unions to exclude
co-managers in Respondent's stores from the compulsory union mem-
bership provisions in the then current contract and this agreement is
.still being honored.
2. After the 1956 bargaining agreement was signed, Respondent
separately negotiated with union officials so as to interpret the phrase
"regularly employed" in section 6 of that agreement to mean that
there would be a 4-week period after an employees' schedule change
before his rate of pay would be adjusted.
3. In March 1956, Local 1453 asked that Respondent grant em-
ployee members in its stores time and a half for overtime, contrary
to the agreement in force. Respondent refused.
4. In December 1955, Respondent was party to a 2-year jointly
negotiated contract with Local 1460 covering employees in its Indiana
stores. The agreement did not provide for checkoff of union dues.
However, upon being apprised by Local 1460 that it was having dif-
ficulty collecting dues in a particular store, Respondent and Local
1460 modified the existing contract to provide for dues checkoff. No
other local unions or employers participated in these supplementary
negotiations.
5. In 1957, Respondent, National Tea, and A & P negotiated with
Local 1460 for an extension of the union-security provision in the ex-
isting bargaining contract because Indiana had passed a right-to-work
law and Local 1460 was anxious to secure an extension of the existing
clause before the new statute became effective. No other local par-
THE KROGER CO. 567
ticipated in these negotiations . However, the tentative agreement
reached was never reduced to writing or signed because the law be-
came operative before the agreement could be presented to Local
1460's membership for ratification.
6. On February 8, 1960, Respondent signed a separate agreement
with Local 1460 providing for an agency shop. In the fall of that
year Respondent and Local 1460 negotiated and signed a supplement
thereto providing for a checkoff under the agency shop arrangement,
to begin 31 days after hire or execution of the supplement.
7. The 1959-61 bargaining contracts between Respondent, National
Tea, A & P, and Associated Food Retailers provided for the estab-
lishment of a health and welfare trust fund . After negotiations began
in 1960 to establish the trust , Local 1460 notified Respondent that it
desired a separate trust agreement for employees in the Lake County,
Indiana, stores, in order to include under the trust employees of
various independent grocers who did not participate in the Chicago
bargaining . Thereupon Respondent , A & P, and National Tea nego-
tiated a separate trust for the Indiana employees . Associated Food
Stores did not participate in the negotiations for the Indiana trust.
8. From the beginning of joint bargaining , the Retail Clerks Inter-
national has negotiated a separate understanding with Associated
Food providing that only those employer-members of the Associa-
tion employing members of its locals which are parties to the agree-
ment shall be covered thereby. In 1955, the International negotiated
a "rider" with the Association which provided that the 1955-57 agree-
ment was entered into with the International through its authorized
agent, the Retail Clerks Joint Council . The bargaining contracts
between Respondent, A & P, and National Tea for the same years pro-
vided that they were entered into with the International through the
individual locals as its agents.
9. In 1958 , National Tea negotiated a written supplement relating
to uniforms for female employees which differed from the provision
on the same subject in other employers' collective-bargaining contracts
with the locals.
10. Before the 1954-56 agreements, Respondent, A & P, National
Tea, and Associated Food Retailers had the classification "Bakery
Department Head" in their bargaining contracts. However, the con-
tracting union agreed to drop this classification from the 1954-56
contract with A & P, from the 1957-59 contract with National Tea,
and from the 1959-61 contract with Respondent. The contract with
Associated Food Retailers still includes this classification.
11. In 1959, the locals and the employers included in their contracts
an "indemnification clause" whereby the unions agreed to indemnify
the companies for any claims resulting from the agency shop agree-
ment. After the 1959-61 agreement had been negotiated, A & P and
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unions agreed to omit the indemnification clause from the A & P
contract.
12. After the 1959-61 contracts had been signed, Respondent, A & P,
National Tea, and Associated Food Retailers entered into certain
understandings with the locals relating to the appointment of an
assistant manager and other employees based on a review of average
store sales, ". . . Provided that the store does not already have one
employee in each classification." National Tea redrafted the langauge
of the understanding and omitted the quoted phrase. This redraft
was accepted by the locals as part of National Tea's contract for
1959-61.
13. With respect to the health and welfare clause in the 1959-61
agreements, A & P refused to sign until a change in wording was made
to prevent the provision from being declared illegal. The Inter-
national agreed and the contract with the A & P contained this
modification. When National Tea and Associated Food Retailers
learned of the modification, they prevailed upon the locals to incor-
porate the same change in their own agreements. However, the unions
rejected Respondent's request for a similar amendment to its own
contract.
