Commercial Workers, District Union 227

National Labor Relations Board - Board Decisions

Jan 10, 1980

247 N.L.R.B. 195 (N.L.R.B. 1980)

COMMERCIAL WORKERS, DISTRICT UNION 227
United Food and Commercial Workers International
Union, District Union 227, AFL-CIO' and The
Kroger Co. Case 9-CB-3871
January 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On July 25, 1979, Administrative Law Judge James
T. Youngblood issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs. The
Charging Party filed a motion to strike Respondent's
exceptions2 and a brief in answer to Respondent's
exceptions and in support of the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith, and to adopt his recom-
mended Order, as modified and set out in full below.
The Administrative Law Judge found, and we
agree, that Respondent Union violated Section
8(b)(1)(A) and 8(b)(2) of the Act by: (1) demanding
the termination of John Holloway because he crossed
and worked behind Respondent's picket line during an
economic strike; and (2) subsequently processing a
grievance demanding either Holloway's termination or
a reduction in his wages. The General Counsel has
excepted to the Administrative Law Judge's inadver-
tent failure to provide a specific "Conclusion of Law"
reflecting his finding that Respondent unlawfully
processed the Holloway grievance, and his failure to
provide a remedy for this violation. We find merit in
this exception and, accordingly, we shall make the
necessary modifications. The Charging Party has
excepted to the Administrative Law Judge's failure to
I The name of the Union herein has been changed to reflect the new name
resulting from the June 7, 1979, merger of Retail Clerks International Union
and Amalgamated Meatcutters and Butcher Workmen of North America.
' The Charging Party has moved that the Board strike Respondent's
exceptions because. inter alia. they fail to set forth specifically the questions of
procedure, fact, law, or policy to which exceptions are taken, and fail to notify
the Board of the grounds for Respondent's exceptions or the portions of the
record relied on in support of its position. Sec. 102.46(b) of the Board's Rules
and Regulations, Series 8, as amended, states that any exception which does
not comply with the requirements of that section "may be disregarded."
Although Respondent's exceptions do not comply fully with the requirements
of the rule, we have decided not to disregard them as they sufficiently
designate the portions of the Decision Respondent claimed were erroneous.
Rice Growers Association of California, 224 NLRB 663 (1976); cf. Carbona
Mining Corporation. 198 NLRB 293 (1972).
247 NLRB No. 23
find that Respondent's Section 301 suit against it to
compel arbitration of the above-mentioned grievance
violated the Act, and has requested that this violation
be remedied by an order directing Respondent to
withdraw the suit and to reimburse it for legal
expenses incurred in defending that suit. We find
merit in this exception to the extent that we find the
Section 301 suit violative of the Act; however, we deny
the Charging Party's request for an award of legal
expenses for defending the Section 301 suit.
The essential facts, as found by the Administrative
Law Judge and more fully set forth in his Decision,
are as follows:
John Holloway was hired in 1967 by the Charging
Party (hereinafter called the Company or Kroger) as a
truckdriver, represented by the International Brother-
hood of Teamsters.' In November 1977, during a
strike by Respondent's members against the Compa-
ny, Holloway agreed to transfer to a meatcutter's
position in one of the Company's retail stores, and
withdrew his Teamsters membership.4 On January 12,
1978,' pursuant to an agreement between the parties in
settlement of the strike, the Company laid off each of
its temporary replacements, including Holloway, and
began to recall the striking employees. Approximately
2 weeks after the strike ended, the Company deter-
mined that it needed an additional meatcutter, and
asked Holloway to return to work at one of its
Lexington stores. Meat Merchandiser Rogers rehired
Holloway as an apprentice meatcutter with 18
months' experience.
Holloway's name appeared on the work schedule
for the workweek commencing on Monday, January
30. Upon learning this fact on January 27, William R.
Ballinger, Respondent's president, called Richard
Metzgar, then Kroger's area personnel manager, and
demanded to know when the Company would get the
"fucking scab" off the payroll. Metzgar responded
that he did not know that Holloway was on the
payroll, but that Holloway would not have been
rehired unless all striking meatcutters in Lexington
already had been brought back to work. The Compa-
ny's management determined that all striking employ-
ees in Lexington had in fact been returned to work
' The record indicates that the Company's truckdrivers in the Louisville
market area were represented by an unspecified local of the Teamsters. The
Teamsters is not involved in this dispute.
