The Kroger Co.

National Labor Relations Board - Board Decisions

Aug 27, 1964

148 N.L.R.B. 569 (N.L.R.B. 1964)

THE KROGER CO. 569
WE WILL NOT in any manner interfere with the efforts of International Broth-
erhood of Electrical Workers, AFL-CIO, to bargain collectively as the exclu-
sive, representative of the employees in the bargaining unit described below.
WE WILL, upon request , bargain with International Brotherhood of Electrical
Workers, AFL-CIO, as the exclusive representative of all the employees in the
bargaining unit described below with respect to rates of pay, wages , hours of
employment, and others terms and conditions of employment , and, if an un-
derstanding is reached , embody such an understanding in a signed agreement.
The bargaining unit is:
All servicemen , construction or pole line crews , right-of-way crews,
the stock clerk , and the janitor employed by the Company , but excluding
all foremen , all office clerical employees, the work -order clerk , profes-
sional employees , guards, and supervisors as defined in the Act.
DOUGLAS COUNTY ELECTRIC MEMBERSHIP CORPORATION,
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, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. Trinity 6-3311, Extension 5357, if they have any question concerning this
notice or compliance with its provisions.
The Kroger Co., Employer and Allen Alsip , Petitioner and Re-
tail Clerks Union , Locals 1550 , 1540, 1504, 1460 , 1453 , and 98 of
the Retail Clerks International Association , AFL-CIO , Unions.
Case No. 13-RD-494. August 07, 1964
DECISION AND ORDER
Upon c petition and an amended petition duly filed under Sec-
tion 9(c) of the National Labor Relations Act, a hearing was held
before Hearing Officer Albert Kleen. The Hearing Officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act for the reasons stated
below :
The Petitioner seeks to decertify the above-named Unions in a
single-employer unit consisting of certain employees employed in all
of the Employer's stores located in the Chicago metropolitan district.
148 NLRB No.,69.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer and United Retail Workers Union, Intervenor, in
agreement with the Petitioner, assert that this single-employer unit is
appropriate. Intervenor Retail Clerks International Association,
AFL-CIO, hereinafter called International, and Retail Clerks Union,
Locals 1550, 1540, 1504, 1460, 1453, and'98, hereinafter called Locals
contend that only a multiemployer unit is appropriate.
The essential facts are as follows :
On March 8, 1962, the Locals affiliated with the International filed
charges in Case No. 13-CA-4742 alleging that the Employer violated
Section 8 (a) (5) and (1) by refusing to be bound by, and by refusing to
sign, a collective-bargaining agreement reached in joint bargaining
with a group of retail grocery store operators. On the following day,
the Petitioner filed the instant decertification petition naming the
International as the union currently recognized, and describing the
appropriate unit as all employees including part-time employees in the
stores of the Employer's Chicago metropolitan district, excluding store
manager, meat department employees, guards, and all professional
and supervisory employees as defined in the Act.
On May 4, 1962, a complaint issued in Case No. 13-CA-4742, alleg-
ing, inter alia, that the Employer was a member of the multiemployer
bargaining unit. On May 9, 1962, on the basis of this allegation in the
complaint, the Regional Director dismissed the instant decertification
petition as seeking an election in an inappropriate unit. Thereafter,
the Petitioner filed with the Board a request for review of this
dismissal.
On March 18, 1963, the Board issued its Decision and Order 1 in
Case No. 13-CA-4742, finding that the Employer had exercised a
prerogative established by past practice in insisting on individual bar-
gaining as to certain matters, and had not, therefore, violated Section
8 (a) (5) and (1) by refusing to be bound by or to sign the collective-
bargaining agreement which had been jointly negotiated by the Locals
and the employers group. The Board, however, found it unnecessary
to decide in that case whether the parties' practice of individual adjust-
ments precluded their having established an appropriate multi-
employer Unit .2
Thereafter, on March 26, 1963, the Board reversed, the Regional
Director's dismissal of the instant decertification petition and ordered
a hearing thereon. On August 28, 1963, the Petitioner amended the
petition by substituting the Locals as the unions currently recognized
and sought to be decertified. On September 28, 1963, a hearing was
held on the petition, during which hearing the parties stipulated that
the entire record in The Kroger Co., 141 NLRB 564, be incorporated
into and be made a part of the instant proceeding.
1 The Kroger Co., 141 NLRB 564, affd. 330 F. 2d 210 (CAD C ).
2 141 NLRB at 569, footnote 4.
