The Topeka Grocers Management Association, Etc.

National Labor Relations Board - Board Decisions

Jan 13, 1965

150 N.L.R.B. 938 (N.L.R.B. 1965)

938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL upon request, bargain collectively with Shopmen 's Local Union No.
682 of the International Association of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO, as the representative of our production and maintenance
employees with respect to rates of pay, wages , hours of employment , or other
terms and conditions of employment.
WE WILL offer the employees who went on strike on September 30, 1963, and
who on November 22, 1963, applied for and were refused reinstatement , immedi-
ate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges, dismissing, if
necessary, any employees hired since November 21, 1963.
WE WILL make each employee whole for any loss of pay he may have suffered
by reason of our discrimination against him.
WE WILL NOT discourage membership in the above-named labor organization,
or in any other labor organization of our employees , by refusing to reinstate or
in any other manner discriminating against our employees in regard to hire or
tenure of employment or any term or condition of employment , except as per-
mitted by Section 8(a) (3) of the Act.
THE MARLEY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employees if presently serving in the
.Armed Forces of the United States of their right to reinstatement upon application in
accordance with the Selective Service Act , and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
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, Federal
Office Building , 550 Main Street , Cincinnati , Ohio, Telephone No. 381-2200 , if they
have any question concerning this notice or compliance with its provisions.
The Topeka Grocers Management Association , Harry's IGA Food
Center, Butner IGA Foodliner , Falley's Market , Inc., Russ's
Market, Dibble's Grocery Co., Dibble's Fairlawn Plaza, and
Dibbles Holliday Square Supermarket and Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local Union 576. Case No. 17-CA-92391. January 13, 1965
DECISION AND ORDER
On October 14, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled consolidated proceeding, f nding
that only Respondent Falley's Market, Inc., had engaged in and was
engaging in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. He also found that the other Re-
spondents had not engaged in unfair labor practices and recom-
mended that the complaint' be dismissed as to them. Thereafter,
150 NLRB No. 89.
TOPEKA GROCERS MANAGEMENT ASSOCIATION, ETC. 939
Respondent, The Topeka Grocers Management Association and the
Charging Union filed exceptions to the Trial Examiner's Decision
and supporting briefs, and the Respondent also filed cross-exceptions
and a supporting brief.
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 Fanning and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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, includ-
ing the exceptions and briefs, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, as modified
below.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board adopts as its Order the Order recommended
by the Trial Examiner and orders that Falley's Market, Inc., its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
1 The Trial Examiner based his dismissal on two grounds .. He first distinguished John
Brown, et al ., d/b/a Brown Food Store, 137 NLRB 73, enforcement denied 319 F. 2d 7
(CA. 10), cert. granted 375 U.S. 962. Alternatively, he found the Respondents ' conduct
permissible under Betts Cadillac Olds, Inc, et al, 96 NLRB 268. As no specific excep-
tion has been taken to the latter finding , which we believe is ample to support our
Decision herein, we do not rely upon the Trial Examiner 's Brown Food Store rationale.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National Labor Relations Act, as
amended , was heard before Trial Examiner George A. Downing in Topeka , Kansas,
on June 29, 1964, pursuant to due notice. The complaint, issued on April 10, 1964, by
the General Counsel of the National Labor Relations Board, based on charges dated
February 24 and April 5, 1964, alleged in substance that Respondents engaged in
unfair labor practices proscribed by Section 8(a)(3) and ( 1) of the Act by acting
jointly and severally and as members of the Association in reducing the hours of work
of certain of their employees because employees of Sutton 's, another member of the
Association , had gone on strike and in order to force the Charging Union to accept
the Association 's bargaining proposals then under negotiation between the Association
and the Union.
Respondents filed their answer on April 20, denying the allegations of unfair labor
practices.
Upon the entire record in the case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Topeka Grocers Management Association is an association of Topeka grocery
companies formed for the purpose of negotiating and administering labor contracts.
