Albertsons, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 960 (N.L.R.B. 1993)

960
310 NLRB No. 158
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s finding that the Respondent did not vio-
late Sec. 8(a)(5) of the Act by excluding its bakery managers from
the coverage of the 1990–1993 collective-bargaining agreements, we
do not rely on the judge’s discussion of his ‘‘difficulties’’ with the
General Counsel’s theory of the case. Thus, we do not rely on the
judge’s queries as to why the General Counsel took the position that
the Respondent should bargain for the 14 bakery managers at the
front range stores, but not as to the managers at other stores. Rather,
we agree with the judge, for the reasons he cited, that the Respond-
ent took the unequivocal position—and, indeed, a legally correct po-
sition—from 1989 onwards that the bakery managers were statutory
supervisors and had excluded them from the contract’s coverage.
We also agree with the judge that Ed Hardy was an agent of the
Union notwithstanding the Union’s February 16, 1990 letter to the
Respondent asserting that Charles Mercer was the only person with
the authority to bargain for the Union or bind it to an agreement.
All Hardy’s actions were reviewed by Mercer, and neither Mercer
nor Hardy informed the Respondent that Hardy could not act for the
Union. Even assuming for argument’s sake that Hardy was not an
agent of the Union, we note that the result would be the same be-
cause Mercer approved all aspects of the 1990–1993 agreements.
Member Devaney finds it unnecessary to pass on the judge’s find-
ing that International Representative Ed Hardy was an agent of the
Union at the time he tentatively agreed with the Respondent’s bar-
gaining representative on the terms of what eventually became the
parties’ 1990–1993 agreement. It is undisputed that Union President
Mercer subsequently agreed to those terms on the Union’s behalf,
after specifically discussing with the Respondent’s representative,
among other things, the deletion of the bakery manager classification
from the agreement’s wage appendix.
Albertson’s, Incorporated and Robert Richardson
and Oren W. Sparks and United Food & Com-
mercial Workers Local 7. Cases 27–CA–11291,
27–CA–11611, 27–CA–11614, 27–CA–11742,
and 27–CA–11925
March 31, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 6, 1992, Administrative Law Judge
George Christensen issued the attached decision. The
Charging Party Union filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Albertson’s, Incorporated,
Colorado Springs, Colorado, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Michael J. Belo and Chet Blue Sky, Esqs., for the General
Counsel.
Michael B. Schwarzkopf and Laura Hamblin, Esqs., of Boise,
Idaho, for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On
September 18–20, 1991, I conducted a hearing at Denver,
Colorado, to try issues raised by complaints issued in the
subject cases and consolidated for hearing and decision by an
August 30, 1991 order issued by the Regional Director for
Region 27.
Prior to the close of the hearing, Oren W. Sparks, counsel
for the General Counsel and counsel for Albertson’s, Incor-
porated (Respondent) reached a settlement resolving the
issues raised by the complaint issued in Case 27–CA–11825,
and I approved the settlement. A copy of the settlement
agreement is attached as Appendix A.
The three Richardson charges were filed with Region 27
on April 23, 1990, and February 20 and May 29, 1991, re-
spectively. The resulting complaints, amendments thereto,
and the order consolidating the three cases were issued on
April 4, 9, and 30, July 10, and August 30, 1991.
The charge in Case 27–CA–11614 was filed by United
Food & Commercial Workers Local 7 (Local 7) on February
22, 1991, a complaint based on that charge issued on April
9, 1991, and the case was consolidated with the others by
virtue of the August 30, 1991 order.
The Richardson complaints allege that the Respondent vio-
lated Section 8(a)(1) of the National Labor Relations Act (the
Act) by advising Richardson on or about April 4, 1990, that
he would not be considered for promotion to a bakery man-
ager position, because he successfully processed a grievance
through arbitration against the Respondent; violated Section
8(a)(1) and (3) of the Act by refusing to accord Richardson
normal consideration for promotion to a bakery manager po-
sition on or about February 11, 1991; and violated Section
8(a)(1), (3), and (4) of the Act by disciplining Richardson on
or about April 24, May 23 and 25, and June 1 and 16, 1991,
because he filed the charges and gave the Region information
concerning their merits in Cases 27–CA–11291 and 27–CA–
11611.
The Local 7 complaint alleges the Respondent violated
Section 8(a)(1) and (5) of the Act by refusing to include bak-
ery managers within units of the Respondent’s employees
represented by Local 7, refusing to recognize Local 7 as the
exclusive collective-bargaining representative of those bakery
managers, refusing to include the classification of bakery
manager and provisions concerning the wages, hours, and
working conditions of bakery managers in collective-bar-
gaining agreements between the Respondent and Local 7,
and effecting unilateral changes in the wages and working
conditions of bakery managers following the execution of
collective-bargaining agreements between Local 7 and the
Respondent in 1990.
The Respondent denied the alleged April 4, 1990 advice
was given; denied it refused to consider Richardson for pro-
motion because of his successful grievance processing, con-
tending others were promoted as better qualified; denied it
disciplined Richardson because he filed charges with the Re-
961ALBERTSON’S, INC.
1 Although every apparent or nonapparent conflict in the evidence
has not been specifically resolved below, my findings are based on
my examination of the entire record, my observation of the wit-
nesses’ demeanor while testifying, and my evaluation of the reli-
ability of their testimony; therefore, any testimony in the record
which is inconsistent with my findings is discredited.
2 In a ‘‘scratch’’ bakery, all preparation of the products sold at the
store was accomplished by the bakers employed there, from mixing
the basic ingredients to applying the final glaze or icing and decora-
tion.
3 At a ‘‘bake-off’’ bakery, preparation of the baked goods sold at
the store was prepared off the premises, with the final baking proc-
ess and decoration accomplished at the store.
4 The sales functions within the bakery were performed by clerks
represented by Local 7.
gion and gave the Region information in support thereof,
contending he was disciplined for cause; and denied violating
the Act.
The Respondent denied it violated the Act by its conduct
vis-a-vis bakery managers in stores wherein it recognized
Local 7 as the exclusive collective-bargaining representative
of units of its employees and was party to collective-bar-
gaining agreements covering the wages, hours, and working
conditions of its employees within those units, contending its
1990 agreements with Local 7 properly excluded bakery
managers from inclusion within the units covered by those
agreements, representation by Local 7, and coverage under
the agreements.
The issues created by the foregoing are whether:
1. On or about April 4, 1990, the Respondent advised
Richardson he would not be considered for promotion to a
bakery manager position because of his successful processing
of a grievance against the Respondent and, if so, thereby vio-
lated Section 8(a)(1) of the Act.
2. On or about February 11, 1991, the Respondent refused
to accord Richardson normal consideration for promotion to
a bakery manager’s position and, if so, thereby violated Sec-
tion 8(a)(1) and (3) of the Act.
3. On or about April 24, May 23 and 25, and June 1 and
16, 1991, the Respondent disciplined Richardson because he
filed charges in Cases 27–CA–11291 and 27–CA–11611 and,
if so, thereby violated Section 8(a)(1), (3), and (4) of the
Act.
4. The Respondent violated Section 8(a)(1) and (5) of the
Act by refusing to recognize and bargain with Local 7 as the
exclusive collective-bargaining representative of bakery man-
agers at stores which employed bakery managers and Local
7 was recognized by the Respondent as the exclusive collec-
tive-bargaining representative of employee units and the unit
employees were covered by collective-bargaining agreements
between the Respondent and Local 7.
Counsel were afforded full opportunity to adduce evi-
dence, examine and cross-examine witnesses, argue, and file
briefs. Counsel for the General Counsel filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs, and research, I enter the
following
FINDINGS OF FACT1
I. JURISDICTION AND LABOR ORGANIZATION
The pertinent complaints alleged and the Respondent in its
answers thereto admitted at all relevant times the Respondent
was an employer engaged in commerce in a business affect-
ing commerce and Local 7 was a labor organization within
the meaning of the Act. The pertinent complaints also al-
leged and the Respondent in its answers thereto also admitted
at all relevant times Bakery, Confectionery & Tobacco
Workers Local 26 (Local 26) was a labor organization within
the meaning of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background (The Richardson Cases)
The Respondent hired Richardson in November 1981 at
store 858 in Colorado Springs, Colorado, as a part-time ap-
prentice baker. His wages, hours, and working conditions
were governed by a collective-bargaining agreement between
Local 26 and the Respondent. The bakery at store 858 was
a ‘‘scratch’’ bakery at that time.2 In November 1982, he
began to work full time as a baker and in December 1982
he was discharged for alleged poor work performance.
Local 26 filed and processed a grievance through arbitra-
tion on Robertson’s behalf, contending it was unfair for the
Respondent to discharge Richardson because it was unfair of
the Respondent to expect journeyman baker performance
from him in view of the insufficient training he received.
The arbitrator sustained the grievance and ordered the Re-
spondent to reinstate Robertson and make him whole for lost
wages and benefits.
While the grievance was pending final resolution, the Re-
spondent converted the bakery at store 858 to a ‘‘bake-off’’
bakery.3 On issuance of the arbitration decision, the Re-
spondent refused to reinstate Richardson to his former em-
ployment at store 858, contending the bakery work force had
been reduced to one baker as a result of the conversion,
Local 26 had agreed the Respondent could retain whatever
baker it wished in the single remaining position, and it chose
one of the bakers at the store at the time of the conversion.4
Local 26 took the dispute back to the arbitrator for a com-
pliance ruling, contending it had not agreed the Respondent
could choose whomever it please to remain on the job at
store 858 and Richardson’s restored seniority under the
award entitled him to reinstatement under the seniority provi-
sion of the Local 26-Respondent agreement.