' The record reveals that Holloway had been seeking this transfer since the
spring of 1977. In January 1977, the Company closed its Lexington,
Kentucky. warehouse, at which Holloway was employed, and reassigned its
drivers to its facility in Louisville. This resulted in a 160-mile daily commute
for Holloway. Therefore, in the spring of 1977, Holloway sought to transfer to
a meatcutter's position in one of the Company's Lexington stores. At that
time, he was informed that there were no openings. He renewed his request in
the fall of 1977, and was told that a position might be available after
Thanksgiving.
' Unless otherwise indicated, all dates hereinafter are in 1978.
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the strike. At all times the Company has refused
Ballinger's demand that Holloway be discharged.
In late February, Ballinger requested from Metzgar
a list of the Company's new hires since the end of the
strike. Metzgar sent to Ballinger a computer-generated
list of new hires, which contained their starting dates
and rate of pay. Holloway's name, original date of
hire, and wage rate were entered by hand at the
bottom of the list. Upon receiving the list and learning
that Holloway was classified as a meatcutter with 18
months' experience, Respondent filed a grievance
alleging that the Company violated the collective-
bargaining agreement by so classifying Holloway.6 In
response to the Company's request that Respondent
suggest an appropriate rate, Respondent stated that
Holloway should be classified as a meat clerk at the
starting part-time hourly rate of $3.25.' Respondent
demanded arbitration of this grievance and, upon the
Company's failure to respond to this demand, filed
suit under Section 301 of the Act to compel arbitra-
tion.
Based on the evidence above, the Administrative
Law Judge concluded that Respondent unlawfully
demanded Holloway's discharge because he engaged
in the protected activity of crossing Respondent's
picket line during the strike. In reaching this conclu-
sion, the Administrative Law Judge discredited Bal-
linger's explanation that he was only concerned that
all striking Lexington area meatcutters had not yet
been recalled. The Administrative Law Judge further
concluded that the filing of the grievance protesting
Holloway's job classification and wage rate was
unlawful since it had been discriminatorily motivated.
In so finding, the Administrative Law Judge relied on
evidence that Ballinger never disavowed his expressed
desire that Holloway be discharged and on Metzgar's
testimony that Ballinger refused to discuss Holloway's
past experience with Metzgar or with Holloway.
We agree with the Administrative Law Judge that
Respondent's demand that Holloway be discharged
violated the Act. We also agree with his finding that
the Holloway grievance violated Section 8(b)(1)(A)
and (2) of the Act, as the record contains substantial
evidence to support his conclusion that, in filing the
grievance, Respondent was not motivated by a desire
Art. 10 of the agreement states:
A. The employer agrees to consider past comparable experience in the
retail food industry. The employee will receive the appropriate clerk
starting rate for the first twenty-one (21) days. Final adjustment as to job
classification and rate of pay will be determined by the Employer, the
employee and the Union within twenty-one (21) days from the date of
hire. If agreement is not reached by all the parties, the employee will be
terminated.
B. The Employer shall notify the Union in writing of all newly hired
employees including the starting rate of pay.
C. New employees starting work on the same day will establish their
seniority by "picking numbers from a hat."
As an apprentice meatcutter with 18 months' experience, Holloway
received 6.53 per hour.
to protect the wage structure but, rather, to penalize
Holloway for his actions during the strike.' However,
in so concluding, the Administrative Law Judge made
no findings as to the lawfulness of the Section 301 suit
filed by Respondent to compel arbitration of the
dispute. We find that Respondent violated the Act by
maintaining this action. In Clyde Taylor, d/b/a Clyde
Taylor Company,9 the Board established the general
principle that the filing of a civil lawsuit by an
employer or labor organization does not violate the
Act. The Board reasoned that it "should accommo-
date its enforcement of the Act to the right of all
persons to litigate their claims in court, rather than
condemn the exercise of such right as an unfair labor
practice. '" However, we have departed from this
standard where a respondent brings the lawsuit in
pursuit of an unlawful objective." In the instant case,
in processing the Holloway grievance, Respondent
had as its unlawful objective retaliation against Hollo-
way for crossing its picket line. Therefore, we find
that, by filing the Section 301 suit to compel arbitra-
tion of this grievance, Respondent likewise violated
Section 8(b)(l)(A) and (2) of the Act.