Present members of the association include the other Respondents hereto, each of
whom is engaged in the retail distribution of food products and related businesses in
Topeka, Kansas, and vicinity and who do jointly a gross volume of business in excess
of $500 ,000 annually and who jointly receive annually products , goods, and materials
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued in excess of $50,000 directly and indirectly from sources outside the State of
Kansas. The Association and its membership are therefore engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The evidence
The evidence herein consisted of stipulated facts and supplementary testimony
which was undisputed except on a single point. The stipulated facts were as follows:
The Topeka Grocers Management Association is an association of Topeka grocery
companies formed for the purpose of negotiating and administering labor contracts.
For approximately 18 to 20 years Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Local Union 576, has represented the employees in the
meat departments of the various companies which are or have been members of the
Association. However, the formal Association has functioned as such for only 6 or
8 years. The history of company-union relationship has been relatively harmonious.
During the 1962-63 contract term, the Association was made up of the following
companies: Harry's, Butner's, Falley's, Sutton's, Dibble's, Russ's, Tilton's, Peyton-
Fritton, and C. & W. Company, which companies operated approximately 20 stores.
Prior to the 1964 contract negotiations Tilton's and Peyton-Fritton withdrew from the
Association. The remaining members of the Association began negotiations with the
Union on January 2, 1964, and met and negotiated approximately six times between
January 2 and February 18, 1964. The contract in existence at the time negotiations
began expired as of February 1, 1964, but the parties continued operation under the
terms of the old contract while continuing negotiations.
On February 20, pickets were stationed at the two stores owned by Sutton's, and the
meat department employees of said stores went on strike. No written or oral notice of
an intent either to strike or lock out had been given by either the Union or the Com-
pany. On the afternoon of February 20 a meeting was held by the members of the
Association as of that day (i.e., the Respondents herein plus Sutton's and C. & W.).
The members discussed with Sutton's what the effect of the picket had been, the amount
of'meat products Sutton's had on hand, and Sutton's plans for processing said produc-
tion. The members agreed that it would be some time before a sound determination
could be made concerning the effect of the strike on Sutton's business.
The proposal was made that the nonstriking companies should operate their meat
departments on a minimal basis until such time as a determination of the effect on
Sutton's could be made or until some alternative action could be agreed on. The
members discussed what might constitute minimal operations for the meat depart-
ments of the various companies and it was concluded that they would for 1 week try
working all meat department employees, except the head meatcutters, two 8-hour
days, that the head meatcutters would work additional hours according to the needs
of the individual stores; that the schedules would be posted in the normal way on
Friday; and that the members of the Association would meet the following Thursday
to discuss the results.
C. & W. Company announced it was withdrawing from the Association and on
February 20 mailed a letter to both the Association and the Union announcing its
withdrawal.' Association members met again on Thursday, February 27. Most
companies stated that they could not operate satisfactorily on 2 days per week per
employee. It was agreed that production problems varied as between stores but that
companies should operate minimal meat departments. Each company was advised to
schedule the meat department employees within their company for as nearly equal
hours as possible except that the head meatcutter would be worked as needed.
On March 12 the Union stationed pickets and the meat department employees struck
at the two Butner stores.2 During the entire period that Sutton's and Butner's were
on strike, each of said struck companies used temporary replacements in an effort to
operate their respective meat departments. The nonstruck members of the Association
used their regular meat department employees to perform the work of their meat
departments.
1 Testimony was given by C. & W's representative that C. & W wanted a complete
lockout and was opposed to the part -time schedule which the Association proposed.
2 There was also testimony that immediately prior to the strike at Butner, the Union
refused the Association ' s request for information as to future strike action and that on
two occasions following that strike , Falley's was warned that it was the next to be struck.
TOPEKA GROCERS MANAGEMENT ASSOCIATION, ETC. 941
On March 20 the Association placed pickets at all Safeway and A & P stores with
signs which read as follows: "Safeway [or A & P] refused to cooperate with the
Topeka Grocers Association in their efforts to withstand demands of an unfair contract
by the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-
CIO, Local 576."
The Union and the Association continued to meet and negotiate and after several
such meetings reached an agreement on May 3. The strike was terminated as of that
date and all employees were restored to their normal workweek. Approximately 65
or 69 employees were involved altogether, including the striking employees in the
meat department of Sutton's and Butner's.
