The Kroger Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 769 (N.L.R.B. 1969)

THE KROGER CO. (CLEVELAND DIV.) 769
The Kroger Co. (Cleveland Division ) and Alvin
Silbaugh , Jr. Case 8-CA-4639
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On December 20, 1967, Trial Examiner Max
Rosenberg issued his Decision in the above-entitled
proceeding finding that 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 Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed a brief in answer to the General Counsel's
exceptions.
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 Trial
Examiner' s Decision and the entire record in this
case, including the exceptions and briefs, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner as modified
and elaborated on herein.
As more fully set forth in the Trial Examiner's
Decision, on or about March 2, 1967, several weeks
prior to April 8, the expiration date of the then
existing collective-bargaining agreement, the
Respondent, in response to repeated requests from
the union bargaining representatives, agreed to
make any negotiated wage increase retroactive to
April 8, in the event that negotiations for a new
contract continued past such date. In consideration
for such wage retroactivity, as evidenced by the
credited testimony of the various bargaining
representatives of both the Respondent and the
Union and demonstrated by the Respondent's action
in continuing to respect all phases of the contract,
including checkoff and payments into the health and
welfare fund, the parties proceeded on the
understanding that all the provisions of the existing
contract would be kept in effect until such time as a
new contract was agreed upon or the Union decided
to end negotiations and seek other means of
achieving its economic demands.
Thereafter, the parties, in accordance with the
aforementioned understanding , continued to engage
in productive bargaining until on or about May 21,
1967, when a number of employees, in violation of
the no-strike provision of the then extended
contract, went out on strike and subsequently
established a picket line. The employees continued
on strike, despite being repeatedly informed by
representatives of both the Respondent and the
-Union that they were in violation of the no-strike
provision of the contract and their jobs were in
jeopardy. In the succeeding days the Respondent
discharged or put on probation the striking
employees who had failed to heed its and the
Union's requests to honor the contract and return to
work.
Upon the basis of the foregoing facts, contrary to
our dissenting colleagues and in agreement with the
Trial Examiner, we are constrained to conclude that
the striking employees forfeited any rights they may
have had to reinstatement by participating in the
strike in violation of the no-strike provision of the
extended contract then in effect. Mastro Plastic
Corp. v. N.L.R.B., 350 U.S. 270, 280.
In reaching a contrary conclusion, our dissenting
colleagues would acknowledge the extension of the
contract past the April 8 expiration date, but
without any apparent factual basis would
nevertheless find that one of the most essential
elements of the contract, namely, the no-strike
provision, was deleted therefrom. Without the
inclusion of the no-strike provision there would
appear to be no logical or economic reason for the
Respondent's willingness to accede to the Union's
demands for wage retroactivity. Moreover, it is
apparent from the record herein that the termination
of the extended agreement was conditioned only
upon a union authorized strike which both sides
contemplated as a possibility in the event a
bargaining impassee might later be reached, but not
before.
In view of the above findings and conclusions, we
need not and do not here determine, what, if any,
rights are accorded by the Act to striking employees
in the absence of a contract containing a no-strike
provision similar to that herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order to the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
MEMBERS FANNING AND BROWN, dissenting:
We cannot agree with our colleagues that the
employees' May 21-28, 1967, strike in support of
contract demands is denied the protection of Section
7 of the Act. The Trial Examiner' s ruling against
protection, adopted by the majority, is founded on
his finding that a valid no-strike clause existed at
the time of the walkout and on his apparent view
that employees may never take concerted action
independently of their bargaining agent. In our
opinion , this position is not adequately supported by
fact or by law.
The facts, as found by the Trial Examiner, show
that the Union had supplied the required notices to
terminate the existing agreement on April 8, 1967,
and that the Union and Respondent were actively
177 NLRB No. 104
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in neogitating a new agreement. It also
appears that, in exchange for Respondent's promise
to make any wage increases retroactive to April 8,
the Union agreed to continue to operate under the
existing contract until a new contract was executed
or until the Union called a strike. And the parties
did in fact adhere to the terms of the old contract
after the April 8 termination date. This conduct in
our view falls short of an "express waiver of the
right to strike" during negotiations for a new
agreement.' The parties were merely providing for
the continuation of existing contract terms on a
day-to-day basis. The old contract's provision
barring "the Union or its members" from striking
"[d]uring the term hereof" clearly has no
applicability to this ad hoc, day-to-day contractual
arrangement. And the parties so indicated by
conditioning the continuation of the arrangement on
the absence of a union strike. This condition plainly
negates any intention to retain the contractual ban
on strikes during this negotiation period. The term
of the prior contract had expired and with it went
the Union's agreement not to strike.'
In addition, the statutory policy served by the
principle of removing protection from strikes in
breach of no-strike clauses is the maintenance of
industrial peace and stability during the term set by
the contract.' This policy objective is not present
here, where there is no fixed term contract and the
parties are negotiating for a new agreement. While
there may be valid reasons for executing and
honoring day-by-day no-strike commitments during
contract negotiations, they are not supplied by the
cases cited by the Trial Examiner. In short, we are
unable to find sufficient evidentiary or statutory
policy basis for denying protection to the May 21-28
walkout.
Although at first professing not to reach the issue,
the Trial Examiner impliedly condemned the
employees' strike action as "defy [ing] their
collective representative." He asserts that "there can
be no effective contract negotiations as envisaged by
the Act if employees are at liberty to ignore the
[established] bargaining agency relationship . . . and
to take matters into their own hands by engaging in
a strike which impedes and undermines the
bargaining process." Again, we feel the Examiner
has misconstrued the record evidence and applicable
law.