- THE KROGER CO. 571
The record shows that since 1945, the Employer, together with
other retail grocery stores operating in and about Chicago, has bar-
gained collectively with the Locals on a group basis .3 Although they
have no formal association, constitution, dues, fees, or binding rules
of procedure; the employers have bargained together for -many years.
The Locals usually submitted contract proposals to individual em-
ployers who then met as a group with the Locals. Each employer was
represented by one or more individuals who caucused prior to meet-
ing with the Locals to discuss the Locals' proposals and to agree upon
a common response. One representative then assumed the'role of
spokesman for the employer group. As a result of these joint nego=
tiations, separate but substantially similar collective-bargaining
agreements were executed between the Locals and respective employ-
ers. While these past contracts have been substantially similar in
the 17-year period, there have been 14 individual adjustments be-
tween separate employers and separate Locals which caused some
variation in the terms and conditions of the jointly negotiated
contracts.
In the fall of 1961, notices of contract reopening were, as usual,
served upon the employers. At the first negotiating session the
Locals proposed, inter alia, a pension plan. The spokesman for the
employer group informed the Locals that the instant Employer and
A & P had pension plans of their own for their employees and would
not be interested in one which was jointly administered. Through-
out the following 10 bargaining sessions (from November 11, 1961,
to February 16, 1962), both sides continued to bargain but remained
firm in their positions `concerning the pension' plan. At the 12th
bargaining session held on February 22, 1962, the spokesman for the
group informed the Locals that although all of the employers were
willing to make certain wage adjustments, some of them were un-
willing to agree to ' a pension plan. • The Locals' representative then
took the position that the parties were bargaining jointly and each
member of the group would be bound by any'agreement reached. At
the next meeting, on February 24, 1962, when the Locals' representa-
tive reiterated the unions' position, the Employer's representative
stated categorically that no • other employer representative was au-
thorized to accept any agreement on the Employer's behalf which
included pension proposals; that the Employer would be bound only
by an agreement to which it specifically assented, and that it would
3In 1945, the employer group consisted of the Employer, Atlantic & Pacific Tea Co ,
National Tea Company, and Associated Food Retailers, an association of local independ-
ently 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 locals clue to the merger of
several smaller locals All six of the locals are members of Retail Clerks Chicago Area
Council, District 3, except Local 1460, which is a Gary, Indiana, local
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not agree to a contract which included a pension plan. At this same
meeting, which continued on to February 25, the Locals and the re-
maining employers reached agreement on terms of a new contract,
including a pension plan. The Employer's representative, however,
refused to accept the pension proposal, stated that the Employer, was
anxious to reach a settlement with the Locals, proposed as a basis of
settlement the same agreement reached by the other parties with the
exception of a pension plan, and also expressed the Employer's will-
ingness to meet further with the Union to bargain for a wholly new
agreement in an attempt to reach a settlement. Thereupon, the Em-
ployer's representative left the meeting. On April 12, 1962, the
Locals and all participating employers save the Employer held a fur-
ther meeting for the purpose of conforming certain contract items.
The Employer's representative, although invited, did not attend this
meeting. Thereafter, within a 2-day period, all parties except the
Employer executed ' a contract. Following the meeting of Feb-
ruary 24 and 25, the Employer and the Locals met and unsuccessfully
attempted to resolve the issue as to the pension plan.4 Because they
were unable to reach an agreement, the Locals struck the Employer
on April 19,1962.
On June 9, 1962, the Employer and the Locals executed a strike-
settlement agreement. This agreement provided, inter alma, that the
Employer and the Locals would execute a collective-bargaining agree-
ment containing all of the terms and conditions contained in the con-
tract between the Locals and the other employers with exception of
the pension plan and reserved this issue to the ultimate outcome, in-
cluding appeals, of the litigation in the unions' unfair labor practice
case against the Employer (Case No. 13-CA-4742).' On July 2,
1962, the Locals and the Employer executed a collective-bargaining
agreement in accordance with the terms of their strike-settlement
agreement. With regard to the pension plan, this agreement pro-
vided, in effect, that the Locals' pension proposal would be included
in the contract if it is finally ruled "that the Employer should have
executed or is required to execute a collective bargaining agreement
substantially similar to that signed by" the other employers.