The arbitrator agreed and directed Richardson’s reinstate-
ment. He was subsequently reinstated as the sole baker cov-
ered by the Local 26-Respondent agreement at store 858 in
1984. Local 26 subsequently prevailed in a second compli-
ance proceeding before the arbitrator over the amount of
backpay and fund contributions owed to and on behalf of
Richardson.
Richardson remained in the Respondent’s employ as the
sole baker at store 858 through March 1990 and was unsuc-
cessful in the interim in securing promotion to the position
of bakery manager, for which he applied on three separate
occasions (in 1987, 1988, and 1989).
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The pertinent complaint alleged, the Respondent’s answer thereto
admitted, and I find at all relevant times Hansen was a supervisor
and agent of the Respondent acting on its behalf within the meaning
of Sec. 2 of the Act.
6 Kahn informed Hansen that Owens was currently working for a
competitor of the Respondent’s in the area as a bakery manager and
was eager to return to the Respondent’s employ. (Owens previously
was employed by the Respondent as a bakery manager.)
7 The bakery at store 877 was a ‘‘scratch’’ bakery.
8 Tardiness; reluctant compliance with a Respondent policy against
facial hair, requiring a repeated request for compliance therewith;
and store 858 bakery manager’s complaints that his work was sub-
standard.
9 Hansen did not have authority to fill the vacancy until he secured
the approval of his immediate superior, the district bakery manager,
as well as the vice president in charge of the district.
10 The date of the interviews (as well as what was said) was dis-
puted. Hansen testified both interviews took place on March 20.
Richardson testified his interview took place sometime between
March 1–15 (explaining he was hazy about dates in stating it took
place on April 4 in his pretrial affidavit). Cake Decorator and Local
26 Job Steward Joyce Stellick testified she overheard portions of the
Richardson interview while at work on March 14; her testimony is
supported by diary entries she made following the interview. I credit
her testimony and diary entry concerning the date of the interview.
She was an unequivocal and convincing witness. It is unlikely, as
Hansen testified, he could interview both men on March 20, check
the references received that date, and secure the approval of the hire
by the wee hours of the next morning (March 21), when Owens con-
tacted Stellick, informed her he was the new bakery manager at store
877, and requested her early arrival at store 877 for cake decoration.
11 I find Campbell was a supervisor and agent of the Respondent
acting on its behalf within the meaning of Sec. 2 of the Act.
B. The Alleged Unlawful Statement and
Promotion Refusal
The Alleged April 4, 1990 Unlawful Statement
to Richardson
The applicable complaint alleges the Respondent violated
Section 8(a)(1) of the Act on or about April 4, 1990, by As-
sistant District Bakery Manager Rick Hansen’s5 advising
Richardson he would not be considered for promotion to a
bakery manager’s position because he prevailed in the 1982–
1985 grievance-arbitration proceedings described above.
A vacancy in a bakery manager position at store 877 in
Colorado Springs arose in March 1990, when the incumbent
bakery manager left the Respondent’s employ.
Hansen contacted bakery managers in the Colorado
Springs area and asked them to advise him of any candidates
they recommended for the job, and asked them to contact the
employees in their bakeries to see if they had any rec-
ommendations. Joan Kahn, bakery manager at store 828, rec-
ommended a former employee named Jerry Owens.6
Learning of the vacancy, Richardson also contacted Han-
sen and expressed his interest in securing it.
Hansen scheduled interviews with both Owens and Rich-
ardson at store 877, where he was filling in as bakery man-
ager while seeking a replacement for the departed bakery
manager.
At the Owens’ interview, Hansen questioned Owens about
his background and experience, his familiarity with the nec-
essary bookwork, inventory controls, etc., and his ability to
operate a ‘‘scratch’’ bakery,7 including performance of all
the tasks required to produce finished products. Owens in-
formed Hansen he left the Respondent’s employ because the
store at which he was employed was converted from a
scratch bakery to a bake-off bakery, and he wasn’t happy
over the reduction in his job to a simple final baking process.
Owens also supplied Hansen with the names of two man-
agers he had worked for, for reference purposes.
At the Richardson interview, Hansen asked Richardson if
he felt qualified to undertake the managerial responsibilities
of the job and Richardson recited his military background
and supervisorial responsibilities he exercised in his military
career. Hansen informed Richardson he might encounter
some personnel problems at the store and asked Richardson
if he could cope with that; Richardson assured him he could.
Hansen expressed reservations about Richardson’s qualifica-
tions for the job, stating he had experienced problems with
Richardson. Richardson referred to his earlier grievance-arbi-
tration dispute over his discharge. Hansen disclaimed that
was one of problems he was referring to,8 but nevertheless
asked Richardson the reason for the discharge, to which
Richardson responded he was discharged for deficient work
performance. Shortly before the end of the interview, Hansen
commented he doubted he could get Richardson the job, in
any event, in view of Richardson’s previous actions against
the Respondent.9
Following the interviews, Hansen contacted the two man-
agers given as references by Owens and Richardson’s bakery
manager. The managers for whom Owens worked gave him
high marks; Richardson’s bakery manager was negative.
Hansen felt Owens was the better qualified candidate, con-
tacted his two superiors, and recommended Owens be hired.
His recommendation was accepted, Owens was offered the
job and accepted. He commenced work the morning of
March 21, 1990.10
C. The Alleged February 11, 1991 Unlawful Refusal to
Promote Richardson
The applicable complaint alleges the Respondent violated
Section 8(a)(1) and (3) of the Act on or about February 11,
1991, by refusing to accord Richardson normal consideration
for promotion to bakery manager at store 877, because he
prevailed in the 1982–1985 grievance-arbitration proceedings
described above.
The bakery manager position at store 877 again became
vacant in December 1990. At that time, the assistant district
bakery manager was Pat Campbell,11 who succeeded Hansen
in August 1990, on Hansen’s promotion and transfer to an-
other district. Campbell essentially followed the same proce-
dures Hansen employed in seeking a replacement, calling the
bakery managers in the district and asking them to advise
him of any candidates they could recommend and to contact
the employees in their bakeries to see if they had any rec-
ommendations. The manager of store 835, Pat Patterson, a
bakery with a high sales volume, recommended her second
baker, Keith Robinson. Campbell received expressions of in-
terest in the job from Stellick, another cake decorator, and
Richardson.
Campbell felt the two cake decorators were unqualified for
the job, since the store 877 bakery was a scratch bakery and
he expected the bakery manager to manage the bakery and
to mix, bake, and glaze or ice bakery products.
963ALBERTSON’S, INC.
12 The complaint alleged, the Respondent in its answer thereto ad-
mitted, and I find at all pertinent times Hildebrand and Calu were
supervisors and agents of the Respondent acting on its behalf within
the meaning of Sec. 2 of the Act.
13 On December 4, 1990, Hildebrand and Calu gave a written dis-
ciplinary warning to Richardson over the poor quality of his work,
necessitating their throwing away as unsaleable a quantity of donuts,
apple fritters, long johns, and cinnamon rolls improperly mixed
and/or baked and/or iced or glazed. On January 11, 1991, Hildebrand
and Calu gave Richardson a second written disciplinary warning,
over the continued poor quality of his work, during the preceding
week, necessitating their throwing away a double batch of chocolate
chip cookies (160 dozen), 120 dozen donuts, a double batch of choc-
olate cakes (216), 15 pounds of hard rolls, and a quantity of cin-
namon bread which was stuck to the baking pans, because they were
ungreased, a total product value of $601.68.
14 Meyers Industries, 281 NLRB 882 (1987), affd. sub nom. Prill
v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988). Also see Ewing v. NLRB, 861 F.2d 353 (2d Cir. 1988).
15 Ford Motor Co., 266 NLRB 633 (1983).
16 Keeler Brass Co., 262 NLRB 180 (1982), affd. 719 F.2d 847
(6th Cir. 1983).
17 United Exposition Service, 300 NLRB 211 (1990), enfd. 945
F.2d 1057 (8th Cir. 1991).
18 I make no findings or conclusions concerning whether the Re-
spondent’s failure or refusal to offer the position to Richardson was
discriminatorily motivated, inasmuch as the complaint does not so
allege and the General Counsel does not so argue. Were I to do so,
I would find and conclude the evidence fails to establish the Re-
spondent, by Hansen and his superiors, were discriminatorily moti-
vated in choosing Owens over Richardson.
Campbell was acquainted with Richardson and his work
products. Store 858, where Richardson was employed, was
undergoing remodeling in November and December 1990.
During that time, Campbell spent considerable time at store
858, training Richardson and others in making French bread,
donuts, cinnamon rolls, etc. from scratch, because he was
dissatisfied with the quality of the baked goods produced
there and the low profitability of the bakery operation prior
to the remodeling. He observed that although the quality of
the bakery products improved for a short period after com-
pletion of the remodeling, it soon deteriorated. Two days
after the December opening, for example, he removed all the
donuts from a showcase on observing their poor quality,
learned they had been prepared by Richardson, and had the
donuts redone. He also had been receiving complaints from
Patrick Hildebrand, store 858’s store manager, and Kari
Calu, store 858’s bakery manager,12 concerning the poor
quality of Richardson’s work,13 which prompted his address-
ing a memorandum to Hildebrand on January 31, 1991, stat-
ing Richardson supposedly was a journeyman baker and, un-
less his work improved, he should be suspended and possibly
discharged. For these reasons, he did not seriously consider
Richardson for the bakery manager opening at store 877.