The General Counsel contends that Respondent violated Section
8(a) (5) of the Act by refusing to sign the jointly negotiated collec-
tive-bargaining agreement. The Trial Examiner recommended that
the complaint be dismissed because the record failed to establish that
in its 1961-62 negotiations "respondent manifested bad faith, or that
it refused to bargain in violation of Section 8(a) (5) and (1) of
the Act." We agree with the Trial Examiner's conclusion, but for a
somewhat different reason.
During the 1961 negotiations Respondent made clear from the out-
set that it would not agree to a pension plan even if other employers
did so agree. As the Trial Examiner found, this position was taken
in good faith. When the representatives of other employers in the
bargaining group did agree after prolonged negotiations to a pension
plan, they expressly disclaimed any authority to bind Respondent.
Further, as set forth above, during the entire period of multiemployer
bargaining, individual employers and individual unions had negoti-
ated individual modifications in the jointly negotiated agreements
without protest from other parties to the agreements. The evidence,
we believe, justifies a finding, as in the J t H Food case,' that in jointly
negotiating for a collective bargaining agreement, the parties mutually
understood that individual variances in the agreement could be negoti-
ated by the individual parties. Accordingly, in refusing to accede to
the pension plan agree to by other employers and in insisting upon
separate negotiations of this issue, Respondent exercised a prerogative
9J c6 H Food Inc., et al., 139 NLRB 1398.
THE KROGER CO. 569
established by past practice and did not therefore refuse to bargain
in violation of Section 8(a) (5) and (1) of the Act .4 Accordingly,
we shall dismiss the complaint.
[The Board dismissed the complaint.]
' Subsequent to the Issuance of the Intermediate Report, Allen Alsip, petitioner in Case
No 13-RD-494 [not published in NLRB volumes], filed a motion to intervene for the
purpose of excepting to the Trial Examiner's failure to find that no multiemployer unit
existed. Like the Trial Examiner, although for a different reason, we find it unnecessary
to decide that the parties' practice of Individual adjustments precludes their having estab-
lished an appropriate multiemployer unit. Accordingly, the motion is hereby denied.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On March 8, 1962, the above-named labor organizations filed a charge in the above-
entitled case. On May 4, 1962, the General Counsel of the National Labor Relations
Board issued his complaint and notice of hearing thereon. Thereafter, the Respond-
ent's answer, dated May 15, 1962, was filed. An amendment to the complaint was
issued and served on May 18, 1962, and an answer to the amendment dated May 23
was received. The complaint alleges and the answers deny that the above-named
Respondent has engaged in and is engaging in unfair labor practices in violation of
Section 8 (a) (5) and (1) of the National Labor Relations Act, as amended. Pursu-
ant to notice, a hearing was held in Chicago, Illinois, on May 28, 29, 30, and 31, 1962,
before Trial Examiner C. W. Whittemore.
All parties were represented at the hearing and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from all parties.
After the close of the hearing a motion was received from the Respondent to correct
the transcript as to numerous typographical errors. Said motion shows on its face
that it was served upon the other parties. No objection having been received, the
motion is granted, the record is hereby ordered corrected in accordance therewith,
and the motion is hereby made a part of the record of these proceedings.
Also after the hearing there was received, pursuant to agreement of the parties
at the hearing, a written stipulation concerning certain contracts. Said stipulation
is hereby made a part of the record as General Counsel's Exhibit No. 38.
Disposition of the Respondent's motion to dismiss the complaint, upon which
ruling was reserved at the hearing, is made by the following findings, conclusions, and
recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Kroger Co. is an Ohio corporation with principal office in Cincinnati, Ohio.
It maintains and operates retail food stores in various States of the United States,
including Illinois and Indiana.
During the year preceding issuance of the complaint the Respondent sold and dis-
tributed food products valued at more than $1,000,000. During the same period it
received goods at its Illinois and Indiana stores valued at more than $100,000 which
were transported to such stores in interstate commerce directly from States other
than Illinois and Indiana.
The Respondent is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNIONS
Retail Clerks Union, 1550, 1540, 1504, 1460, 1453, and 98, and Retail Clerks Inter-
national Association, AFL-CIO, are labor organizations within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and major issue
For a period of more than 15 years Kroger, together with a varying number of other
national chains and an association of independent stores, has engaged in joint or
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group bargaining with the Retail Clerks in the Chicago area. Within that area, dur-
ing the 1961-62 negotiations, Kroger had some 63 stores and about 1,200 employees.
In substance, it is General Counsel's contention that such custom and practice of
group bargaining had effectively established the legal fact that all the employees of
the participating employers constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act. This contention the
Respondent disputes. Thus is raised the issue of a multiple-employer unit.