The Charging Party has further excepted to the
remedy recommended by the Administrative Law
Judge, and has requested that the Board order
Respondent to reimburse it for its expenses incurred in
defending the Section 301 suit. We find no merit in
this exception. We believe that the misuse of the
judicial process in this instance does not rise to the
level of significance found in Power Systems and
George A. Angle. In Power Systems, the employer filed
suit against a discharged employee for malicious
prosecution after the General Counsel refused to issue
a complaint on the employee's charge that he had been
discharged in violation of the Act. Similarly, in George
A. Angle, the employer filed suit against a discharged
employee for malicious prosecution after a special
master of the Court of Appeals for the District of
Columbia found that the employee had not been
constructively discharged by the employer. In both
cases, the Board held that, where an employer files a
civil action against an individual in retaliation for or in
an effort to restrain that individual from access to the
Board's processes, the employer violates Section
' As previously noted, although the Administrative Law Judge found that
the filing of the grievance was pretextual, he inadvertently failed to include
this finding in his Conclusions of Law. Therefore, the Administrative Law
Judge's Conclusions of Law will be amended accordingly.
'127 NLRB 103 (1960).
"' Id. at 109.
George A. Angle, 242 NLRB 744 (1979); Power Systems, Inc., 239 NLRB
445 (1978), enforcement denied 101 LRRM 2978, 86 LC 11,450 (7th Cir.
1979); United Stanford Employees Local 680. Service Employees International
Union. AFL-CIO (The Leland Stanford Junior University). 232 NLRB 326
(1977); Television Wisconsin. Inc., 224 NLRB 722, 779-780 (1976); Interna-
tional Organization of Masters Mates and Pilots AFL-CIO (Cove Tankers
Corporation). 224 NLRB 1626 (1976), affd. 575 F.2d 896 (D.C. Cir. 1978).
196
COMMERCIAL WORKERS, DISTRICT UNION 227
8(a)(4) and (1) of the Act. In each case, in order to
make the individual employee whole for the unlawful
prosecution of these civil damage actions, the Board
ordered the employer to reimburse the aggrieved
employee for all legal expenses incurred in defense of
the suit."
In those cases named above, the Board found that
the employers used the legal process to directly
penalize employees for exercising Section 7 rights and
to discourage others from exercising those rights.
Moreover, the lawsuits had the actual effect of
inflicting on the individual employee substantial un-
foreseen expenses, and gave rise to potentially sizable
damage awards against the individual. The threat of
such financial loss to an individual employee has a
much greater coercive effect on the assertion of
Section 7 rights by other employees than does the fact
the Company here may incur expenses in defending
the Section 301 suit. As the effect on employees'
exercise of Section 7 rights in the instant case is not
nearly as great as that found in Power Systems and
George A. Angle, we decline to provide the extraordi-
nary remedy requested by the Charging Party.
AMENDED CONCLUSIONS OF LAW
1. The Kroger Co. is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and at
all times material herein has been an employer within
the meaning of Section 2(2) of the Act.
2. United Food and Commercial Workers Interna-
tional Union, District Union 227, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. By crossing and working behind Respondent's
picket line, John Holloway engaged in protected
activities within the meaning of and as guaranteed by
Section 7 of the Act.
4. By demanding that The Kroger Co. discharge
John Holloway because he crossed and worked behind
Respondent's picket line, Respondent restrained and
coerced employees in the exercise of the rights
guaranteed them in Section 7 of the Act and thereby
engaged in unfair labor practices within the meaning
of Section 8(b)(l)(A) of the Act.
5. By demanding that The Kroger Co. discharge
John Holloway because he crossed and worked behind
Respondent's picket line, Respondent caused or at-
" See also Liberty Mutual Insurance Co., 235 NLRB 1387 (1978),
enforcement denied on other grounds 592 F.2d 595 (Ist Cir. 1979) (Board
ordered employer to reimburse unlawfully discharged employee for litigation
expenses incurred in defending suit brought by employer to enforce a
noncompetition clause); Baptist Memorial Hospital. 229 NLRB 45 (1977)
(employer ordered to pay legal expenses of employee arrested for violating
illegal no-solicitation rule).
