The Kroger Co.

National Labor Relations Board - Board Decisions

Dec 3, 1963

145 N.L.R.B. 235 (N.L.R.B. 1963)

THE KROGER COMPANY 235
The Kroger Company and Amalgamated Meat Cutters and
Butcher Workmen of North America , Local 88, AFL-CIO
National Food Stores, Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 88, AFL-CIO.
Cases Nos. 14-CA-2382 and 14-CA-2383. December 3, 1963
DECISION AND ORDER
On October 31, 1962, Trial Examiner Benjamin B. Lipton issued
his Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents had engaged in and were engaging in cer-
tain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. Thereafter, the Respondents filed ex-
ceptions to the Intermediate Report together with a supporting brief
and the General Counsel filed a brief.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications stated below.'
Each of the Respondents is engaged in the operation of a nationwide
chain of retail food stores and supermarkets. In the St. Louis, Mis-
souri, area, the Respondents had joined several other employers, in-
cluding A. & P., in joint collective bargaining negotiations with
Local 88, the Charging Party herein, covering a unit of meat depart-
ment employees in all their stores. The last contract prior to the
Respondents' alleged unfair labor practices expired on October 31,
1959. Beginning on October 13 of that year, the employers bargained
on a multiemployer basis with Local 88 for a new agreement.
When no agreement was reached, Local 88 called a strike against
A. & P. on January 14, 1960. On the same day, the two Respondents
laid off all their meat department employees and instructed them not
to report for work until further notice. The other departments in
the Respondents' stores remained open. The two employers who had
been bargaining jointly with the Respondents and A. & P. did not
close down any portion of their operations. On March 10, while the
strike against A. & P. was still in progress, each Respondent reopened
the meat departments in six of its stores, staffing them with supervisory
and clerical employees who had been transferred from other positions.
With some exceptions, the customary line of fresh and prepackaged
I The Respondents' request for oral argument is hereby denied as the record, the excep-
tions, and briefs adequately present the issues and the positions of the parties.
145 NLRB No. 26.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meats was sold in those stores . The Respondents also stocked a line
of prepackaged meats in the meat departments of all their other stores,
29 in the case of Kroger, 30 in the case of National. No fresh meat was
sold in those other stores and the prepackaged meat was handled by
employees of the Respondents from outside the meat departments.
The strike against A . & P. ended on March 21 , pursuant to an agree-
ment reached on March 19 which was ratified by the A. & P. employees
the following day. National , one of the Respondents herein, con-
cluded an agreement with Local 88 on March 22 and, after ratification
on March 23, the employees returned to work. The employees of
Kroger, the other Respondent, returned to work on March 24 , having
ratified an agreement reached the day before by their employer and
Local 88. Neither Respondent called back any of its laid-off meat de-
partment employees until its new collective -bargaining agreement had
been executed . Each Respondent then called back all those employees
who had been laid off in January.
The Trial Examiner found that the Respondents violated Section
8(a) (3) and (1) of the Act by operating their meat departments with
supervisory and clerical personnel, instead of with their locked-out
employees , until execution of the collective -bargaining contracts and
return of the employees to their jobs , between March 22 and 24.2 We
agree.
The issues herein are similar to those involved in the Brown Food
case.' The Board there held that although the decision in Buffalo
Linen 4 permitted an employer who belonged to a multiemployer group
to lock out his employees and shut down his operations if the union
struck one of the other employers , there was nevertheless no justifica-
tion under such circumstances for the nonstruck employer to lock out
his employees and then try to operate with replacements . As was there
stated :
[W]hatever defensive validity there may be for shutting down
in a whipsaw context, such consideration is inapposite where, as
E The Trial Examiner also found that the lockout was unlawful "from its inception" be-
cause not intended to preserve the integrity of a multiemployer bargaining unit, relying
on (1) the fact that some of the members of the employers' group did not lock out their
employees, (2) the eventual signing of separate agreements in settlement of the dispute,
and (3) the Respondents' delay in recalling their employees after the end of the strike
against A. & P Since the complaint alleges only that the Respondents violated the Act
by virtue of their conduct on and after March 15, and since the charge initiating this
proceeding was filed more than 6 months after the inception of the lockout on January 14,
1960, we deem it unnecessary to determine whether the lockout was unlawful "from its
inception." We assume, rather, far purposes of this decision, that the lockout was lawful
at its inception. See Buffalo Linen Supply Company; et at, 109 NLRB 447, affil. sub
nom. N.L.R.B. v Truck Drivers Local Union No. 449, Internationzl Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, 353 U S. 87
$John Brown, et at., d/b/a Brown Food Store, 137 NLRB 73, enforcement denied 319
F. 2d 7 (C.A. 10). With all due respect to the opinion of the Court of Appeals for the
Tenth Circuit, the Board has determined to adhere to its decision in the Brown Food case
and has filed a petition in the Supreme Court seeking certiorari review of the decision of
the court of appeals therein.
