J & H Food Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1962

139 N.L.R.B. 1398 (N.L.R.B. 1962)

1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if established as bona fide, would not warrant quashing the notice of
hearing. There is no evidence or contention that the affected employ-
ees of the Bulletin have disclaimed an interest in the work; and, in
any event, neither Congress, nor the Supreme Court in the CBS case,
intended that unions be given carte blanche to divide up an employer's
operations as they wish, and that employers be denied the benefits of
a determination under Section 10 (k).'
In view of all the foregoing, therefore, we would proceed to deter-
mine the dispute which exists in this case.
* N.L R B. v. Radio and Television Broadcast Engineers Union, Local 1313 ( Columbia
Broadcasting System ), 364 US. 573; see also the dissenting opinion in Sheet Metal
Workers International Association, Local Union No 373; Sheet Metal Workers inter-
national Association, AFL-CIO ( Valley Sheet Metal Company ), 136 NLRB 1402.
J & H Food Inc ., Halan Enterprises , Inc.; Jack-Gregg, Inc.,
Halan Enterprises , Inc.; Halan 's Inc., Halan Enterprises, Inc.;
Halan 's Waukesha, Inc., Halan Enterprises, Inc. and Amalga-
mated Meat Cutters & Butcher Workmen of North America,
AFL-CIO, Retail Local 73. Cases Nos. 13-CA-4839-1, 13-CA-
4839-2, 13-CA-4839-3, and 13-CA-4839-4. November 29, 196Z
DECISION AND ORDER
On September 5, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaintit.
139 NLRB No. 125.
J & H FOOD INC., HALAN ENTERPRISES, INC., ET C. 1399
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was heard in Milwaukee, Wisconsin, on July 11 and 12, 1962, pursuant
to charges filed on April 23 and June 7, 1962, a complaint issued June 8, 1962, and
an answer filed June 19, 1962. The issue is whether the Respondents were members
of a multiemployer bargaining unit and as such were obligated to execute an agree-
ment which the Charging Party entered into with other employers in that alleged
unit.
At the conclusion of the hearing all parties waived oral argument but thereafter
filed briefs which have been fully considered. Upon such consideration and upon
the entire record, I make the following:
FINDINGS OF FACT 1
1. THE BUSINESS OF THE RESPONDENTS
The pleadings establish and I find that each of the Respondents except Halan
Enterprises, Inc., is a Wisconsin corporation engaged in operating retail food stores
under the trade name "Halan's Foods," which trade name is the property of Halan
Enterprises, Inc. The gross volume of the business of each of the "store" Respond-
ents in the year preceding the complaint, exceeded $750,000, and each of them in
that period received products valued in excess of $50,000 directly from outside the
State. The four "store" corporations are affiliated businesses with common officers,
directors, ownership, or control, and with a common labor policy. Each is a wholly
owned subsidiary of Halan Enterprises, Inc., the president of which is also president
of two of the "store" corporations and secretary of the other two. The answer admits
and I find that each of the "store" Respondents is an employer engaged in commerce
within the meaning of the Act. In the light of the above facts, I find, although the
answer denies, that Halan Enterprises, Inc., is likewise an employer engaged in
commerce within the meaning of the Act. Cf. N.L.R.B. v. Stowe Spinning Company,
et at., 336 U S. 226, 227; N.L.R.B. v. Federal Engineering Company, Inc., 153 F. 2d
233, 234 (C.A. 6). The several Respondents will frequently be referred to herein-
after as the Respondent or the Company.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish and I find that the Charging Party, hereinafter called the
Union, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
In the fall and winter of 1961-62, the Union engaged in joint meetings with a
group of retail grocers, including Respondent, operating in the Milwaukee area.
Similar negotiations had been conducted since 1950 whenever the then current
contract had expired. At the conclusion of the meetings early in 1962 each of the
employers (except Respondent) who had participated in the meetings signed a
collective-bargaining agreement which conformed to the agreement reached at the
meetings. Respondent refused to sign unless the Union gave it a "letter of under-
standing" which (at least in the Union's view) would have amounted to a substantial
change of one of the clauses of the new agreement. The issue presented is whether
Respondent, by its participation in the meetings and by the history of its bargaining
negotiations in the preceding years, had become part of a multiemployer bargaining
unit, and as such was required to sign the 1962 agreement under such cases as N.L.R.B.
v. Jeffries Banknote Company, 281 F. 2d 893, 896 (C.A. 9).
