Kroger Co.

National Labor Relations Board - Board Decisions

Jul 23, 1993

311 N.L.R.B. 1187 (N.L.R.B. 1993)

1187
311 NLRB No. 153
KROGER CO.
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 In par. 2(c) of the recommended Order, the judge orders backpay
for George Lewis to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950). Lewis was not discharged but
unlawfully removed from his regularly assigned duties, as a result
of which ‘‘he lost hundreds of dollars in wages.’’ Under these cir-
cumstances, backpay for Lewis should be computed in the manner
prescribed in Ogle Protection Service, 183 NLRB 682, 683 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971). The recommended Order is
modified accordingly. 1 All dates herein refer to 1991 unless otherwise indicated.
The Kroger Co. and Anthony W. Toney and James
D. Leffers and International Brotherhood of
Teamsters, Local Union No. 528, AFL–CIO1
and George E. Lewis. Cases 10–CA–25549, 10–
CA–25552, 10–CA–25581, and 10–CA–25860
July 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 15, 1993, Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Kroger Co., Atlanta, Georgia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(c).
‘‘(c) Make whole Anthony Toney for any loss of
earnings or benefits he may have suffered by reason of
the discrimination against him by paying him a sum of
money equal to the amount he normally would have
earned from the date of the discrimination to the date
of the Respondent’s offer of reinstatement less net in-
terim earnings, with backpay to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest thereon to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).’’
2. Insert the following as paragraph 2(d) and reletter
the remaining paragraphs.
‘‘(d) Make whole George Lewis for any loss of
earnings or benefits he may have suffered as a result
of the Respondent’s removal of Lewis from his regu-
larly assigned duties. Such loss shall be computed con-
sistent with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (1971), with interest as
computed in New Horizons for the Retarded, supra.’’
Ellen K. Hampton and Ronald B. Ramsey, Esqs., for the
General Counsel.
John M. Flynn, Esq., of Cincinnatti, Ohio, for the Respond-
ent.
Anthony W. Toney, of Atlanta, Georgia, pro se.
James D. Leffers, of Atlanta, Georgia, pro se.
George E. Lewis, of Atlanta, Georgia, pro se.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Atlanta, Georgia, on June 1, 2, 3, 9, 10, and 11,
1992. The charge in Case 10–CA–25549 was filed by An-
thony W. Toney on September 17, 1991.1 The charge in
Case 10–CA–25552 was filed by James D. Leffers on Sep-
tember 16. The charge in Case 10–CA–25581 was filed by
Teamsters Local No. 528, affiliated with International Broth-
erhood of Teamsters, Chauffeurs Warehousemen and Helpers
of America, AFL–CIO (the Union), on October 3, 1991. Fi-
nally, the charge in Case 10–CA–25860 was filed by George
W. Lewis on March 16, 1992. These charges allege viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act), as more fully described below.
On October 8, 1991, a charge was filed by Anthony W.
Toney against the Union in Case 10–CB–5865. A consoli-
dated complaint and notice of hearing issued against both
Respondent and the Union. The matters raised in Case 10–
CB–5865 were resolved by Toney and the Union in a non-
Board settlement in April 1992. The charge in Case 10–CB–
5865 was withdrawn and the complaint against the Union
was dismissed, leaving Kroger as sole Respondent.
The complaint alleges that Respondent violated Section
8(a)(1), (3), and (5) of the Act by interrogating employees
concerning their union activities; threatening employees with
discharge and other reprisals; interfering with employee se-
lection of shop stewards; disparately removing ‘‘Teamsters
for a Democratic Union’’ literature from general purpose bul-
letin boards; disparately prohibiting employees from talking
about the Union; conducting background checks and inves-
tigations of employees in retaliation for their union activities;
reassigning work from George W. Lewis to other drivers and
discharging Anthony W. Toney because of their union activi-
ties; and unilaterally restricting access to its offices and to
use of telephones and office equipment without notifying the
Union or giving it an opportunity to bargain about such mat-
ters.
In its answer to the consolidated complaint, Respondent
admitted certain allegations including the filing and serving
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The collective-bargaining agreement between Respondent and the
Union authorizes the Union to hold meetings on company property
provided it gets Respondent’s permission. Kemme testified, however,
that Respondent has interpreted this as an obligation to allow such
meetings provided the Union gives Respondent notice. The record
reflects that the Union has held several meetings on Respondent’s
premises.
of the charges, its status as an employer within the meaning
of the Act; the status of the Union as a labor organization
within the meaning of the Act; and the status of certain indi-
viduals as supervisors and agents of Respondent within the
meaning of the Act. Respondent denied having engaged in
any conduct which would constitute an unfair labor practice
within the meaning of the Act.