Testimony was offered concerning the circumstances underlying the Association's
action in countering the strike and concerning the manner in which some of its
members acted in announcing to the employees, and in carrying out, the reduction in
the working schedules. We start with the former.
Dale Sutton, of the concern which was first struck, testified that though Sutton's
inventory of meats on the Thursday the strike was called was only an average one for
that day, Thursday was one of the heavier days of the week, and Sutton's had run an
ad, planning a sale of chuck in tonnage and of other related beef items. Needing help
to process the meat and to carry on the sale, Sutton's used some of its grocery person-
nel, called on other companies for help, and advertised for personnel. Some help was
supplied by the Fleming Company (a wholesale supplier and counselor of retail
grocers and meatmarkets), but after Sutton's was warned by the Union that continued
use of the latter personnel would lead to picketing at Fleming's, the Fleming help was
used only in a supervisory capacity. Sutton's informed the other association members
in the meeting on February 20 of the problems it was facing, because of the timing of
the unannounced strike, in obtaining personnel to process the meats, including the fact
of the Union's veto of the Fleming help.
John Dibble, of Dibble's Grocery Co., and chairman of the Association, testified
that following discussions of Sutton's report, and concerned with protecting themselves
from the possibility of inventory loss and spoilage should further strikes be called at
times when large meat supplies might be on hand, the members decided to reduce the
working schedules of the journeymen meatcutters, but at the same time, since the
head meatcutters were in charge of the markets and responsible for the ordering of
meats, their work schedules were increased. Dibble testified further that he directed
his head meatcutter not to buy more meat than could be processed under the new
working schedule. Hours worked by the head meatcutters thereafter averaged around
50 to 52 hours a week (against a prior normal 40-hour week).
Testimony by Burt Falley, of Falley's Market, accorded with Dibble's on the point
that the association members acted to avoid being caught in the same position as
Sutton's, who was faced with the necessity of trying to process and to salvage a large
inventory of meat, and that even with a normal inventory, there was danger of a
substantial loss of spoilage, meat being a perishable item, should further strikes be
called without warning. Though not agreeing that he wanted to climb into "the same
boat" with Sutton's (whom he regarded as being in even "worse shape" than he),
Falley testified that the association members wanted to place themselves relatively in
the same position as Sutton's. Falley gave his head meatcutter no direction to order
less meat, since the latter ran the meat plant and knew what help he would have and
how much meat could be processed. Actually less meat was ordered during the
strike, and Falley's inventory was reduced by from 25 to 30 percent.
Concerning the picketing of A & P and Safeway, Falley testified that those concerns
continually promoted sales of fresh meat during the strike and as Respondents were
losing business because they were unable to produce as readily as before, they sought
to obtain "cooperation" by placing a picket at A & P and Safeway Stores with signs
bearing the legend stipulated to above. The cooperation desired, Falley explained, was
that A & P and Safeway desist from their promotion of meat sales.
E. J. Hulsey, a meat specialist employed by the Fleming Company, was one of those
who was called in to help out at Sutton's on the day.of the strike. He testified to the
perishable nature of meat products and to the nature and extent of loss resulting from
a failure to process meats promptly; e.g., from shrinkage and spoilage, and from
discoloration, which would itself entail a need for a recutting or refabrication into
a different cut, also with resultant loss, particularly where done by inexperienced
personnel. Hulsey agreed, however, that the latter loss would be avoided if the regu-
lar employees were available for the work. He estimated that Sutton's loss on
inventory amounted to some 5 percent beyond what would have been experienced if
only a minimal inventory were on hand,3 and testified that if there were any danger of
being struck, a dealer would wish to carry as low an inventory as possible.
3 Even slight inventory losses would substantially effect the margin of profit, since
under Falley's testimony his business operated on a net of 1 percent.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We now turn to testimony concerning the manner in which some of the Association
members announced and carried out the reduction in the work schedules.