4 Footnote 2, supra.
THE KROGER COMPANY 237
here, the employers do not shut down . . . . Locking out em-
ployees in order to replace them with other workers may hardly
be viewed as equivalent to the defensive action of a shutdown to
preserve the solidarity of the Association unit. On the contrary,
since the Respondents were continuing to operate and since no
reason appears why they could not have continued to operate with
their own employees during the strike, this constitutes a tempo-
rary replacement of employees solely because they were engaging
in protected concerted activity ....5
The same reasoning applies to the instant case. When the Respond-
ents closed down their meat departments, they were arguably merely
doing so in order to defend against the efforts of Local 88 to destroy
the multiemployer bargaining group. In accord with Buffalo Linen,
the Respondents were free to take such defensive action. But as soon
as they reopened the meat department with replacements for em-
ployees who were willing to work, the nature of their conduct changed
from defensive to retaliatory. Instead of protecting the multiem-
ployer unit, the Respondents were penalizing their regular employees
for their connection with a union which had called a strike against one
member of the multiemployer group. Such retaliatory conduct clearly
constitutes discrimination to discourage union,and concerted activity
in violation of Section 8 (a) (3) and (1) of the Act.
In reaching this conclusion, we have been mindful of Mr. Justice
Brennan's statement for a unanimous Court that:
Although the Act protects the right of the employees to strike
in support of their demands, this protection is not so absolute as
to deny self-help by employers when legitimate interests of em-
ployees and employers collide. . . . The ultimate problem is the
balancing of the conflicting legitimate interests. The function
of striking that balance to effectuate national labor policy is often
a difficult and delicate responsibility, which the Congress com-
mitted primarily to the National Labor Relations Board ....6
We have sought to achieve that balance in the instant case by weigh-
ing the employees' interest in engaging in concerted activity against
the employer's interest in defending against whipsaw tactics and main-
taining the integrity of the multiemployer bargaining unit. We be-
lieve that the nonstruck employer's legitimate interest is fully pro-
tected by giving him a choice between closing down or operating with
those regular employees who are willing to work. Selection of the
alternative is in the hands of the individual employer, and he may use
his own judgment to determine which course he will pursue. The
B Footnote 3, sitpra, at 75.
9 N L R.B. v. Truck Drivers Local Union No. 449, International Brotherhood of Team-
sters, etc., supra, at 96.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice is his, whether the struck employer is able to function substan-
tially as usual, or whether the struck employer is completely or vir-
tually closed 7 In these circumstances there is in our opinion no valid
reason why the nonstruck employer should be entitled both to lock
out his employees and continue to operate with temporary replace-
ments for those employees. As noted above, to permit the nonstruck
employer to operate with replacements while his own employees are
willing to work, serves only to punish those employees because of their
adherence to the striking union.
We find, therefore, that the Respondents interfered with, restrained,
and coerced employees in the exercise of their right to bargain collec-
tively and violated Section 8 (a) (1) of the Act by replacing them
while they were still willing to work and were not on strike. We also
find that such conduct constituted unlawful discrimination within the
meaning of Section 8(a) (3) of the Act, in discouraging employees
from engaging in concerted activities for mutual aid and protection."
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications:' Appendixes C and D
are amended to read that loss of earnings shall be computed from
March 15,1960, rather than from March 10, 1960.
7 There is no evidence in the record to indicate whether A & P, the struck employer
herein , remained open or closed during the strike, but, as indicated , this factor would
not control the result
In the section of the Intermediate Report entitled "The Remedy," the Trial Examiner
inadvertently recommended that the loss of earnings for the affected employees be com-
puted from March 10, 1960. As the complaint alleges that the Respondents committed
unfair labor practices on and after March 15, 1960, we hereby correct the Intermediate
Report and shall order the loss of earnings computed from the later date
O The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that the Respondents , The Kroger Company and National Food Stores , Inc., their
officers, agents , successors , and assigns , shall:
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A hearing was held before Trial Examiner Benjamin B. Lipton in St. Louis,
Missouri , on September 11, 1962, involving allegations by the General Counsel that
The Kroger Company, herein called Respondent Kroger , and National Food Stores,
Inc., herein called Respondent National, engaged in a lockout of employees in viola-
tion of Section 8(a)(1) and (3) of the Act.' All parties were represented and
participated in the hearing, and they waived oral argument on the record. Respond-
ents and the General Counsel filed briefs , which have been duly considered.