Campbell was not acquainted with Robinson’s work. He
and the district bakery manager went to store 835, inspected
Robinson’s work, and found it of high quality. They also
questioned Robinson concerning his background and learned
he previously managed all aspects of food preparation, in-
cluding baking, at a first class hotel and was familiar with
all aspects of a bakery operation. The two decided to rec-
ommend Robinson for the vacancy to the Respondent’s re-
gional vice president, and did so. The vice president accepted
their recommendation, Robinson was offered the job, and ac-
cepted.
There is no evidence Campbell was aware of Richardson’s
1982–1985 grievance-arbitration disputes, and Richardson
testified he attributed Campbell’s failure to offer him the job
to probable Hildebrand’s and Calu’s negative recommenda-
tions.
D. Analysis and Conclusions Concerning the Hansen
Statement to Richardson’s and Campbell’s Refusal to
Promote Richardson
The Supreme Court’s decision in NLRB v. City Disposal
Systems, 465 U.S. 822 (1984), and the Board’s Meyers II de-
cision14 established the principle that an employer’s threat of
retaliation and/or retaliation against an employee for resort-
ing to the grievance-arbitration provisions of a collective-bar-
gaining agreement over the employer’s perceived violation of
that agreement constitutes a violation of Section 8(a)(1) and
(3) of the Act.
Both prior and subsequent to the issuance of those deci-
sions, the Board and reviewing courts have held an employ-
er’s threat to deny promotion to employees as well as the de-
nial thereof, because the employees resorted to the grievance-
arbitration provisions of a collective-bargaining agreement
between the union representing the employees and their em-
ployer over a perceived violation of the agreement, violates
Section 8(a)(1) and (3) of the Act;15 an employer’s refusal
to afford an employee the opportunity to serve in a higher
position because he supported a union organizational cam-
paign violates the same sections of the Act;16 and an em-
ployer’s refusal to appoint an employee as a supervisor on
out-of-town assignments, as it had in the past, because he en-
gaged in picketing activities during a strike called by the
union representing him against the employer, violates the
same sections of the Act.17
Certainly Hansen’s injudicious remark to Richardson on
March 14, 1990, to the effect he doubted he could get Rich-
ardson the job of bakery manager in view of his successful
invocation of the grievance-arbitration provisions of the
agreement between Local 26 and the Respondent (were he to
recommend Richardson for the job), conveyed to Richardson
the message his successful invocation of the agreement pro-
visions would prevent Hansen’s securing approval from his
superiors to the promotion, in the event he recommended
Richardson’s promotion to the store 877 bakery manager po-
sition. That message constitutes employer discouragement of
employee resort to such invocation. (See cases cited above.)
Thus, although the record establishes, and I find and con-
clude, Hansen chose Owens rather than Richardson for the
position because he believed Owens was the better qualified
candidate and there is no evidence the Hansen recommenda-
tion of Owens for the job nor the approval of his rec-
ommendation by his superiors was based either in whole or
in part on Richardson’s successful invocation of the agree-
ment’s grievance-arbitration provisions, I nevertheless find
by conveying to Richardson the message recited above, the
Respondent violated Section 8(a)(1) of the Act.18
With respect to the February 1991 failure to promote
Richardson, there is a complete failure of proof by the Gen-
eral Counsel that the Respondent was discriminatorily moti-
vated. It was never established Campbell was aware Richard-
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved NLRB v. Transportation
Management Corp., 462 U.S. 1302 (1984).
20 Calu’s testimony she regularly followed the practice of
photographing poor quality baked goods in support of disciplinary
warnings of all the bakers was also unrefuted and is credited.
21 Nor was any evidence introduced either Richardson or Local 26
processed a grievance under the Respondent-Local 26 collective-bar-
gaining agreements over the six disciplines.
son successfully processed his grievances through arbitration
under the applicable collective-bargaining agreement in
1982–1985, much less that Campbell was motivated by that
success when he recommended Robinson over Richardson
for the job.
I rather find and conclude that the evidence establishes
that Campbell chose Robinson over Richardson, because he
believed Robinson was better qualified.
On the basis that the General Counsel failed to meet his
burden of proof and the additional ground (under Wright
Line)19 that the Respondent affirmatively proved it would not
have promoted Richardson to the vacancy irregardless of
Richardson’s successful prosecution of his 1982–1985 griev-
ances, I shall recommend dismissal of those portions of the
complaint alleging by its failure or refusal to offer Richard-
son a promotion to bakery manager of store 877, in February
1991, the Respondent violated Section 8(a)(1) and (3) of the
Act.
E. The Allegedly Unlawful Disciplinary Actions
Against Richardson
1. The allegedly unlawful April 24 discipline
The applicable complaint alleges the Respondent violated
Section 8(a)(1) and (4) of the Act by disciplining Richardson
on April 24, 1991, because he filed charges with the Region
on April 23, 1990, and February 20, 1991, in Cases 27–CA–
11291 and 27–CA–11611, alleging the Respondent violated
the Act by Hansen’s March 14, 1990 statement and Camp-
bell’s failure to promote him in February 1991 and the fact
that he gave statements to the Region in support of those
charges.
It is undisputed Richardson filed the charges in question
in April 1990 and February 1991 and supported them with
pretrial affidavits dated April 27 and May 30, 1990, and Feb-
ruary 28, May 3, and June 21, 1991 (given to the Region).
a. Disciplines preceding the April 24 discipline
Prior to the April 24, 1991 discipline, two written, discipli-
nary warnings were given to Richardson by Store 858 Man-
ager Patrick Hildebrand and Bakery Manager Kari Calu (on
December 4, 1990, and January 11, 1991) and have been de-
scribed above. Both were issued subsequent to the times
Richardson filed his charges with the Region concerning the
Hansen statement and Campbell’s decision regarding Rich-
ardson’s promotion.
In both cases, the warnings were issued for producing
unsaleable baked goods of substantial value, which had to be
discarded as complete losses.
In both cases, photographic evidence established the poor
quality of the donuts, cinnamon rolls, long johns, apple frit-
ters, chocolate chip cookies, chocolate cake, hardrolls, and
cinnamon bread and provided convincing support to
Hildebrand’s and Calu’s testimony to their unsaleability.
Calu’s testimony that Richardson was the sole preparer of the
items in question was not refuted, and is credited.
Four more written, disciplinary warnings were given to
Richardson, including a 1-day suspension, over the poor
quality of his work, between the times he filed his charges
with the Region over his promotion denials and the issuance
of the April 24, 1991 written, disciplinary warning the Gen-
eral Counsel alleges was issued in retaliation for Richard-
son’s filing of the charges.
On February 26, 1991, Hildebrand and Calu gave Richard-
son a warning for ruining a batch of banana bread (108
loaves) with a retail value of $107 on February 9, 1991; ru-
ining 36 pudding cakes on February 10, 1991, valued at $60;
ruining 16 pans of brownies on February 23, 1991, valued
at $382 plus a half batch of chocolate chip cookies valued
at $118; and ruining 5 pans of cinnamon rolls and a large
batch of chocolate chip cookies on February 24, 1991, valued
at $237, all of which had to be thrown out as unsaleable.
On March 3, 1991, Hildebrand and Calu, in the presence
of Assistant Manager Patty Curry and Local 26 Job Steward
Stellick, gave Richardson a warning and a 1-day suspension
for his faulty mixing and baking of 100 lemon meringue
pies. Sixty-Seven of the pies had to be thrown out as
unsaleable and 31 sold at a heavily discounted price.
On March 29, 1991, Hildebrand and Calu gave Richardson
a warning for underbaking angel food cakes valued at $119,
which had to be thrown out as unsaleable.
On April 22, 1991, Hildebrand and Calu, again in the
presence of Curry and Stellick, gave Richardson a warning
for taking items from the customer sales area for use in the
bakery without following the required procedure of recording
the removal.
In all six instances recited above, the testimony of
Hildebrand and Calu that Richardson was the baker solely re-
sponsible for preparation of the bakery goods in question and
Curry’s testimony that Richardson removed the items from
the sales area without recording the removal was unrefuted,
supported by photographic evidence,20 and is credited.
In apparent concession all six of the written, disciplinary
warnings just described were issued for cause, the General
Counsel neither in the complaint nor argument contended the
six warnings were issued in retaliation for Richardson’s fil-
ing of his April 1990 and February 1991 charges with the
Region over Hansen’s statement and Campbell’s failure to
promote him.21
b. The April 24 discipline
A written disciplinary warning dated April 22, 1991, was
issued by Hildebrand, in the presence of Calu, Assistant
Manager Curry, Local 26, and Steward Stellick. The warning
stated Richardson was suspended for 3 days for: (1) baking
chocolate chip cookies, valued at $194, too hard, rendering
them unsaleable, on April 19, 1991; (2) on April 20, 1991,
improperly mixing a batch of angel food cake valued at
$179, so the cakes were underbaked when placed in the
oven, and fell on removal from the oven; (3) again ruining
a batch of angel food cake valued at $194 on April 22, 1991;
(4) burning 1 pan of cinnamon rolls and improperly mixing
batches for 40 bags of chocolate chip cookies on the latter
965ALBERTSON’S, INC.