Three employees of Falley's testified that Burt Falley stated, in informing them that
their work hours were going to be reduced, that the action was being taken because
the Union had struck Sutton's and that he felt the Association had to take some sort
of retaliatory action. Falley also referred to his friendship with the employees and
stated he did not want any hard feelings. The actual cut in hours was from a normal
5-day, 8-hour schedule to two 8-hour days, but in later weeks a third day was added.
Falley denied using the word "retaliation" or "retaliatory" and testified that it was a
word he never remembered using. He testified that he told the employees that because
of the strike against Sutton's, the Company was taking a defensive measure in reducing
the work schedule to protect its position and that all members of the Association were
reducing schedules in a similar manner. Although there were some 12 or 13
employees present in the meeting in which Falley announced the reduction in the
work schedule, Respondents called no one to corroborate Falley. I therefore credit
the mutually corroborative testimony of the General Counsel's witnesses.
Falley also testified on cross-examination that Harry Pruitt (a journeyman meat-
cutter who drove a truck occasionally) was involved in the reduction of hours, but
that two other truckdrivers, not members of the Meat Cutters, who worked at the meat
plant for at least part of the strike period, were not affected by the reduction.
Robert Oswald, head meatcutter at Butner's testified that when Butner informed
him of the new work schedule, Butner stated that though Oswald's hours would not
be cut, the other meatcutters "might go hungry." Butner gave him no direction about
ordering meat either then or at any time during the strike period. Under normal
conditions Oswald usually ordered a large supply at the first of the week so that it
could be broken down and processed for the week's business. Because his "needs"
were different due to the shortage of the employees and their inability under the
reduced schedule to process the meat, Oswald ordered less meat in order to keep the
spoilage down, and his inventory was substantially lowered. Though less meat was
sold during the strike, it was because the employees were unable to process more, and
not because the demand was any less.
Two witnesses testified that the proprietor of Harry's stated, in informing them of
the reduction in hours, that though he did not want any hard feelings, the Association
was "at war" or "we are at war." One of them, Charles Stroudt, the head meatcutter,
testified further that Harry instructed him to order as normal, and when he asked how
he could get the work done, Harry replied, "Do the best you can." Stroud complied,
but testified that sometimes the inventory piled up and a few sales were probably lost,
though he got the work done by working extra hours.
B. Concluding findings
This case presents another instance of the familiar whipsaw strike situation which
reached the Supreme Court in N.L.R.B. v. Truck Drivers Local Union No. 449, Inter-
national Brotherhood of Teamsters, etc. (Buffalo Linen Supply Co.), 353 U.S. 87, enfg.
109 NLRB 447, and which has formed the subject matter of a number of subsequent
cases; 4 it concerns the legality of action taken by a multiemployer association in
countering a strike called by a union against one of its members.
The Court held in Buffalo Linen, supra, that members of a multiemployer group
may lawfully use a lockout as a defense to a union strike tactic that threatened the
employers in bargaining on a group basis. The Court recognized that although "the
Act protects the right of the employees to strike ... this protection is not so absolute
as to deny self-help by employers when legitimate interests of employers and
employees collide .... The ultimate problem is the balancing of the conflicting legiti-
mate interests"-a function committed by Congress primarily to the Board, subject to
limited judicial review.
Having determined that the Board had correctly balanced the conflicting interests,
the Court sustained the Board's Decision and upheld the lockout, but made clear that
it was providing no sanction for lockouts generally. It pointed out that it was not
concerned with cases in which lockout had been held unlawful because designed to
' Some of the more recent decisions are John Brown, at al., d/b/a Brown Food Store,
137 NLRB 73, enforcement denied 319 F. 2d 7 (CA. 10), cert granted 375 U.S 962,
The Kroger Company, 145 NLRB 235; Safeway Stores, Incorporated, 148 NLRB 660;
Great Falls Employers' Council, Inc., et. al., 123 NLRB 974, enforcement 277 F. 2d 772
(C.A. 9) ; Anchorage Businessmen's Association, Drugstore Unit, et al., 124 NLRB 662,
enfd. 289 F. 2d 619 (C.A. 9) ; Bagdad Bowling Alleys, 147 NLRB 851. The Board is ad-
hering to its decision in Brown Food pending resolution of the issue by the Supreme Court.