" In par. I(b) of his recommended Order, the Administrative Law Judge
included a broad cease-and-desist order against Respondent. We find it
tempted to cause The Kroger Co. to discriminate
against John Holloway in violation of Section 8(a)(3)
of the Act, and thereby engaged in unfair labor
practices within the meaning of Section 8(b)(2) of the
Act.
6. By filing a grievance under the collective-bargain-
ing agreement between the parties to compel the
Company to discharge John Holloway or to reduce his
wages, which was filed in retaliation for his engaging
in protected, concerted activities, and by filing suit to
compel arbitration of this grievance, Respondent
restrained and coerced employees in the exercise of the
rights guaranteed them in Section 7 of the Act and
thereby engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act.
7. By filing a grievance under the collective-bargain-
ing agreement between the parties to compel the
Company to discharge John Holloway or to reduce his
wages, which grievance was filed in retaliation for his
engaging in protected concerted activities, and by
filing suit to compel arbitration of this grievance,
Respondent caused or attempted to cause The Kroger
Co. to discriminate against John Holloway in violation
of Section 8(a)(3) of the Act, and thereby engaged in
unfair labor practices within the meaning of Section
8(b)(2) of the Act.
8. The unfair labor practices described above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
AMENDED REMEDY
We have found that Respondent has engaged in
certain unfair labor practices, and thus we shall order
it to cease and desist therefrom" and to take certain
affirmative action designed to effectuate the policies of
the Act.
We have found that Respondent demanded that the
Company discharge John Holloway because he
crossed Respondent's picket line during a strike
against the Company; that subsequently Respondent
filed a grievance seeking Holloway's discharge or a
reduction in his wages, which was brought in retalia-
tion for his crossing the picket line; and that Respon-
dent maintained a suit under Section 301 of the Act to
compel arbitration of its grievance. By such conduct,
Respondent has discriminated against Holloway for
his exercise of the rights guaranteed him by Section 7
unnecessary to impose such a broad order against Respondent. As the
General Counsel has not demonstrated that Respondent has a proclivity to
violate the Act, or that Respondent has engaged in such widespread or
egregious misconduct as to demonstrate a general disregard for employees'
fundamental statutory rights, a broad order is not warranted here. Hickmot
Foods. Inc.. 242 NLRB 1357 (1979). Accordingly, we will modify the
Administrative Law Judge's recommended Order by substituting narrow
cease-and-desist language for the broad language used by the Administrative
Law Judge.
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, and has restrained and coerced employees
of the Company in the exercise of the rights guaran-
teed them in Section 7 of the Act. In order to dissipate
the effects of Respondent's unfair labor practices, we
shall order Respondent to cease and desist from
processing its grievance seeking Holloway's discharge
or reduction in his wages and from prosecuting its
Section 301 suit to compel arbitration of that griev-
ance. Furthermore, we shall order Respondent to
withdraw both its grievance seeking Holloway's dis-
charge or reduction in his wages and the Section 301
suit which it filed to compel arbitration of that
grievance. Finally, we shall order that Respondent
notify the Company that it has no objection to the
Company's employment of Holloway as a meatcutter.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
United Food and Commercial Workers International
Union, District Union 227, AFL-CIO, Louisville,
Kentucky, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause The Kroger Co.
to discharge John Holloway or any other employee
because they crossed and worked behind Respondent's
picket line, or otherwise to discriminate against
employees in violation of Section 8(a)(3) of the Act,
because they engaged in activities protected by Section
7 of the National Labor Relations Act.
(b) Maintaining its grievance and demand for
arbitration with regard to the job classification and
wage rate of John Holloway, which was filed and
maintained because he crossed and worked behind
Respondent's picket line.
(c) Prosecuting its complaint, styled as Amalga-
mated Meat Cutters and Butcher Workmen of North
America, District Union 227, AFL-CIO v. The Kroger
Company, No. C78-0268-L(A) (W.D. Ky.), which
Respondent has filed and maintained against The
Kroger Co. in an attempt to compel arbitration of its
unlawfully motivated grievance.
(d) In any like or related manner restraining or
coercing employees of The Kroger Co. in the exercise
of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Notify The Kroger Co. that it does not have any
objections to Kroger's employment of John Holloway
as a meatcutter.