22 During this period, Hildebrand also issued a written, disciplinary
warning to Calu over the fact the bakery sales and profitability of
store 858 had declined to a level below any other store in the dis-
trict, due to the high rate of baked goods which had to be thrown
away rather than sold.
23 On November 30, 1984, Richardson signed a copy of the docu-
ment acknowledging he received and read a copy of the document,
understood what it meant, agreed to comply with its terms, and un-
derstood his failure to comply was cause for discipline, up to and
including discharge.
24 The shoes were manufactured by L. A. Gear and were air-cush-
ioned.
25 As noted above, however, Richardson signed a copy of the per-
sonnel policies containing the dress code.
26 Hildebrand issued similar instructions to other employees; they
all complied, wearing shoes meeting the code requirements there-
after.
27 Richardson recently purchased the L. A. Gear shoes; prior to
their purchase, he wore black, leather walking shoes, which con-
formed with the code.
date; all of which were unsaleable and had to be thrown
away.22
Richardson claimed the angel food cake mix was too old
and caused the cakes to be unsaleable. Calu and Hildebrand
checked the date on the package containing the mix and
found the mix was currently useable.
Richard also claimed after he mixed the angel food cake
batter, someone else placed the cakes in the oven, and re-
moved them, so he was not responsible for their condition.
In his pretrial affidavit, however, he stated he placed the
cakes in the oven but did not remove them. Calu testified
Richardson mixed the cakes, placed them in the oven, and
removed them; she inspected the cakes after their removal,
saw they had fallen, and showed them to Hildebrand.
Richardson also denied ruining the chocolate chip cookies,
claiming someone else prepared the mix, he simply placed
the mix on baking pans, but did not bake them, someone else
baked them. Calu testified Richardson mixed the cookies,
placed them in the oven, and removed them from the oven;
she inspected them and showed them to Hildebrand.
Richardson conceded burning the cinnamon rolls.
It is undisputed the chocolate chip cookies, angel food
cakes, and cinnamon rolls were ruined and unsaleable. The
only question is whether Richardson was responsible there-
for. I find he was; Calu impressed me as an honest, reliable
witness, and I credit her testimony.
No evidence was submitted that either Richardson or
Local 26 filed or processed a grievance over the April 22,
1991 warning and suspension.
c. The May 21 discipline
On May 21, 1991, Hildebrand, in Calu’s presence, gave
Richardson his eighth written, disciplinary notice for faulty
preparation of $179 worth of donuts, which were unsaleable
and had to be thrown away.
Again the General Counsel neither in the complaint nor in
argument contested that the discipline was for other than
cause and there was no evidence Richardson or Local 26
filed and processed a grievance over the discipline.
2. The allegedly unlawful May 23 and 25 and June 1
and 16 disciplines
a. Background
The complaint alleges the Respondent violated the Act by
issuing a verbal warning to Richardson on May 23, a written,
disciplinary warning and suspension on May 25, another
written, disciplinary warning on June 1, and a suspension on
June 16, 1991, because he filed charges with the Region and
support therefor.
About May 20, 1991, Hildebrand attended a meeting with
the Respondent’s district manager at which the district man-
ager distributed a 20-item checklist of problems he observed
in stores within the district, stated he was tired of talking
about the items listed, and told the attending store managers
to correct the listed items or they risked loss of their jobs.
Item 8. was ‘‘Dress code—total store—time is up!’’ The
reference was to II of a document distributed to all the Re-
spondent’s employees under the title, ‘‘Albertson’s Company
Personnel Policies.’’23 The section in question read as fol-
lows:
II. DRESS AND APPEARANCE. Albertson’s re-
quires their employees to maintain the highest standards
of personal cleanliness and grooming. The following
specific standards should be observed:
1. FOR MEN.
. . . .
b. Clean shave. No beards or chin whiskers . . . .
. . . .
g. Shoes shined and in good condition. No sneakers,
boots or sandals.
On returning to store 858, Hildebrand conducted a meeting
of his department heads. In the course of the meeting,
Hildebrand recited the admonitions he received at the district
meeting, his threat of dismissal if he did not secure compli-
ance with the 20 items on the checklist, and instructed the
department heads to ensure that they and the employees in
their departments complied with each item. He also posted
copies of the personnel policies adjacent to employee time-
clocks in the store.
The dress code previously was posted in the employees’
breakroom.
On May 21, 1991, Hildebrand observed Richardson wear-
ing a pair of red, white, and black walking or jogging shoes,
with what appeared to be red gills on the sides. He told
Richardson that the shoes in question24 did not comply with
the Respondent’s dress code. Richardson claimed he was un-
aware of the policy.25 Hildebrand insisted that he cease
wearing the shoes in question in the future.26
Richardson was not scheduled to work on May 22, 1991.
b. The May 23 discipline
When he reported for work on May 23, 1991, Richardson
wore the L. A. Gear shoes. Seeing the shoes, Hildebrand re-
peated his earlier statement that the shoes did not conform
with the Respondent’s dress code. Richardson responded he
had shin splints and had to wear the shoes in question.27
Hildebrand stated if Richardson’s feet were that bad, he
ought to contact a foot doctor and have the doctor rec-
ommend shoes which would conform to the Respondent’s
dress code. Richardson stated he went through this once be-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Richardson testified he wore similar shoes in 1988 and when the
store manager objected, he secured a doctor’s certification that he
had to wear the shoes in question due to his shin splints and was
permitted to wear them. He testified the certification was on file.
29 Richardson owned and operated a donut shop in Colorado
Springs, in addition to his full-time employment by the Respondent.
30 Stellick, among other bakery workers, was assigned extra duties
due to Richardson’s absence.
fore with a prior manager.28 Hildebrand responded he did not
care what a prior manager did, he was not going to permit
any departures from the Respondent’s footwear policy. Rich-
ardson ended the conversation with the observation that he
would just call in sick.
c. The May 25 discipline
When Richardson reported for work on May 25, 1991, he
again wore his L. A. Gear shoes. Hildebrand, in the presence
of Calu and Stellick, informed Richardson it was the third
time he observed Richardson wearing shoes which did not
conform to the Respondent’s dress code, despite two pre-
vious instructions to wear shoes which conformed thereto;
that he already warned Richardson twice to cease violating
the dress code; and instructed Richardson to clock out and
not return to work until he was wearing footgear which com-
plied with the code. Hildebrand also instructed Richardson to
shave off his goatee, because this too was a violation of the
dress code. Initially Richardson refused to clock out, but did
so when Hildebrand informed him he would be discharged
for insubordination if he did not.
Richardson was not scheduled to work on May 26 and 27,
scheduled to work on May 28, not scheduled to work on
May 29, and scheduled to work on May 30 and 31 and June
1, 1991; but neither reported for work nor telephoned the
reason for his absence on any of those dates.
On May 30, 1991, Hildebrand telephoned Richardson’s
home and shop.29 On each occasion he was advised Richard-
son was not available and left messages requesting that Rich-
ardson telephone him.
On May 31, 1991, Calu’s assistant, Jacqueline Johnson,
advised Hildebrand she telephoned Richardson’s home and
shop, reaching him at the latter location, and asked him when
he was returning to work; he replied that he was not return-
ing to work unless he was permitted to wear his L. A. Gear
shoes, 3 years previously he secured and tendered a doctor’s
certification that he had to wear such shoes, his wearing of
those shoes was approved, and this was in his file; that she
checked his file and did not find any such documents therein;
and that she requested he secure a current recommendation
from his doctor for shoes which would conform to the Re-
spondent’s dress code.
Hildebrand called Richardson’s shop the same day and
talked to Richardson. He asked Richardson if he was coming
back to work. Richardson replied he was not coming back
unless he could wear his L. A. Gear shoes, stating the store
manager 3 years previously permitted him to wear such
shoes after he brought in a doctor’s certification that he
needed to wear such shoes, and that this was in his file.
Hildebrand requested he secure shoes which met the Re-
spondent’s footwear requirements.
d. The June 1 threat of discipline
On June 1, 1991, Hildebrand wrote and mailed a letter to
Richardson wherein he stated: (1) Richardson failed to report
for scheduled work between May 28 and June 1, 1991; (2)
Richardson failed to call in prior to the beginning of his
work schedule each of those dates; (3) he telephoned Rich-
ardson several times during that period, left messages re-
questing Richardson to return his calls, but Richardson failed
to do so; (4) on May 31, 1991, Richardson informed him he
was not going to return to work unless he wore shoes which
did not conform to the Respondent’s dress code and that 3
years previously he had secured a doctor’s certification that
he had to wear nonconforming shoes; that previously Rich-
ardson had been wearing shoes which conformed to the Re-
spondent’s dress code but currently persisted in wearing non-
conforming shoes; (5) he was not going to permit the
change; (6) he was requesting Richardson to see his doctor
and have his doctor recommend shoes which conformed to
the Respondent’s dress code and to have his doctor telephone
him if he had any questions concerning what shoes would
comply therewith; and (7) unless Richardson contacted him
within 10 days, he would be disciplined.
On June 6, 1991, Richardson telephoned Hildebrand and
said he was going to secure shoes which conformed to the
Respondent’s dress code.