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence. Following the
close of the trial, counsel for General Counsel and Respond-
ent both filed timely briefs with me which have been duly
considered.
On the entire record in this case and from my observation
of the witnesses, I make the following
FINDINGS OF FACT
Analysis and Conclusion
I. JURISDICTION
The Kroger Co. is a national operator of retail grocery
stores. For administrative purposes, it is divided into various
‘‘marketing areas,’’ including an Atlanta marketing area
comprising Georgia and parts of South Carolina. In the
course and conduct of its business operations, Respondent
annually purchases and receives goods and products valued
in excess of $50,000 directly from points located outside the
State of Georgia. Annual gross revenues exceed $500,000.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Teamsters Local No. 528, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO is, and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Kroger’s ‘‘Atlanta marketing area,’’ which includes stores
throughout Georgia and parts of South Carolina, is serviced
by an Atlanta distribution center. This distribution center em-
ploys approximately 165 regular full-time truckdrivers and
320 warehouse employees. The distribution center actually
includes several separate facilities within Atlanta, including
a large dry goods warehouse known as Bouldercrest, a small-
er East Point warehouse, another storage facility, a freezer,
and a meat distribution facility located in Conyers, Georgia,
a suburb of Atlanta. Employees at all of these facilities are
represented for purposes of collective bargaining by Team-
sters Local No. 528.
B. June and July 1991: The Union Steward Campaign,
Employee Meeting, and Respondent’s Interrogation
Prior to 1991, employees at Respondent’s Atlanta distribu-
tion center were represented on the job by appointed shop
stewards. Over time, a number of employees came to believe
that grievances were being ignored and that representation by
appointed stewards was inadequate. These employees began
to campaign for the replacement of appointed stewards with
elected stewards. Early efforts to achieve this goal failed.
During 1991, this campaign intensified, and finally on July
14, an election of stewards was held for the first time. Events
material to this case arose out of the campaign which sur-
rounded that election.
A day or two prior to June 23, word was spread among
drivers that there would be a group meeting of employees in
the drivers’ breakroom at Respondent’s East Point facility on
Sunday, June 23. On June 23, about 25 to 30 drivers showed
up and attended this meeting, where they discussed common
concerns regarding the adequacy of representation and also
issues they wanted the Union to bargain for in the next con-
tract negotiations.
When Respondent learned that this meeting had been held,
over a period which lasted almost 2 weeks, Respondent’s as-
sistant distribution manager, Paul Kemme, and Transpor-
tation Manager Randy Johnson called employees one by one
into its office and questioned them about the meeting. On or
about June 25, employee Anthony Toney was called into
Johnson’s office. According to Toney, who I credit, Johnson
had two thick folders lying on his desk, which appeared to
be worklogs and activity sheets going back a considerable
period. Johnson first questioned Toney about why Toney had
turned in two activity sheets 10 days earlier on June 15.
Toney explained that Supervisor Joe Scarborough told him to
fill out two activity sheets when Toney agreed to take a run
prior to the end of his regular shift bid. Johnson immediately
telephoned Scarborough. Scarborough apparently confirmed
Toney’s representations because as the conversation with
Scarborough ensued, Johnson’s face reddened and he became
angry, eventually slamming down the telephone receiver.
Johnson then began questioning Toney about the June 23
employee meeting. Johnson asked Toney if he had attended
the meeting and what had taken place. When Toney told
Johnson he had been at the meeting and what had occurred,
Johnson accused Toney of employees having held an unau-
thorized union meeting on company premises.2 Toney as-
sured Johnson that this had not been a union meeting, but
rather that it had simply been a group of drivers getting to-
gether to voice their concerns and opinions. I credit Toney
that Johnson then stated, ‘‘Didn’t you ask me to work here?
I didn’t ask you, didn’t you ask me to work here?’’ Toney
replied yes—that he had called Johnson several times in
order to get the job. Toney also told Johnson that Kroger
was a good place to work, but nevertheless ‘‘people have
different opinions’’ about changes that should be made. I
credit Toney that Johnson stated he was going to give every-
one at the meeting a ‘‘C.A.,’’ a type of written warning.
Also on or about June 25, employee George Lewis was
called into Kemme’s office at Bouldercrest. Kemme first ac-
cused Lewis of attending an ‘‘illegal’’ union meeting on
company property. Lewis told Kemme that the meeting was
1189KROGER CO.