(b) Withdraw its grievance and demand for arbitra-
tion with regard to the job classification and wage rate
of John Holloway, which was filed and maintained
because he crossed and worked behind Respondent's
picket line.
(c) Withdraw its complaint, styled as Amalgamated
Meat Cutters and Butcher Workmen of North Ameri-
ca, District Union 227, AFL-CIO v. The Kroger
Company, No. C78-0268-L(A) (W.D. Ky.), which
Respondent has filed and maintained against The
Kroger Co. in an attempt to compel arbitration of its
unlawfully motivated grievance.
(d) Post at its business offices and meeting places
copies of the attached notice marked "Appendix." '4
Copies of said notice, on forms provided by the
Regional Director for Region 9, shall, after being duly
signed by an official representative of Respondent, be
posted by said Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members of Respondent are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Furnish to the Regional Director for Region 9,
signed copies of said notice for posting by The Kroger
Co., if willing, in places where notices to its employees
are customarily posted. Copies of said notice, to be
furnished by the Regional Director, shall, after being
signed by an official representative of Respondent, be
forthwith returned to the Regional Director for
disposition by him.
(f) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
" In the event that 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."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause The
Kroger Co. to discharge John Holloway or any
other employee because they crossed and worked
behind our picket line or otherwise to discrimi-
nate against employees because they engaged in
activities protected by Section 7 of the Act.
WE WILL NOT maintain the grievance and
demand for arbitration with regard to the job
classification and wage rate of John Holloway,
which we filed and maintained because he crossed
and worked behind our picket line.
198
COMMERCIAL WORKERS, DISTRICT UNION 227
WE WILL NOT maintain our complaint, styled
as Amalgamated Meat Cutters and Butcher
Workmen of North America, District Union 227,
AFL-CIO v. The Kroger Company, No. C78-
0268-L(A) (W.D. Ky.), which we have filed and
maintained against The Kroger Co. in an attempt
to compel arbitration of our unlawfully motivated
grievance.
WE WILL NOT in any like or related manner
restrain or coerce employees of The Kroger Co.
in the exercise of rights guaranteed in Section 7 of
the Act.
WE WILL notify The Kroger Co. that we have
no objection to its employment of John Holloway
as a meatcutter.
WE WILL withdraw the grievance and demand
for arbitration with regard to the job classifica-
tion and wage rate of John Holloway, which we
filed and maintained because he crossed and
worked behind our picket line.
WE WILL withdraw our complaint, styled as
Amalgamated Meat Cutters and Butcher Work-
men of North America, District Union 227, AFL-
CIO v. The Kroger Company, No. C78-0268-
L(A) (W.D. Ky.), which we have filed and
maintained against The Kroger Co. in an attempt
to compel arbitration of our unlawfully motivated
grievance.
UNITED FOOD AND COMMERCIAL WORK-
ERS INTERNATIONAL UNION, DISTRICT
UNION 227, AFL-CIO
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge: This
case was heard in Lexington, Kentucky, on November 28,
1978. The complaint, which issued on June 26, 1978, alleges
that on or about January 27, 1978, Amalgamated Meat
Cutters and Butcher Workmen of North America, District
Union 227, AFL-CIO (herein called Respondent or The
Union), caused or attempted to cause The Kroger Co.
(herein Kroger) to discharge and/or reduce the wages of its
employee John Holloway because he worked for Kroger
during a strike which Respondent conducted against Kroger
in violation of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended, Respondent filed an
answer admitting the jurisdictional allegations of the com-
plaint, that it is a labor organization within the meaning of
Section 2(5) of the Act, and that William A. Ballinger is
president of the Union and an agent of Respondent acting on
its behalf within the meaning of Section 2(13) of the Act, but
otherwise denying the commission of any unfair labor
' The record reflects that because of special features and because a K-Man
store had closed Kroger's business had picked up.
practices. All parties were present at the hearing and filed
post-trial briefs which have been duly considered.
Upon the entire record, due consideration of the briefs
filed by counsel, and my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
Kroger, the Charging Party, an Ohio corporation, is
engaged in the retail sale of groceries throughout various
States of the United States, including its Lexington, Ken-
tucky, facility involved herein.