On June 9, 1991, Richardson returned to work wearing
black, leather shoes which conformed to the Respondent’s
dress code, and continued to wear those shoes while at work
until June 15, 1991, when he appeared for work again wear-
ing his L. A. Gear shoes.
e. The June 16 discipline
On June 15, 1991, Hildebrand, in Calu’s presence, gave
Richardson a written, warning notice stating for the fourth
time Richardson reported for work wearing shoes which did
not conform to the Respondent’s dress code, despite his re-
ceipt of three warnings not to do so and instructed him to
cease work and not to return to work until he reported for
work wearing shoes which conformed to the Respondent’s
dress code.
Richardson’s next scheduled workday was June 20, 1991,
between 2 and 11 a.m. The evening of June 19, 1991, Rich-
ardson telephoned Jim Schohn to advise him that he was un-
able to come to work on June 20 because his foot problem
was worse than he and the doctor thought it was and he
needed X-rays to determine the extent of the problem.
Schohn reported he asked Richardson if he secured from his
doctor a medical excuse for not reporting for work, and
Richardson stated he had not, but still was not coming in.
Local 26 Job Steward Stellick advised Hildebrand she
went to Richardson’s donut shop to find out if he was com-
ing to work on June 20, 1991, because she would have to
change prior plans if he was not going to work.30 Stellick
stated Richardson said he was not allowed to work as long
as he wore his L. A. Gear shoes and he could not work if
he couldn’t wear them to work or his feet would hurt, so
until the question of his wearing those shoes to work was re-
solved, he could not work at store 858.
Calu went to Richardson’s shop about 5:20 a.m. on June
20 and for about 15 minutes observed him working in
baker’s whites in his shop.
967ALBERTSON’S, INC.
31 An area in Colorado which included the cities of Boulder,
Bloomfield, Colorado Springs, Denver, Longmont, and Security,
Colorado.
32 The Respondent’s agreements with Local 7 covered the Re-
spondent’s stores in Colorado in the cities of: (1) Boulder; (2)
Bloomfield; (3) Colorado Springs; (4) Denver; (5) Longmont; and
(6) Security.
On June 20, 1991, Richardson telephoned Hildebrand and
advised him he was not coming to work for his next sched-
uled shifts and that the Local 26 business representative had
worked it out that he would not have to come to work.
On June 25, 1991, Richardson supplied Hildebrand with a
copy of a diagnosis by J. Gregory Stilwell, D.P.M., that he
had shin splints, accompanied by a listing of types of walk-
ing shoes which would satisfy the Respondent’s dress code.
On June 26, 1991, Hildebrand verified with Stilwell the
listed shoes satisfied the Respondent’s dress code and, on
contacting Local 26, heard a denial from Local 26’s business
representative that he had worked out any arrangement for
Richardson to stay off work.
On June 27, 1991, Hildebrand telephoned Richardson’s
home and shop, was unable to contact him, and left messages
for him to call. Richardson returned the call later that day,
stated he had secured shoes conforming to the Respondent’s
dress code, and would return the work his next scheduled
workday (July 1, 1991).
On July 1, 1991, Richardson reported for work wearing
the same type of black leather shoes he wore prior to his
purchase and wearing of the L. A. Gear shoes, and wore
those shoes to work thereafter.
f. Analysis and conclusions regarding the allegedly
unlawful Richardson disciplines
1. The alleged April 24, 1991 violation
Richardson was disciplined eight times subsequent to his
filing of his April 1990 and February 1991 charges with the
Region over the Hansen statement and the Campbell failure
to seriously consider him for promotion. All those dis-
ciplines, including two suspensions, were for good cause.
The General Counsel contends in levying one of those dis-
ciplines, on April 22, Hildebrand and Calu were motivated
by Richardson’s filing of his April 1990 and February 1991
charges with the Region.
The General Counsel failed, however, to establish any
nexus between the April 22, 1991 discipline and the filing
of the charges.
On these facts, I conclude that the General Counsel failed
to meet his burden of establishing the April 22, 1991 dis-
cipline was levied because Richardson filed and supported
the charges in question and therefore shall recommend dis-
missal of those portions of the complaint so alleging.
2. The alleged May 23 and 25 and June 1 and 16,
1991 violations
The evidence relating to Richardson’s discipline on each
of the dates just recited demonstrates a battle of wills be-
tween an employee determined to wear his favored shoes and
a manager just as determined to carry out his superior’s order
to achieve uniform employee compliance with the Respond-
ent’s dress code—and fails to support the General Counsel’s
theory that Hildebrand insisted on Richardson’s compliance,
because Richardson filed charges prior to the battle of wills
alleging the Respondent by Hildebrand disciplined Richard-
son because he filed and supported his April 1990 and Feb-
ruary 1991 charges.
I therefore shall recommend dismissal of those portions of
the complaint so alleging.
g. The alleged unlawful refusal to recognize and
bargain with Local 7
The applicable complaint alleges the Respondent violated
Section 8(a)(1) and (5) of the Act by excluding bakery man-
agers at Colorado stores where its employees are represented
by Local 7 from bargaining units at those stores and cov-
erage by contracts between Local 7 and the Respondent gov-
erning unit employees’ wages, hours, and working condi-
tions; refusing to recognize and bargain with Local 7 con-
cerning the wages, hours, and working conditions of bakery
managers; and making changes in the wages, hours, and
working conditions of bakery managers without affording
Local 7 notice of the changes and an opportunity to bargain
with respect thereto prior to implementation.
1. Background
The Respondent and Local 7 executed a succession of col-
lective-bargaining agreements commencing in 1979. The ini-
tial (1979) agreement was a multiemployer agreement with
two other supermarket chains in the front range area,31 i.e.,
King Soopers and Safeway Stores, which expired in 1982.
In the agreement, the Respondent recognized Local 7 as
the collective-bargaining representative ‘‘for all employees
actively engaged in the handling and selling of merchandise
. . . employed by the Employer in the grocery store or stores
owned or operated by the Employer in the metropolitan area
of Denver, Colorado, but excluding all store managers, office
and clerical employees, janitors, meat department employees,
demonstrators, watchmen, guards and professional employees
and supervisors as defined in the National Labor Relations
Act as amended.’’
Article 3, section 11 of that agreement stated the minimum
wages for the ‘‘indicated classifications’’ were set forth in an
attached appendix and made a part of section 11.
The attachment listed a classification titled, ‘‘Bakery De-
partment Manager’’ and wage rates effective on ‘‘5/6/79,
5/5/80,’’ and ‘‘5/4/81.’’
Prior to the expiration of that agreement, the Meatcutters
International Union merged with the United Food & Com-
mercial Workers International Union and the local meat-
cutters union merged with Local 7, Local 7 being the sur-
viving organization.
The three grocery chains negotiated separate agreements
following the expiration of the 1979–1982 agreement and, by
the time they entered negotiations in 1990, the Respondent
was negotiating the terms of six separate agreements cov-
ering the Respondent’s stores within the ‘‘front range.’’32
During the term of the 1979–1982 agreement, the Re-
spondent operated scratch bakeries within the stores covered
by the agreement. Those bakeries employed personnel work-
ing in what was termed the rear area, where the mixing, bak-
ing, and decoration was performed, and the front or sales
area. In some bakeries, the bakery manager was essentially
a production baker as well as manager of the entire baking
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 The parties agreed the recognition provision contained in the
1990-1993 agreements is essentially the same as the recognition pro-
vision of the agreements between 1982 and 1990.
34 Each of the six agreements listed a different area, but contained
the basic language quoted.
35 Production bakers, donut fryers, and cake decorators.
and sales operation and operated from the rear area. In oth-
ers, the bakery manager was essentially a salesperson as well
as manager of the entire baking and sales operation and oper-
ated from the front area.
At or prior to the expiration of the 1979–1982 agreement,
the Respondent converted a number of the bakery depart-
ments to combined bakery/delicatessen departments, others to
bake-off bakery departments, and kept some in operation as
scratch bakery departments.
The agreements between 1982 and 1988 continued to con-
tain basically the same recognition provision.33 That provi-
sion states,
The Employer recognizes the Union as the sole col-
lective bargaining representative for all employees ac-
tively engaged in the handling and selling of merchan-
dise . . . employed in the grocery store or stores owned
or operated by the Employer covered by the Clerks
Agreement with the Union on May 1, 1982 and located
in the metropolitan area of Denver, Colorado,34 but ex-
cluding all Store Directors, Assistant Store Directors (in
stores with average sales volume in excess of $100,000
per week), General Merchandise Directors (in stores
with average sales volume in excess of $150,000 per
week), Office and Clerical Employees, Scanning Coor-
dinators, Janitors, Meat Department Employees, Bakery
Production Employees;35 Demonstrators, Watchmen,
Guards and Professional Employees and Supervisors as
defined in the National Labor Relations Act as amend-
ed.
The agreements between the Respondent and Local 7 over
the 1982–1988 period continued to include the classification
of ‘‘Bakery Manager’’ in the wage appendix of the respec-
tive agreements and wage rates therefor.
Over and prior to the 1982–1988 period, the Respondent
recognized Local 26 as the exclusive collective-bargaining
representative of employees in front range stores who pro-
duced products sold in bakery departments therein, in some
cases including employees classified as ‘‘Bakery Manager’’
therein.
In 1988 the Respondent, dissatisfied with the operation of
both combination deli-bakery departments and bake-off de-
partments in its front range stores, ceased operating the com-
bination departments and began a program to convert all its
bakery departments back into scratch bakery departments.