TOPEKA GROCERS MANAGEMENT ASSOCIATION, ETC. 943
frustrate organizational efforts, to destroy or undermine bargaining representation, or
to evade the duty to bargain; and in specifically noting that the holding was tied to the
particular circumstances of the case, the Court indicated that the Buffalo Linen
doctrine may have its limitations, even within the area of defensive lockouts by multi-
employer groups.
One of those limitations was illustrated by the Board's decision in Brown Food
Stores, supra, where there was no shutdown to protect a bargaining unit but the non-
struck employers continued to operate by hiring replacements after locking out their
employees. The Board's view was that whatever defensive validity there may be for
shutting down in a whipsaw context, as in Buffalo Linen, is not applicable where the
employers do not shut down but instead continue to operate with replacements. As
there was no reason why the nonstruck employers could not have continued to operate
with their own employees during the strike, the lockout was not a lawful defensive
action, and the Board concluded that the regular employees had been replaced solely
because they were engaging in protected concerted activity.
Our consideration of the present case starts properly with the theory advanced by
the General Counsel. Briefly stated, he views the case as a simple one, indistinguish-
able in all substantive respects from Brown Foods, which is considered to be controll-
ing of the result here. Terming the reduction in hours a "partial lockout," the General
Counsel tracks the rationale of that case; he contends that because both the struck and
the nonstruck employers continued to operate, there was no economic necessity for
Respondents' action, and that it was not therefore defensively taken, but was an unlaw-
ful offensive weapon. Inferring therefore that the reduction in hours was simply to
inhibit the strike and to force the Union to accept the Association's bargaining pro-
posal, he argues further that there is also affirmative evidence that "retaliation" was
the motive, pointing to the statements made to employees by Falley and others.
The General Counsel's analysis of Brown Foods is faulty on two counts. First, the
factual situation here differs in significant respects from that in Brown Foods,5 and
second, the differences are in the very respects which qualify Respondents' action here
as allowable conduct approved by the language of Brown Food and later of Kroger.
Thus, there was here no lockout as such and no layoff or temporary shutdown for
the purpose of arranging substitutes or replacements, but Respondents instead con-
tinued operations with their regular employees. Those points go to the heart of the
General Counsel's misconceptions for in Brown Food the Board held that it was the
lockout of employees while continuing operations by replacements which demon-
strated that the employers' action was not defensively taken. It was because there was
no economic necessity for a shutdown under the circumstances and no reason why the
nonstruck employers could not have continued to operate with their own employees
which supported the Board's inference that the lockout and the replacement was
"retaliatory" and for the purpose of inhibiting a lawful strike.
In Kroger, whose facts were similar to Brown Food, the Board expanded its
rationale in language which more explicitly reflects approval of the choice of action
which Respondents made here:
We believe that the non-struck employer's legitimate interest is fully protected
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 choice is his, whether the struck employer is able to
function substantially as usual, or whether the struck employer is completely or
virtually closed. In these circumstances there is in our opinion no valid reason
why the non-struck employer should be entitled both to lock out his employees
and continue to operate with temporary replacements for those employees ....
[T]o permit the non-struck 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. [Emphasis supplied.]
Indeed the Board has construed its holdings in Brown Food and Kroger as explicitly
recognizing the right of nonstruck members of an association to put themselves "in the
same boat" with the struck member by continuing operations with their own regular
employees, either in full or in such number as to maintain a level of operations similar
5 As well as from other cases similar to Brown, such as Kroger, Safeway Stores, Bagdad
Bowling Alleys, supra, and Food Giant Super Markets Mayfair Markets, d/b/a El Rancho
Markets Safeway Stores, Inc., 145 NLRB 1221. See also Industrial Conference Board and
Kitsap County Retail Druggists' Association and its Member Employers , 141 NLRB 625.