The facts in no way establish a case of employee
usurpation of the Union's representative status or an
attempt to undermine the negotiations. Rather, the
record shows that the employees were dissatisfied
only with Respondent's contract proposals, and to
express that dissatisfaction, voted to strike on May
'N L R B v Lion Oil Company, 352 U S 282, 293 See also Mastro
Plastics Corp v N L R B, 350 U.S 270, 281-283
The fact that union leaders later asserted the strike violated the contract
is not, in our view , dispositive
'See N L R B v Sands Mfg Co , 306 U S 332, 344; Scullin Steel Co .
65 NLRB 1294 , 1317-18
7 and walked out on May 21. It is significant that
this action had the backing of a majority of the
employees in the unit.' Nor was it shown that the
May 21 strike had substantive objectives different
from the Union's contract demands. The "defiance"
thus inheres in the employees' failure to obtain for
their strike proper authorization or official sanction
under the Union's constitution and bylaws.
Admittedly the strike never won the official
approval of the union leadership and thus, in their
eyes, was a "wildcat" strike. However, any
procedural irregularity or lack of official sanction is
an internal union matter, having no relevance to
employee Section 7 rights under the Act.' The fact
that union leaders may have been embarrassed by
the timing of the strike is also, in our view,
insufficient to withdraw protection from an
otherwise lawful strike. As the Court of Appeals for
the Fifth Circuit held, ". . . the law should be slow
to declare that members cannot speak effectively in
behalf of their own organization and the aims and
objectives which it collectively seeks to assert in
their behalf." N.L.R.B. v. R.C. Can Co., 328 F.2d
974, 979 (C.A. 5). In other words, employees' right
to concertedly support union contract demands is
not completely submerged in union dictated
procedures for calling a strike. Unless undertaken
by "individuals or a small group in criticism of, or
in opposition to, the policies and actions theretofore
taken by the organization,"" employee concerted
activity remains protected. As the facts here fail to
establish such criticism or opposition we would find
the May 21-28 strike to be protected and hold
Respondent to the 8(a)(1) violations as alleged.
'See Western Contracting Corp v N L R B, 322 F 2d 893, 897 (C A
10) While Respondent at one point sought to disprove majority support
for the strike , it does not now contest this fact
'See M & M Bakeries , Inc, 121 NLRB 1596, 1604, enfd 271 F.2d 602
(C A. 1); N L R B v Deena Artware , Inc, 198 F 2d 645, 652 (C A 6),
cert denied 345 U.S. 906 . Cf Pullman Co v. Order of Railway
Conductors & Brakemen , 316 F.2d 556, 563 (C A. 7), cert. denied 375
US 820
`NLRB v. RC Can Co,328F2dat979
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Trial Examiner: This matter, with all
parties represented, was tried before me in Cleveland,
Ohio, on October 3, 4, and 9, 1967, on an amended
complaint of the General Counsel of the National Labor
Relations Board and an amended answer filed by The
Kroger Co. (Cleveland Division), herein called the
Respondent.' The issues framed by the pleadings concern
the propriety of Respondent's conduct under Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, in discharging certain employees and
disciplining others for having engaged in a work stoppage
at Respondent's operations in Cleveland. At the
conclusion of the hearing, the parties waived oral
'The complaint , which issued on July 31, 1967, and was subsequently
amended on August 1, 1967, is based upon charges filed on June 7, 1967,
and served on June 9, 1967
THE KROGER CO. (CLEVELAND DIV.)
argument . Briefs have been received from the General
i Counsel and the Respondent , which have been duly
considered.
After consideration of the entire record made in this
proceeding , including the briefs of the parties , and upon
my observation of the witnesses as they testified on the
stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. BUSINESS OF THE RESPONDENT
Respondent , a corporation organized under the laws of
the State of Ohio with an office and principal place of
business in Cincinnati , Ohio, is engaged in the retail sale
of foods and allied products in 21 States of the United
States . During the annual period material to this
proceeding, Respondent derived gross receipts from retail
sales in excess of $10 million , and received goods valued
in excess of $1 million which were shipped into the State
of Ohio directly from points located outside of that State.
Respondent's Solon, Ohio, warehouse (Cleveland
Division), which is here involved, received goods valued in
excess of $50,000 directly from points located outside the
State of Ohio, and shipped goods valued in excess of
$50,000 directly to points located outside that State, all
during the aforesaid annual period. The complaint alleges,
the answer admits, and I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 197, herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act when, on May 29, 1967, it
discharged eight named employees and placed an
additional 165 on probation for having engaged in a
protected, concerted work stoppage at Respondent's
warehouse in Solon, Ohio. Respondent asserts that its
conduct in discharging and disciplining the striking
employees was legally privileged because the work
stoppage occurred in defiance of a valid, no-strike clause
contained in a contract then in effect between Respondent
and the Union, which was the exclusive bargaining
representative of the strikers.'
B. The Evidence
Respondent operates a grocery chain throughout the
mid-West and maintains a warehouse , bakery, and
'Alternatively , Respondent contends that, assuming the no-strike
provision was not viable at the time of the strike , the work stoppage did
not constitute protected , concerted activity and the offending employees
could lawfully be terminated or reprimanded under the teachings of
N L R B v Draper Corp, 145 F 2d 199 (C.A 4), because the strike was
in derogation and destructive of the Union 's bargaining position, and was
neither sanctioned nor ratified by the Union. In view of the findings
hereinafter made, and the conclusions drawn therefrom, I deem it
unnecessary to consider this contention.