Also, in 1988, the Respondent/Local 7 agreements for the pe-
riod of 1988–1990 ceased to list the classification of ‘‘Bak-
ery Manager’’ in the wage provisions of the agreements or
provide wage rates therefor.
2. Wages and working conditions of bakery managers
in the front range prior to the 1990 negotiations
Prior to the commencement of the 1990 negotiations, the
Respondent was making contributions on behalf of bakery
managers at 14 stores within the front range into health and
pension funds established under the Respondent’s agreements
with Local 7. At the same time, the Respondent was making
contributions on behalf of bakery managers at two stores
within the front range into health and pension funds estab-
lished under the Respondent’s agreements with Local 26.
Lastly, the Respondent was making contributions on behalf
of bakery managers at six stores into funds or plans the Re-
spondent established for managerial employees.
In seniority lists furnished to Local 7 by the Respondent
on June 17, 1990, the Respondent listed seniority dates for
bakery managers at nine stores within the front range. It was
also established prior to the 1990 negotiations the Respond-
ent honored authorizations for an unspecified number of
Local 7 dues checkoffs submitted by bakery managers and
paid bonuses set forth in Respondent/Local 7 agreements to
an unspecified number of bakery managers.
Campbell gave undisputed testimony, which I credit, prior
to the 1990 negotiations 15 of the 22 stores in the front
range operated scratch bakery departments, 4 were hybrids
(partially bake-off operations and partially scratch oper-
ations), and 3 were bake-off operations. Campbell’s testi-
mony also established bakery managers at 11 of the 15
scratch bakery departments ran their departments from the
rear; i.e., they performed production baking, did not engage
in much sales within the bakery department, and carried out
their managerial functions from the rear or baking areas of
their bakery departments; bakery managers at the 4 hybrids,
the 3 bake-offs, and 4 scratch bakeries ran their departments
from the front; i.e., they concentrated on in sales and carried
out their managerial functions from the front or sales areas
of their respective bakery departments.
In sum, prior to the 1990 negotiations, bakery managers at
11 (one-half) of the stores within the front range were pro-
duction bakers and managers and at the other 11 were sales-
persons and managers.
3. The supervisory issue
One witness testified concerning the duties of bakery man-
agers within the front range stores—Patrick Campbell.
Campbell testified the bakery managers at times material:
1. Effectively recommended the hire, discipline (in-
cluding suspension and discharge), transfer, layoff and
promotion of all employees in the bakery departments
at stores where they were employed, including sales
and production employees represented by Local 7 and
Local 26 (and covered by their respective agreements).
2. Assigned and directed the work of all bakery de-
partment employees.
3. Set and changed the work schedules of all bakery
department employees.
4. Secured replacements for all bakery employees
who failed to report for scheduled work.
5. Granted or denied all bakery department employee
requests for time off and preferred vacation dates.
6. Authorized overtime.
I credit that testimony.
Section 2 of the Act defines as a supervisor any individual
having authority in the interests of his or her employer to
perform any one or more of the following functions: the hire
or transfer or suspension or layoff or recall or promotion or
discharge or assignment or reward or discipline of other em-
969ALBERTSON’S, INC.
36 The General Counsel alleged and the Respondent conceded
Calu, the bakery manager over Robertson, was a supervisor; there
was undisputed testimony—Local 26 stipulated to the exclusion of
a bakery manager from a unit for purposes of a representation elec-
tion conducted by the Region; and the General Counsel did not con-
tend bakery managers were employees rather than supervisors as de-
fined in the Act.
37 I find at times material both were agents of their respective em-
ployers within the meaning of Sec. 2 of the Act.
38 I find at times material Hardy was also also an agent of Local
7 acting on its behalf within the meaning of Sec. 2 of the Act.
39 The other ‘‘additional provisions’’ governed the release from
work of negotiating committee members to attend a union contract
proposal update meeting; agreement on the date, time, and place the
parties would meet to execute final agreement; the effective dates of
wage increases; the percentage of the journeyman rates for ware-
house employees; the pay increases of red-circled employees; and
that the applicable wages for all affected bargaining unit employees
were the wage rates set out in the wage appendix.
ployees; or the adjustment of employee grievances; or the ef-
fective recommendation of any of the foregoing—provided
the exercise of the function requires independent judgment.
Campbell’s description of the duties of the front range
bakery managers satisfies that definition, so I find and con-
clude at pertinent times the Respondent’s front range bakery
managers were and are supervisors within the meaning of
Section 2 of the Act.36
In 1989 (according to the testimony of Local 7 Counsel
Bowen and Local 7 Business Representative Pantelogow,
which I credit), the Respondent took the position bakery
managers in the front range were supervisors within the
meaning of the Act and the exclusions set out in the recogni-
tion provision of the 1988–1990 agreements.
Prior to the 1990 negotiations (according to the testimony
of Respondent Counsel Schwarzkopf, which I credit), rep-
resentatives of the Respondent, Local 7, and Local 26 met
and tried to resolve their differences over the representation
and contract coverage of bakery managers in the front range
and were unsuccessful, but all three refrained from seeking
a final disposition of the issue in an impartial forum.
4. The 1990 negotiations
Respondent’s counsel Schwarzkopf and Local 7’s presi-
dent, Charles Mercer,37 conducted the initial negotiations, but
were unable to resolve their differences over terms for the
1990–1993 agreements between them covering the employ-
ees represented by Local 7 in the front range stores. A rep-
resentative of the International Union with which Local 7
was affiliated (Hardy)38 replaced Mercer and struck agree-
ment with Schwarzkopf on tentative terms for the agreements
in question.
During the course of the Schwarzkopf/Mercer negotiations,
Mercer raised the question of what rate of pay bakery man-
agers were going to receive during the term of the 1990–
1993 agreements but failed to get an answer. The question
was neither raised nor discussed during the Schwarzkopf/-
Hardy negotiations.
There was no discussion concerning any change in or the
scope of the recognition provision of the agreements during
any of the negotiations preceding tentative agreement, nor
was the language of the recognition provision of the 1990–
1993 agreements changed from that of the expired agree-
ment.
Following agreement between Hardy and Schwarzkopf
concerning the provisions of the tentative agreements, Hardy
and Schwarzkopf met with Mercer and one of Mercer’s as-
sistants to review the terms of the agreements so Mercer
could reduce them to written form. During the review, Mer-
cer renewed the question of what rates of pay the bakery
managers were going to receive during the term of the agree-
ments. Schwarzkopf responded that the issue of whether bak-
ery managers were covered by the Respondent/Local 7
agreements was in dispute and the Respondent was adhering
to its position they were supervisors not covered by the
agreements, but advised Mercer that the Respondent would
follow its past practice of paying bakery managers the same
rates it agreed to pay all-purpose salesclerks in the agree-
ments, and was agreeable to putting that statement in writing,
which he did.
Local 7 Counsel Bowen was assigned by Mercer to pre-
pare a memorandum reciting the terms the parties had agreed
on for inclusion in the 1990–1993 agreements. Bowen did so
and the parties met to review the memorandum.
On review, Schwarzkopf discovered Bowen listed the clas-
sification of bakery manager in the proposed wage appendix
setting out the wage rates. He objected, stating the Respond-
ent did not recognize Local 7 as the exclusive collective-bar-
gaining representative of bakery managers nor had the Re-
spondent agreed to their inclusion and coverage under the
agreements. Mercer thereupon agreed to strike the listing of
the classification and rates from the memorandum and both
he and Schwarzkopf initiated the strikeout.
Schwarzkopf did not object to the inclusion on a separate
page of the memorandum, under the heading ‘‘Additional
Provisions,’’ ‘‘III. BAKERY MANAGER INCREASES IN PAY
SHALL BE THE SAME AS THE JOURNEYMAN ALL-PURPOSE
CLERK.’’39
Final agreements based on the memorandum were pre-
pared and executed by the parties on June 9, 1990. They did
not contain any listing of the bakery manager classification
or the rates payable to that classification during the term of
the agreements either in the basic documents or the wage ap-
pendix, nor were the ‘‘Additional Provisions’’ set out in the
memorandum, including III, included or added.
5. Wages and working conditions of front range bakery
managers subsequent to the execution of the 1990–
1993 agreements
Following the execution of the 1990–1993 agreements, the
Respondent continued its prior practices described above
with respect to contributions to the Local 7, Local 26, and
management health and pension funds and plans on behalf of
the 22 bakery managers in the front range stores; with re-
spect to listing 9 bakery managers on Local 7 seniority lists;
and with respect to checking off and remitting to Local 7
dues of an unspecified number of bakery managers.
6. The bonus payment dispute
Appendix B of the 1990–1993 agreements contains the
following provision:
The Company shall pay the same bonus to its em-
ployees as King Soopers pays its employees (at least
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 I find at times material DeMers was an agent of Local 7 acting
on its behalf within the meaning of Sec. 2 of the Act.
41 I find at times material Bowen and Pantelogow were agents of
Local 7 acting in its behalf within the meaning of Sec. 2 of the Act.
42 McClatchy Newspapers, 307 NLRB 773 (1992); MK-Ferguson
Co., 296 NLRB 776 (1988); Oakland Press Co., 249 NLRB 1081
(1980), enfd. sub nom. Teamsters Local 372 v. NLRB, 682 F.2d 116
(6th Cir. 1982), 266 NLRB 107 (1983), enfd. sub nom. Teamsters
Local 372 v. NLRB, 735 F.2d 969 (6th Cir. 1984), cert. denied 118
LRRM 2968 (1985); Walla Walla-Union Bulletin, 239 NLRB 152
(1978), enfd. 631 F.2d 609 (1980).