775-692-65-vol. 150--61
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that of the struck member. Thus, in its brief to the Supreme Court in Brown Food,
supra, the Board quoted the language from Kroger set , forth above as supporting its
holding in Brown Food, which was stated to be as follows:
The Board 's view is that, when one employer is struck , the remaining employers
in the unit may lock out their employees whether or not the struck employer
resumes operations with replacements. If the struck employer is then able to
conduct business operations with replacements notwithstanding the picketing by
his regular employees, the non-struck employers may, of course, find that they
are losing customers by remaining closed; the continued operations of the struck
employer might exert pressure on them to make a separate settlement with the
union , thereby imperiling the multi -employer bargaining unit. But their choice
is not limited to remaining closed or hiring temporary replacements. They can
protect themselves adequately and, at the same time, preserve the solidarity of
the multi-employer unit , by resuming operations with all or some of their own
employees who are Willing and able to work. In short, the non-struck employer
members of an association can put themselves "in the same boat" as the struck
member by shutting down entirely or, if the struck employer has reopened, by
resuming their own operations with their regular employees-either in full or to
the extent deemed adequate to maintain a level of operations comparable to that
of the struck employer. [Emphasis supplied.]
I conclude and find that in substantial part the association members were motivated
by the desire to place their operations on a basis comparable to Sutton 's during the
strike.(see Falley's testimony), and that such action was a lawful defensive maneuver
in the whipsaw strike situation which confronted them.
Nor is the affirmative evidence on which the General Counsel relies sufficient to
establish that the Association's action was retaliatory rather than defensive. The
Association 's picketing of its competitors is without significance . Though it had
avoided the possibility of its members losing customers to each other by reducing their
operations to a level comparable to Sutton 's its members were nevertheless suffering
a loss of business through the exploiting by nonmember competitors of the opportuni-
ties afforded by the strike and the Association 's counteraction to it . To seek to induce
cooperation from competitors in such a situation bespeaks nothing concerning the
motive for making the reduction in operations ; it appeared instead to be an attempt
to pressure the competitors also to get "into the same boat" with them and with
Sutton's.
The strongest indication of retaliatory or discriminatory motive was contained in
Falley's statements as an individual employer to his employees and in Falley's conduct,
again individually , in reducing the hours of his meatcutters while not reducing the
hours of two other employees at the meat plant (nonmembers of the Union).6 The
evidence does not establish , however, that Falley's statements either represented or
accorded with the policy adopted in the association meeting or that his discriminatory
action against union members conformed to that policy. And since there is no evi-
dence that the Association or its membership authorized or approved, or were even
aware of, Falley 's individual actions, there is no basis upon which the other Respond-
ents can be held responsible for Falley's conduct. At worst, insofar as the Association
and its other members were concerned , even if it be assumed that Falley's statements
correctly represented his opinion or understanding of the Association 's policy, his
impressions were mistaken , and they cannot overcome the undisputed evidence of
the Association 's motive, as previously found.
The remaining evidence is not of substantial consequence . Harry's reference to
being "at war" is without weight as support for the General Counsel's contention, for
even at war, an employer is entitled to defend himself. Indeed , that is the basic
premise from which the Board and the courts start in appraising the legality of an
employer's countering action in a whipsaw strike situation.
Similarly, Butner's statement that the journeymen meatcutters might go hungry
seemed no more than his opinion or deduction of results to flow from reduction in the
work schedules . Furthermore , not only was association responsibility for such a state-
ment wholly lacking, but it is insufficient to establish that Butner 's motive individually
was retaliatory or discriminatory.
6 The question whether Falley ' s individually or "severally" engaged in an unfair labor
practice is considered tin/ra All other findings herein are made with specific relation to
the alternative complaint allegations that Respondents acted jointly as members of the
Association.
TOPEKA GROCERS MANAGEMENT ASSOCIATION, ETC. 945
The General Counsel also argues that by reducing hours of the journeymen while
working the head meatcutters extra hours, Respondents actually discriminated between
members of the Union, reasoning as follows:
Clearly by effecting the partial lockout in such a way, the Respondents meant
to cause dissension among their employees and thereby inhibit the strike action.
