Kroger Co.

National Labor Relations Board - Board Decisions

Jul 23, 1975

219 N.L.R.B. 388 (N.L.R.B. 1975)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Houston Division of the Kroger Co. and Retail Clerks
International Association Local No. 455, AFL-CIO
and Amalgamated Meat Cutters & Butcher Work-
men of North America, District Local 408, AFL-
CIO. Cases 23-CA-4304 and 23-CA-4419
July 23, 1975
SUPPLEMENTAL DECISION AND ORDER
On February 5, 1974, the National Labor Rela-
tions Board issued a Decision and Order I in the
above-entitled proceeding and found that the Re-
spondent, Houston Division of the Kroger Co. (here-
inafter Kroger or Respondent), had not violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act, as amended, by refusing to recognize and bar-
gain with the Unions, Retail Clerks International As-
sociation Local No. 455. AFL-CIO (hereinafter
Clerks), and Amalgamated Meat Cutters & Butcher
Workmen of North America, District Local 408,
AFL-CIO (hereinafter Meat Cutters), and dismissed
the complaint in its entirety. Thereafter, on February
4, 1975, the Board's Order was reversed and the case
remanded by the United States Court of Appeals for
the District of Columbia Circuit upon petitions for
review filed by the Unions?
The Board, having accepted the remand, will re-
consider the above-mentioned Decision and Order in
conformity with the court's opinion, which we re-
spectfully recognize as binding on us for the purpose
of deciding this case.
The Board has again considered the record and the
Administrative Law Judge's Decision dated Febru-
ary 7, 1973, in light of the opinion of the United
States Court of Appeals for the District of Columbia
dated February 4, 1975, and for the reasons set forth
hereinafter has decided to affirm the rulings, find-
ings , and conclusions of the Administrative Law
Judge.
The facts are not in dispute. Respondent has sepa-
rate collective-bargaining agreements with Retail
Clerks Local 455 and Meat Cutters Local 408. In
each of these collective-bargaining agreements, Re-
spondent has agreed to recognize the Union as the
exclusive bargaining representative of employees in
designated classifications at all stores operated by
Respondent's Houston Division in the State of Tex-
as. Recognition clauses of a similar nature have ap-
peared in prior collective-bargaining agreements exe-
cuted by the parties and, over the years, the parties'
practice has been to treat stores newly added to the
division as accretions to the contract units. The in-
stant controversy had its beginning in March 1972,
when Kroger Co. decided, for administrative purpos-
es, to shift its stores at Nacogdoches and Lufkin,
Texas, from its Dallas to its Houston Division. The
Unions took the position that they were entitled to
recognition as the bargaining representatives of these
employees under the terms of their collective-bar-
gaining agreements with Respondent. The Unions
formally demanded recognition on March 22, 1972,
and, although their claims were based on the recogni-
tion clauses in their respective contracts, both
Unions offered to submit proof that they had card
majorities among the employees at the stores in issue.
Respondent rejected both the claim for recognition
under the collective-bargaining agreements and the
offer to prove majority status on the basis of cards. It
is undisputed that, at the time the recognition re-
quests were made, the Unions possessed valid card
majorities among the employees sought.
We begin our reconsideration of this case by stat-
ing again our acknowledgement, recognized by the
court, that the principles of accretion do not resolve
the issue presented in this case, inasmuch as the
stores in question have a sufficient separate existence
to constitute separate appropriate units.' We also ac-
knowledge that the Board has held that "additional
store clauses" are valid in situations where the Board
is satisfied that the employees affected are not denied
their right to have a say in the selection of their bar-
gaining representative.4 In White Front and a later
case ,' the Board made it clear that its concern for the
employees' right to self-determination was the only
reason that controlling weight was not given to such
claims in prior cases. Here, as in White Front and
Smith's, it is conceded that the Unions have a valid
card majority in the units involved, which leaves no
barrier to giving full effect to the contractual com-
mitments of the parties. The fact that we are consid-
ering these clauses in the context of a refusal-to-bar-
gain charge, which was not involved in either White
Front or Smith's, does not alter their validity as de-
termined in those cases , but merely presents another
set of circumstances in which their application must
be examined. We find no reason in policy or other-
wise to overrule White Front or Smith's or to alter
their holdings in any way. The relevant question,
therefore, is what meaning do these clauses have in
3 Melbet Jewelry Co, Inc., and LAS -Orchard Park, Inc, 180 NLRB 107
'208 NLRB 927. (1969)
2 Retail Clerks International Association, Local No. 455, AFL-CIO v . ° Retail Clerks Union, Local 870, Retail Clerks International Association,
N.L.R B., 510 F.2d 802 (1975). The Clerks request for oral argument is AFL-CIO (White Front Stores, Inc.), 192 NLRB 240 (1971)
hereby denied, as the position of the parties has been adequately presented 5 Smith 's Management Corporation d/b/a Frazier's Market, 197 NLRB
in the statements submitted to the Board on the issues presented on remand . 1156 (1972).