Negotiations looking toward new contracts between the participating locals and
employers began in the fall of 1961 and continued until April 1962 when resultant
agreements were executed with all such employers except Kroger. One or more
Kroger officials participated in these negotiations, jointly with representatives of the
other employers, until February 24-or, more accurately, the early morning of
February 25, at which time it appeared that all parties except Kroger had reached
agreement on contract terms. The one union demand which Kroger had consistently
declined to grant, from the beginning of negotiations, but which the other employers
finally agreed to, involved a pension program.
General Counsel urges, and the Respondent denies, that by refusing to sign a
contract containing the pension plan provisions Kroger refused to bargain within
the meaning of Section 8(a) (5) of the Act.
In preliminary summary the foregoing are the issues as raised by the original
complaint, based upon the original charge filed by the locals. Although the charge
was not amended, the complaint on May 18, 1962, was amended to allege that by the
unfair labor practice of refusing to bargain the Respondent caused certain of its
employees in the area to go on strike in April-a strike which apparently was
continuing at the time of the hearing. While the fact of a strike is not disputed the
question as to whether it was caused and prolonged by unfair labor practices is to be
resolved only after a conclusion is reached concerning the legal character of Kroger's
declining to sign the contract involved herein.
At the opening of the hearing General Counsel again amended the complaint by
alleging that the Respondent refused to bargain by threatening "its employees with
loss of benefits in an effort to undermine the Union , to destroy the bargaining unit,
and to avoid its obligation to execute the contract agreed to by the Employer group."
The Respondent denies this allegation.
B. Relevant facts
1. Bargaining history
At the outset it is to be noted that this case does not depict a situation of employer-
association bargaining : that is, where individual employers formally join, contribute
financial support to , and empower an association to represent them in negotiating
with labor organizations , delegating to such association expressly or by implication
the authority to bind them in agreements reached as a result of such negotiations.
More succinctly, none of the complicated questions of agency and scope of authority
are here involved.
Briefly summarized, the history of bargaining as revealed by the record is as
follows:
(a) Since 1945 one or more officials of Kroger have participated jointly with other
representatives of Chicago area food chain or independent stores in negotiating
for periodical contracts with representatives of the Charging Unions in this case.
In 1947 and apparently for several years thereafter the employer group consisted
of the Respondent, Atlantic & Pacific Tea Company, National Tea Company, and
Associated Food Retailers, an association of local food stores. The Unions were
represented by their officials. During this period, according to the credible testimony
of M. H. Saunders, Kroger's labor relations representative, there was no "spokesman"
for the employer group, but representatives of each employer participated at will.
(b) About 1954 the employer group was somewhat enlarged by representatives
of additional chains and the Unions' representatives increased in number. As a
matter of convenience, but with no formal delegation of power by other employers,
Saunders acted as "spokesman" for the employer group. He continued in this
capacity until the fourth session of the 1961 negotiations, when he dropped out
because of other duties. Through other representatives, however, Kroger participated
in the joint negotiations until, as noted in more detail below, the latter part of
February 1962.
(c) As a witness Saunders readily conceded that the purpose of these group nego-
tiations was to seek a uniform agreement with the Unions as to wages, hours, and
other working conditions. He also testified that after discussing problems and
proposals among themselves, the participating employers agreed to "present a common
THE KROGER CO. 571
point of view" in responding to union demands, and that it had been the practice to
do so.
(d) Throughout this history of group-employer negotiations with the labor organiza-
tion here involved no employer, until Kroger did so in 1962, actually withdrew
from such negotiations or refused to sign the same or similar contract agreed to by
other employers in the same group.
2. The 1961-62 negotiations
As noted earlier in this report contracts between the Charging Unions and all
employers in the participating group except Kroger were finally executed in April
1962. Negotiations to that end were begun October 26, 1961, and frequent meetings
were held thereafter until the early morning of February 25, 1962.
Since there is no claim by General Counsel that Kroger failed to meet with the
Unions at reasonable times, or that any other issue of unlawful bargaining except
that concerning the pension program was involved at any time during the negotiations,
it appears pointless to review in detail what was said and done at each of these
several meetings.
As to the pension program issue, the following pertinent facts are noted:
(a) During the first five meetings , representatives of the participating employers
met and negotiated directly with union representatives.
(b) At and after the sixth meeting, on January 18, 1962, actual negotiations
generally were carried on between subcommittees of both union and employer officials.
However, other employer representatives, remained in adjoining quarters for con-
sultation by their subcommittee.