During the past 12 months Kroger purchased and
received goods and materials valued in excess of $50,000
which were shipped directly to its Lexington, Kentucky,
facility from points outside the State of Kentucky. During
the same period Kroger derived gross revenue in excess of
$500,000.
It is admitted, and I find, that Kroger is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union admits, and I find, that it is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
John Holloway has worked for Kroger for approximately
11 years. The first 10 years of his employment Holloway
drove a meat truck, working out of Kroger's Lexington
substation. In January 1977 Kroger closed its Lexington
substation, and Holloway, a resident of Lexington, had to
make a 160-mile commute to Louisville each day. Because of
this arduous round trip, in the spring of 1977 Holloway
asked Meat Merchandiser Rogers about obtaining a transfer
as a meatcutter into one of the Lexington area stores. Rogers
informed Holloway that at the time he did not have anything
available. Later in the fall Holloway again asked Rogers
about a transfer, and he was informed that they could
probably use him after Thanksgiving.
On November 20, 1977, negotiations between the Union
and Kroger broke down and a strike began among the 3,500
bargaining unit employees at the Kroger retail stores.
Shortly thereafter, Rogers contacted Holloway and told
Holloway that he needed him to work and that he would
have to cross a picket line. After securing a withdrawal card
from the Teamsters' Union, around November 30, 1977,
Holloway began working as an assistant meatcutter to
Rogers in Lexington. He worked continuously until the
strike ended on January 12, 1978. At that time, pursuant to
an agreement between the Union and Kroger, all temporary
employees hired during the strike were laid off and all
striking employees were recalled. In January 1978 Rogers
contacted Holloway and informed him that the Company
was in need of his services.' Holloway was rehired by the
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company as a meatcutter on January 30, 1978. Because
Holloway had some prior experience as a meatcutter, Rogers
hired him as having 18 months' experience.
Several days prior to January 30, 1978, Holloway's name
appeared on the work schedule showing him working as of
January 30, 1978. According to Union President Ballinger,
this fact was brought to his attention on January 27 by the
union steward. An employee by the name of John Ferris
thought he should be working the hours that Holloway was
scheduled and he made a complaint to the union steward.
The steward in turn contacted Ballinger. It is clear that
Ballinger was well aware that Holloway had worked
throughout the strike.2
After his conversation with the union steward, Ballinger
called Richard Metzgar, the then personnel manager of
Kroger's Louisville division, which covers the Lexington
stores. ' According to Metzgar, when Ballinger called him on
January 27, 1978, Metzgar was at home because of a 2-day
blizzard and he could not get to work. He stated that
Ballinger was very upset about the John Holloway situation
and wondered when we were going to get the "fucking scab"
off of our payroll. Metzgar informed him that he did not
know he was on the payroll but if he were on the payroll he
was sure that all the striking meatcutters had been called
back to work or he would not be there. Metzgar said that
Ballinger wanted Holloway to go because he had worked
during the strike "and he was to be gone." When Metzgar
would not make the decision, Ballinger threatened to go over
his head and said he would call Charles White, vice
president of the Louisville division. Because White had a
private number, Metzgar told Ballinger that he would call
White and have White call Ballinger. Metzgar then called
White and related to White what Ballinger had said to him
and asked White to call Ballinger.
Charles White testified that he called Ballinger around
January 27, 1978, while he was at home because of the
blizzard. He testified as follows:
Ballinger said to me that he wanted to know why a
Holloway was working in Lexington. At that point I'm
not too knowledgeable really as [to] who Holloway is
other than Metzgar told me that he was working in
Lexington. And I said, "Well he's an employee, we've
hired him and he's working." And Bob told me that
he's a "scab" and I said, "I know nothing about that
other than the only response that I have is that we will
hire the work force, we'll employ the people."
He told Ballinger that he would check through Metzgar to
make sure that the entire work force in Lexington was at
work, in accordance with their strike agreement. As I
understand the Union's position, there is no contention that
the Company did not recall, on the basis of seniority, all of
the strikers.
Ballinger testified that his complaint on January 27, 1978,
dealt primarily with the fact that there was a breach of
contract in that a new hire or rehire was taking hours away
from present employees. Later on in his testimony, Ballinger
testified that he was aware that Holloway had worked
' In addition to Ferris, one other employee named Harvey Durrum filed a
similiar grievance. Both of these grievances were ultimately resolved.