HOUSTON DIV. OF THE KROGER CO.
the circumstances of this case.
Interpreting these clauses to mean that an employ-
er can voluntarily recognize a union or demand an
election renders them totally meaningless and with-
out effect, for unions need no contract authorization
to establish their representation status in a Board-
conducted election. However, these clauses can be
read to require recognition upon proof of majority
status by a union. As stated above, there is no need
to hold these clauses totally invalid simply because
they do not contain an explicit condition that unions
must represent a majority of the employees in a new
store, inasmuch as the Board will impose such a con-
dition as a matter of law. It is evident that under the
circumstances present in this case, the Unions have
lived up to the requirements imposed by the Board
and therefore the agreements between them and the
Employer should be enforced.
The court examined these clauses in the context of
this case and found that they constituted a waiver by
Kroger of its right to demand an election in these
circumstances. Upon reconsideration we now adopt
this view as the only reasonable interpretation which
saves these clauses from meaninglessness or from
impinging on functions reserved solely to the Board .6
Finally, having concluded that these clauses are
valid and constitute a waiver of the Employer's right
to demand an election, we must consider the court's
last question on remand, as to whether there exists
any considerations of national labor policy which
would require us to find these clauses illegal, not-
withstanding our other findings. We not only find
that no such negative considerations exist, but agree
with the suggestion in the court's opinion that na-
tional labor policy favors enforcing their validity.
As we have interpreted them , these clauses are
contractual commitments by the Employer to forgo
its right to resort to the use of the Board's election
process in determining the Unions' representation
status in these new stores. To permit the Employer to
claim the very right which it has forgone, perhaps in
return for concessions in other areas, would violate
the basic national labor policy requiring the Board to
respect the integrity of collective-bargaining agree-
ments . Since the Unions' majority is conceded by all
concerned, there is no countervailing considerations
of policy not to give effect to these agreements. The
fact that the literal language of the agreements them-
selves can be read as going beyond what the Board
6 While these clauses could be interpreted as an agreement concerning the
appropriate unit, we agree with the court that the Board's ultimate right to
establish appropriate units would render them illusory if they were so con-
strued , since any such agreement which did not coincide with Board policy
would be unenforceable whenever a Board certification was involved. Vol-
untary recognition would not present the problem we face here.
389
would permit, in determining by contract that an ac-
cretion had occurred when in fact the contract can-
not resolve this issue, provides little reason for invali-
dating the entire agreement when it, plus the conduct
of the Unions, can reasonably be read as we have
read it. The Board has held that an employer may
agree in advance of a card count to recognize a union
on the basis of a card majority,7 and we can perceive
of no reason why it may not contract with the union
to do so in advance of the time the union has com-
menced organization.
For the foregoing reasons, we find that
Respondent's refusal to honor its commitment to rec-
ognize the Unions as the exclusive bargaining repre-
sentatives in such units, in accordance with the con-
tractual agreements of the parties, violated Section
8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Houston Division of the Kroger Co., Nacogdoches
and Lufkin, Texas, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Clerks
Local No. 455 as the exclusive representative of its
employees in Retail Store No. 990 in Nacogdoches,
Texas, and in Retail Store No. 110 in Lufkin, Texas,
in the unit found appropriate as set forth below:
All employees employed by the Houston Divi-
sion of Kroger Food Stores operating in the
State of Texas including Retail Store No. 990 in
Nacogdoches, Texas, and Retail Store No. 110
in Lufkin, Texas, but excluding all persons em-
ployed in meat departments, store managers, co-
managers, management trainees, professional
employees, guards and supervisors as defined in
the National Labor Relations Act.