'Most of the facts here found rest on documentary evidence or undisputed testimony.
The two principal witnesses were Ray Wentz, International vice president of the Charging
Party, and Ramon George, controller of each of the Respondent corporations and an officer
In three of them Where the latter's testimony is in conflict with that of Wentz or with
that of any other witness (notably George Schultze, an independent employer, called as
a witness by the General Counsel, but apparently a disinterested participant), I have not
credited George's version, as in certain respects he seemed to be equivocating and his
demeanor on the witness stand did not inspire confidence In his veracity 'Nevertheless,
where George's testimony is uncontradicted, I credit it. Cf. Dyer v. MacDougall, 201
F. 2d 265, 269 (C A. 2), quoted in N.L.R.B. v. Walton Manufacturing Company & Logan-
ville Pants Co., 369 U.S 404, 408.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The history and general pattern of bargaining negotiations in the area
The retail distribution of meat in Milwaukee and Waukesha Counties, Wisconsin,
is accomplished through a number of chainstores (among them Atlantic & Pacific
Tea Company, The Kroger Company, National Foods, Red Owl Stores, Inc., Sentry
Markets, Inc., Kohl's, and Respondent) and a number of individually owned meat
markets or grocery stores. Although otherwise highly competitive, these employers
have for a number of years entered into identical, or nearly identical, labor agree-
ments with the Union, which numbers among its membership well over 99 percent
of the meatcutters employed by the above-named chainstores. These uniform or
nearly uniform agreements have been negotiated, at least since 1950, in the following
manner:
When its contracts were about to expire (the contracts were for 1 year from 1950
to 1955 and for 2 years beginning in 1955), the Union would send notices to each
of the over 70 employers in the area with which it had a contract, inviting them to
joint sessions for the negotiation of a new contract. In practice only a minority of
the employers actually participated in the ensuing negotiations. This minority regu-
larly included one or more representatives of each of the above-named chainstores,2
including Respondent, and one individual employer, George Schultze. Other indi-
vidual employers would attend the negotiating sessions from time to time.
After several sessions, each side (the Union and the employers) would select a
subcommittee to facilitate exploration of the apparent areas of conflict. The em-
ployers' subcommittee would report developments to the larger group of employers
from time to time, and employers who were not on the subcommittee would convey
their views on various matters to the subcommittee. When agreement was eventually
reached between the two subcommittees, this was reported to the entire group and
the general "bargaining" aspect of the negotiations ended. The agreement thus
reached would be reduced to writing, and separate identical, or nearly identical,
agreements would be signed by each of the employers who participated in the nego-
tiations and by the Union. Copies of the agreement would then be furnished the
other employers with whom the Union had bargaining relations, i e, employers who
did not attend the negotiations, and in almost all cases each of these employers
would execute agreements identical to those reached by the above-mentioned sub-
committees.
I have used the expression "identical or nearly identical" contracts because varia-
tions did occasionally occur between contracts of different companies executed for
the same period. For example, in several of the contracts a union-security clause
was contained in the body of the agreement, whereas in others the same clause was
contained in a separate supplement. The order of provisions also varied slightly;
for example, the provision covering injury on the job is article XVIII in all the cur-
rent contracts except Red Owl's, where it is article X11.3 Some of the contracts
contain provisions covering delicatessen employees and some do not, depending upon
whether the Union represents those employees in the particular establishment in
question
The various Kroger contracts are of particular interest in the light of certain testi-
mony George, an official of Respondent, in testifying that he did not regard the
negotiations as culminating in agreements he was required to sign, several times re-
ferred to an occasion when Bedell, the Kroger representative at the negotiations, said
he would not agree to having meat managers covered by the contract, avowed an
intention to negotiate that himself, and left the meeting. According to George,
Bedell in 1956 said he was only "at the meeting negotiating for himself, not for any-
one else . . . he and every one else at the meeting were negotiating independently
and for themselves. And the contracts they signed were their own business." What-
ever may be the hearsay aspects of George's testimony in this regard, I find it cor-
roborated by close inspection of the contracts. For, beginning with the contract
covering 1955-57, and including the contracts covering 1957-59 and 1959-61, the
Kroger contracts, unlike the others signed for those years, expressly excluded meat
managers and contained no wage rate for "head meatcutters " The current 1961-63
Kroger contract does not specifically exclude meat managers, and a wage rate for
2 Not all the chainstores have been involved since 1950 Kroger for example, did not
enter this geographic area until 1954, and other chains entered the picture at other dates.