Upon the entire record in the cases, I make the following:
1 The charges in both cases were filed on September 13, 1960, and the amended com-
plaint on the basis of which hearing was held was issued August 3, 1962.
THE KROGER COMPANY
FINDINGS OF FACT
239
I. COMMERCE AND JURISDICTIONAL DATA
Respondents Kroger and National are each engaged in the business of operating
a nationwide chain of retail stores. Involved herein are certain retail food stores
of Respondents in the area of St. Louis and St . Louis County , Missouri . The Great
Atlantic and Pacific Tea Company , Inc., herein called A. & P, also operates a
nationwide chain of retail food stores , including stores in St. Louis, Missouri.
Kroger, National , and A. & P. each sell and distribute food products and other
merchandise having an annual gross value in excess of $500,000 . Kroger and Na-
tional each receives shipments directly in interstate commerce valued in excess of
$50,000 annually at each of the retail stores involved herein , and A. & P. receives
shipments directly in interstate commerce valued in excess of $ 50,000 annually at
its places of business in the State of Missouri . It is stipulated , and I find, that Kroger,
National, and A. & P., each individually and all collectively with other employers
not herein otherwise directly concerned , are employers engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of North America, Local 88,
AFL-CIO, herein called the Union, is a labor organization within the meaning of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Undisputed and stipulated facts
On or about October 13 , 1959, the Union commenced joint collective -bargaining
negotiations with the employers in a multiemployer unit of meat department em-
ployees covering certain retail stores in the St. Louis , Missouri , area, of Respondents
Kroger and National, A . & P., Independent Food Dealers of Greater St. Louis, and
Metropolitan Food Dealers, Inc .2
On January 14, 1960,3 the Union called a strike of the meat department employees
of A. & P. in St. Louis. Thereupon, on the same date, Respondents Kroger and
National laid off all the meat department employees at each of their retail stores
here involved , with notice given the employees that they were not to report for work
until notified .4 From January 15 to March 10 these meat departments remained
closed, although the stores were otherwise open and operating.
On March 10 , Respondents Kroger and National reopened the meat departments
in each of the retail stores, without recalling to work any of the laid-off employees.
In six particular stores of each Respondent , operations were resumed with advertise-
ments that full stocks of fresh meats and other prepackaged meats would be available,
but some of the customer services normally provided and some of the meat products
normally merchandised were not in fact made available, since the customer services
and meat department merchandise made available were limited by the skills of the
individuals who were used to staff the meat departments . In the six specific stores
of each Respondent the meat departments were staffed and operated with supervisors,
managerial representatives , and office clerical employees who were not embraced
in the unit In addition , Respondent Kroger operated the meat departments in its
remaining 29 retail stores in the area and Respondent National operated the meat
departments in its 30 remaining retail stores in the area by making available a
limited line of prepackaged items which were normally merchandised in such stores;
but no fresh meat was stocked or sold. At each of these stores , the store manager
and/or the assistant store manager received , shelfed, and merchandised the pre-
packaged meat products made available.5
2 Effective November 3, 1957 , and expiring October 31 , 1959 , a contract existed be-
tween the Union and a multiemployer group, with Greater St Louis Food Dealers Asso-
ciation as a party
3 All dates herein are in the year 1960 unless otherwise specified
'The General Counsel and Respondents stipulated that the multiemployer bargaining
group decided to lock out the meat department employees at Kroger and National as a
defensive measure The Charging Party did not join in this stipulation.
',Attached hereto as Appendixes A and B are lists of the specific retail stores of Re-
spondents Kroger and National which are involved , including the six stores of each which
reopened on March 10 with a supply of fresh meats as well as prepackaged meats
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union engaged in picketing at only the six retail store locations of each Re-
spondent at which fresh meats were made available, as above described. The picket
signs carried the legend "Locked Out."
On March 19 the struck employer, A & P., arrived at a contract with the Union,
and on March 20 the agreement was ratified by the A. & P. employees. On March 21
the A. & P. employees returned to work. On March 22 Respondent National reached
agreement with the Union, and on March 23 the employees ratified the agreement
and returned to work. On March 23 agreement between Respondent Kroger and
the Union was reached and ratified, and on March 24 the employees returned to
work.