(b) Refusing to recognize and bargain with Meat
Cutters Local 408 as the exclusive representative of
its meat department employees in Retail Store No.
990 in Nacogdoches, Texas, in the unit of such meat
department employees found appropriate as set forth
below:
All employees in the meat department in all of
Respondent's stores located in the State of Tex-
as operated by the Houston Division of the Kro-
ger Co., including Retail Store No. 990 in Na-
cogdoches, Texas, but exclusive of all other
7 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB
709 (1961)
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , guards, watchmen and supervisors as
defined in the Act.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collec-
tively with the aforesaid Clerks Local No. 455 as the
exclusive representative of its employees in its Retail
Store No. 990 in Nacogdoches, Texas, and in its Re-
tail Store No. 110 in Lufkin, Texas, as part of the
appropriate unit.
(b) Upon request, recognize and bargain collec-
tively with the aforesaid Meat Cutters Local 408 as
the exclusive representative of its meat department
employees in its Retail Store No. 990 in Nacogdoch-
es, Texas, as part of the appropriate unit.
(c) Upon request, apply and extend to the employ-
ees in its Retail Store No. 990 in Nacogdoches, Tex-
as, and Retail Store No. 110 in Lufkin, Texas, as part
of the appropriate unit, the existing collective-bar-
gaining agreement it has with Clerks Local No. 455,
with retroactive effect from and after the date of that
Local's demand for recognition.
(d) Upon request, apply and extend to the meat
department employees in its Retail Store No. 990 in
Nacogdoches, Texas, as part of the appropriate unit,
the existing collective-bargaining agreement it has
with Meat Cutters Local 408, with retroactive effect
from and after that Local's demand for recognition.
(e) Post at its Retail Store No. 990 in Nacogdoch-
es, Texas, and Retail Store No. 110 in Lufkin. Texas,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Re-
gional Director for Region 23, after being duly
signed by the Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
9In 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."
9 208 NLRB 927 (1974) (Members Fanning and Jenkins dissenting).
MEMBER KENNEDY , dissenting:
I do not agree with the reversal of the Board's orig-
inal decision. Accordingly, I dissent.
This case had its genesis 3 years ago when Respon-
dent decided for administrative reasons to shift its
stores at Nacogdoches and Lufkin, Texas, from its
Dallas to its Houston Division. At the time of the
transfer, the Nacogdoches and Lufkin stores employ-
ees were unrepresented and the Houston Division
store employees were represented by the Unions un-
der collective-bargaining contracts which contained
"additional store clauses" set out at length in the
original decision. The Unions demanded the Re-
spondent recognize them as the representatives of the
transferred store employees and proferred signed au-
thorization cards to establish their majority in the
two stores. Respondent rejected the demand for rec-
ognition and an offer of a card check stating that it
believed authorization cards were not a reliable indi-
cator of employee support. It then filed petitions
seeking separate elections at each of the transferred
stores. The Regional Director dismissed the petitions
presumably because of the pendency of the unfair
labor practice proceedings which are the subject of
this case.
In its original decision,9 the Board decided that the
Nacogdoches and Lufkin stores were not an accre-
tion to the Houston Division, that Respondent could
have lawfully recognized the Unions since there was
proof of a card majority, but it was not required to
do so and instead could lawfully insist upon an elec-
tion as a condition precedent to recognition. Further
the Board held that the "additional store clauses" did
not waive or eliminate Respondent's options. It re-
jected the argument that the language of the "addi-
tional store clauses" constituted an advance agree-
ment to honor a card majority and hence under Snow
& Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687
(C.A. 9, 1962), Respondent was bound to submit to a
card check.