3A more extreme example of such variance is found in the rest period clause in the
1957-59 agreement This clause is article XII in the A & P contract, article IV in the
Kro>?er contract, and part of article II in the Schultz, Red Owl, and National Food
contracts
J & H FOOD INC., HALAN ENTERPRISES, INC., ETC. 1401
"head meatcutters," identical to that contained in the wage schedule in other current
contracts, is set forth in a document executed Monday, February 5, 1962, apparently
on or about the same date Kroger executed the main agreement.4 This variation
between the Kroger contract and other contracts covering 1955-61 is apparently
explained by a letter of December 19, 1957, from Kroger to the Union, in which
Kroger urges in effect that its meat department managers are intended to perform
supervisory rather than production tasks.
The 1957-59 contracts required "at least one male member of the bargaining
unit in the market after 6:00 P.M. where fresh meats are sold . . In the Red
Owl contract for that period, a line was drawn through the word "male," and the
change was initialed in what appears to be an indication that it was approved.
In addition to these variations between otherwise identical contracts, the record
establishes that in some instances discussions were held between the Union and
particular employers as to certain contractual terms. For example, in the most re-
cent negotiations the A & P Company disagreed with the Union as to whether certain
packaged meats could be priced at the warehouse (as the company desired) or must
be priced at the stores (as the Union desired and as the contract by its terms appears
to require). The company eventually verbally agreed to the Union's view for the life
of the current contract.
The Union's chief representative, Wentz, testified that where an individual em-
ployer had a specilfic problem relating to his enterprise "the union might make a
change [in the otherwise uniform contract] to take care of the specific problem
with that employer." Wentz also testified that such changes would not have
"changed the intent or the purpose of the contract," but were limited to clarifications
in the event of misunderstandings. Several of the supplemental letters introduced
in evidence support Wentz' generalization. However, I note that on Monday, Feb-
ruary 4, 1957, Harry B. Sutherland, financial secretary of the Union, sent the fol-
lowing letter to the president of the company operating the Sentry stores, concerning
a contract executed the preceding Friday, February 1:
This letter is to confirm our conversation with respect to contract covering
your store at 6240 North Port Washington Road.
It was agreed, as you recall, that this market to continue operating with re-
spect to evening work and other work as it has in the past and the contract
recently signed in no way is to conflict with the method of operation.
Respondent introduced evidence that it had also conducted separate negotiations
with Sutherland; this matter is discussed below in connection with Respondent's re-
lations with the Union, to which we now turn.
B The bargaining relations between Respondent and the Union prior to the
1961-62 negotiations
Respondent regularly participated in the group negotiations with the Union com-
mencing in 1950. At that time Respondent operated only one store; by 1955 it had
three stores; and by 1958 it had four. In 1950, Respondent executed a contract
which conformed to the basic agreement reached in the joint negotiations, and also
included a special supplement prohibiting the Company from establishing a central
cutting plant. According to the testimony of Company Officer Ramon George, -Re-
spondent participated in negotiations in each of the following years, but the record
is not clear as to whether it signed a contract again until 1954 or 1955 George
testified that "there was times on those yearly contracts where there would be ne-
gotiations made and Mr. Sutherland would come out and we would talk over different
problems we had in the contract. Sometimes the contract was signed and sometimes
there was no contract signed at all." George later admitted, however, that Re-
spondent might have signed contracts without his knowledge during those years, and
that he did not know during that period what contracts were not signed by
Respondent.
In 1955 a single agreement with the Union, covering the next 2 years, was executed
in the name of Halan's Foods, and 2 years later a single 2-year agreement with the
Union was executed in the name of Halan's Inc. I find, in accordance with a decision
of the Wisconsin Employment Relations Board, enforced by the Circuit Court of
Milwaukee County, concerning the latter agreement, that both agreements covered
all of Respondent's then existing stores. Separate but identical agreements covering
4 The testimony establishes that the main agreement was reduced to writing on Friday,
January 26, 1962, and that Kroger's signed contract was received "about a week" later.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959-61 were executed by each of the four stores,5 and the failure to sign the
1961-63 agreement is the subject of this litigation.