B. Contentions
The complaint alleges no violation respecting the lockout by Respondents Kroger
and National from January 15 to March 10, following upon the Union's strike against
A. & P. Relying upon the Brown Food case,6 the General Counsel contends that
Respondents Kroger and National violated Section 8(a)(3) and (1) of the Act by
(a) reopening and resuming operation of the meat departments in their retail stores
from March 15 to 20, while the employees who normally staff these departments
were locked out by Respondents, and (b) continuing the lockout after March 20,
when the Union's strike against A. & P. had ceased Respondents take the position
"that their actions throughout, in locking out their meat department employees as a
defensive measure and in continuing the lockout while they later operated their meat
departments in a limited manner, were permissible and protected under the Supreme
Court's doctrine in Buffalo Linen," 7 Respondents thus explicitly assert that the
purpose of the lockout throughout was to protect the multiemployer bargaining unit
from the disintegration threatened by the Union's whipsaw strike against one of
the employer-members of the multiemployer unit, as in the Buffalo Linen case.
Respondents "seriously disagree" with the Board's decision in Brown Food, and in
any event contend that the facts in the present case are materially distinguishable from
those in Brown Food.
C. Controlling precedents
As noted, Respondents squarely rely on the Supreme Court's holding in Buffalo
Linen as providing the justification for their lockout herein. In that case, the union
struck one employer-member of a multiemployer association unit to implement its
bargaining demands in the unit, and thereupon all the nonstruck employer-members
of the unit temporarily shut down their operations. The Board had found that the
strike against one of the multiemployer group constituted a threat of strike against
the others and that it was therefor a type of economic problem of the nonstruck
employers which legally justified their resort to a temporary lockout. The Court of
Appeals for the Second Circuit, reversing the Board, held that a temporary lockout
of employees on a "mere threat of, or in anticipation of, a strike" could be justified
only if there were unusual economic hardship, and as the facts showed no such
economic justification, the lockout of the nonstriking employees was an interference
with their statutory right to engage in concerted activities in violation of Section
8(a)(1) and was also a discrimination against them because of the Union's action,
thereby discouraging membership in the Union in violation of Section 8(a)(3).
The Supreme Court viewed the case as posing only the "narrow question" of whether
a temporary lockout may lawfully be used as a defense to a union strike tactic which
threatens the destruction of the employers' interest in bargaining on a group basis.
The Court answered the question in the affirmative. It observed that the "ultimate
problem is the balancing of the conflicting legitimate interests [of "employees and
employers"] and that the "difficult and delicate responsibility" for striking that bal-
ance was committed primarily to the Board. It concluded that the court of appeals
erred in confining "too narrowly" the exercise of such discretion by the Board which
it held, had correctly balanced the conflicting interests involved.
In Brown Food, the Board ruled upon the legality of a lockout involving a multi-
employer association unit of five employers operating retail food stores in a locality.
In furtherance of bargaining demands addressed to the multiemployer unit, the union
struck one employer member. The four nonstruck employers then locked out their
employees in the unit for the duration of the strike consistent with the Association's
announced policy that a strike against one was a strike against all. Each member
employer, however, undertook to continue operations, with the struck employer hiring
O John Brown, et al, d/b/a B) own Food Store, 127 NLRB 73
7 N L B B v Truckdrivers Local Union No 449, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL (Buffalo Linen Supply Co ), 353
U S. 87, affg 109 NLRB 447.
THE KROGER COMPANY 241
replacements for those on strike, and the four nonstruck employers functioning with
the assistance of supervisors, relatives of management, and new employees hired
on a temporary basis. During the period of the strike and lockouts, bargaining
negotiations continued until a final agreement was reached covering the multiem-
ployer unit, at which time the strike and lockouts were terminated and the employers
immediately recalled to work all their employees. The Board held in these circum-
stances that the lockout by the four nonstruck employers was in violation of Section
8(a)(1) and (3) of the Act. The Board reasoned in essential part, viz:
While the present case has its similarity to the Buffalo Linen situation, there
is a critical difference between the two cases. The underlying rationale of
Buffalo Linen was that a shutdown was deemed appropriate to preserve the
established unit, and that the lockout incidental to such shutdown was not unlaw-
ful. In the instant case, however, there was no shutdown to protect a bargain-
ing unit, for Respondents continued to operate by hiring replacements after
locking out their employees. Therefore, whatever defensive validity there may
be for shutting down in the whipsaw context, such consideration is inapposite
where, as here, the employers do not shut down. A lockout, needless to say,
is a drastic form of discrimination and its use in the present case far exceeds the
justification for the otherwise discriminatory measure endorsed in Buffalo
Linen. . .
. Locking out employees in order to replace them with other workers
may hardly be viewed as equivalent to the defensive action of a shutdown to
preserve the solidarity of the Association unit. On the contrary, since the
Respondents were continuing to operate and since no reason appears why they
could not have continued to operate with their own employees during the strike,
this constitutes a temporary replacement of employees solely because they were
engaging in protected concerted activity . . . .