43 Arizona Electric Power Corp., 250 NLRB 1132 (1986); Motor
Rim & Wheel Service, 273 NLRB 866 (1984); Union Plaza Hotel,
296 NLRB 918 (1990); Carolina Telephone Co., 258 NLRB 1387
(1981).
twenty cents ($.20) per hour) who are eligible as de-
fined by the King Soopers Agreement.
Additionally, Albertson’s will pay an additional fif-
teen cents ($.15) per hour bonus (payable on all hours
paid each fiscal quarter) to those employed throughout
the entire quarter and within thirty (30) days of the end
of the quarters.
Following the end of the first quarter subsequent to the
execution of the 1990–1993 agreements, the Respondent did
not pay the bonus described above to its front range bakery
managers.
Several bakery managers complained to Local 7 Business
Representative Joe DeMers40 over their failure to receive the
bonus in question and DeMers on December 19, 1990, proc-
essed a grievance on their behalf. After processing through
the grievance-arbitration procedure established under the
1990–1993 agreements, the Respondent’s contract adminis-
trator, industrial relations department, on February 25, 1991,
addressed a letter to DeMers stating:
We will be paying the bakery managers the same
bonus as the clerks on their next regular paycheck with-
out prejudice to our position that the bakery managers
are not included in the clerks’ bargaining unit.
h. Analysis and conclusion re the allegedly unlawful
refusal to recognize and bargain and allegedly unlawful
unilateral change in wages
The complaint alleged that ‘‘since August 25, 1990,’’ the
Respondent has violated Section 8(a)(1) and (5) of the Act
by: (1) failing and refusing to meet and bargain with Local
7 concerning the wages, hours, and other terms and condi-
tions of employment of the Respondent’s employees within
the units set out in the recognition provision of the
Respondent/Local 7 1990–1993 agreements; (2) unilaterally
removing bakery managers from the units described in the
recognition provision of the Respondent/Local 7 1990–1993
agreements; and (3) unilaterally changing the wages and
other terms and conditions of bakery managers.
The General Counsel failed to specify, either during the
hearing or in his posthearing brief, just when, ‘‘since August
25, 1990,’’ the Respondent violated the Act by failing and
refusing to meet and bargain with Local 7 concerning wages,
hours, and other terms and conditions of employment of the
Respondent’s employees within the units described in the
recognition provision of the 1990–1993 agreements, though
it is clear he was referring to employees classified as bakery
managers. Nor does the General Counsel specify just when,
‘‘since August 25, 1990,’’ the Respondent unilaterally re-
moved bakery managers from the units so described. His
brief indicates, however, he relies on the Respondent’s fail-
ure to pay the bonuses specified in Appendix B of the
Respondent/Local 7 1990–1993 agreements to bakery man-
agers for the quarter following the execution of those agree-
ments as the unilateral change in wages alleged in the com-
plaint.
I have entered findings that since 1989 the Respondent has
taken the position its bakery managers within the front range
are supervisors within the meaning of the Act and the exclu-
sionary language of the recognition provision of the
Respondent/Local 7 1990–1993 agreements, as well as the
preceding agreements (1988–1990). Both Local 7 Counsel
Bowen and Local 7 Business Representative Pantelogow
conceded this was so,41 the same position was repeated by
Respondent’s chief negotiator in the course of the 1990 ne-
gotiations, and was again repeated in the February 1991 re-
sponse of a representative of the Respondent to Local 7’s
complaint or grievance over the Respondent’s failure to pay
bonuses to an unspecified number of bakery managers in the
front range stores.
I have also entered findings that the bakery managers in
the front range stores at times material were supervisors
within the meaning of Section 2 of the Act and normal appli-
cation of the exclusionary language of the Respondent/Local
7 1990–1993 agreements (which would also apply to the
1988–1990 agreements).
An employer is not required to recognize and bargain with
a union concerning the wages, hours, and working conditions
of statutory supervisors irregardless of those employees’ de-
sire for representation and despite a prior practice of recog-
nizing and bargaining with a union the employees have au-
thorized to represent them.42
An employer may, however, voluntarily recognize and bar-
gain with a union concerning the wages, hours, and working
conditions of statutory supervisors and other employees nor-
mally excluded from unit coverage.43
In this case, since 1989 the Respondent has consistently
taken the position bakery managers in the front range stores
are statutory supervisors excluded from the coverage of the
1990–1993 agreements by virtue of the language of the rec-
ognition provisions of the several agreements, i.e., ‘‘exclud-
ing . . . supervisors as defined in the Act’’ and has refused
to recognize Local 7 as the exclusive collective-bargaining
representative of bakery managers at the 22 stores in the
front range.
Over that same period (since 1989), the Respondent has
just as consistently avoided a confrontation with Local 7
over the wages, hours, and working conditions of some bak-
ery managers in the front range who maintained membership
in Local 7 by continuing to compensate such managers in ac-
cordance with applicable provisions of the Respondent/Local
7 agreements.
Noting the Respondent continued to make contributions to
the Local 7 health and pension funds on behalf of 14 bakery
managers in front range stores, continued to list 9 bakery
managers on Local 7 seniority lists, continued to check and
remit to Local 7 dues the Respondent was authorized to de-
971ALBERTSON’S, INC.
duct from an undetermined number of bakery managers, and
continued to pay bonuses to an undetermined number of bak-
ery managers, the General Counsel seeks an order requiring
the Respondent to recognize and bargain with Local 7 vis-
a-vis the 14 bakery managers on whose behalf the Respond-
ent has continued to make contributions to the health and
pension funds established under the 1990–1993 (and prior)
Respondent/Local 7 agreements and to apply all terms of the
1990–1993 agreements to those 14 bakery managers on the
ground the Respondent has failed to take ‘‘proper steps’’ to
exclude those 14 bakery managers from the coverage of the
Respondent/Local 7 1990–1993 (and the 1988–1990) agree-
ments.
The General Counsel cites Arizona Electric Power and
Motor Rim, supra, as authority thereof.
In the former case, the Board held the employer violated
the Act by unilaterally withdrawing recognition of a union as
the exclusive bargaining representation of a supervisor (head
load dispatcher), denying his coverage under the terms of the
agreement during the term of the current agreement and his
coverage thereunder. The Board held, in essence, because the
employer voluntarily recognized the union as the exclusive
collective-bargaining representative of the supervisor and
agreed to his inclusion and coverage under the current agree-
ment, it was not privileged to withdraw that recognition and
coverage during the term of the agreement (though conceding
it could do so at the end of the term of the agreement and
thereafter, by taking the complained-of actions by timely no-
tice prior to the execution of a subsequent agreement; lik-
ening the situation to a unilateral attempt to change the scope
of a bargaining unit certified by the Board following Board
certification of the unit composition).
In the latter case, the Board held the employer violated the
Act by unilaterally removing an employee in a classification
normally excluded from employee units considered appro-
priate by the Board (a confidential secretary) from the bar-
gaining unit set forth in the recognition provision of an
agreement with a union, withdrawing recognition of the
union as her bargaining representative, and denying her cov-
erage under the terms of the agreement, again during the
term of the agreement and coverage thereunder. Again the
Board followed the principle once an employer voluntarily
recognizes a union as the exclusive collective-bargaining rep-
resentative of an employee within a classification normally
excluded from unit coverage under the Act whose wages,
hours, and working conditions are articulated in a current
agreement, the employer may not withdraw that recognition
and coverage unless and until the employer does so by ap-
propriate notice prior to the execution of a subsequent agree-
ment.
Both Union Plaza and Carolina Telephone, supra, were
decided on similar grounds.
In this case, however, the Respondent took the unequivo-
cal position bakery managers were supervisors within the
meaning of the Act and the language of the respective rec-
ognition provisions of the 1990–1993 agreements; that the
Respondent did not recognize Local 7 as their exclusive col-
lective-bargaining representative; and that the bakery man-
agers’ wages, hours, and working conditions were not going
to be covered by the 1900–1993 agreements prior to the exe-
cution of the 1990–1993 agreements and implemented that
position by securing the strikeout of the listing of the classi-
fication of bakery manager in the wage supplement to those
agreements and the elimination of any reference to the bak-
ery manager classification or rates therefor in the executed
agreements, and with no change in the exclusionary language
of the agreements.
On these facts, the doctrine exemplified by the four cases
discussed above appears inapplicable.
There are other difficulties with the General Counsel’s po-
sition.
Why should the Respondent be ordered to recognize and
bargain with Local 7 concerning the wages, hours, and work-
ing conditions of 14 bakery managers within the front range
stores, and to apply the terms of the 1990–1993 agreements
only to those 14? Why not to bakery managers at the 11
stores where bakery managers run the departments from the
front or sales end of their departments? Or why not to the
nine bakery managers listed in the seniority lists supplied to
Local 7 by the Respondent in 1991? Or why not to the unde-
termined number of bakery managers whose dues payments
to Local 7 are being checked off from their pay by the Re-
spondent and remitted to Local 7? Or why not to bakery
managers at the stores where the bakery sales department
employees are represented by Local 7, the Respondent recog-
nizes Local 7 as the sales employees exclusive collective-bar-
gaining representative, and the sales employees are covered
by the 1990–1993 Respondent/Local 7 agreements?