George testified that Respondent did not always operate in accordance with the
signed agreements. As an example, George referred to the fact that Respondent was
the first company in the area to sell "self-service meat," i.e., meat wrapped in cello-
phane, and that it sold such meat even if no meatcutter was on the premises. Al-
though this practice contravened a contract provision, the Union, acting through
Sutherland, apparently acquiesced in it for several years. Beginning in 1958 the
Union insisted on compliance with the terms of the agreement and successfully
pressed its position through proceedings before the State labor board and before
an arbitrator.6
Late in 1959 or early in 1960, the joint bargaining for the 1959-61 agreement
was concluded ; the National Foods, Kroger, and A & P contracts were all executed
Monday, January 4, 1960. Respondent executed an identical contract the following
August 16. The record discloses that the following negotiations between Re-
spondent and the Union occurred between those dates:
In mid-April 1960, company representatives met with Union Representative
Sutherland to discuss certain provisions of the then pending contract. As a result
of this meeting company counsel sent Sutherland a proposed addendum to the con-
tract covering five points. The addendum (which as will appear was never executed)
recited that the contract "shall be construed and/or amended" in those five respects,
namely, (1) exclusion of delicatessen employees; (2) waiving of overtime for extra
journeymen on Fridays after 6 p.m ; (3) limitation on activities of visiting union
business representatives during working hours; (4) union submission to Respondent of
a list of all other employers participating in health and welfare plan (a feature of the
1959-61 agreement which had not been in previous contracts); and (5) retroactivity
provisions to apply only to hours worked by employees who were in Respondent's em-
ploy on the date of the execution of the agreement. According to the testimony of
George, in mid-April, Sutherland had informally agreed to the five items.7
The proposed addendum was never executed, however. Early in July 1960, the
International Union placed the Charging Union under a trustee or administrator or
receiver, with the result that in future negotiations with Respondent covering the
then pending contract Wentz represented the Union. Of the five items previously
discussed with Sutherland, Wentz agreed to one (exclusion of delicatessen employees),
although he informally undertook to clear up the matter of visiting business representa-
tives. Wentz also insisted that, as Respondent was now prepared to sign separate con-
tracts for each store, the contracts be clarified to provide for continuing seniority
in the event of transfer. After negotiations with Wentz early in August 1960, Re-
spondent prepared a letter reciting that the agreement would be "applied and con-
strued consistent with" the provisions set forth in the letter relating to the delicatessen
and seniority matters. This "letter of understanding" was mailed August 10, and
the 1959-61 agreement was executed 6 days later.
C. The 1961-62 negotiations
In the fall and early winter of 1961-62 , negotiations for a new contract between
the Union and the several employers in the area progressed in the customary manner.
Respondent was represented at the negotiating meetings , subcommittees were named,
and on the evening of January 16, 1962, accord was finally reached on all matters.
George represented Respondent at a meeting of employers in a Milwaukee hotel
on the afternoon of January 16. At that meeting he indicated his disagreement with a
proposed Sunday hours ' clause in the contract , and thereupon left the meeting.
Before leaving the hotel George chanced to meet Wentz, but merely told Wentz
he (George ) had to leave, without indicating that any divergence of views was
responsible therefor.
c The agreements were identical, but the union-shop supplement attached to each agree-
ment was inapplicable to one of the four stores, as at that store the Union had not re-
ceived the required certificate from the Wisconsin Employment Relations Board
O The State board decided contrary to Respondent's position, that the contract arbitra-
tion provisions were applicable to all Respondent's stores, and the arbitrator later sus-
tained the Union on the merits of the dispute
7 Sutherland was not called as a witness , although the record discloses that he is living
in Milwaukee, and the Trial Examiner indicated on the record that he felt Sutherland's
testimony might illumine the issues. In view of the failure of General Counsel and
Charging Party to call this retired union official as a witness, I fully credit George's
testimony concerning his dealings with Sutherland. Compare N.L B B v Kalof Pulp &
Paper Corporation, et al., 290 F. 2d 447, 451 (C.A. 9) ; 2 Wigmore , Evidence, §§ 285, 286.