The court of appeals reversed the Board's Order
and remanded the case to the Board essentially upon
the ground that the "additional store clauses" could
have no purpose other than to waive the Employer's
right to a Board-ordered election.10 The court de-
duced that the "true purpose of the Board's ruling
was not to interpret the contract but to declare that
`additional store clauses' are inconsistent with au-
thorization card policy and, therefore, illegal." It
therefore remanded the case to the Board so that the
Board may "overtly advance" that position and ex-
plicate why national labor policy requires that "addi-
tional store clauses" be held illegal. The majority has
i° Retail Clerks International Association, Local No 455, AFL-CIO v.
N.L.R.B., 510 F.2d 802 (1975).
HOUSTON DIV. OF THE KROGER CO.
accepted the remand. I voted to seek certiorari.
I respectfully submit that the court was in error in
deducing that the true purpose of the original majori-
ty decision was to declare "additional store clauses"
illegal. The Board had no such intention. It stated
explicitly that this type of clause was lawful "so long
as it is not used to foreclose either the right to self-
determination or free access to our processes." Fur-
ther it said: "Since we do not regard such clauses,
properly applied, as in contravention of the Act, we
reaffirm the rationale of the Smith's Management
decision."
What the Board did decide was that the particular
"additional store clauses" involved in this case could
not be construed as tantamount to an advance agree-
ment to honor a card majority. The present majority
in reversing the Board's decision now adopts the
court's view that the "additional store clauses" could
have no other purpose than to waive Respondent's
right to a Board election. Unless this view is adopted,
the majority holds, the clauses would be meaningless
or would impinge on functions reserved solely to the
Board. I think this view of the clauses is a fiction
manufactured out of whole cloth. There is not a sin-
gle word in the clauses which says anything about
majority support by an election or by cards. Indeed,
as stated in the original decision, "it is dubious
whether the parties held this subject within their con-
templation." To the argument that unless the as-
cribed meaning is given to the clauses it is mean-
ingless , I give the following answer:
Parties do agree to meaningless or redundant
clauses in contracts. They are not therefore to be
construed in a way the parties never intended. For
example, it is customary in collective-bargaining con-
tracts to include a recognition clause defining the
unit. If the union had previously been certified, the
clause is redundant since the Board's certification de-
fines the unit and the Act imposes the requirement of
recognition. The clause is therefore meaningless since
it is unnecessary. Does it thereby mean something
different from what it says? Another example: Col-
lective-bargaining contracts frequently include claus-
es forbidding employer discrimination because of
union activities. Such a clause is meaningless since
the prohibition of discrimination is imposed by stat-
ue. Is it to be thereby construed in a way the parties
never considered? The truth is that redundancy is a
common practice in legal writing , particularly in con-
tracts, occasioned by conservatism or a desire for
symmetry. Just because a contract clause repeats the
obvious is no reason for giving it an esoteric mean-
ing.
" Smith 's Management Corporation d/b/a Frazier 's Market, 197 NLRB
1156 (1972).
391
Moreover, I do not agree that the clause is mean-
ingless unless it is given the meaning ascribed to it by
the majority. It can reasonably be construed to mean
and I think it does mean that as the Union acquires
the right to represent employees in additional stores
in the division such stores will be added to the multi-
store unit and will be covered by the existing divi-
sionwide bargaining contract. Such an interpretation
does not impose a requirement of the statute and
conforms more closely to the language and sense of
the clause than the interpretation of the majority.
The Supreme Court decided in Gissel 12 and Linden
Lumber 13 that an employer faced with a demand for
recognition by a labor organization has the right to
insist upon an election as the means for determining
the labor organization's majority status provided that
the employer has not engaged in unfair labor practic-
es which impair the electoral process. An employer
may waive this right as in a Snow & Sons situation 14
where it agrees to accept a card check as a means for
determining majority. But a waiver must be in "clear
and unmistakable" language.15 The "additional store
clauses" is anything but "clear and unmistakable."
Nothing in its language suggests that Respondent has
surrendered its right to an election in new stores in
favor of a card check.