As stated above, the Petitioner contends that only a single-employer
unit is appropriate and that a multiemployer unit never existed. In
this regard, the Petitioner argues that the past bargaining history
shows that the Employer. never gave the employer group the power
to negotiate for and to bind it and had not unequivocally manifested
I'Meetings between representatives of the Employer and the Locals were held on
'larch 5, April 18, and May 3, 1963.
5 On January 3, 1964, the United States Court of Appeals for the District of Columbia
dismissed the petition filed by the Locals and the Inteinational to review and set aside the
Board's dismissal of the complaint against the Employer (141 NLRB 564) and affirmed
the Board's Order in that case, 330 F. 2d 210
THE KROGER CO. 573
a desire to be bound by group rather than individual action. Peti-
tioner further contends that the history of individual adjustments
negates the establishment or existence of a multiemployer unit. We
do not agree. The necessary implication of this argument is that in
multiemployer bargaining a union and an individual employer mem-
ber of the group are automatically precluded from negotiating sepa-
rately on limited matters of peculiar concern to the individual em-
ployer, unless such employer withdraws from the group. This is
patently unrealistic. The problems of each member of a multi-
employer group are understandably not always identical. While it
may be to the best interest of the employers and labor organizations
involved to bargain as a group about all matters of general concern-
the obvious reason for the formation and continuation of any multi-
employer unit-it may likewise be in the best interest of all
concerned not to burden the group negotiations with the limited prob-
lems of an individual employer. Hence, we do not, believe that the
exercise of a mutually recognized privilege to bargain individually
on limited matters, as in the present case, is inconsistent with the con-
cept of collective bargaining in a multiemployer unit." Moreover,
to hold that such limited separate bargaining invariably negates the
existence of or-destroys an established multiemployer bargaining unit
would be to grant to an employer all the benefits of multiemployer
bargaining without assuming any of its concomitant obligations.
We have repeatedly held that a multiemployer unit is appropriate
in circumstances such as are here present, even though the employer
may not have specifically delegated to an employer group the authority
to represent it in collective bargaining or given the employer group
the power to execute final and binding agreements on its behalf,' or
where some of the contracts have not been signed by all members of
the group." What is essential is that the employer member has in-
dicated from the outset an intention to be bound in collective bargain-I
ing by group rather than by individual action.9
Here, the facts clearly show such an intention on the part of the
Employer. We do not believe that the Employer could, or did, rely
upon the past bargaining history of some -individual negotiations to
the extent of assuming, except for limited matters, that it would not
otherwise be bound by group action. In fact, to the contrary, it in-
In this respect the situation is not unlike the one where bargaining in a multiplant
unit leaves certain matters for local determination at each separate plant Cf General
Motors Corporation, Cadillac Motor Car Division, 120 NLRB 1215, 1220-1221, and cases
cited in footnote 10 thereof.
i Quality Limestone Products, Inc., 143 NLRB N9; Krist Gradis, et al., 121 NLRB
601, 610; Cleveland Builders Supply Co., et al, 90 NLRB 923, 924; Bellingham Auto-
mobile Dealers Association, 90 NLRB 374.
8 Krist Grades, et al., supra, Capitol District Beer Distributors Association and its
Members, et al, 109 NLRB 176; Fish Industry Committee, 98 NLRB 696.
9 Capitol Beer Distributors Association and its Members, et al ., supra, at 179.
-574 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
dicated its intent and willingness to be so bound. As noted above,
after the Locals and the remaining members of the employer group
reached an agreement, the Employer, although willing to bargain
with the Locals for a wholly new agreement, was still willing to ac-
cept all of the terms and conditions of this agreement, except the
pension plan, which all of the parties, including the Employer,
reached, as a result of joint negotiations. The fact that in past bar-
gaining over a 17-year period 14 limited individual adjustments arose
from, apparently dozens of agreements, all of which were jointly
negotiated, does not, in itself, establish a future unequivocal intent
not to be bound by group action generally. Nor do we reach a differ-
ent conclusion because of the reservation as to the Locals' pension
proposal, contained • in the collective-bargaining agreement entered
into by the Locals and the Employer on July 2, 19'62., We find this
reservation to be nothing more.than an exercise of the Employer's
privilege, acquiesced in by the Union, to insist upon limited separate
negotiations,, which privilege, we have already stated, is consistent
with the concept, of multiemployer bargaining. Accordingly, on the
basis of the above facts and on. the record as a whole, we find that
the Employer had indicated an intention to be bound in collective
bargaining by group rather than by individual action.
The Petitioner also contends, as does the Employer," that even if
a multiemployer unit exists, the Employer timely and effectively
withdrew from such unit on February 25, 1962. We do not agree.