771
regional office in Solon, Ohio. Over the years, Respondent
has engaged in collective-bargaining relations with four
labor organizations covering the employees at the Solon
location. The Union is the bargaining agent for the
warehouse, bakery maintenance and garage maintenance
employees involved in this proceeding. Local 407 of the
Teamsters' International union represents the truckdrivers
whose terminal is at the Solon warehouse. Local 19, which
is also afiliated with the International union , bargains on
behalf of the production employees at the bakery in
Solon. Finally, Respondent recognizes the Amalgamated
Meat Cutters International Union as the collective
spokesman for the butchers employed in the former's
meat processing plant.
On November 25, 1964, Respondent and the Union
executed a collective-bargaining agreement, retroactive to
April 5, 1964, and effective until April 8, 1967, which was
to continue in full force and effect from year to year
thereafter unless either party served a written notice 60
days prior to any anniversary date of a desire to terminate
or modify the agreement. Article 9 provided that "During
the term hereof the Union agrees that there shall be no
strike or any other interference with or interruption of the
normal conditions of the Employer's business by the
Union or its members. The employer agrees that there
shall be no lockout." On February 3, 1967, the Union
mailed a standard contract "termination or modification"
notice to the Federal Mediation and Conciliation Service,
and a copy was transmitted to Respondent on that date.
On February 8, John G. Burns , president of the Union at
the time, dispatched a letter to William Bedell,
Respondent's labor relations' representative and chief
negotiator, which recited, "As per our sixty day notice
mailed to you on February 3, 1967, we hereby request
changes in our present agreement between your company
and our local union. We would appreciate a call from you
at your convenience so that we may arrange a meeting to
discuss said changes with you." As a result of this letter,
the parties conducted an initial bargaining session on
February 20. In addition to Burns, the Union was
represented by Joseph Trito, a business agent.
Respondent's bargaining staff was manned by Bedell,
Rockwell Gidcomb, manager of distribution, and Bernard
Ruble, personnel manager. This triumvirate appeared on
behalf of Respondent in all of the negotiating meetings
held with the Union. It is undisputed and I find that, at
the February 20 meeting, Burns asked Bedell whether the
latter would be agreeable to making any negotiated wage
increase retroactive to the April 8 terminal date of the
existing contract in the event negotiations on the new
agreement carried beyond that date. Bedell replied that
the issue of retroactivity was prematurely raised in view of
the fact that the current contract had approximately 6
weeks to run and ample time was available to
consummate a new pact.
A second bargaining session was held on March 2.
Once again, Burns broached the subject of wage
retroactivity in the event the parties failed to reach
agreement by April 8. It is Bedell's uncontradicted
testimony and I find that, on this occasion, he agreed that
any negotiated increase in wages would be made
retroactive to the terminal date of the existing contract
provided that, in conformity with past practice between
the parties, the Union and Respondent continued to honor
the terms of the current agreement until such time as a
new pact was executed or the Union decided to engage in
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an economic strike . If the latter circumstance eventuated,
the issue of retroactivity would have to be negotiated.
Gidcomb and Ruble , who also were present at this
meeting , testified in a similar vein . Thus, Gidcomb
testimonially related that , as a rssulti of Bedell's
concession on wage retroactivity, " it' was my
understanding that the present contract would be in effect
until we signed a new agreement or if there was a strike
called by the Union , itself," and Ruble testified that
Bedell informed Burns that Bedell "had no objection to
the retroactivity on wages unless there was a work
stoppage" and that "It has been [Respondent ' s] practice
over the years that this [an agreement on retroactivity]
indicates that we will continue to operate under our
present contract."
Negotiations continued after the March 2 session and,
on April 4, Bedell mailed a tentative agreement reached
by the negotiators to Burns . This proposal was placed
before the union membership which voted to reject it, and
Bedell and Ruble were so informed . Following the
rejection , the parties again met and continued bargaining.'
However , it is undisputed and I find that, after the
terminal date of the existing contract was reached on
April 8 , Respondent continued its terms and conditions in
full force and effect . Work schedules , assignments and
wages conformed with those set forth in the current
agreement . Dues were checked off, health and welfare
premiums were paid , grievances were processed, and
arbitration occurred on at least two occasions in May as
prescribed in that compact.
On May 3 , the Union and Respondent engaged in
another bargaining session . At this meeting, Alvin
Silbaugh , Jr., the Charging Party and one of the eight
alleged discriminatees in this litigation, attended in his
capacity as shop steward for the warehouse employees,
together with the other shop stewards as well as President
Burns and Business Agent Trito. After the meeting
convened , Burns and Trito requested that Bedell submit
Respondent ' s final contract offer, and the latter complied.
Thereafter , a union meeting was held on May 7 to
consider this proposal , at which and approximately 150
warehouse employees attended . The General Counsel
summoned Silbaugh, Assistant Warehouse Steward James
F. Bartoroni, Jr., and employees Harold E . Shriver and
Wilfred Cunningham to the stand to proffer their
testimony as to the events which transpired at this
gathering . In general , they collectively testified that Burns
chaired the meeting while Trito outlined and explained
Respondent's contract offer. Following Trito ' s report, an
unanimous vote of the members in attendance resulted in
rejection of the proposed agreement . A discussion then
ensued concerning the taking of a strike vote and the
setting of a strike deadline date . I find , based upon the
minutes of this convocation , that "Trito said he would not
entertain any deadline for strike action until all steps of
bargaining were exhausted." At this juncture, employee
Gigliotti remarked that "the strike vote action would be
taken only on the grounds of a bargaining point, and
giving any one concerned power to take action."
Employee Shriver moved that a strike poll be conducted,
which motion was seconded by employee Habadny who
stated that "they would not strike. The deadline date
would be set to show that they meant business and were
ready." Whereupon , a motion to strike at midnight on
'The record shows that Respondent submitted additional proposals on at
least three other occasions between March 16 and April 18, all of which
were turned down by the union membership.