The Supreme Court in Linden pointed out the time
advantage in determining a union's majority status
by an election rather than in an unfair labor practice
proceeding. The instant case, which had its origin 3
years ago, is an object lesson in truth of this general
assertion. When the Unions made their demand for
recognition, Respondent promptly filed representa-
tion petitions. There was absolutely no obstacle to
immediate elections. Respondent's course of dealing
with the Unions indicates clearly that if the election
had shown that the employees wished to be repre-
sented by the Unions, Respondent would have bar-
gained with the Unions. The dispute could therefore
have been expeditiously resolved and the case closed.
Instead of following this expeditious course, the
Unions filed unfair labor practice charges claiming
that Respondent was bound to recognize them as
representatives on the basis of signed authorization
cards. Three years later, after the expenditure of
thousands of dollars by the Federal Government,
and the parties; not to speak of the time consumed
by this Agency and by the court, the case is still not
12 N.L R B. v. Gissel Packing Co., Inc, 395 U.S. 575 (1969).
13 Linden Lumber Div., Summer & Co v. N.L R. B., 419 U.S . 301 (1974).
14 134 NLRB 709 (1961 ), enfd. 308 F .2d 687 (C.A. 9, 1962)
15 Timken Roller Bearing Company v. N.LR B., 325 F.2d 746, 751 (C.A. 6,
1963). While the waiver doctrine usually arises in a situation where the
union is alleged to have waived a statutory right, it is equally applicable to
an alleged waiver of a right by an employer.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolved. The Unions have had no benefit of their
asserted representation . Meanwhile, according to the
latest statement of Respondent, the store in Lufkin
has been closed and the store in Nacogdoches had
been returned to the Dallas Division for administra-
tive reasons. Factually, if not legally, the case has
become moot.
Mighty has been the labor, paucity has been the
result. I wonder why the Unions were unwilling to go
to elections to avoid this result. Was it because they
doubted that the employees who signed cards would
vote the same way in secret elections?
MEMBER PENELLO, dissenting:
Contrary to my colleagues in the majority, I would
reaffirm the Board's original conclusion that Re-
spondent did not violate Section 8(a)(5) by refusing
to recognize the Unions as the collective-bargaining
representatives of the employees of its Nacogdoches
or Lufkin stores and would therefore dismiss the
complaint.
The facts are undisputed and are set out in full in
the majority opinion and in the dissenting opinion of
Member Kennedy. It is clear that at the time the
Unions requested recognition they possessed valid
card majorities among the employees sought. Re-
spondent could certainly have voluntarily recognized
the Unions in these circumstances. But that is not the
question. What is in issue is the Unions' position that
Respondent was required to recognize them under
the terms of the so-called "additional store" clauses
in the Respondent's contracts with the Unions. Be-
cause these clauses clearly do not establish a specific
method for determining union majority, a Board
election is still necessary in my opinion to protect the
Section 7 rights of Respondent's employees.
Before the clauses can be properly analyzed, a
brief recitation of the applicable statutory provisions
and precedents is necessary. Section 8(a)(5) of the
Act provides that it shall be an unfair labor practice
for an employer "to refuse to bargain collectively
with the representatives of his employees, subject to
the provisions of Section 9(a)." Section 9(a) provides,
in pertinent part, that "[r]epresentatives designated
or selected for the purposes of collective bargaining
by the majority of the employees in a unit appropri-
ate for such purposes, shall be the exclusive represen-
tatives of all the employees in such unit." In addi-
tion, Section 9(c) provides machinery for the holding
of secret ballot elections and granting of certifica-
tions by the Board of a union's status as the employ-
ees' majority representative in an appropriate unit.16
16 Sec . 9(c)(1)(B) gives employers the right to file their own representation
petitions (RM petitions). Respondent filed petitions seeking separate elec-
tions at each of the stores involved herein
Although Section 9(a) refers to representatives
"designated or selected" by a majority of the employ-
ees, it does not delineate precisely how the represen-
tative is to be chosen. Board-conducted elections, it
is clear, are "the most satisfactory-indeed the pre-
ferred method of ascertaining whether a union has
majority support." 17 However, it is well settled that
such elections are not the only method. The Supreme
Court in the Gissel case, supra, held that an employer
would be bound by a union's presentation of authori-
zation cards as proof of its majority support in cases
in which the employer "engages in contemporaneous
unfair labor practices likely to destroy the union's
majority and seriously impede the election." 11
At the same time, the Court left open the question
of "a union's right to rely on cards as a freely inter-
changeable substitute for elections where there has
been no election interference...." 19 The Court did,
however, take note of what it characterized as the
Board's "current practice" with respect to this prob-
lem, namely that:
When confronted by a recognition demand
based on possession of cards allegedly signed by
a majority of his employees, an employer need
not grant recognition immediately, but may, un-
less he has knowledge independently of the
cards that the union has a majority, decline the
union 's request and insist on an election, either
by requesting the union to file an election peti-
tion or by filing such a petition himself under
§9(c)(1)(B).2°
In Linden Lumber 21 and Wilder," the Board held
that it would not require bargaining based solely on a
showing that the employer may have had knowledge,
independent of the cards, of the union's majority.