These questions illustrate the fact the General Counsel’s
theory of the case is untenable. His theory requires a finding
in the 1990 negotiations the Respondent voluntarily recog-
nized Local 7 as the exclusive collective-bargaining rep-
resentative of 14 of the 22 bakery managers in the front
range stores covered by the 1990–1993 agreements, despite
the exclusion therefrom of the classification of ‘‘Supervisors
as defined in the National Labor Relations Act as amended’’
and the participation of 2 bakery managers in Local 26
health and pension plans and of 6 bakery managers in man-
ager plans.
To the contrary, the Respondent refused to recognize
Local 7 in those negotiations as the representative of any
bakery managers employed at any front range stores where
Local 7 represents employees and has been recognized by the
Respondent as the exclusive collective-bargaining representa-
tive of employees and to incorporate in its agreements with
Local 7 only provisions covering the wage classifications set
out in the wage appendices of those agreements.
It is undisputed the Respondent initially failed or refused
to pay the bonuses set out in Appendix B of the 1990–1993
agreements to an unspecified number of bakery managers in
the front range stores (though later it did so to a still unspec-
ified number, avoiding a confrontation with Local 7 over
which, if any, bakery managers were entitled thereto), but
again preserved its position it did not recognize Local 7 as
their representative or concede their coverage under the
1990–1993 agreements.
I find and conclude that, on the basis of the above, at all
pertinent times the front range bakery managers were super-
visors within the meaning of the Act and the exclusionary
language of the 1990–1993 Respondent/Local 7 agreements;
the Respondent at no time since 1989 has wavered from the
correct position the front range bakery managers were super-
visors within the meaning of the Act and excluded from the
coverage of the 1990–1993 agreements by the exclusionary
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
45 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
language thereof; and that the Respondent did not violate the
Act by refusing to include bakery managers within the unit
description of the recognition provision of the 1990–1993
agreements, refusing to recognize and bargain with Local 7
concerning the wages, hours, and working conditions of
those bakery managers, and refusing to apply the wage,
hours, and working condition provisions of the 1990–1993
agreements between Local 7 and the Respondent to bakery
managers.
CONCLUSIONS OF LAW
1. At all pertinent times the Respondent was an employer
engaged in commerce in a business affecting commerce and
both Local 7 and Local 26 were labor organizations within
the meaning of Section 2 of the Act.
2. At all pertinent times Hansen, Campbell, Hildebrand,
Calu, and Karen Freckleton (contract administrator) were su-
pervisors and agents of the Respondent acting on its behalf
within the meaning of Section 2 of the Act.
3. At all pertinent times Hardy, Mercer, Bowen, DeMers,
and Pantelogow were agents of Local 7 acting on its behalf
within the meaning of Section 2 of the Act.
4. The Respondent violated Section 8(a)(1) of the Act in
March 1990 by telling Richardson he doubted he could get
Richardson the job of bakery manager because of his suc-
cessful invocation of the grievance-arbitration provisions of
the Respondent/Local 26 agreement.
5. The Respondent did not otherwise violate the Act.
6. The unfair labor practice set out above affected and af-
fects interstate commerce as defined in the Act.
THE REMEDY
Having found the Respondent engaged in an unfair labor
practice, I recommend the Respondent be directed to cease
and desist therefrom and to take affirmative actions designed
to effectuate the purposes of the Act.
Having found the Respondent violated the Act by the con-
duct described above, I recommend the Respondent be di-
rected to address a letter to Richardson stating his successful
invocation of the grievance-arbitration provisions of the
Respondent/Local 26 agreement does not and will not affect
his promotional opportunities and to post a notice to employ-
ees covered by agreements between the Respondent and
Local 26 stating the promotional opportunities of employees
covered by those agreements are not and will not be affected
by their resort to the grievance-arbitration provisions of
agreements between Local 26 and the Respondent to resolve
grievances over the Respondent’s application and administra-
tion of those agreements.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended44
ORDER
The Respondent, Albertson’s, Incorporated, Colorado
Springs, Colorado, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from telling Robert Richardson or any
other employee his or their promotional opportunities have or
will be affected by his or their resort to the grievance-arbitra-
tion provisions of agreements between Local 26 of the Bak-
ery, Confectionery and Tobacco Workers Union to resolve
grievances over the application or administration of those
agreements.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Advise Robert Richardson in writing that his successful
invocation of the grievance-arbitration provisions of an
agreement between Local 26 and Albertson’s, Incorporated
has not and will not affect his promotional opportunities.
(b) The employment opportunities of Albertson’s employ-
ees covered by agreements between Local 26 and
Albertson’s have not and will not be affected by their resort
to the grievance-arbitration provisions of those agreements to
resolve grievances over Albertson’s application or adminis-
tration of those agreements.
(c) Post at its facilities in Colorado where employees rep-
resented by Local 26 are employed and covered by agree-
ments between Albertson’s and Local 26, copies of the at-
tached notice marked ‘‘Appendix B.’’45 Copies of the notice,
on forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order, what steps have been taken to
comply.
APPENDIX A [Side 1 - G.C. Exh. 5.]
UNITED STATES GOVERNMENT
NATIONAL LABOR RELATIONS BOARD
SETTLEMENT AGREEMENT
In the Matter of ALBERTON’S, INCORPORATED
Case 27–CA–11825
The undersigned Charged Party and the undersigned
Charging Party, in settlement of the above matter, and sub-
ject to the approval of the Regional Director of the National
Labor Relations Board, HEREBY AGREE AS FOLLOWS:
POSTING OF NOTICE—Upon approval of this Agreement, the
Charged Party will post immediately in conspicuous places
in and about its plant/office, including all places where no-
tices to employees/members are customarily posted, and
maintain for 60 consecutive days from the date of posting,
copies of the attached Notice made a part hereof, said No-
tices to be signed by a responsible official of the Charged
Party and the date of actual posting to be shown thereon. In
973ALBERTSON’S, INC.
the event this Agreement is in settlement of a charge against
a union, the union will submit forthwith signed copies of
said Notice to the Regional Director who will forward them
to the employer whose employees are involved herein, for
posting, the employer willing, in conspicuous places in and
about the employer’s plant where they shall be maintained
for 60 consecutive days from the date of posting.
COMPLIANCE WITH NOTICE—The Charged Party will comply
with all the terms and provisions of said Notice.
BACKPAY—The Charged Party will make whole the employ-
ees named below by payment to each of them of the amount
opposite each name. Oren Spark - $100.00
This settlement agreement is limited to the allegations in
the above-captioned charge, and the parties agree that it does
not create a settlement-bar defense to any other charges or
violations involving the Charged Party. Evidence of the al-
leged violations resolved by this agreement may be used as
background evidence in any other Board proceedings.
The entry into this Agreement by the Charged Party shall
not constitute an admission of any unfair labor practice.
The Charged Party agreed to promote Oren Sparks to the
first cutter position at Albertson’s Store No. 874, effective
the week ending 9–28–91.
REFUSAL TO ISSUE COMPLAINT—Performance by the Charged
Party with the terms and provisions of this Agreement shall
commence immediately after the Agreement is approved by
the Regional Director, or if the Charging Party does not enter
into this Agreement, performance shall commence imme-
diately upon receipt by the Charged Party of advice that no
review has been requested or that the General Counsel has
sustained the Regional Director.
NOTIFICATION OF COMPLIANCE—the undersigned parties to
this Agreement will each notify the Regional Director in
writing what steps the Charged Party has taken to comply
herewith. Such notification shall be given within 5 days, and
again after 60 days, from the date of the approval of this
Agreement. In the event the Charging Party does not enter
into this Agreement, initial notice shall be given within 5
days after notification from the Regional Director that no re-
view has been requested or that the General Counsel has sus-
tained the Regional Director. Contingent upon compliance
with the terms and provisions hereof, no further action shall
be taken in this case.
Charged Party
Albertson’s, Incorporated
Charged Party
Oren Sparks, An Individual
By: Name & Title Date By: Name & Title Date
/s/ Michael B. Schwarzkopf 9/18/91 /s/ Oren Waldo Sparks 9/19/91
Recommended By: Date Approved By: Date
/s/ Michael J. Belo, General Coun-
sel
9/16/91 /s/ George Christensen ALJ 9/20/91
APPENDIX A [Side 2 - G.C. Exh. 5.]
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees the
following rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
In recognition of these rights:
WE WILL NOT tell employees that they will not be pro-
moted because of their union activity.
WE WILL promote employees regardless of Union activity.
Oren Sparks’ performance merits a promotion to first cutter.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed by Section 7 of the Act.
ALBERTSON’S, INCORPORATED
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board found we violated the
National Labor Relations Act and ordered us to post and
abide by this notice. You are therefore advised:
WE WILL NOT tell employees their promotional opportuni-
ties will be affected by their resort to the grievance-arbitra-
tion provisions of our agreements with Local 26 of the Bak-
ery, Confectionery and Tobacco Workers Union to resolve
grievances over our application or administration of the
terms of those agreements.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT limit the promotional opportunities of em-
ployees who resort to the grievance-arbitration provisions of
the above agreements to resolve grievances over our applica-
tion or administration of those agreements.
WE WILL advise Robert Richardson in writing that his pro-
motional opportunities will not be affected by his past or fu-
ture resort to the grievance-arbitration provisions of our
agreement with Local 26.
ALBERTSON’S, INCORPORATED