The record establishes that the Employer evinced no clear intent ac-
tually to withdraw from joint bargaining until the last bargaining
session on February 25, 1962, and shortly before the Locals and the
employer group reached an agreement." Although the Employer
had indicated prior to this time that it was not interested in the
Locals' pension proposal, the Employer neither sought nor obtained
the Union's consent to its withdrawal from multiemployer bargain-
ing,12 but, on the contrary, continued to engage in group bargaining
thereafter without manifesting any intent to withdraw from the group
or giving the Locals any clear indication that the employer group
was not bargaining in behalf of the Employer. ,
lU The Employer also contends that in The Kroger ' Co., the Board adopted the Trial
-Examiner's finding to the effect that on February 25, 1962 , the Employer "withdrew from
such [joint ] negotiations" ( 141 NLRB at 571), and that the Board is therefore estopped
from now finding otherwise we do not agree A reading of, that case clearly shows, con-
trary to the Employer, that the Board adopted the findings, conclusions , and recom-
mendations of the Trial Examiner only "insofar as they are consistent" with the Board's
findings and conclusions , and that the Trial Examiner ' s finding in this regard was not
adopted because it was, inconsistent with those findings and conclusions.
11 For a similar holding on almost identical facts, see Anderson Lithographic Company,
Inc, et al ., 124 NLRB 920 , enfd. sub nom. N L R .B. v. Jeffries Banknote Company, 281
F. 2d 893 (C.A 9)
19 It is also clear from the record that the Employer gave no notice to any other mem-
bers of the , employer , group that it intended or desired , to withdraw from the group.
THE KROGER CO. 575
Nor is the Employer's withdrawal or union acquiescence therein
demonstrated by the conduct of the Locals and the Employer in sub-
sequently entering into separate negotiations with respect to the pen-
sion proposal. This action was entirely consistent with the parties'
mutual understanding that individual variances could be negotiated
by individual parties. As we have stated above, such individual bar-
gaining of a limited nature is not inconsistent with the concept of
bargaining in a multiemployer unit.
. Based on the above, we find that the Employer, by attempting with-
out the Union's consent 11 to abandon group negotiations shortly be-
fore an agreement had been reached, did not withdraw from multi-
employer bargaining in a timely and effective manner, and therefore
continued to remain a member of the multiemployer unit. 14
Accordingly, we find that only a multiemployer unit is here ap-
propriate, and that a single-employer unit limited to the petitioned-
f or employees employed in all of the Employer's stores located in
the Chicago' metropolitan district is not appropriate, and we shall
dismiss the petitions herein.15
[The Board dismissed the petitions.]
MEMBERS LEEDOM and JENKINS, dissenting :
In dimissing the petition herein, our colleagues have found that
a multiemployer unit existed and that the Employer did not effectively
withdraw from that unit. Based thereon, our colleagues have further
found that the Petitioner, by seeking a decertification election in a
single-employer unit, filed his petitions in an inappropriate unit. We
do not agree. The proper determination of this case depends, we be-
lieve, upon the correct answer to the basic point of inquiry of whether
the group bargaining arrangements involved herein were understood
by the parties to be binding on each other and to require contract uni-
formity under all circumstances, thereby establishing a multiemployer
bargaining unit.
It is clear that because multiemployer bargaining is and always has
been consensual in nature 16 the Board cannot create multiemployer
13 Ice Cream , Frozen Custard Industry Employees , Drivers, Vendors and Allied Workers
Union Local 717, IBT ( Ice Cream Council, Inc .), 145 NLRB 865 . Although Member
Brown does not rely upon the cited decision he agrees that there was no effective with-
drawal in this case -
14 McAnary d Welter, Inc, 115 NLRB 1029, 1031 ; The Milk and Ice Cream Dealers of
the Greater Cincinnati , Ohio, Area, et al , 94 NLRB 23 , 25 ; cf . Detroit Window Cleaners
Union, Local 139 of the Building Service Employees' International Union, AFL-CIO
(Daelyte Service Company ), 126 NLRB 63 . Accord: Cosmopolitan Studios, Inc., 127
NLRB 778 , 779, enfd as modified 291 F. 2d 110 ( C.A 2) ; Walker Electric Company,
142 NLRB 1214
15 Inasmuch as we have dismissed the petitions herein because they sought to decertify
an inappropriate unit; we deem it unnecessary to reach or consider the various conten-
tions raised by the Locals and the International with respect to the contract ibar issue.