3 The transcript incorrectly gives Watkinson’s name as ‘‘Watkins,’’
but he was correctly referred to as Watkinson in later testimony.
Counsel for the General Counsel’s motion to correct the transcript
is hereby granted.
not an illegal meeting, that it was just a meeting of drivers
who got together to discuss the proposal which they wanted
the Union to present to Respondent in the next contract ne-
gotiations. Kemme then told Lewis that Kemme did not like
the cartoons which someone had been posting around Re-
spondent’s facility. These cartoons were a part of the cam-
paign by rank-and-file drivers to secure a stewards’ election.
These cartoons frequently depicted then-appointed stewards
as ineffectual and/or as being in cahoots with Respondent.
Lewis told Kemme he would look into it and see if he could
find out who had been putting up these cartoons. Lewis told
Kemme that if he found out, he would ask them to stop.
Later that same day, Lewis was also called by Johnson into
Johnson’s office at East Point. Johnson proceeded to tell
Lewis that Lewis had attended an ‘‘illegal union meeting.’’
Lewis explained to Johnson, as he had to Kemme, that the
meeting had not been a union meeting, that there were no
union representatives or even stewards at the meeting, and
there had been no minutes. Johnson, however, told Lewis
that employees who had attended would be disciplined.
Also on or about June 25, employee Raymond Branch was
confronted by Kemme and Johnson together in Johnson’s of-
fice. Also present were two incumbent union stewards, Rob-
ert Woods and Chuck Mauer. Branch testified credibly that
throughout the meeting both Kemme and Johnson were very
upset. Johnson was seated, while Kemme paced back and
forth. Branch testified credibly, ‘‘one would ask me a ques-
tion, the other would cross-examine me before I even had the
opportunity to answer the question that was asked of me.’’
Branch testified Kemme asked whether he had attended the
June 23 meeting. Without waiting for an answer, Kemme
told Branch that they had the name of every person who at-
tended, ‘‘and we know exactly what went on, but we want
your version of it.’’ Branch told Kemme and Johnson about
the employee meeting. After Branch described the meeting,
Johnson asked Branch what he knew about the cartoons
which had been posted around Respondent’s facilities, refer-
ring to the cartoons about existing stewards. Branch testified
credibly that Kemme then stated if he found out who posted
those cartoons on the bulletin board, Kemme was ‘‘going to
fire the hell out of them.’’ Kemme then told Branch that he
‘‘knew there was some hard-nosed union people wanting to
make some changes and he understood that.’’ Kemme went
on to say, however, that Respondent wanted to keep Woods
and Mauer as stewards ‘‘because it had taken them a long
time to get things the way they were.’’ Later that same day,
Johnson again spoke to Branch. I credit Branch’s testimony
that Johnson, like Kemme, stated ‘‘We need to keep two of
our stewards. They understood the situation, and we need to
keep them.’’
Also on or about June 25, Kemme called employee Allen
Watkinson3 and Willie Henderson into Kemme’s office at
Bouldercrest. This meeting followed the same pattern as the
sessions with other employees. Watkinson testified credibly
that Kemme told Henderson he could be fired for being on
company premises during off-duty time. Kemme told
Watkinson that although Kemme could not fire him since he
had a run to take out that afternoon, Kemme might give him
a ‘‘C.A.,’’ a written warning, for attending the meeting and
delaying his load. Watkinson testified credibly that Kemme
asked whether anybody in particular had called the employee
meeting on June 23 and who had spoken at the meeting.
Watkinson named two employees, one of whom was George
Lewis. Kemme asked if either Ken Hilbish or Branch had
spoken. Watkinson replied that everyone present at the meet-
ing spoke at one time or another. Kemme asked what was
discussed at the meeting. Watkinson mentioned a number of
issues, including retirement, pensions, and how the Company
operated. Watkinson testified credibly that Kemme then stat-
ed ‘‘in order for the Company to operate properly . . . the
company and the Union are in bed together.’’ Watkinson tes-
tified that as Kemme made this statement, Kemme crossed
his index and middle fingers, representing a togetherness. As
in the meetings with Lewis and Branch, Kemme asked
Watkinson if he knew who was making and/or putting up
cartoons about existing stewards. When Watkinson said that
he did not know, Kemme replied ‘‘it didn’t really matter’’
because Kemme ‘‘knew who was doing it.’’