Thus, in those cases, the Board refused to require
bargaining where a majority of the employers' em-
ployees had both signed cards and gone on strike.
The Board did hold, however, that it would require
bargaining based on a card majority if (1) the em-
ployer agrees that the union's majority may be de-
termined by a means other than a Board-conducted
election," or (2) the employer itself undertakes to de-
termine the union's majority status.
The Board's decisions in Linden and Wilder were
subsequently upheld by the Supreme Court.24 Signifi-
n N.L.R B v. Gissel Packing Co., Inc, 395 U.S. 575, 602 (1969).ib
Gissel
, supra, 600.
19 is , supra, 595, In. 18.
20 Grssel, supra, 591
21 Linden Lumber Division, Summer & Co, 190 NLRB 718 (1971).22 Arthur F. Derse, Sr., President, and Wilder Mfg Co, Inc., 198 NLRB
998 (1972).
23 Snow & Sons, supra, 710
24 Linden Lumber Division , Summer & Co v N.L.R.B, 419 U.S. 301
(1974).
HOUSTON DIV . OF THE KROGER CO. 393
cantly , the Court stated at footnote 10:
We do not reach the question whether the
same result obtains if the employer breaches his
agreement to permit majority status to be de-
termined by means other than a Board election.
See Snow & Sons, 134 NLRB 709 (1961 ), enfd.
308 F .2d 687 (C.A. 9, 1962 ). In the instant cases
the Board said that the employers and the
unions "never voluntarily agreed upon any mu-
tually acceptable and legally permissible means,
other than a Board -conducted election , for re-
solving the issue of union majority status." [Ci-
tations omitted.]
Applying these principles to the facts herein, al-
though the Unions have obtained authorization
cards from a majority of the employees in each of the
transferred stores , their majority has never been
demonstrated in a Board -conducted election. More-
over, the Respondent has not committed any unfair
labor practices . Thus , under the principle of Linden-
Wilder, the Respondent was under no obligation to
recognize and bargain with the Unions unless the
principle is for some reason inapplicable . However,
my colleagues in the majority argue in effect that this
case is within the "Snow & Sons" exception to the
Board's ruling in Linden - Wilder, i .e., that the facts
and circumstances here indicate that the Respondent
had agreed with the Unions that the Unions' majori-
ty status at the two stores in question would be de-
termined by means other than a Board -conducted
election . In my view , for the reasons set forth hereaf-
ter, the Board properly rejected this conclusion in its
original decision.
There is , of course , no dispute that the Respondent
and the Unions never made a specific agreement, as
did the parties in Snow & Sons, supra, to submit to
and be bound by a check of the Unions' authoriza-
tion cards as a means of testing the Unions ' majority
status in the two stores in question . My colleagues in
the majority contend , nonetheless , that the "addi-
tional store" clauses in the contracts are the equiva-
lent of such an agreement . On its face , the clauses
make no such provision at all. As was noted in the
original decision , the "contract language omits all
reference to the question of majority support ob-
tained by any means ; indeed , it is dubious whether
the parties held this subject within their contempla-
tion." 25
Moreover , the prior practice of the parties under
the "additional store" clauses provides no basis to
support a finding of waiver . For that practice was not
for the Respondent to recognize the Unions in each
newly opened store after the Unions presented it
with valid authorization cards from a majority of the
employees . Rather, the practice was for the Respon-
dent to "accrete" automatically the employees in new
stores into the existing multiemployer unit without a
showing of majority status based on cards or any
other means . Since it is unlikely that the stores previ-
ously added were true accretions , the parties' prior
practice was plainly unlawful. 26 Assuming that the
new stores previously added were true accretions to
the existing multistore unit , the practice would be of
no relevance here since , as my colleagues concede,
the stores in issue here were not true accretions. In
either case , the practice can have no precedential val-
ue in determining whether the Respondent intended
to waive its Linden - Wilder rights in the situation pre-
sented here.