The purpose of [the Buffalo Linen] exception to the rule against lock-
outs for union activity is to prevent unfair advantage being taken of the mem-
bers of an employer unit. If the Union could successfully strike one at a time,
the other members of the employer unit would in ordinary circumstances con-
tinue operating to the severe economic damage of the struck member, and each
in turn could be driven to the wall in the "whipsaw." For this reason, if one
member is shut down by a strike, the others may also shut down, but they are
not required to do so. If the struck member operates through replacements, no
economic necessity exists for the other members shutting down. If in those
circumstances they resort to a lockout and hire replacements, it may be reason-
ably inferred that they do so not to protect the integrity of the employer unit,
but for the purpose of inhibiting a lawful strike. In short, the lockout in these
circumstances ceases to be "defensive" and becomes "retaliatory." Buffalo
Linen Supply Company; et al., 109 NLRB 447, 448, quoted at 353 U.S. 87, 91.
D. Concluding findings
The legal conclusions of the Board in the Brown Food case, including its construc-
tion of the Supreme Court opinion in Buffalo Linen, appears fairly plain. I am, of
course, bound by the Board's decisions. Thus, it may be stated that in the situation
of a whipsaw strike, as here, certain rights and obligations flow from the statute and
the decisional law thereon. A lockout by the nonstruck members of a multiemployer
unit would be a direct form of discrimination within the compass of Section 8(a) (3)
and interference with employee rights within Section 8(a)(1)-except that the
lockout may be justified by a counterbalancing right of the employers of a kind which
is cognizable in the law. Such an exception, and a limited one, was defined by the
Supreme Court in the Buffalo Linen case, where the nonstruck employers resorted to
the lockout solely as a defensive means to preserve the integrity of the multiemployer
unit threatened by the union's whipsaw strike. Preservation of the bargaining unit
was there recognized as within the employers' "legitimate interests" to a degree which
served to balance out or neutralize the rights and protections afforded the employees
under the statute.8
8 The kind of "legitima'te interest" recognized in Buffalo Linen is analogous to that in-
volved, for example, in N L R B v. McKay Radio & Telegraph Co., 304 U S 333, where
the hiring of permanent replacements for employees engaged in an economic strike was
held justified by the employers' balancing right to continue to operate its business despite
the strike
734-070-64-vol 145 17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In major aspects , the present case and Brown Food are similar . To be sure,
there are also certain factual differences between the two cases , but these do not, as
I find, operate in Respondents ' favor. Here there were five individual employers
embraced within the multiemployer bargaining unit.9 When one of them, A. & P.,
was struck by the Union, Respondents Kroger and National, of the four nonstruck
employers , undertook to lock out their employees in the unit . The sole purpose of
the lockout , Respondents aver, was their desire to protect the multiemployer unit
against the Union 's whipsaw strike, i.e ., the Buffalo Linen justification. Inherent in
Respondents ' defense is the position that five employers comprised the bargaining unit
and that they sought to act as a unit and be treated as a unit in relations with the
Union. However, only two of the four nonstruck employers saw fit to engage in a
lockout allegedly to protect the unit. It cannot be regarded , in light of Brown Food,
that this limited action was intended effectively to relieve the struck employer from
the pressure of the Union 's whipsaw strike or to remove the Union 's threat of separate
strike action against Independent Food Dealers and Metropolitan Food Dealers, the
other two nonstruck employers in the unit . In the circumstances , I hold that the
Respondents ' lockout from its inception did not come within the exception for permis-
sive lockout action defined in the Buffalo Linen and Brown Food cases.'°
On March 10, Respondents Kroger and National reopened and resumed operations,
albeit on a reduced scale, of the meat departments in all of their retail stores em-
braced in the unit. The functions were temporarily performed by existing personnel
from outside the bargaining unit, although no new employees were hired . The locked-
out employees, who normally performed and were available for such work, were
not recalled . I do not find material the variations in the facts to which Respondents
advert in seeking to distinguish the present case from Brown Food. The fact that
Respondents , from January 15 until March 10, did not attempt to operate the meat
departments from which the employees were locked out-has no critical significance.