' Metzgar no longer works for Kroger: he is now employed by Super Food
Service Corporation.
during the strike, and that he was concerned also that they
had rehired someone who had worked during the strike
because he did not know that Kroger had opened all of the
stores and that all the strikers were back at work. Thus
Ballinger gave two separate reasons for requesting the
discharge of Holloway, the latter reason being that the
employees in the Lexington markets had not been recalled,
therefore they should not be hiring new people. The first
reason was that the Company had hired new people when
older employees in the store were not getting proper hours.
On cross-examination Ballinger was asked:
Q. And when you talked to Metzgar, you told him
that you had not been notified that they had rehired
anyone who had worked during the strike. Isn't that
right?
A. Yes, sir.
Q. Now, someone who works during the strike is by
definition a "scab," are they not?
A. Yes, sir that's what the courts have ruled.
The Company refused to comply with the Union's
request, and Holloway is currently employed as the head
meatcutter in the Nicholasville, Kentucky, Kroger store.
Sometime in February 1978 Ballinger contacted Metzgar
and requested a list of separation and new hires since work
began in January 1978. On March 6, 1978, Metzgar, by
letter, sent Ballinger the requested information and informed
Ballinger that the computer listing covered only new hires
and they had manually added the name of John Holloway.4
In this letter, Metzgar tells Ballinger that he informed Max
Stuckwish, the business agent of the Union, on February 28,
1978, that Holloway's date of hire was January 30, 1978, and
that he was classified as an 18-month apprentice, thus giving
him credit for his previous experience.
On March 9, 1978, by letter, Ballinger informed Metzgar
that a grievance existed and that the resolution of that
grievance must be the termination of John Holloway.
Ballinger also protested that Holloway was not on the new
hire list until March 6, 1978, that he had been hired making
more than the normal starting rate of pay, and that they
were objecting as they felt this was a violation of the new
portion of their agreement plus the old experience clause. He
indicated that he was assuming that the John Holloway
grievance was in its third step and that he expected a reply
within the next week or they will be forced to arbitrate.
On March 16, 1978, Metzgar responded by informing
Ballinger that it was apparent from his letter that he did not
agree to the 18-month apprentice rate for John Holloway
and requested what rate he recommended. On March 23,
1978, Ballinger responded to Metzgar's letter stating that he
was in receipt of that letter concerning Holloway and that he
could not agree on anything more than the starting part-time
rate of pay and a clerk's classification for John Holloway.'
Ballinger further stated that if Metzgar did not agree that
they would continue onto arbitration. Metzgar did not
respond to this letter, and the Union filed a Section 301 suit
seeking compulsory arbitration of their grievance.
' Metzgar explained that the computer missed Holloway because he was
really not a new employees but was a transfer.
' Apparently at this point Ballinger had given up the request for the
termination of Holloway.
2(X)
COMMERCIAL WORKERS, DISTRICT UNION 227
It is the contention of the General Counsel that, when
Ballinger requested on January 27, 1978, that Holloway be
discharged because of his working for Kroger during the
strike and crossing the Union's picket line and becoming a
"fucking scab," the Union violated Section 8(b)(1)(A) and
(2) of the Act.
On the other hand, the Union contends that it did nothing
more than seek enforcement of its rights under the new
agreement. Thus, it argues that it was merely seeking to have
Holloway's prior experience clarified. As the Union never
agreed to Holloway's rate of pay, pursuant to article article
106 of the agreement, Holloway should be terminated or at
least his hours should be reduced.
Discussion and Conclusion
Ballinger never specifically denied having referred to
Holloway in his conversations with Metzgar and White as a
"fucking scab." Ballinger testified that he knew that Hollo-
way had crossed and worked behind the Union's picket line
during the strike and he admitted that he was seeking the
termination of Holloway. Both Metzgar and White testified
that Ballinger demanded the discharge of the scab Holloway,
and there is nothing in their testimony to indicate at the time
of the call on January 27, 1978, that Ballinger was
attempting to enforce any contract right. Accepting the
credible testimony' of both Metzgar and White, it is quite
clear that Ballinger's only concern was that Holloway, a
"fucking scab," was working at Kroger. While Ballinger's
feelings in this regard might be justified because Holloway
had crossed and worked behind Respondent's picket line,
this does not give Respondent a right to violate Holloway's
protected right to refuse to corss a picket line or to cross a
picket line as guaranteed by Section 7 of the Act. The
attempt to cause his discharge, or otherwise affect his
employment, for that reason is clearly a violation of Section
8(b)(1)(A) and (2) of the Act, and I so find.