J & H FOOD INC., HALAN ENTERPRISES, INC., ETC. 1403
A few hours after George left, the union and employer representatives reached final
agreement. Wentz thereupon telephoned George at the latter's home to report the
reaching of agreement, and George expressed pleasure at the news and indicated that
Respondent would "go along." George asked that the Union send its representatives
to one of Respondent's stores to explain the new provisions to him.
Pursuant to this conversation, a copy of the agreement was left with George early
in February 1962. Upon reading it, George discovered that it contained certain
clauses (discussed more fully below) which he regarded as objectionable, and he
telephoned the then head of the local union, Emil Schuette,8 to arrange a conference
on February 26. On that date, and before any meeting was held, Schuette died. Some
weeks later, Schuette's successor, Kenneth Nolte, asked George to sign the agreement,
and when George declined to do so, Nolte, on the advice of International Representa-
tive Wentz, arranged for a meeting which was held April 4, 1962, in the office of
Company Counsel Hoebreckx, attended by Hoebreckx, George, Wentz, and Nolte.9
Wentz opened the meeting by stating that he had not come to negotiate a contract,
as it was his view that negotiations had been completed with the group of employers
and Respondent was legally obligated to sign the agreement there reached. Hoebreckx
then discussed the hours' clause of the contract (described more fully below) to
which Respondent objected. He asked the Union if it would give the Respondent a
"letter of interpretation" which would conform to the Company's desires on that
clause. Wentz refused to do so. Respondent offered to pay a higher rate than that
set in the agreement in return for the desired concession on the hours' clause, but
again the Union refused. Respondent advised Wentz that by agreement with Suther-
land it had followed certain hours' practices in the past which it desired to continue,
but Wentz took the view that the practice had been in violation of the old agreement,
and in any event would not be permitted under the new agreement.
During the course of the meeting the Company took the position that it would not
be able to operate under the hours' clause as the Union demanded, but the Union took
the position that Respondent was no less able to do so than other employers who
had signed the agreement. At Wentz' suggestion the Company agreed to submit pro-
posed work schedules to the Union, to see if the Union could assist in working out
satisfactory schedules The schedules were thereafter furnished as agreed, and the
Union after studying them suggested that the Company could conform to the agree-
ment by hiring an additional employee in each store. The Company apparently found
this alternative unacceptable, and continued to refuse to sign the agreement unless
it received the "letter of understanding" it desired as to the hours' provisions. Later
in April the Union filed the charges initiating this proceeding.
At some point during the April 4 meeting, upon Wentz' repeated insistence that
Respondent was legally bound to execute the agreement reached in the joint negotia-
tions, George declared that in future contract negotiations, Respondent would advise
the Union that Respondent would not be a part of the joint negotiations and would
negotiate its own contract. When asked at the hearing to explain what he had meant
by that remark, George testified:
This was the first time this had come up with our company, and we learned
by experience. Mr. Wentz told us that somebody else had negotiated a contract
for us, and we will have to sign it whether we wanted to or not. And I said,
"No one ever negotiated our contract for us. If that is the case, from now on
we won't attend the meetings anymore." is
It should also be noted that Respondent is generally observing the substantive
terms of the as yet unexecuted agreement, except as to the "hours" clause; e g., it is
paying the increased wages set in the new agreement and made them retroactive to
the expiration date of the preceding contract as the new agreement provided.ii
8 This name is variously given in the record as "Amoschuty," "Emo Schulty," and other
similar quasi-phonetic versions
O There is some testimony that the initiative for the meeting came from management.
I regard the matter as immaterial.
10 The quotation marks do not appear in the transcript. I hereby correct the record
to insert them in accordance with the testimony of Wentz and Nolte.
u I do not mean to imply that this case will become moot if the litigation is protracted
beyond the expiration date of the contract. It may well be that a holding that Respond-
ent was required to conform to the hours' clause as the Union construed it would result
in substantial financial liability. Cf. NLRB. v Cosmopolitan Studios, Inc, 291 F. 2d
110, 112 (C.A. 2).