The lockout from its inception , as earlier found, had no defensive validity. And,
under the principle of Brown Food , the resumption of operations with the use of
temporary replacements at any time while the lockout continued was evidence which
negated Respondents ' specialized Buffalo Linen defense and established instead the
unlawful character of the lockout. In Brown Food, the replacements consisted of
supervisory personnel , relatives of management , and new employees hired on a tem-
porary basis. All were classed by the Board as replacements ; no distinction was made
as between the new employees hired and those who were summoned from permanent
posts outside the unit. The important fact was that all these individuals were
temporarily taking the place of the locked-out employees , who were available and will-
ing to work . It appears from their advertisements that Respondents , as of March 10,
sought to operate the meat departments in all their stores to the fullest extent they
were capable without the services of the regular employees who were locked out. That
the operations were resumed on a reduced basis provides no aid to the Respondents in
their defense. The point is that Respondents could not consistently maintain their
defensive position by undertaking to operate with replacements, regardless of degree,
while keeping their regular employees locked out. There was no economic necessity
for Respondents to engage in the lockout. In the described situation , as in Brown
Food, the inference is reasonably warranted that Respondents ' purpose in the lock-
out was not to prevent the threatened break up of the multiemployer unit, but
improperly to inhibit and retaliate against the Union 's lawful strike.ii
Collective -bargaining negotiations were carried on during the period of the Union's
strike against A. & P. and the lockout by Respondents Kroger and National. On
March 20, a separate contract between the Union and A. & P. was reached, and the
next day the A. & P. employees returned to work-the strike having been terminated.
Nevertheless, Respondents Kroger and National continued the lockout . On March 23,
after National and the Union agreed to a separate contract, the locked-out employees
were recalled by National and returned to work. And on March 24, Kroger's em-
fl Respondents Kroger and National , A. & P., Independent Food Dealers, and Metro-
politan Food Dealers
10In the absence of an allegation in the General Counsel's complaint, no violation is
found for the period of the lockout from January 15 to March 10, 1960.
11I find no merit in Respondents' argument, in effect , that their resumption of opera-
tions on March 10 did not upset the balance of the conflicting legitimate interests of the
Union and the multiemployer group , because on the same date and shortly thereafter they
improved their previous offers to the Union with the result that successive contracts were
signed on March 20, 22, and 23 , 1960. The record shows that the Union also made con-
cessions during these negotiations. Regarding this contention of Respondents, it is suffi-
cient to state that, in my view , Respondents misconceive the holdings in Buffalo Linen
and Brown Food, supra.
THE KROGER COMPANY 243
ployees were recalled and returned to work, following a separate contract between
Kroger and the Union. Respondents offer the same Buffalo Linen defense as to the
lockout which continued after the Union ceased its strike against A. & P. The position
appears anomalous . Respondents persisted in the lockout despite the removal of the
whipsaw strike which is alleged as the very cause of the lockout. This evidence
confirms the earlier findings herein that Respondents ' true purpose was not, as they
contend , the limited and privileged one of protecting the integrity of the unit . Indeed,
Respondents themselves have acted in disregard of the unity of the multlemployer
bargaining group in separately initiating the lockout and in separately negotiating
contracts with the Union.
One of the arguments of the General Counsel is that after March 20, the obvious
purpose of Respondents Kroger and National in continuing the lockout was in
furtherance of their effort to obtain more desirable contract terms with the Union.i2
As already noted, Respondents do not assert such a purpose but only that of
preserving the integrity of the established bargaining unit . Findings have accordingly
been made on the basis of Respondents ' contentions.
My conclusion is that in locking out the meat department employees on and
after March 10, Respondents Kroger and National interfered with the statutory right
of the employees to engage in concerted activities , and discriminated against them, in
violation of Section 8(a) (1) and ( 3) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in connec-
tion with the operations of Respondents and of A. & P. set forth in section I, above,
have a close , intimate , and substantial relation to trade, traffic, and commerce among
the several States and foreign countries , and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices, I will
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondents had discriminatorily locked out employees in their
meat departments , I will recommend that each Respondent make whole these
employees for any loss of earnings they suffered by reason of the discrimination
against them by payment to them of a sum of money equal to that which they would
normally have earned, absent the discrimination , from the date of the discrimination
found herein , on March 10, 1960, to the date they were recalled and returned to
work, on March 23, 1960, in the case of Respondent National , and on March 24,
1960, in the case of Respondent Kroger. Backpay shall be computed on a quarterly
basis , with deduction for net earnings during each period, in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289; and backpay obligations shall include
payment of interest at the rate of 6 percent to be computed in the manner described
in Isis Plumbing & Heating Co, 138 NLRB 716. It will also be recommended that
Respondents preserve and upon request, make available to the Board, all payroll
records , social security payment records , timecards , personnel records and reports,
and all other records necessary and useful to determine the amount of backpay due
under the terms of these recommendations.