Accordingly , there is no basis for inferring that
these clauses eliminate the need for a Board-conduct-
ed election in which the desires of the employees may
be ascertained as guaranteed by Section 7 of the Act.
Furthermore , it is well established that purported
waiver of a statutory right must , to be effective, be
expressed in "clear and unmistakable " terms. The
clauses here in no way meet this standard and the
Board , therefore, was amply warranted in concluding
in its prior decision that under these facts the em-
ployees' and Respondent's "access to NLRB proce-
dures cannot be said to have been consciously
waived ." 27 and a Board election is the "preferred
method" for determining the employees ' wishes.
Finally , I believe that
preserving free access to our orderly election
machinery , in the absence of a specific agreement
to determine majority status by an acceptable and
legally permissible alternative method, is an essen-
tial duty of this Board in administering this Act.
[Emphasis supplied.]28
For the foregoing reasons , I do not agree with the
reversal of the Board 's original decision, I would not
accept the remand from the court of appeals, and I
would instead seek certiorari.
2 5 Houston Division of The Kroger Co., 208 NLRB 927.
26 Super Valu Stores, Inc and K 's Super Valu of Peoria, Inc, 177 NLRB
899, 900 (1969).
27 Kroger Co, supra, In 8.
28 Kroger Co., supra
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Local No. 455 as the exclusive rep-
resentative of our employees in the appropriate
unit noted below with respect to wages , hours,
or any other terms or conditions of employment,
to wit:
All employees employed by the Houston
Division of Kroger Food Stores operating in
the State of Texas including Retail Store No.
990 in Nacogdoches , Texas , and Retail Store
No. 110 in Lufkin , Texas , but excluding all
persons employed in meat departments, store
managers , co-managers , management train-
ees, professional employees , guards and su-
pervisors as defined in the National Labor
Relations Act.
WE WILL NOT refuse to bargain collectively
with Meat Cutters Local 408 , as the exclusive
representative of our employees in the appropri-
ate unit noted below with respect to wages,
hours, or any other terms or conditions of em-
ployment to wit:
All employees in the meat department in all
of Respondent 's stores located in the State of
Texas operated by the Houston Division of
the Kroger Co., including Retail Store No.
990 in Nacogdoches , Texas, but exclusive of
all other employees , guards , watchmen and
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of any of the rights guaranteed them by
the National Labor Relations Act.
WE WILL, upon request , recognize and bargain
with the aforesaid Retail Clerks Local No. 455
as the exclusive bargaining representative of all
the employees in the appropriate multistore unit
as set forth in the first paragraph hereof above.
WE WILL, upon request, apply our existing
contract with Retail Clerks Local No. 455 to the
employees in our Retail Store No . 990 at Nacog-
doches , Texas , and Retail Store No. 110 at Luf-
kin, Texas , as part of the multistore appropriate
unit described above , with retroactive effect
from the date of Local 455's demand for recog-
nition.
WE WILL , upon request , recognize and bargain
with the aforesaid Meat Cutters Local 408 as the
exclusive bargaining representative of all the
employees in the appropriate multistore unit as
set forth in the second paragraph hereof above.
WE WILL, upon request , apply our existing
contract with Meat Cutters Local 408 to the
meat department employees in our Retail Store
No. 990 at Nacogdoches , Texas , as part of the
multistore appropriate unit described above,
with retroactive effect from the date of Local
408's demand for recognition.
HOUSTON DIVISION OF THE KROGER CO.