(c) For the first time in the bargaining history, this year the Union's initial demands
included a pension program, the details of which are immaterial here. At the first
meeting in October, according to the testimony of Victor Reysa, an official of Local
1550, Saunders put the Unions on notice that both Kroger and A & P were "not
interested" in the pension program proposals since each chain "had their own
pension programs." 1
(d) At most, if not all , following negotiating meetings the pension issue was
discussed. (General Counsel makes no claim in his complaint that Kroger at any
time refused to discuss or negotiate concerning a pension program.)
(e) At the fourth meeting, in December, the A & P representative notified the
union representatives that the pension proposal would be a "strike issue" with both
his company and Kroger. According to Reysa's own testimony the union representa-
tive replied: "If it was a strike issue, so be it."
(f) At a meeting early in February 1962, Van Ausdall, a Kroger official, reminded
the union representatives that his company's position of not granting any pension
plan in any of its various contracts throughout the system was well known; effec-
tively again putting the Union on notice that it would not accept a contract containing
such provision. A union representative countered by voicing his opinion that they
were negotiating a "uniform" contract (thereby implying that if other employers
agreed to a pension program Kroger would have to do likewise), and warning Van
Ausdall that it would be illegal for Kroger to withdraw from the negotiations without
"timely notice."
(g) It does not appear from the record that Van Ausdall was disturbed by this
curb opinion. In any event, he did not abandon his position, and continued to attend
the meetings-although, not being on the subcommittee of employers, he did not
participate at all times directly in the negotiations.
(h) On February 24 a meeting began which extended through until the early
hours the next morning. Van Ausdall was invited into the direct negotiations,
where he again voiced his refusal to be a party to any contract containing pension
provisions, again contending that Kroger employees would lose, if such contract
were signed, their accrued benefits under the Company's long-established profit-
sharing and retirement plan. Van Ausdall also specifically stated that while the
employers' representative on their subcommittee. Quirk, had his authorization
to "negotiate" on other matters still involved, such authorization did not include the
subject of pensions. When the union representative told Van Ausdall that his
company would be "bound by whatever settlement was reached," Kroger's representa-
i Although the record contains evidence concerning the nature of Kroger's so-called
profit-sharing and retirement programs, set up many years earlier, it does not appear
necessary here to describe them in any details. Whether their existence was a reasonable
ground for Kroger's refusal to accept the Unions' pension program is not in issue.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive replied that his company would be bound only by settlement "that we specifically
agreed to."
(i) After further negotiations , at the same extended meeting, it appears that all
employers except Kroger finally agreed, in principle , on all issues including the pen-
sion program . Van Ausdall was again called in to state his position which was, in
effect, that he was prepared to accept the settlement in all respects except the pension
provisions . He offered , moreover, to continue meeting with the Union in an effort
to reach agreement . The union representative responded that he believed Kroger
was bound by the agreement reached by the other employers , and upon this note
Van Ausdall left the meeting.
(j) Although , as noted above , it appears that the Unions and all employers ex-
cept Kroger believed agreement had been reached on a contract events proved
further negotiations necessary . The written draft submitted to such employers by
the Union contained provisions contrary to their understanding , and the employers'
group , Kroger being absent , met with the Unions again on April 12. The employers
left this meeting without signing contracts , apparently desiring more time for con-
gideration . Thereafter, yielding to strike threats , all employers except Kroger signed
contracts.
(k) After the February 24-25 group negotiations , Kroger and union representa-
tives met in two -party negotiations-no other employers participating , in an effort
to reach some agreement , on at least three occasions : March 5 , April 18 , and May 3.
Agreement was not reached.
(1) On April 19 the locals began a strike against Kroger , which was continuing
at the time of the hearing.
3. The alleged "threats"
As noted in section III, A, above at the hearing General Counsel expanded his
complaint to allege that Kroger also refused to bargain by threatening employees
with loss of benefits in order to undermine the Unions.
The Trial Examiner finds no oral testimony in the record to support this allega-
tion . In his brief General Counsel fails to urge the point or to call attention to any
documentary evidence which might support the allegation . It may be that he con-
siders three company letters addressed to employees , all dated after the February 24-
25 meeting , which he placed in evidence , to be sufficient to sustain the allegation. The
Trial Examiner discerns nothing in any one of the documents which may reasonably
be considered to be even an implied threat . All deal, at least in part , with some phase
of the Respondent's profit-sharing and retirement plans.
C. Conclusions
The record in this case is replete with contracts , excerpts from contracts , oral testi-
mony, and arguments bearing upon the allegation of the complaint to the effect
that all employees of the various companies , including Kroger , which have "jointly
negotiated" with the Charging Unions down through the years since 1945 , constitute
"a unit appropriate for the purposes of collective bargaining" within the meaning
of the Act. The briefs devote many pages to the point.