Upon the foregoing findings of fact and upon the entire record in the cases, I
make the following•
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminatorily locking out their meat department employees, thereby dis-
couraging membership in the Union, Respondents engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
12 The Board has ruled that an employer may not engage in a lockout to enhance its
bargaining position. B g, Utah Plumbing and Heating Contractors Association and its
Members, 126 NLRB 973, enfd 294 F. 2d 165 (CA 10) ; Quaker State Oil Refining
Corporation, 121 NLRB 334, enfd . 270 F 2d 40 (CA 3), cert denied 361 U S 917, both
cases more recently cited by the Board in John Brown, et at , d / b/a Bi own Food Store,
137 NLRB 73• footnote 7. And see Dalton Brick & Tile Corporation, 126 NLRB 473,
reed. 301 F 2d 886 (C A. 5).
13 John Bi own, et at , d/b/a Brown Food Store, ibid.
244 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the cases , I recommend that Respondents , The Kroger Company
and National Food Stores, Inc., at their retail food operations in the area of St. Louis,
Missouri , their officers , agents, successors , and assigns , shall:
1. Cease and desist from
(a) Discouraging membership in Amalgamated Meat Cutters and Butcher Work-
men of North America , Local 88, AFL-CIO, or in any other labor organization, by
discriminatorily locking out their employees.
(b) In any like or related manner interfering with, restraining , or coercing their
employees in the exercise of their rights guaranteed in Section 7 of the Act
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Make whole the meat department employees who were locked out for any loss
of earnings in the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, timecards , social security payment
records, personnel records and reports, and all other records as set forth in the
section of the Intermediate Report entitled "The Remedy."
(c) Each Respondent shall post at its retail food establishments in the St. Louis,
Missouri, area, copies of the attached appropriate notice marked "Appendix C" and
"Appendix D." 14 Copies of said notice , to be furnished by the Regional Director for
the Fourteenth Region, shall , after being duly signed by authorized representatives,
be posted immediately upon receipt thereof, and be maintained for 60 consecutive
days thereafter , in conspicuous places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken to insure that said notices
are not altered, defaced , or covered by any other material.
(d) Each Respondent shall notify the Regional Director for the Fourteenth Region,
in writing, within 20 days from the receipt of this Intermediate Report and Recom-
mended Order , what steps it has taken to comply herewith.15
14 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith "
15 In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A
Decision and Order "
APPENDIX A
The retail food stores of The Kroger Company in the St. Louis, Missouri, area,
involved herein:
1. 8104 Maryland, Clayton 5, Missouri
2. 6411 Clayton , Clayton 17 , Missouri
3. 5529 South Lindbergh , Concord Village 23, Missouri
4. 201 South Florissant Road, Ferguson 35, Missouri
5. 8985 Jennings Station Road, Jennings 36, Missouri*
6. 109 East Jefferson , Kirkwood 22, Missouri
7. 9955 Manchester , Kirkwood 22, Missouri
8. 7270 Southwest , Maplewood 17, Missouri
9. 7271 Natural Bridge, Normandy 21 , Missouri
10. 1033 Brentwood Boulevard , Richmond Heights 17, Missouri*
11. 6360 Clayton Road , Richmond Heights 17, Missouri
12. 10585 St . Charles Rock Road , St. Ann, Missouri*
13. 8762 St. Charles Rock Road, St. Johns, Missouri
14. 3172 South Grand , St. Louis 4 , Missouri
15. 2625 Stoddard , St. Louis 6 , Missouri
THE KROGER COMPANY
16. 2612 North 13th Street , St. Louis 7 , Missouri*
17. 4312 North Grand, St. Louis 7, Missouri
18. 131 North Euclid, St . Louis 8, Missouri
19. 4361 Olive Street , St. Louis 8 , Missouri
20. 4301 Hampton , St. Louis 9 , Missouri*
21. 4310 Manchester , St. Louis 10 , Missouri
22. 1616 South 39th Street , St. Louis 10, Missouri
23. 5471 Easton, St . Louis 12, Missouri
24. 1348 North Kingshighway , St. Louis 13, Missouri
25. 3316 North Union, St. Louis 15, Missouri
26. 4324 Loughborough , St. Louis 16 , Missouri
27. 3908 South Grand, St. Louis 18, Missouri
28. 3417 Ohio, St. Louis 18, Missouri
29. 3900 Goodfellow , St. Louis 20 , Missouri
30. 8959 South Grand, St. Louis 25, Missouri
31. 9501 Watson Road, St . Louis 26, Missouri*
32. 7575 Olive Street Road , University City 30, Missouri
33. 8614 Olive Street Road, University City 30, Missouri