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The substantive terms in dispute
As stated above, Respondent's refusal to sign the contract in question arose out of
a disagreement as to the hours of work provision. A full understanding of the case
requires some discussion of the substantive matter in dispute. Accordingly, I am
setting forth in Appendixes to this report the full text of the proposed "hours"
clauses, and also the full text of the parallel clause in the preceding contract covering
1959-61.
Both the prior and the proposed new agreements provided for a basic 8-hour day
and 40-hour week, with overtime for hours in excess thereof, and for work outside
normal hours. Indeed, those provisions had not been changed to any substantial
degree in the past several contracts. The primary change in the new contract dealt
with Sunday work.
Prior to the 1959-61 agreement, the contracts had prohibited Sunday work In
that agreement, Sunday work was permitted at double time, but the contract expressly
stated that Sunday work "may be included as part of the basic workweek " The new
1961-63 agreement added a proviso that Sunday work may be so included "if any
employee is scheduled and works 8 hours" but that "If an employee is scheduled and
works less than 8 hours [on Sunday] such time worked shall be in addition to the
basic workweek." 12
Although the testimony of Wentz and George is not altogether clear on this
matter, it appears that Wentz construed the contract (quite apart from the Sunday
clause-i.e , construed even the prior contracts) to require that the employer in
each week offer at least 40 hours of work to the senior employee before hiring part-
time help it further appears that Respondent had not so operated in preceding years,
and that its failure to do so had been with the express understanding and agreement
of Sutherland, who then represented the Union. Before signing the new agreement,
the Company desired a written assurance that the prior practice could continue, for
Sutherland was now out of the picture and the more adamant Wentz was acting
in his stead Wentz indicated his belief that the Company had been violating the
contract, and also took the position that under the new Sunday clause the Company
could not, for example, work its senior employee in one of the stores 30 hours
in the basic workweek and schedule him for less than 8 hours on Sunday It was
on this rock that negotiations foundered, and this litigation ensued.
E. Concluding findings
The fundamental issue to be decided is whether Respondent was legally obligated to
execute the agreement which was reached in the joint bargaining sessions, or whether
it was within its legal rights in refusing to sign unless it obtained a "letter of under-
standing" which (at least in the Union's view) would have modified one of the terms
of the agreement The position of General Counsel and of the Union is that the
history of the bargaining here establishes such an obligation, the position of Re-
spondent is that each employer engaged in the negotiations was acting for itself alone,
and that no single employer was bound to sign the contract agreed to by the others.
As I understand the decisional law, the fact that the various employers did not
formally delegate to any of the negotiators authority to represent them. and the fact
that no formal employer association existed would not foreclose a finding that a
multiemployer bargaining unit existed. If the record showed that regularly after joint
negotiations each of the employers (Kroger, Red Owl, Respondent, and the rest)
signed identical contracts, this would go far to establish that they entered the bargain-
ing with the understanding that they would do so, and that Respondent violated the
Act by its refusal to sign in this case. The difficulty in this case arises from the fact
that although most of the contracts each year were identical, the record contains
some evidence of variation and of separate negotiation with particular employers oc-
curring after the joint bargaining.
The following facts or items, in my view, militate against a finding that the parties
embarked on the bargaining with an understanding that it would result in a binding
commitment on all participants:
I Sutherland's letter of February 4, 1957, in which the Union agreed that one
of Sentry's markets could "continue operating with respect to evening work and other
work as it has in the past and the contract recently signed in no way is to conflict with
12 This clause was itself the result of a compromise The Union had sought a provi-
sion that would have prohibited Sunday work for senior employees who had not already
worked 40 home in the workweek
J & H FOOD INC., HALAN ENTERPRISES, INC., ETC. 1405
the method of operation." Such a letter, mutatis mutandis, is all the Company sought
in this case.
2. The separate treatment accorded meat department managers in several of the
Kroger contracts. This is material not only because of the variation in contractual
terms, but also because of the strong support it affords for George's testimony that
the Kroger representative had openly stated at negotiation sessions that Kroger
would negotiate certain matters separately and that "the contracts they [Kroger]
signed their own business."
3. The separate negotiations between Respondent and the Union prior to execution
of their last contract. These negotiations tend to confirm George's testimony that
Respondent and Sutherland regularly negotiated separately after the joint bargaining
had been concluded, and that Respondent's execution of preceding contracts had
followed the reaching of particular agreements with Sutherland that particular terms
would not be applied to Respondent or would be "construed" to accommodate it.