The General Counsel also argues that the grievance which
was filed on March 9, 1978, was a pretext to mask the
continuing discriminatory motive for seeking Holloway's
discharge. In this regard it is noted that Ballinger never
disavowed his sentiments as expressed on January 27, 1978,
that Holloway was a "fucking scab." Ballinger also testified
that he was concerned over Holloway's rate of pay. His
grievance filed on March 9, 1978, also complains about
Holloway's rate of pay. Thus, Ballinger states that the new
portion of the contract dealing with "past comparable
experience" and the old clause of the contract which
required the Employer to consider prior experience in
arriving at a new employee's pay were violated because he
was never given this information by Kroger. However,
Ballinger's good faith in this regard is questionable, particu-
larly as Metzgar credibly testified that he offered to show
'Art. 10 reads as follows:
A. The employer agrees to consider past comparable experience in the
retail food industry. The employee will receive the appropriate clerk
starting rate for the first twenty-one (21) days. Final adjustment as to job
classification and rate of pay will be determined by the Employer, the
employee and the Union within twenty-one (21) days from the date of
hire. If agreement is not reached by all the parties, the employee will be
terminated.
B. The employer shall notify the Union in writing of all newly hired
employees including the starting rate of pay.
and discuss with Ballinger Holloway's past comparable
experience, and Ballinger indicated that he did not want to
see it. Moreover, as pointed out by the General Counsel, at
no time did Ballinger question Holloway concerning his
prior experiences.
Under all the circumstances, and particularly as Ballinger
never disavowed that he wanted Holloway, the "fucking
scab," discharged, it is my conclusion that the filing and the
processing of the grievance is simply a subterfuge and
pretext to cover up the real reason why the Union is
requesting Holloway's termination, that is, he crossed and
worked behind its picket line. Therefore, it is my conclusion
that by processing the grievance demanding Holloway's
termination or a reduction in his wages, Respondent is in
violation of Section 8(b)(l)(A) and (2) of the Act, and I so
find.
IV. THE EFFECT OF THE UNFAIR lABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring in
connection with the operations of the Kroger Company.
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
As I have found that Respondent has violated the Act, I
will recommend that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the
policies of the Act.
As I have found that Respondent unlawfully demanded
the termination of John Holloway because he crossed and
worked behind Respondent's picket line in violation of
Section 8(b)(1)(A) and (2) of the Act, I will recommend that
Respondent be required to notify the Kroger Company that
it will not object to the employment of John Holloway as a
meatcutter.
CONCI.USIONS OF LAW
1. The Kroger Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and at all
times material herein has been an employer within the
meaning of Section 2(2) of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen of
North America, District Union 227, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By crossing and working behind Respondent's picket
line, John Holloway engaged in protected activities within
the meaning of and as guaranteed by Section 7 of the Act.
C. Newemployeesstarting work on the same day will establish their
seniority by "picking numbers from a hat."
Specifically, I accept Metzgar's testimony because he is a disinterested
witness in that he no longer works for the Kroger Company. The testimony of
both Metzgar and White was straightforward and had a ring of truth.
Therefore, to the extent that there is any discrepancy between the testimony of
Metzgar and White and that of Ballinger, I credit both Metzgar and White
over Ballinger
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By demanding that the Kroger Company discharge
John Holloway because he crossed and worked behind
Respondent's picket line, Respondent restrained and coerced
employees in the exercise of the rights guaranteed them in
Section 7 of the Act and thereby engaged in unfair labor
practices within the meaning of Section 8(b)(l)(A) of the
Act.
5. By demanding that the Kroger Company discharge
John Holloway because he crossed and worked behind
Respondent's picket line, Respondent caused or attempted
to cause the Kroger Company to discriminate against John
Holloway in violation of Section 8(a)(3) of the Act, and
Respondent therefore engaged in unfair labor practices
within the meaning of Section 8(b)(2) of the Act.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from Publication.]
202