34. 642 East Lockwood, Webster Groves 19, Missouri
35. 6121 Wells, Wellston , Missouri
245
*The six Kroger stores which reopened on March 10, 1960, with a supply of fresh meats
and prepackaged meats
APPENDIX B
The retail food stores of National Food Stores , Inc., in the St . Louis, Missouri, area,
involved herein:
1. 100017 Gravois, Affton 23, Missouri
2. 8937 Natural Bridge, Bel Air 21, Missouri
3. 2212 Chambers Road, Bissell Hills 36, Missouri
4. 190 North Florissant , Ferguson 35, Missouri*
5. 770 Lindbergh , Florissant , Missouri*
6. 8319 Jennings Station Road, Jennings 36, Missouri*
7. 9901 Manchester , Kirkwood 22, Missouri
8. 1203 Lemay Ferry Road, Lemay 25, Missouri
9. 3111 Sutton , Maplewood 17, Missouri
10. 9656 Olive Street Road , Olivette 32 , Missouri
11. 2719 Woodson Road, Overland 14 , Missouri
12. 7935 Page, Pagedale 33, Missouri
13. 10427 St . Charles Rock Road, St . Ann 34, Missouri
14. 2400 South 12th Street, St. Louis 4, Missouri
15. 1420 Montgomery, St. Louis 6 , Missouri
16. 4250 North 20th Street, St. Louis 7 , Missouri
17. 4334 Warne , St. Locus 7, Missouri
18. 420 North Sarah, St. Louis 8 , Missouri
19. 3801 Hampton , St. Louis 9 , Missouri
20. 5550 South Grand, St. Louis 11, Missouri
21. 528 DeBaliviere , St. Louis 12, Missouri
22. 2747 Goodfellow , St. Louis 12, Missouri
23. 1142 Hodiamont , St. Louis 12 , Missouri
24. 4949 Easton , St. Louis 13, Missouri
25. 4331 Natural Bridge, St. Louis 16, Missouri*
26. 3006 North Union, St. Louis 15 , Missouri
27. 5856 Christy , St. Louis 16, Missouri
28. 1024 Big Bend, St. Louis 17, Missouri*
29. 7800 Morganford , St. Louis 23, Missouri
30. 8925 Riverview Drive, St. Louis 37 , Missouri*
31. 5375 Southwest , St. Louis 39 , Missouri
32. 630 McKnight , University City 30, Missouri
33. 7318 Olive Street Road , University City 30 , Missouri
34. 6 South Old Orchard Road , Webster Groves 19, Missouri
35. 8011 Watson Road, Webster Groves 19, Missouri
36. 5870 Easton , Wellston, Missouri
*The six National stores which reopened on March 10 , 1960, with a supply of fresh
meats and prepackaged meats.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO ALL EMPLOYEES OF THE KROGER COMPANY
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 Rela-
tions Act , I hereby notify my employees that:
WE WILL NOT discourage membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 88, AFL -CIO, or in any other
labor organization , by discriminatorily locking out our employees
WE WILL make whole the meat department employees who were unlawfully
locked out for any loss of earnings from March 10 to 24, 1960.
WE WILL NOT by means of unlawful lockout or in any like or related manner
interfere with, restrain , or coerce our employees in the exercise of their right
to self-organization , to form labor organizations , to join or assist Amalgamated
Meat Cutters and Butcher Workmen of North America, Local 88, AFL-CIO,
or any other labor organization , to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
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 requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
THE KROGER 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, 4459
Federal Building , 1520 Market Street, St. Louis 3, Missouri , Telephone No. Main
1-8100, Extension 2142, if they have any question concerning this notice or com-
pliance with its provisions.
APPENDIX D
NOTICE TO ALL EMPLOYEES OF NATIONAL FOOD STORES, INC.
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 Rela-
tions Act , we hereby notify our employees that:
WE WILL NOT discourage membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 88, AFL-CIO, or in any other
labor organization , by discriminatorily locking out our employees.
WE WILL make whole the meat department employees who were unlawfully
locked out for any loss of earnings from March 10 to 23, 1960.
WE WILL NOT by means of unlawful lockout or in any like or related manner
interfere with, restrain, or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or assist Amalgamated
Meat Cutters and Butcher Workmen of North America, Local 88, AFL -CIO, or
any other labor organization , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the purpose of
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 requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
NATIONAL FOOD STORES, INC.,
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, 4459
Federal Building, 1520 Market Street , St. Louis 3, Missouri, Telephone No. Main
1-8100 , Extension 2142, if they have any question concerning this notice or com-
pliance with its provisions.