Further, although Wentz took over the 1960 negotiations and declined to agree to
the matters tentatively conceded by Sutherland, there is no suggestion in the record
that at that time the Union told Respondent that in the Union's view as a matter
of I..w Respondent was obligated to execute the agreement reached in the joint
sessions. On the contrary, the record suggests that although Wentz engaged in
separate negotiations with Respondent in August 1960, he did not advise it of any
such absolute obligation until the meeting in April 1962. (Of course, on the other
side of the ledger, it may well be that Respondent readily capitulated in 1960 so that
it was unnecessary for Wentz to state his view of the obligation.)
It may be argued that the foregoing deviations from the standard pattern os"
accepting the agreement reached in joint bargaining represent merely concessions
by the Union, or agreements not to enforce, which the Union was not legally
obligated to grant or even to bargain over. In other words, it may be that in this
situation, as in N L.R.B. v. Wooster Division of Sorg-Warner Corporation, 356 U S.
342, 349, these are matters which an employer may lawfully propose but may not insist
on, and such insistence (even in good faith, as in Borg-Warner) constitutes a refusal
to bargain
As I understand the theory of multiemployer bargaining, however, the Borg-Werner
approach, just suggested, is inapposite. To find an obligation on the part of Re-
spondent to sign this contract without further negotiation, 1 must find that all the
employers (including Respondent) and the Union embarked on the joint negotia-
tions with the tacit, if not express, understanding that the agreement there reached
wculd be executed by each without further separate negotiations. On this record,
I find that Respondent expected to be free to negotiate separately with the Union as
to particular items after conclusion of the joint sessions. At the very least Respond-
ent had so expected during the years in which Sutherland represented the Union.
and as the current negotiations were the first since his removal, it cannot be said
that there was such a history of bargaining as to require Respondent's adherence
to the agreement without subsequent bargaining. Moreover, not only Respondent
but other employers as well had made such separate arrangements.
Finally, I should note my awareness of such cases as Furniture Employers' Council
of Southern California, Inc., etc., 96 NLRB 1002, 1004; United States Warehouse
Company, 98 NLRB 14, 15; Safeway Stores, Incorporated, 98 NLRB 528, 529, all of
which find multiemployer units appropriate, notwithstanding that the bargaining his-
tory shows "isolated instances of single-employer action on minor matters," or "rela-
tively insignificant" variations But these cases. while perhaps supporting the theory
that Respondent was part of a multiemployer unit notwithstanding the separate bar-
gaining negotiations, do not control the controversy here. In any of the units
established in those cases an individual employer, although part of the unit, would
presumably have been free to bargain separately over the matters which had been
the subject of preceding variations' Respondent seeks no more than that here.
In sum, the fundamental question here is whether the employers and the Union
contemplated at the outset and during negotiations that the agreement reached in
joint bargaining sessions would be binding on all employers participating in the ses-
sions, or whether it was contemplated that individual variances could thereafter be
negotiated Based on Sentry's experience in 1957, on Kroger's position with respect
to its meat managers, and on Respondent's past dealings with Sutherland, I find
that such separate negotiations were not outside the contemplation of the employers
participating in the bargaining. If in the future the agreement reached in the joint
bargaining negotiations is not to be subject to separate bargaining for such variations
as Respondent and others have negotiated for in the past, it is up to the Union and
the employers to make this clear from the outset of the joint negotiations.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It follows that Respondent 's refusal to sign the current agreement unless it re-
ceived a "letter of interpretation " from the Union construing or amending the hours'
clause as Respondent desired did not violate the Act.
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondents have not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that the complaint herein be
dismissed.
APPENDIX A
HOURS CLAUSE IN 1959-61 AGREEMENT
ARTICLE HI-HOURS
A. The basic work day shall consist of eight (8) consecutive hours to be worked
in five (5) days, with not to exceed one (1) hour for lunch. The basic work week
shall consist of forty (40) hours. Time and one-half (11/z) the employee's straight
time hourly rate of pay shall be paid for all work performed after eight (8) hours
per day, forty (40) hours per week, before 7.00 A.M. and after 6:00 P.M. except
on Fridays when the straight time work day shall be concluded by 6:00 P.M.