In short, the method by which the Respondents determined to continue opera-
tions shows that the partial lockout was for an unlawful rather than a salutary
purpose.
That argument is also answered by the Board's brief to the Supreme Court in Brown
Food in replying to the respondents' suggestion that retention of only some of the
nonstruck employer's regular employees "would force the employer to make an
inherently discriminatory selection as to which employees to lay off because of union
activities." The Board stated:
If all the non-struck employers' regular employees are union members, a layoff
of some of those employees, prompted not by anti-union considerations but by a
reduction in operations to the level of the struck employer, would not violate the
Act anymore than would a total layoff-which is permitted by the Truck Drivers
case. Nor would such a partial layoff be unlawful if some of the regular
employees of non-struck stores are not union members. So long as the employers
selected the employees to be laid off on the basis of objective factors, such as
seniority, and not on the basis of union membership or activity, no charge of
illegal discrimination could be made.
Here, with the exception of Falley's, there is no evidence of discrimination as
between union and nonunion members and no evidence that the Association's decision
and action was taken on the basis of factors other than objective ones.
Aside from my rejection of the General Counsel's theory of the case on the-fore-
going basis, it is to be further noted, and I hereby conclude and find, that Respondents'
affirmative evidence established economic justification for their action; i.e., they acted
to protect themselves from losses reasonably to be expected if caught with large
inventories of perishable meat products by further unannounced strikes.? Thereby
the case is also brought within the ambit of such decisions as Betts Cadillac Olds, Inc,
96 NLRB 268; Building Contractors Association of Rockford, Inc., 138 NLRB 1405;
and Tidewater Express Lines, Inc., 142 NLRB 1111, and I therefore conclude and find
further that the Association's action was a reasonable measure taken to protect against
economic loss.
I find no merit, however, to Respondents' further defense that the question of their
right to schedule meatcutters for less than 40 hours a week was one on which impasse
was reached during the bargaining negotiations and that it had also been the subject
of an earlier arbitration involving a former member of the Association. Though
those facts might have had some relevancy if Section 8(a) (5) issues were involved
(e.g., if Respondents were charged with a refusal to bargain by acting unilaterally),
they are without persuasive weight, in view of the stipulated facts, on the issue whether
Respondents' action was defensively taken.
In sum, absolving the Association and its other members from responsibility for
Falley's statements and conduct, I conclude and find that the evidence does not estab-
lish the complaint allegation that those Respondents, either jointly or severally,
engaged in unfair labor practices by reducing the work schedules of the meatcutters.
Turning now to the issue whether Falley's individual conduct "severally" violated
the Act (see footnote 6, supra), the facts as found under section A, supra, plainly
established that Falley's action as announced to the employees and as later imple-
mented was both retaliatory and discriminatory. Indeed, Falley explicitly informed
the employees that the reduction in hours was retaliatory action because the Union had
7 Though at first blush the reduction in work schedules would appear to augment the
danger of an increased inventory of unprocessed meats through lack of adequate per-
sonnel, the following facts negative the validity of that assumption:
The arrangement involved increasing the hours of the head meatcutters, who were
responsible for the buying of meats and for running their departments and who took up
much of the "slack" by working extra hours.
Dibble directed his head meatcutter to order no more than could be processed- under
the new schedule, and the head meatcutters at Falley's and Butner' s ordered less meat
than usual with the result that normal inventories were substantially reduced. Though
at Harry's, there was at times a temporary "piling up," the head meatcutter was able to
process all the meat by working extra hours.
After the first week of the strike the work schedules were increased because the com-
panies found that they could not operate satisfactorily on 2 days a week per employee.
C
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struck Sutton's, and he followed through by confining the reduction of hours to mem-
bers of the Union , exempting two nonmembers who worked during part of the strike
period at the meat plant.
I therefore conclude and find that Respondent Falley, acting individually and
severally , engaged in unfair labor practices proscribed by Section 8(a) (3) and (1) of
the Act by retaliating against members of the Union in reducing their hours of work
because the Union engaged in a strike of Sutton 's, another member of the Association.