May 21 was proposed and overwhelmingly adopted.
According to Silbaugh , Trito then observed , "Well, if that
is what you want , okay ." When questioned as to whether
Burns or Trito made any statement to the effect that it
was necessary to obtain the approval of William Presser,
President of the Cleveland Joint Council 41 of which the
Union was a subordinate affiliate , to engage in strike
action pursuant to the International union ' s constitution,
Silbaugh replied in the negative . However, Silbaugh
admitted that he knew that Presser had been appointed by
the Teamsters' International to manage the affairs of the
Union and that the Union had been placed under Presser's
trusteeship prior to the May 7 meeting, and he conceded
that Burns did mention that the latter would submit a
report to Presser concerning "the result of the vote and
our decisions as far as the proposal , the final proposal."
At one point, Silbaugh also denied that Trito stated that
he would solicit the assistance of Presser and International
Representative Greeley in further negotiations with the
Respondent . After being shown a sworn affidavit which he
gave to a Board agent , Silbaugh finally admitted that
Trito had so informed the men at the meeting.
Assistant Steward Bartoroni testified that, after the
strike vote was tallied , Burns stated that "he would take
the findings of this meeting , which was the turning down
of the company proposal , and also the strike vote, to Mr.
Presser," although he denied that Burns in any manner
indicated that strike authorization would first have to be
procured from Presser before a work stoppage would be
sanctioned . Harold Shriver averred that he did not hear
either Burns or Trito make any comment concerning the
necessity of obtaining Presser ' s approval prior to engaging
in a strike . However, Wilfred Cunningham , another shop
steward called as a witness by the General Counsel,
emphatically testified that , at the meeting , Trito "said
that he would have to get an approval from someone
higher up before he could get the strike sanctioned."
Samuel Cunningham , a a shop steward , was called as a
witness by Respondent and testimonially related his
version of what had transpired at the May 7 meeting.
According to him , Trito detailed the Respondent's
contract proposals to the men , after which a vote was
taken and the proposals were rejected . An argument
followed concerning the taking of a strike vote . Samuel
Cunningham further testified that "The highlights of this
particular argument was that some members wanted to
have a deadline to strike , and some didn ' t, so Mr. Trito
said as long as negotiations were in progress that we were
not going to strike . So a vote was taken but it was a
confidence vote and he made it clear it wasn't a vote to
strike ." This witness added that Trito "said it was all
right to take a confidence strike vote but he was not
entertaining a motion to strike at a given deadline."
Rounding out this episode , Silbaugh averred that Burns
and Trito observed that they would apprise Respondent of
the action taken by the membership at a grievance session
which was scheduled for the following day, May 8.
Silbaugh also noted that he was aware at this time that
the Union and Respondent contemplated the engagement
in further collective-bargaining discussions.
Although not critical to the ultimate disposition of this
case, I do not credit the testimony of Silbaugh , Bartoroni,
or Shriver that neither Burns nor Trito stated at the May
7 meeting that prior approval of the strike vote deadline
must first be obtained from the Joint Council and the
International union before a cessation of work could
occur . Wilfred Cunningham , a witness called on behalf of
THE KROGER CO. (CLEVELAND DIV.)
the General Counsel to supply his testimonial version of
what took place at the session , categorically averred that
Trito advised the men that the latter "would have to get
an approval from someone higher up before he could get
the strike sanctioned ." Moreover , the minutes of the
meeting contain the admonition from the union officials in
attendance that they "would not entertain any deadline for
strike action until all steps of bargaining were exhausted,"
and even the movants of the strike vote understood that
the balloting was for the sole purpose "of a bargaining
point, and giving any one concerned power to take
action ." Furthermore , the International constitution
makes it abundantly clear that strike action must be
blessed by higher authority before it can be taken. Article
XII, Section 1(b) provides in pertinent part that:
If a [contract] settlement cannot be reached, the Local
Union Executive Board shall order a secret ballot to be
taken and it shall require a two - thirds (2/3) majority of
those members of the Local Union involved in such
negotiations and present and voting to adopt a motion
to strike.
Article XII, section 1(c), then goes on to recite that:
Prior to a Local Union becoming involved in a strike ..
such Local Union shall immediately notify the. Joint
Council of which it is a member of any contemplated
action , setting forth the action contemplated and the
nature of the difficulty. The Joint Council shall then
take steps to approve or disapprove such contemplated
action . The General President is authorized to approve,
disapprove or modify the action of the Joint Council.
In sum , I find that, at the May 7 meeting , Burns and
Trito informed the membership that no cessation of work
would result from an affirmative strike vote until a
bargaining impasse had been reached between the Union
and the Respondent , and the Joint Council and the
International union had approved this course of action.
On the morning of May 8, President Burns and
Stewards Silbaugh and Samuel Cunningham met with
Gidcomb and Ruble to discuss a grievance concerning an
employee who had been discharged . Following this
discussion , Respondent agreed to reinstate the employee.
However , during the deliberations, and according to
Silbaugh ' s testimony , Burns informed Gidcomb , "Well,
Rocky, I am afraid the men turned down your final
proposal. They voted, about all of them voted to go out
on strike in two weeks ." Burns added that he would
attempt to contact International Representative Greeley
and utilize his services as a negotiator for the forthcoming
bargaining meeting "because we got two weeks."
Gidcomb testimonially confirmed that Burns mentioned at
the grievance meeting that the union membership had
voted to reject the company's contract proposals and that
an affirmative strike vote had been taken on the previous
day. Bedell testified that, following the grievance session,
he received a telephone call from Gidcomb in which
Gidcomb conveyed the intelligence which he had received
from Burns.