Overtime will be paid on one basis only, whichever is the most favorable to the
employee, but in no case on more than one basis with the same hours worked.
Work performed on Sundays will be paid for at two (2) times the employee's
straight time hourly rate. Such work performed on Sunday may be included as part
of the basic work week.
If it is agreeable to the employees and the Union is notified, two (2) half-days
may be taken off instead of a full day. No employee shall be required to work
before 7:00 A.M. The schedule of days off shall be equitable among all of the
employees in the respective markets.
B. Extra Journeyman shall be paid time and one-half (11/a) for work after 6:00
P.M., except on Friday, when time and one-half (11/z) will be paid for work in
excess of eight ( 8) hours.
C. Preference will be given in the matter of work after 6:00 P.M. to regular full-
time employees according to job classification, provided regular employees are avail-
able for work. Such work after 6:00 P M. shall be rotated among full-time male
employees. A work schedule for such work shall be made for each store location,
so that each employee required to work after 6:00 P.M. shall know in advance the
night or nights he shall be required to work after 6:00 P.M. It is agreed that an
employee must be qualified for night work. Any employee working after 6:00 P.M.
shall be paid three hours pay at time and one-half (11 ) or for any additional hours
more than three that he might work, except as provided for extra journeymen. No
change shall be made in the night work schedule , except in case of operational re-
quirements or emergencies.
D. It is agreed that there shall be at least one (1) male member of the bargaining
unit on duty in the market after 6:00 P.M. and on Sunday where fresh meats are
sold. This paragraph will not apply in cases of owner-operated markets where the
owner is to be on duty.
APPENDIX B
HOURS CLAUSE IN 1961-63 AGREEMENT
ARTICLE IV
Hours
A. A working schedule for the succeeding week shall be posted for full-time and
regular part-time employees not later than Friday of the current week.
A-1. The basic work day shall consist of eight ( 8) consecutive hours to be worked
in five (5) days, with not to exceed one (1 ) hour for lunch. The basic work week
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY 1407
shall consist of forty (40) hours. Time and one-half (11h) the employee's straight
time hourly rate of pay shall be paid for all work performed after eight ( 8) Hours
par uay, forty (40) Hours per week, before 7:00 a.m. and after 6:00 p.m. except on
Fridays when .the straight time work day shall be concluded by 6:00 p.m.
A-2. Overtime will be paid on one basis only, whichever is the most favorable
to the employee, but in no case on more than one basis with the same hours worked,
A-3. Work performed on Sundays will be paid for at two (2) times the employee's
straight time hourly rate. Such work performed on Sunday may be included as part
of the basic work week if any employee is scheduled and works eight (8) hours. If
an employee is scheduled and works less than eight (8) hours such time worked shall
be in addition to the basic work week.
A-4. No employee shall be required to work before 7:00 a.m. The schedule of
days off shall be equitable among all of the employees in the respective markets.
B. Extra journeymen shall be paid time and one-half (11/z) for work after 6:00
p.m. except on Friday, when time and one-half (11/z) will be paid for work in excess
of eight (8) hours.
C. Preference will be given in the matter of work after 6:00 p.m. to regular full-
time employees according to job classification, provided regular employees are avail-
able for work. Work schedules shall be rotated in the market among full-time
employees to equalize overtime and premium hours within the classification. It is
agreed that an employee must be qualified for night work. Any employee working
after 6:00 p.m. shall be paid three (3) hours pay at time and one-half (11) or
for any additional hours more than three (3) that he might work, except as provided
for extra journeymen.
D. It is -agreed that there shall be at least one (1 ) male member of the bargaining
unit on duty in the market after 6:00 p.m. and on Sunday where fresh meats are sold.
This paragraph will not apply in cases of owner-operated markets where the owner
is to be on duty.
E. The term "owner-operator" shall be construed as meaning the principal owner
of a market who normally works these hours.
Central Illinois Public Service Company and Local Union No.
702, International Brotherhood of Electrical Workers, AFL-
CIO. Case No. 14-CA-2701. November °09,19620
DECISION AND ORDER
On July 19, 1962, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter,
the Respondent and the Charging Union filed exceptions to the Inter-
mediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
1 The Respondent's request for oral argument is hereby denied as the record , exceptions,
and briefs adequately present the issues and the positions of the parties.
139 NLRB No. 120.