Both Johnson and Kemme admitted conducting these inter-
views with employees and ‘‘trying to find out what hap-
pened.’’ The sole allegation denied is Watkinson’s testimony
that Kemme crossed his fingers and told Watkinson that in
order for the Company to operate properly, Respondent and
the Union were in bed together. While it may seem sur-
prising that an employer representative would actually make
such a statement to an employee, it is equally surprising that
a company representative would hold a meeting with an em-
ployee with incumbent union stewards present and actively
campaign on their behalf. I have no trouble crediting
Watkinson, a responsive witness who did not hesitate to tes-
tify to matters apparently harmful to his interest, such as the
fact that he did indeed leave late for his assigned work on
June 23 because of the employee meeting. Kemme, on the
other hand, attempted to shade the truth to achieve a per-
ceived advantage. Kemme, for example, contended that no
disciplinary action whatever had been taken against
Watkinson as a result of the June 23 employee meeting. On
cross-examination, however, Kemme was confronted with a
‘‘Constructive Advice Record,’’ a C.A. or written warning,
which had remained in Watkinson’s personnel file as ‘‘re-
duced to verbal warning.’’ Kemme continued to try to claim
that no disciplinary action had been taken against Watkinson,
although a verbal warning is clearly disciplinary. Having
considered all the testimony, I credit Watkinson fully regard-
ing his meeting with Kemme on or about June 25 and the
remarks made by Kemme during that meeting.
On June 27, employee Ken Hilbish was called into John-
son’s office at East Point. Incumbent Union Steward Chuck
Mauer was also present. Johnson proceeded to question
Hilbish about why drivers held a meeting on June 23, who
attended, and what was talked about. Johnson told Hilbish
that having such a meeting on company property during off-
hours was grounds for termination, but whether terminated or
not, Hilbish would at least get a ‘‘C.A.,’’ a written warning,
for attending the meeting. Johnson then proceeded to ques-
tion Hilbish about the cartoons posted at Respondent’s facil-
ity directed at incumbent stewards. Johnson asked Hilbish
who had drawn and who had distributed these cartoons. Ac-
cording to Hilbish’s credible testimony, Johnson then became
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
angry, stating, ‘‘This is all a bunch of bull shit.’’ Johnson
stated that Distribution Manager John Moreau and Assistant
Distribution Manager Kemme ‘‘were pissed’’ and they want-
ed to know who was doing those cartoons. Johnson then
added that if they could find out who was doing the car-
toons, they would be fired.
According to Hilbish, who I credit, Johnson then changed
tactics appearing to become more ‘‘mellow.’’ Johnson sug-
gested that he and Hilbish ‘‘just talk about this.’’ Johnson
asked Hilbish why the drivers wanted to change stewards.
Hilbish told Johnson that employees wanted more fair treat-
ment, that grievances were often filed and never heard. I
credit Hilbish that Johnson replied, ‘‘Well if you want to go
by the book, then we can go by the book. But it will be
harder on you people then it will on us.’’ Johnson then went
on to say that regardless of whether there was an election or
not, the drivers needed to keep two of the incumbent stew-
ards, Robert Woods and Mauer, because they had done a lot
for employees and because ‘‘it took them a long time to get
things like they were.’’ Hilbish replied somewhat sarcasti-
cally, ‘‘I can believe that.’’
Sometime in early July, at least 1 week and perhaps as
long as 2 weeks after the June 23 meeting, Respondent was
still calling employees one by one into its offices and ques-
tioning them about the meeting. Employee John Woods testi-
fied that Transportation Manager Johnson called him into
Johnson’s office approximately 2 weeks after that meeting.
Woods, like the other employees, was asked who attended
the June 23 meeting and what the meeting was about. Woods
testified credibly that at the time of this conversation with
Johnson, Johnson had a piece of paper listing the names of
about 16 drivers who had been present at the meeting on
June 23. Woods answered that the meeting was simply a
group of drivers getting together to discuss issues. Johnson
told Woods that the drivers had violated several articles of
the collective-bargaining agreement, including being on com-
pany property on off-duty time and going out late on deliv-
eries that day. Woods also testified incredibly that he, like
other employees, was asked by Johnson who was preparing
and posting the cartoons around Respondent’s facility regard-
ing incumbent stewards. Johnson told Woods that Johnson
‘‘had worked too hard to tear down the walls between us’’
and Johnson ‘‘wasn’t going to allow the walls to be built up
again.’’
Employee Tim Floyd also testified that he was called into
Johnson’s office almost 2 weeks after the June 23 meeting.