19 Rayonier, Incorporated, Grays Harbor Division, 52 NLRB 1269 , 1274-1275.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units, but may only recognize them as appropriate once they come into
being through the express or implied intent of the parties. Here, the
record clearly shows that the several employers, including the Em-
ployer, never expressly conferred upon the group of employers the
power to bind them by negotiations." The necessary intent, then, if it
is to be found, must be implied from the group's and the Employer's
course of conduct. In our view, no such implication is warranted. To
the contrary, the record shows that on 14 separate occasions in the
past employers departed from joint negotiations and entered into sep-
arate bargaining with the apparent approval of the other employers
and of the Locals. It is obvious, therefore, that the parties understood
that their bargaining arrangements did not require contract uni-
formity. In addition, since these acquiesced-in departures resulted in
separate, dissimilar agreements, it is also obvious that no party was
"locked in" during the negotiation of agreements. It is of no moment
that the separately negotiated agreements were substantially similar
to those reached as a result of group action. The test is not one of
degree, but rather one of intent. Accordingly, we believe that these
departures which continued over a substantial period of time and
which resulted in dissimilar agreements warrant the conclusion that
the employers never intended to be bound in the future by group rather
than by individual action.11
Further, the evidence clearly shows that the Locals were not misled
in any way as to the Employer's position on the question of whether
the group could bind the Employer on the pension issue. Here, the
employer group and the Locals knew throughout the entire course of
bargaining that the Employer opposed the pension proposal. The
Locals also knew, based on past practice, that if the Employer's in-
tent not to be bound by the results of the jointly negotiated agreement
containing the pension proposal was further manifested by its refusal
to agree to such agreement, the usual procedure would be to divorce
the Employer from the group and to negotiate separately on this
subject. We are, therefore, satisfied that the Employer took clear and
timely steps throughout to apprise the Union of its position and that
by adopting an individual course of action, the Employer did not
deviate from the established procedure of bargaining.19 Accordingly,
in the light of the past bargaining practices and the present bargaining
17 Francis L. Bennett and Harold J. Bennett, Partners, d/b/a Bennett Stone Company,
139 NLRB 1422, 1424; California Metal Trades Association, San Francisco Machine Shop
Division and its member plants, et at, 72 NLRB 624.
18 Bennett Stone Company, supra, at 1424 ; Morgan Linen Service, Inc., 131 NLRB 420,
422; Chicago Metropolitan Home Builders Association, 119 NLRB 1184.
1e The Kroger Co, 141 NLRB 564; compare, for example, Quality Limestone Products,
Inc, 143 NLRB 589, where the Board stated* ".. . they (the employers) have never
taken any steps to adopt an individual course of action prior to the positions taken during
the course of this proceeding . .. .
FREEMAN MANUFACTURING COMPANY 577
situation, we would find that such group bargaining as took place was
for the convenience of the employers and unions involved, and was not
undertaken with the intention of establishing a multiemployer unit.
It logically follows that as a multiemployer unit did not exist, there
was no necessity for the Employer to "withdraw" from such non-
existent unit. Accordingly, we would not dismiss the petition, but
would, instead, direct an election in the petitioned-for unit limited to
employees of the Employer.
Freeman Manufacturing Company, Employer and District No.
117, International Association of Machinists, AFL-CIO, Peti-
tioner. Case No. 7-RC,-6150. August 27, 1964
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to the provisions of a stipulation for certification upon
consent election, an election by secret ballot was conducted by the
Regional Director for the Seventh Region on March 11, 1964, among
the employees in the stipulated unit. After the election the Regional
Director served upon the parties a tally of ballots which showed that
of approximately 193 eligible voters, 178 votes were cast, of which
86 were for, and 89 were against, the Petitioner, no ballots were void,
and 3 ballots were challenged. The challenges were insufficient in
number to affect the results. Thereafter, the Petitioner filed objections
to conduct affecting the results of the election.
In accordance with the Board's Rules and Regulations, Series 8, as
amended, the Regional Director conducted an investigation, and, on
April 10, 1964, issued and served upon the parties his report on objec-
tions, in which he found merit in the Petitioner's objection and recom-
mended that the election be set aside and a new election held. The
Employer filed timely exceptions to the Regional Director's report and
recommendations.
Upon the entire record in this case, the Board 1 finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Brown and Jenkins].
148 NLRB No. 68.
760-577-65-vol. 148-38