On May 17, Cleveland Joint Council President William
Presser appointed Harold Friedman and Jack Presser as
administrators of the affairs of the Union .' In this
capacity, these individuals assumed the duties and
responsibilities of the Union' s incumbent officers and
Friedman was charged with the task of conducting
collective -bargaining negotiations with the Respondent on
behalf of the Union. On May 19, the parties held another
bargaining session . On this occasion , although Burns was
present , Friedman played the role of the chief union
773
negotiator . Inasmuch as Silbaugh was unavailable due to
an illness in his family , Assistant Steward Bartoroni
served as the former's backup. When the meeting opened,
and according to Bedell ' s uncontradicted testimony,
Friedman informed Respondent' s negotiators that he and
Jack Presser had been appointed as administrators of the
Union , and that he had come to ascertain whether the
Union should be granted strike authority. Before
negotiations got under way, Bedell apprised Friedman that
the former was under the impression that Respondent
might be struck by the Union on May 21. It is Bedell's
testimony that, in reply, Friedman assured "There will be
no strike on May 21. It's possible you may have one on
the 25th of May but that date is changeable, subject to
negotiations and whether progress is made ." Thereafter,
little progress was made in the discussion of substantive,
contractual issues . According to Bedell ' s undenied
testimony, this circumstance developed from the fact "that
Mr. Friedman, who had not participated in these
negotiations, in this set of negotiations heretofore, was not
up on the issues of the contract, itself, and he asked me
several questions. He asked for a list of employees, he
asked for classifications, wage rates, seniority lists. He
also asked for a document to be given him which would
contain the proposed changes by the Employer fitted into
the framework of the old contract." Bedell readily agreed
to provide this information but observed that it might take
2 to 3 days before the company could collate the material.
Whereupon, the parties agreed to postpone the meeting
until the company could provide, and Friedman could
digest, the information. Consequently, it was decided to
reschedule the meeting for June 1 and June 2. The session
then was recessed . According to Bedell , he left the
meeting with the distinct understanding that , in view of
Friedman ' s comments and the scheduling of future
negotiation dates , there would be no strike "until we had
at least gotten back together and either we settled the
contract or the union took its own course of action."
Gidcomb testified that, during the May 19 session with
Friedman, the latter "very emphatically" announced that
"there wouldn't be a strike on May 21st, and as I recall
he stated there wouldn't be one on Thursday [May 25]
unless he said so." Gidcomb related that he departed from
the meeting room convinced that there would be no work
stoppage until Friedman gave the word , and for this
reason he took no immediate steps to remove perishable
foods from the warehouse . Ruble also generally
corroborated the testimony of Bedell and Gidcomb on this
issue . Ruble testified that, when Bedell asked Friedman
about rumors of a strike at the warehouse, Friedman
"answered emphatically that he had heard about these
[rumors], that the strike had been - he had heard scheduled
for the 21st [of May]. He said, `I understand it's been
changed to Thursday [May 25]. It will not take place then
and it will not take place until the Cleveland [Joint
Council] says so."96
Harold Friedman ' s version of the May 19 meeting
substantially coincided with that of Bedell, Gidcomb, and
Ruble . Friedman testified that Bedell informed Friedman
that rumors of a strike at the warehouse had come to his
attention . Friedman replied that "we had only been
'Friedman also occupied the position as President of a sister Teamster
Local 507.
'Bedell, Gidcomb, and Ruble testified that they did not inform the
warehouse employees prior to the strike that the contract had been
extended or that the strike had been postponed because Respondent did
not make it a practice of dealing directly with the employees on these
matters.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appointed to handle the affairs of [the Union] less than a
week, there would be no strike until we had an
opportunity to have a meeting with the people, to give
them a proposal, and furthermore the union had not
requested strike permission to the [Cleveland Joint]
Council of the International as the constitution provides
for and so it would be impossible to strike even then."6 In
this connection, Friedman explained that, where a local
union has been placed in trusteeship (as in the case of the
Union), the administrator "takes over the duties and
authority of the officers of the local and then he functions
in the same manner as the president , vice president and so
on, as the officers would." The administrator "would have
to call for a strike vote of the membership and then he
would have to submit to the Joint Council 41 of the
Teamsters for strike permission , then he would also have
to submit to the Teamsters International Union in
Washington, D.C., for strike permission." It is undisputed
and I find that Friedman added that, when he was
appointed as administrator of the Union, no strike
permission had been granted to it by the appropriate
governing bodies. He further added that he had learned
from Burns and Trito, as well as from the minutes of the
Union meeting on May 7, that an affirmative strike vote
had been taken, but had been assured by these officials
that "it wouldn't mean anything." Friedman also testified
that, on the date of this meeting, the previously executed
contract between the Union and Respondent remained in
effect, and that he made this clear to the company
officials on this occasion. According to Friedman, that
agreement had never been terminated either by the Union
or Respondent and that both parties had agreed to live
under its terms until a new agreement had been
consummated or an authorized strike had been called.
In his testimony given on behalf of the General
Counsel, Bartoroni claimed that no discussion regarding
the cancellation of strike plans occurred during the May
19 meeting. However, he allowed as how Friedman stated
that the latter had heard that a strike was scheduled for
Sunday [May 21] or Wednesday [May 24] or Thursday
[May 25], and eventually Friedman remarked to the
assemblage that "I don't know when these fellows are
going to strike." Bartoront also confessed that he was
aware that further bargaining was scheduled for June 1
and 2. Moreover, he did not controvert Friedman's
testimony that the latter informed Respondent's officials
that the old contract remained in full force and effect.