Johnson told Floyd he wanted to talk to him about the June
23 meeting. As Johnson had done in several of the earlier
conversations, Johnson told Floyd that this employee meeting
had been ‘‘illegal.’’ Floyd testified credibly that Johnson
then stated, ‘‘I have a list of the names of the people that
were present. Would you like to add to it?’’ Floyd refused.
Finally, Johnson told Floyd that as a result of this meeting,
Johnson was ‘‘going to have to issue some discipline.’’ It is
not completely clear whether it was in this same conversa-
tion with Johnson or another conversation at about that same
time, but Floyd testified that in a conversation with Johnson,
Johnson told Floyd the employees should really consider
keeping incumbent Stewards Robert Woods and Chuck
Mauer because of all the ‘‘personal time and money’’ they
spent doing things for the drivers. Soon after the election, at
which time Mauer was voted out of office, Johnson told
Floyd that Johnson thought employees ‘‘had messed up by
not keeping Chuck [Mauer].’’
Virtually all of the testimony from employee witnesses
concerning their conversations with Assistant Distribution
Manager Kemme and Transportation Manager Johnson
stands undenied. In fact, Kemme and Johnson both admit
questioning employees about the June 23 meeting. Where
there is a direct conflict in testimony between Watkinson and
Kemme, I have credited Watkinson. Respondent argues that
its interrogation of employees about the June 23 meeting oc-
curred because on that same day there was a major theft of
frozen shrimp at Respondent’s freezer facility located ap-
proximately a mile and a half from the East Point facility
where drivers had gathered. Respondent argues that employ-
ees were interrogated about the June 23 meeting because
‘‘Kemme and Johnson were concerned about the theft.’’
Transportation Manager Johnson admitted, however, that em-
ployees involved in this theft ‘‘were caught in the act’’ and
there was no further investigation necessary. Moreover, it is
undisputed that it was a supervisor and employees at the
freezer, not drivers, who were involved.
Next, Respondent relies on the contractual provision which
gives the Union the right to hold union meetings with em-
ployees on company premises providing the Union first noti-
fies Respondent. Respondent claims that some employees re-
lated at the outset this was a ‘‘union meeting’’ on June 23.
I do not credit such a claim. In fact, every employee witness
testified credibly that it was Johnson and Kemme who at-
tempted to characterize the June 23 meeting as a ‘‘union
meeting.’’ Employees repeatedly told Kemme and Johnson
time and time again that the meeting was not a union meet-
ing but rather was an informal meeting of concerned drivers.
Finally, Respondent relies upon a ‘‘shop rule’’ which pro-
vides that ‘‘employees will be allowed on the premises only
during their respective working hours. Employees, when fin-
ished work, shall leave the premises.’’ Thus, in its posttrial
brief, Respondent argues that the interrogation of employees
‘‘was simply a natural consequence of the unauthorized use
of company premises by employees who had no legitimate
reason for being there in the first place.’’ Further, Respond-
ent argues, ‘‘any alleged coercion is readily dispelled be-
cause no employees were disciplined.’’ As I have indicated,
both Kemme and Johnson acknowledged that union meetings
can be, and have been, conducted on company premises.
Kemme admitted it is his understanding that Respondent has
an obligation to agree to union meetings which the Union
may request so long as the meeting does not interfere with
work. The record reflects that on June 22, the day before the
meeting, employee Raymond Branch asked Supervisor Sims
Harris if employees could use an upstairs executive con-
ference room for a meeting the next day. Harris denied
Branch permission. Respondent’s actions suggest disparate
enforcement of a shop rule in order to deny dissident em-
ployees the opportunity to mobilize.
Drivers freely enter the premises an hour or more before
their scheduled start time and often remain an hour or more
after their work is finished. Further, employees come onto
Respondent’s premises on their off days for a variety of per-
sonal reasons ranging from selling items to other employees
or supervisors, to simply getting together to socialize with
friends in the employee breakroom. It is particularly common
for large groups of off-duty employees to congregate and so-
1191KROGER CO.
4 Although not specifically alleged in the complaint, I find that the
issuing of discipline to Watkinson for participating in the June 23
meeting violated Sec. 8(a)(1) of the Act. It is like and related to
other allegations in the complaint that employees were interrogated
and threatened as a result of this concerted activity meeting held on
June 23. Respondent’s assertion that Watkinson was not disciplined
because the written warning was reduced to a verbal warning is alto-
gether bogus. Discipline is discipline, whether in written form or as
a verbal warning. I find that such discipline violated Sec. 8(a)(1) of
the Act.