IV. THE REMEDY
Having found that Respondent , Falley's Market, Inc ., engaged in certain unfair
labor practices , I shall recommend that it cease and desist therefrom and that it take
certain affirmative action of the type which is conventionally ordered in such cases, as
provided in the Recommended Order below, which I find necessary to remedy and to
remove the effects of the unfair labor practices and to effectuate the policies of the
Act. Because of the temporary nature and limited extent of the unfair labor practices
herein found, I shall recommend a narrow cease-and-desist order.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. By reducing the hours of work of its meatcutter employees because employees of
Sutton's, another member of the Association, had gone on strike, Respondent Falley's
Market, Inc., engaged in discrimination to discourage membership in the Union, and
thereby engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1) of
the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
3. Respondents , The Topeka Grocers Management Association , Harry's IGA Food
Center, Butner IGA Foodliner, Russ's Market, Dibble's Grocery Co., Dibble's Fair-
lawn Plaza, and Dibbles Holliday Square Supermarket , did not engage in unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act , I hereby recommend that the Respondent,
Falley's Market, Inc., its 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, AFL-CIO, Local Union 576, by reducing the hours of its
employees , or in any similar manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment because employees of other
members of The Topeka Grocers Management Association have gone on strike.
(b) In any like or similar manner interfering with, restraining , or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
said Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
Local Union 576, or any other labor organization, to bargain collectively through
representatives of their own choosing , or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all of such activities.
2. Take the following affirmative action which the Board finds will effectuate the
policies of the Act:
(a) Make whole Lois Zeferjohn, Bob Streeter, Bob Wilkinson, Ed Stark, Lin'Cook,
Norman Wells, B. Fox, Ward Huntsman, S. Cook, Carl Lyons, Harry Pruitt, Robert
Ball, Sig Roman, and Charles Wilson for any loss of pay they may have suffered by
payment to each of them of a sum of money equal to that which he would normally
have earned from February 21, 1964, to May 3, 1964, inclusive, by reason of the reduc-
tion of his hours of work during said period , less his net earnings during said period
(Crossett Lumber Company, 8 NLRB 440), said backpay to be computed on a quar-
terly basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289, together with interest thereon at the rate of 6 percent per annum, Isis
Plumbing & Heating Co., 138 NLRB 716.
(b) Preserve and , upon request , make available to the Board or its agents , for ex-
amination and copying , all payroll records, social security payment records, time-
cards, personnel records and'reports, and all other records necessary to analyze the
amount of backpay due under this Recommended Order.
0
TOPEKA GROCERS MANAGEMENT ASSOCIATION, ETC . 947
(c) Post in its offices and meat processing plant at Topeka, Kansas, copies of the
attached notice marked "Appendix A." S Copies of- said notice, to be furnished by
the Regional Director for Region 17, shall, after being signed by Respondents' repre-
sentative, be posted by Respondents immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondents to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 17, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondents has taken to comply
herewith.9
I recommend further that the complaint herein be dismissed as to Respondents, The
Topeka Grocers Management Association, Harry's IGA Food Center, Butner IGA
Foodliner,, Russ's Market, Dibble's Grocery Co., Dibble's Fairlawn Plaza, and Dibbles
Holliday Square Super Market.
8In 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."
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 "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, Local Union 576, or in any
othe labor organization, by reducing the hours of work of our employees or in
any (imilar manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment, because employees of other
members of The Topeka Grocers Management Association have gone on strike.
WE WILL NOT in any like or similar manner interfere with, restrain, or coerce
employees in the exercise of their right to self-organization, to form, join, or
assist said Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, Local Union 576, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
WE WILL make whole Lois Zeferjohn, Bob Strecter, Bob Wilkinson, Ed Stark,
Lin Cook, Norman Wells, B. Fox, Ward Huntsman, S. Cook, Carl Lyons, Harry
Puett, Robert Ball, Sig Roman, and Charles Wilson for any loss of pay they may
have suffered as a result of our discrimination against them.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization.
FALLEY'S MARKET, 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, 1200 Rialto
Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore
1-7000, Extension 731, if they have any question concerning this notice or compliance
with its provisions.