I credit the testimony of Bedell, Gidcomb, Ruble, and
Friedman that, at the negotiating session on May 19,
Bedell expressed his concern over rumors which had
reached his ears that the men had voted to walk out on
May 21 and that Friedman assured the management
negotiators that there would be no work stoppage until
bargaining procedures had been exhausted and strike
sanction had been received from the Joint Council and the
International . At best, Bartoroni in his testimony was
vague and uncertain. While he insisted at the outset of his
testimony that there was no mention of cancelling the
strike, he admitted that Friedman expressed doubt as to
the exact date of a strike . Moreover , although Bartoroni
was present during the entire course of the negotiations on
May 19, he failed to controvert Bedell's testimony that
Friedman stated at the opening of the meeting that the
latter, as administrator of the Union's affairs, had come
to the session to ascertain whether strike sanction should
'Friedman ' s testimony in this regard finds support in the language of the
International constitution heretofore quoted
be afforded the Union. Furthermore, Bartoront
acknowledged in his testimony that Friedman had
displayed an unfamiliarity with the status of the
negotiations, requested time in which to study the various
proposals, and arranged for additional bargaining sessions
on June I and 2. Accordingly, I am convinced and find
that Friedman assured Respondent on May 19 that there
would be no cessation of work at the warehouse until it
was demonstrated that collective bargaining would prove
fruitless.
Following the meeting, Bartoront presented Friedman
with a petition which was addressed to International
representative Greeley and which was dated May 18.' This
petition, signed by approximately 100 employees,
requested that "a special meeting of the Union's
membership be called for the purpose of discussing and
voting on the new contract proposal." According to
Bartoron ►, Friedman promised to hold a meeting with the
employees but did not specify a date certain. Friedman
testified that he had learned from two employees at the
bargaining session on May 19 that someone had placed a
notice in the warehouse without permission of the Union
to the effect that there would be a union meeting on
Sunday, May 21, to discuss the status of negotiations, and
Friedman replied that he "knew of no meeting on Sunday
but as soon as we had time we would call a meeting in the
plant." After presenting the petition to Friedman,
Bartoroni testified that he was instructed by Burns to
return to the warehouse and inform the employees of what
had transpired at the negotiating session. Bartoroni spoke
to the men and explained that no new proposals had been
advanced by Respondent.
On Sunday morning , May 21, approximately 200
employees appeared at the union hall in response to the
posted notice. When the union officials failed to appear,
the men dispersed. That evening, a majority of the
employees in the warehouse unit engaged in a strike.'
'It is uncontroverted and I find, based upon Friedman's testimony, that
Greeley is a troubleshooter for the Teamsters ' International union and
"when a local cannot settle its affairs and if the local would request strike
permission, and before they could strike the International has a policy of
sending in people such as Mr Greeley to see if they can't straighten it
out "
'At the hearing , I sustained the General Counsel's objection to the
admission of two documents styled "Respondent's Exhibits I and 2 " The
exhibits purportedly contained the names of all employees who worked
during the course of the strike and those who did not, and their
introduction was apparently sought by Respondent to show that less than a
majority or a bare majority of the employees in the unit supported the
strike My ruling was premised on the ground that the witness through
whom Respondent sought to introduce these Exhibits did not personally
examine the payroll and time records upon which they were based At the
close of the hearing, I granted Respondent permission to submit this data
to me as Resp Exh 9 , provided that the parties reached a posthearing
agreement as to the accuracy of the material contained therein After a
posthearing submission of the latter exhibit , the General Counsel objected
to its receipt on the ground that it lacked accuracy In moving papers also
filed following the close of the hearing , the Respondent moved to strike
exhibits A, B, C, and D which were appended to the General Counsel's
brief, for the reason that they were proffered during the hearing and has
been rejected by me on the grounds of irrelevancy These exhibits, like Resp
Exh 9, relate to the number of employees who did or did not participate in
the work stoppage In view of the findings herein made that a valid,
no-strike clause existed at the time of the strike and that the walkout took
place in defiance of that clause, I conclude that it is immaterial and
irrelevant to a decision in this proceeding whether a majority or a minority
of the employees in the unit struck For these reasons, I hereby reject
Resp Exh 9 and G C. Exh. A, B, C, and D I would note, however, that
Respondent concedes in its brief that a "majority" of the employees
engaged in the strike
THE KROGER CO. (CLEVELAND DIV.) 775
Bartoroni testified that he did not contact any official for
strike instructions because "I just didn't call them. That's
all." There is no testimonial dispute and I find that,
shortly after the work stoppage commenced at 10:30 p.m.
on May 21, Ruble, Gidcomb, and Respondent's Vice
President M. McDaniel approached the picket line and
repeatedly informed the strikers that "they were violating
our contract and that this was a wildcat strike, and unless
they would return to work we had no choice but to
consider that they had quit their jobs." Meanwhile,
Gidcomb telephoned Burns to report that a strike was in
progress. Burns characterized the work stoppage as
"wildcat" and promised to take action to terminate it. On
the morning of May 22, McDaniel sent a telegram to
Cleveland Joint Council President William Presser in
which he related that certain members of the Union "are
refusing to work and are picketing contrary to our
agreement" with the Union, and in which he inquired
whether the strike had been authorized or sanctioned by
the Council and the International union. That same
morning, Presser replied, "Strike sanction not authorized
by Joint Council 41 of International Union. This is
wildcat strike." On May 23, McDaniel directed a
telegram to all the strikers which recited that "The
present work stoppage at the Kroger Warehouse is
unlawful and has not been authorized by your Union.
Your International Representative has informed us that it
is a `wildcat strike.' . . . I urge you to give very serious
thoughts to returning to work. If you do not return to
work on your next regularly scheduled shift your failure to
return may result in your being replaced."