5 All parties agree DOT regulations require that within 30 days of
employment, the motor carrier must make an ‘‘investigation’’ of the
driver’s prior employment for the previous 3 years. This fact is im-
portant in my findings regarding the discharge of Anthony Toney,
discussed below.
cialize in the employee breakroom on paydays, when drivers
pick up their checks. On such occasions, off-duty employees
remain and socialize in the breakroom, in the presence of
and with supervisors. Since both union meetings and infor-
mal unauthorized gatherings of employees to socialize have
been routinely permitted on company premises, the concern
which caused Respondent to interrogate employees about the
June 23 gathering had little or nothing to do with the uni-
form and legitimate enforcement of any work rule, but rather
with the content of the meeting itself. Even if there was a
legitimate concern about the meeting, Respondent clearly had
that concern answered after questioning only one or two em-
ployees about the meeting. Having learned its purpose and
content, Respondent was put on notice that the meeting con-
stituted protected concerted activity. Continuing to interro-
gate employee after employee served only one purpose, to
coerce employees through the interrogation itself and through
the threats of discipline made to employees.
What is apparent is that as soon as Respondent learned the
purpose and content of the meeting, it became concerned that
these employees could disrupt a working relationship with
the Union which Respondent had come to view as cosy.
Thus, in the later sessions with employees, Respondent even
had existing union stewards present while the interrogation
was being conducted. With stewards present, Respondent
proceeded to interrogate employees about who it was that
was drawing and posting cartoons around Respondent’s facil-
ity which challenged the cosy relationship between existing
stewards and management. Not only did Respondent interro-
gate employees about such matters, it went on to campaign
on behalf of keeping existing stewards and repeatedly threat-
ened that it would fire whoever it was that was posting these
cartoons. There can be little doubt that Respondent’s interro-
gation of employees, and threats of discipline and discharge
for participating in the June 23 meeting, and for participating
in other protected activity such as distributing cartoons ques-
tioning the relationship between stewards and management
meet the standard of coercive conduct as set forth in
Rossmore House, 269 NLRB 1176 (1984). I find that Re-
spondent’s summoning of employees to management offices
to interrogate them about concerted activity, threaten them
with discharge and written warnings, threatening to discharge
employees for posting cartoons challenging the relationship
between existing stewards and management, and issuing dis-
cipline to employees for engaging in such activity all violate
Section 8(a)(1) of the Act.4 Taylor Chair Co., 292 NLRB
658 (1989).
C. July 14: New Stewards Elected
Employees Ken Hilbish and Anthony Toney were instru-
mental in finally securing an election of union stewards on
July 14. This was accomplished in large part by Toney, and
to a lesser degree by Hilbish, securing more than 100 em-
ployee signatures on a petition directed to the Union de-
manding an election of stewards. When the election was fi-
nally conducted on July 14, five of seven existing stewards
were replaced. Only existing stewards Woods and Reed were
retained. Chuck Mauer, one of two for whom Respondent ac-
tively campaigned, was replaced.
D. Events Following Election of New Stewards
1. July to September 1991: Background checks
of employees
Respondent is subject to various Department of Transpor-
tation (DOT) regulations which require that certain records
be kept regarding a driver’s background and driving record.
For many years, Respondent has employed the Van Ella firm
to perform background checks on new drivers and provide
Respondent with a written report. In early 1990, Supervisor
Joe Scarborough was promoted and charged with updating
these background files after it had been learned that various
files were out of place or missing required information.
Transportation Manager Randy Johnson assigned Scar-
borough to review the contents of each existing file and to
note what was missing while transferring the contents into
new file folders which contained a checklist of DOT required
documents.5 On September 11, 1990, Supervisor Scar-
borough sent a memo to Respondent’s human resources de-
partment in Nashville, Tennessee, listing 23 drivers for
whom he needed Van Ella reports. Six months later, the re-
ports still had not been received, so on March 6, 1991, Scar-
borough resubmitted the request with additional names of
drivers hired during the past 6 months. One of those addi-
tional names was that of Anthony Toney, hired November
12, 1990.
By mid-July 1991, Respondent had still not received the
background checks requested in March. On July 17, 1991,
only 3 days after Respondent’s employees elected a new
slate of union stewards, Human Resources Manager John
Wagner telephoned the Van Ella firm and arranged for Re-
spondent’s Atlanta distribution center to order reports on its
drivers directly from Van Ella, rather than going through Re-
spondent’s Nashville human resources office, as it had done
prior to that date. Wagner went even further with Van Ella
and reached an agreement so that from then on, the Atlanta
distribution center would fax copies of employment applica-
tions for background checks, while Van Ella in turn would
respond verbally within 3 working days. Hard copies of the
Van Ella report would then be mailed directly to Atlanta Dis-
tribution Center Manager John Moreau.