In view of his disposition of the chief issue-the refusal to bargain-it does not
appear necessary to the Trial Examiner to review , weigh , and resolve the conflicting
and extensive arguments set forth in the briefs.
There is no real dispute that certain employers, including Kroger , have customarily
met in "joint" or "group" fashion with representatives of the Unions for the pur-
pose of reaching "uniform" agreements. At all times , however, it appears that
Kroger, as well as other employers , participated as individuals in a group, and at no
time delegated to any third party, such as an association or committee , the power to
bind them separately or together . It is also well demonstrated in the record that in
general these group negotiations , until 1961-62, have resulted in individual contracts
which were , except in some respects , "uniform." 2
To reach the crux of the case, the Trial Examiner assumes that the unit alleged
is an appropriate unit. He finds that the group negotiations , down through the years,
have customarily culminated in "substantially " uniform but individual contracts. But
it is not his opinion that this assumption and finding lead logically and inevitably to
the conclusion that Kroger violated the Act by refusing to sign the same contract other
employers signed in 1962 . The law itself only requires the signing of an agreement
a In passing , the Trial Examiner notes that in his brief General Counsel retreats from
his tight and precise allegation of the complaint-that the parties "executed uniform"
contracts-to a lesser term • "substantially uniform "
NEW YORK MAILERS' UNION NO. 6, ITU, AFL-CIO 573
when reached? However, that requirement, in Section 8(d) quoted below, is im-
mediately followed by: "but such obligation does not compel either party to agree
to a proposal or require the making of a concession."
Since the law does not specifically prohibit an employer from refusing to make
"concessions"-so long as he negotiates "in good faith" on mandatory issues-and
does not specifically require each party in group negotiations to come to an identical
agreement, recourse is necessary to the Board and court interpretations of that law.
The Trial Examiner has considered fully the opposing arguments in the several
briefs, and the many cases cited. None of the cited cases present facts identical with
those established here, as viewed by the Trial Examiner. It appears that in most
cases , wherein direct violation of the language of the law was not found, the Board's
policy has been to weigh each case on its own merits, and to apply-in effect if not
in specific terms-the test of "good faith bargaining."
It is thistest which the Trial Examiner applies in this case, as was done in N.L.R.B.
v. Insurance Agents' International Union (Prudential Insurance Co.), 361 U.S. 477,
where good-faith bargaining by a labor organization was the chief issue.
From the beginning of negotiations in the fall of 1961 Kroger's representatives at
the group bargaining maintained, and made known to the union representatives, that
they would not yield to the demand the pension provisions be included in any contract
they signed. They did not refuse to discuss or "negotiate" the issue, so far as the
record reveals, and as previously noted General Counsel does not so contend. They
did, however, decline to make any concession on the point of including the provision
in a contract, a privilege which the Act accords to any party to negotiations. And, as
found, Kroger representatives continued to meet with union officials, seeking solution
to the problems, after other employers had yielded to the union demands.
The Trial Examiner has normal respect for the "voice of dissent," whether uttered
by an individual, an employer, or a union representative. And he believes the conduct
of Kroger in this case to have been no more than an exercise of this privilege. No
mendacity was exhibited by that Respondent's representatives, nothing in their state-
ments to union officials could reasonably be interpreted as indicating that they would
agree to be bound by what other employers agreed to on the pension issue. They
recanted in no fashion from any agreement previously made by them either ex-
pressly or by implication, during the 1961-62 negotiations.
As to the Union's expressed contention, in which General Counsel apparently joins,
to the effect that majority rule must prevail in such group bargaining, the Trial
Examiner finds no specific support for it in Board decisions.
In short, the Trial Examiner concludes and finds that the evidence in this record
does not establish that in its 1961-62 negotiations with the Charging Unions the
Respondent manifested bad faith, or that it refused to bargain in violation of Sec-
tion 8 (a) (5) and (1) of the Act.
It will therefore be recommended that the complaint be dismissed in its entirety.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, the Trial
Examiner recommends that the complaint in this case be dismissed in its entirety.
' Section 8 ( d) requires "the execution of a written contract incorporating any agree-
ment reached if requested by either party."
New York Mailers' Union No. 6, International Typographical
Union, AFL-CIO and News Syndicate Co., Inc . Case No. 2-CD-
235. March 18, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by News Syndicate Co., Inc., herein called the Company,
alleging that New York Mailers' Union No. 6, International Typo-
141 NLRB No. 49.