Friedman testified that he first learned of the
commencement of the stoppage on May 22 and on 3
consecutive days thereafter he held meetings in his office
with the strikers in which he pleaded with them to return
immediately to work and assured them that he would be
able to convince the Respondent to allow all the strikers
to resume their duties if they did so. Friedman cautioned
the men that "it was an unauthorized act that they had
done, they were putting their jobs in jeopardy, the union
could not back them, and that if they didn't return to
work they would leave themselves in the position of being
fired." He further informed the strikers that "You've got
a contract in effect. Go back to work. We are negotiating
the contract and we can't get anything straightened out
until you return to work." Friedman also told them that
"the contract continues from year to year unless
terminated. I told them that the contract was not
terminated, that a request was made upon the company to
continue it and at no time was the company notified of
termination and I also explained to them the functions of
getting strike permission from the Joint Council 41 and
from the International Union."
Silbaugh joined the strike on May 22. During his
examination on the stand, he initially proclaimed that he
had never been urged by any union official during the
course of the strike to return to his job because the
stoppage was unauthorized and hence illegal. According to
Silbaugh, the sole exhortation which he received came
from Union Administrator Jack Presser who suggested an
immediate end to the stoppage as a "union tactic" so that
the warehousemen might, at a future date, join the
truckdrivers represented by a sister local in a joint strike
and thereby bring Respondent "to their knees." When
pressed on this issue, Silbaugh admitted that he "had
heard the rumor" that Joint Council President William
Presser had termed the walkout a wildcat strike, "but I as
a union official at that time was never told it was a
wildcat strike and told to go back to work." Silbaugh
then acknowledged that Jack Presser had notified the
former that unless Silbaugh abandoned the strike and
returned to work the Union could not give him "assurance
against company reprisals." Finally, Silbaugh insisted that
no union official ever visited the picket line to inform him
that the strike was illegal because it violated the
provisions of an existing no-strike clause. However, he
conceded that he received McDaniel's telegram of May 23
which carried this intelligence. Bartoroni also confessed
that he received a similar telegram during the strike. He
did not deny and hence did not corroborate Silbaugh's
testimony that no such notification was received from the
Union. I credit the testimony of Gidcomb, Ruble, and
Friedman concerning this episode.
As the strike progressed, Silbaugh and others on the
picket line retained the services of an attorney. In
Silbaugh's words, this step was taken for "our
protection." When questioned as to whether he needed
protection from the Union, Silbaugh replied that "we
didn't have nobody from the union at the time approach
us, we just had him for our protection." Silbaugh was
then asked whether, in fact, the union officials had told
him that they could not protect him unless he resumed
work, to which he rejoined that Jack Presser had stated "I
don't know if we can offer you any protection about
reprisals, I am trying to get you a sanction now."
Silbaugh was queried as to his understanding of the word
"sanction," and he made the remarkable statement that
Jack Presser "was trying to contact somebody, I don't
know. He probably had to go higher than that, I think the
International for a sanction, but a sanction meant $20
strike funds as far as I know, or the blessings of the
union." (Emphasis supplied.) On May 28, Silbaugh's
attorney polled the strikers to determine whether they
wished to return to work and a majority voted to abandon
the work stoppage. Whereupon, the attorney notified
Respondent of this action by telegram on that date.
On the evening of May 28, Silbaugh and his fellow
strikers reported at the warehouse where they were met by
McDaniel, Gidcomb and Ruble. Silbaugh stated that he
was resuming work pursuant to the telegraphic invitation
which McDaniel had dispatched on May 23 urging an
abandonment of the strike. Gidcomb replied that "The
work that you were to have done has been done. We will
call you when we need you." By letter dated May 29,
which was received on June 1, Respondent notified
Silbaugh, Bartoroni, Harold Shriver, Wilfred
Cunningham, and four other strikers, whom Respondent
believed to be the ringleaders in the strike movement, as
follows:
During last week's wildcat strike, you were warned that
if you continued your unlawful strike activity and failed
to return to your regularly-scheduled work shift, you
would be considered to have quit your employment with
Kroger.
You were also told that your union did not sanction the
strike and that your union called it a wildcat strike.
Because of your refusal to return to work last week and
because of your active role in the unlawful strike we are
removing your name from our payroll.
On June 20, 165 of the remaining strikers received a
probation notice characterized as a "Constructive Advice
Record." This document recited that the men had recently
engaged in an unlawful strike in violation of an existing
contract between Respondent and the Union, and advised
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "This is to warn you that if you again refuse to work
or if you engage in any such activity, you will be subject
to disciplinary action up to and including discharge." The
period of probation thus imposed was 9 months.
Concluding the factual chronology, Respondent and the
Union reached agreement on a new pact on September 12,
1967. This contract provided for a wage increase in the
first year of 25 cents per hour and, as in the case of
earlier contracts between the parties, was made retroactive
to April 8, 1967.
The General Counsel urges that the 1964 contract
between the parties expired on April 8, 1967, and that the
no-strike provision contained therein lost its vitality on the
latter date. He therefore argues that the employees were
free to strike after April 8, and that, when they chose to
do so on May 21, they were engaged in a concerted
activity protected under the Act and the Respondent was
legally debarred for punishing them for indulging in this
activity. I have heretofore found, based upon
uncontroverted testimony, that as early as March 2, 1967,
Respondent acquiesced in the Union's request that they
any negotiated wage increase be made retroactive to the
April 8 terminal date of the current contract in the event
that negotiations carried beyond that date. In return, the
parties mutually agreed to honor all the terms of the
existing compact until either a new agreement was arrived
at or the Union chose to embark upon a strike, a
procedure which the parties subscribed to in prior contract
negotiations. I have also found, based upon undisputed
evidence, that the Respondent followed the work
assignments, schedules, and wages set forth in the contract
after April 8, continued to check off dues, paid health and
welfare premiums, processed grievances, and participated
in arbitration with the Union. At a meeting on May 19
between Respondent and the Union, as heretofore found,
union negotiator Friedman assured his company
counterparts that the old contract remained in effect and
the parties agreed to respect its terms in full until
negotiations were successfully concluded or an authorized
strike was called. In short, I conclude that the no-strike
clause in the contract remained in effect at the time of the
strike.