Supervisor Scarborough admitted that when he was as-
signed the task of updating employees’ files, the only stated
purpose was to complete these files. Nothing was said about
taking any action or reviewing any employees’ qualifications
for employment. As soon as Respondent began to receive the
Van Ella Reports after the election of new union stewards,
however, Respondent began to carefully scrutinize these re-
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ports and utilize them for far more than simply completing
employees’ personnel files. Within about a week after being
elected as a shop steward, employee Ken Hilbish learned that
Respondent was investigating his employment background,
not just his driving record. Hilbish learned that Respondent
was investigating the circumstances under which he left a
previous employer, Brown Transport. Hilbish confronted
Transportation Manager Randy Johnson, who admitted he
viewed the circumstances as suspicious because Hilbish had
written on his job application that he ‘‘left’’ Brown, rather
than saying he quit or was fired. I credit Hilbish that Johnson
told him Respondent was ‘‘checking into your history.’’ In
the end, Hilbish showed Johnson that although he had been
fired by Brown, he had been reinstated and the record of the
discharge expunged pursuant to a Board order. The matter
was then dropped by Johnson. The significance of this, how-
ever, is that immediately after the election of new union
stewards, Respondent began to subject certain employees to
minute scrutiny.
As is more fully discussed below, Respondent proceeded
with an effort to terminate three other activists, David
Leffers, Eddie Wyche, and Anthony Toney. All three had
been active in supporting stronger representation and secur-
ing new union stewards. There is only one event which ex-
plains Respondent’s sudden sense of urgency in receiving the
Van Ella reports, and that is the election of new shop stew-
ards on Sunday, July 14. Respondent was notified of the
change in stewards, including the election of Ken Hilbish, by
written notice dated Monday, July 15. On either July 16 or
17, the decision was made and action was taken to obtain the
Van Ella reports of Atlanta distribution center employees di-
rectly, rather than follow previous procedures. Respondent
offers no explanation or business justification for the sudden
urgency in receiving these reports. In its posttrial brief, Re-
spondent simply argues the practice of receiving these re-
ports had been initiated and maintained long before the elec-
tion of new stewards, thereby simply trying to avoid the real
issue. In fact, the rapidity and efficiency of the arrangements
made immediately after the election of new union stewards
stand in sharp contrast to the wholly lackadaisical attitude of
Respondent toward receiving the background checks up to
that point. I find as alleged in the complaint that Respondent
instituted these new procedures for background checks in re-
taliation against employees for electing new and more active
union stewards in violation of Section 8(a)(1) and (3) of the
Act.
2. July 31: Conversation between Transportation
Manager Johnson and employees Hilbish and Toney
On or about July 31, newly elected Union Steward Ken
Hilbish and employee Anthony Toney went to Transportation
Manager Johnson’s office to discuss a potential grievance by
Toney regarding the failure to assign certain work to employ-
ees on the extra board. As was his practice, Hilbish first at-
tempted to resolve the matter without filing a written griev-
ance. When this proved unsuccessful, Hilbish reduced the
grievance to writing and gave it to Johnson.
When Hilbish and Toney presented Johnson with the writ-
ten grievance, Johnson became irate. Johnson told Hilbish
and Toney that ‘‘he could do what he wanted to do as far
as changing people’s schedule.’’ Johnson then threw the
written grievance down on the desk, kicked the desk, slam-
ming the desk drawer, and asked Hilbish and Toney, ‘‘Do
you have any more piddely ass shit you want to file?’’ Em-
ployee Anthony Toney then became angry as well. As a re-
sult, Hilbish asked Toney to leave Johnson’s office, and
Toney did so. As Toney left, Supervisor Dan Casteel came
into Johnson’s office. I credit Hilbish that Johnson then said
to Casteel about Toney, ‘‘His ass is back in here blowing off
at the mouth again wanting something for nothing. I will be
glad when he is gone from here.’’
To the extent Johnson’s testimony may be considered as
a denial of this incident, I do not credit Johnson. Most of
Hilbish’s and Toney’s testimony regarding this conversation
is undenied. During Johnson’s testimony, Johnson was asked
whether he said to Toney that he would be glad when Toney
was gone. Johnson denied making such a statement. This
was not, however, what was testified to by Hilbish. Casteel
testified that he could no longer ‘‘really recall’’ the incident
and that he could ‘‘not recall’’ Johnson saying he would be
glad when Toney was gone. Casteel’s testimony is hardly a
credible or even substantive denial. Hilbish and Toney, on
the other hand, testified credibly regarding this incident. I
specifically credit Hilbish regarding the statement made by
Johnson that he would be glad when Toney was gone. I find
that this statement constitutes an implied threat of discharge
in violation of Section 8(a)(1) of the Act.