While it is true that the Union and the Respondent did
not specifically and directly notify the employees prior to
the strike that the old agreement, and hence the no-strike
clause, continued to govern their work-a-day lives, the
record clearly establishes that the strikers were fully
apprised of this circumstance at the very inception of the
work stoppage and prior to the discharges and the
discipline invoked herein. On the evening of May 21 when
the strike began, and as heretofore found, Respondent's
officials visited the picket line, repeatedly told the strikers
that the walkout was a wildcat work stoppage because it
violated the terms of the old agreement, and warned the
men that they would be terminated unless they returned to
their jobs. On the next day, May 22, and for several days
thereafter, Union Administrator Friedman implored the
strikers to abandon their activities; informed them that the
strike was unauthorized and hence illegal; and, cautioned
them that they would be subject to discharge if they did
not heed his plea to report back to work. In Friedman's
words, as heretofore found, he told the strikers "You've
got a contract in effect. Go back to work. We are
negotiating the contract and we can't get anything
straightened out until you return to work." Again, on
May 23 and after consulting with Joint Council President
Presser regarding the nature of the strike, Respondent
dispatched a telegram to the strikers advising them that
both the Union and the Respondent considered the work
stoppage as a wildcat strike and urged that they return to
their jobs on pain of loss of employment. Despite these
entreaties and warnings , the stoppage continued until May
28 after which eight strikers were discharged and 165
placed on probation.
This is not a case where a labor organization and an
employer have deployed themselves against employees to
deprive them of desired economic gains . Both parties
earnestly sought to reach a bargain on a new labor
contract and, to achieve this end , decided to continue the
old agreement in full force in order to create a climate
conducive to the successful pursuit of this goal. While the
employees in the bargaining unit, albeit a majority, might
have been dissatisfied with the Union ' s efforts in this
regard, their dissatisfaction provided no license to defy
their collective representative and the contractual no-strike
provision by which that representative agreed to abide
until it became convinced that strike action rather than
talk was needed to obtain satisfactory terms and
conditions of employment . There are orderly procedures
engrafted in the Act whereby employees may divest a
collective-bargaining agent of the authority to speak on
their behalf.' However , the strikers herein chose not to
follow this course but, instead, invented their own rules
for playing the game.
It is the declared policy of the Act to eliminate
industrial strife and the causes of substantial obstructions
to the free flow of commerce by encouraging the practice
and procedure of collective bargaining . To implement this
policy, employees are required to honor viable no-strike
clauses lest their defiance lead to discharge." A wildcat
strike , called in disregard of a no-strike agreement, "is a
particularly harmful and demoralizing form of industrial
strife and unrest, the necessary effect of which is to
burden and obstruct commerce, but also that it is
necessarily destructive of that collective bargaining which
it is the purpose of the act to promote ."" Once a labor
organization has been selected as bargaining agent, it is
thus made the exclusive representative of all employees for
the purpose of collective bargaining . There can be no
effective contract negotiations as envisaged by the Act if
employees are at liberty to ignore the bargaining agency
relationship thus established , to disregard the restraints
upon strike action to which their agent has agreed in
order to promote industrial peace, and to take matters
into their own hands by engaging in a strike which
impedes and undermines the bargaining process.
I have heretofore found and concluded that the
no-strike clause in the old contract between the
Respondent and the Union was extended by mutual
consent of the parties following the expiration of that
compact , and remained in full force and effect during the
course of the strike in which Respondent ' s employees
engaged between May 21 and 28 , 1967. As one court put
it, this "[strike] activity was not in a protected zone, since
the stoppage or strike was illegal . Therefore, respondent
'Sec. 9(c)(l) of the statute provides for the conduct of a decertification
election whereby employees, upon the filing of an appropriate
representation, may rid themselves of an incumbent bargaining agent
Under the Board 's election rules, the strikers would not have been barred
from filing a timely petition after April 8, 1967 . See Deluxe Metal
Furniture Company , 121 NLRB 995, 1002.
"N.L R.B. v Kaiser Aluminim & Chemical Corp ., 217 F.2d 366 (C.A
9); cf. Mastro Plastics Corp . Y. N.L.R . B.. 350 U S 278.
"See NL .R.B v. Draper Corp , 145 F.2d 199 203 (C.A 4).
THE KROGER CO. (CLEVELAND DIV.)
had the absolute right to discharge ."" Following these
teachings, I conclude that Respondent was within its,
rights to discharge employees for engaging in the May 21
work stoppage , or to discipline them . Accordingly, I
conclude that Respondent did not violate either Section
8(a)(1) or (3) of the Act by terminating the eight
employees named in the complaint , or by placing the
"See N.L.R B v. Kaiser Aluminum d Chemical Corp.. 217 F.2d 366,
369
777
remaining 165 on probation. I shall therefore dismiss the
complaint in its entirety.
RECOMMENDED ORDER
Upon the basis of the findings heretofore made, the
conclusions heretofore drawn , and the entire record, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is hereby ordered that the complaint
herein be, and it hereby is, dismissed in its entirety.