3. August 16: Conversation between Assistant
Distribution Manager Kemme and employee
David Leffers
Sometime during the first 2 weeks in August 1991, em-
ployee David Leffers undertook a physical examination re-
quired by DOT regulations. Upon completing the physical,
Leffers claimed 3-3/4 hours’ pay for time spent traveling to
the physical, taking it, and returning from the clinic. Leffers’
claim was denied by Respondent.
On or about August 16, Leffers pursued his claim, based
on his interpretation of the collective-bargaining agreement,
by filing a grievance. Shortly thereafter, Leffers went into
Assistant Distribution Manager Kemme’s office to discuss
the matter informally. Leffers and Kemme engaged in a
lengthy discussion, during which they were joined first by
Transportation Manager Johnson and then by Supervisor Dan
Casteel.
Kemme explained Respondent’s position that the contract
language being relied on by Leffers was intended only to
compensate drivers for unnecessary delays at the clinic or re-
lated facility where the physical examination was conducted,
but not for travel time to and from that facility. Kemme stat-
ed that if the physical examination ran over 1-1/2 hours, em-
ployees would be paid for actual time at the clinic, but not
for travel time. Leffers disagreed. I credit Leffers that at that
point in the conversation, Kemme told Leffers, ‘‘Well, if
you’re going to force us to pay this, then what I am going
to start doing is scheduling off duty drivers on their off days
to come in and take physicals so that the Company won’t be
charged with that delay time, and I don’t think your buddies
out there will like that very much.’’ Leffers admittedly be-
came angry and walked out of the meeting.
Leffers pursued his grievance, which was later settled.
Kemme did not deny threatening Leffers that if he pursued
and won his grievance, Respondent was going to start sched-
uling drivers to take physical exams on their off days. In its
1193KROGER CO.
posttrial brief, Respondent argues that Kemme did not threat-
en reprisal, that ‘‘he merely pointed out the other side of the
argument.’’ Pointing out the other side of the argument is
what Kemme did when he explained Respondent’s interpreta-
tion of the collective-bargaining agreement. But when
Kemme threatened to change existing practice specifically in
order to inconvenience employees, Kemme was clearly
threatening reprisal. It is obvious that Kemme himself real-
ized he was threatening reprisal for he went on to chide
Leffers that ‘‘I don’t think your buddies out there will like
it very much.’’ The record reflects that Kemme made a simi-
lar statement to newly elected Union Steward Ken Hilbish
during a grievance meeting. It was only when Hilbish coun-
tered by pointing out the contractual provision which would
then require Respondent to pay employees called in on their
day off for 4 hours’ pay that Kemme backed away from his
threat. This, however, does not change the fact that Kemme
threatened reprisal against employees in response to Leffers’
grievance. I find that by doing so, Respondent violated
8(a)(1) of the Act.
4. August 1991: Prohibition of talk about the Union
Ken Hilbish testified without contradiction that during the
months of August and September 1991, not long after he was
elected union steward, supervisors repeatedly approached him
when they saw him talking to other drivers on the loading
dock, telling Hilbish and whoever he was talking to that they
needed ‘‘to break up the unauthorized union meeting and get
to work.’’
From Hilbish’s uncontradicted testimony, it appears that
this pattern began about 2 weeks after Hilbish was elected
steward. Hilbish overheard Supervisor Sims Harris tell newly
appointed Supervisor Larry Dreiser, who Harris was training,
that Dreiser should watch Hilbish because Hilbish was ‘‘a
troublemaker.’’ Dreiser responded, ‘‘I’ll take note of that.’’
Within a week or two of the conversation between Harris
and Dreiser, Dreiser approached Hilbish as Hilbish was talk-
ing to another employee on the loading dock. Dreiser told
Hilbish, ‘‘You all need to break up the union meeting and
get to work.’’ In September, Dreiser again approached
Hilbish as he spoke with other employees, and again told
them, ‘‘You need to break up that unauthorized union meet-
ing.’’ During the same period of time, Supervisor Gary
Rampey also approached Hilbish as Hilbish spoke to fellow
employees. Rampey, like Dreiser, told Hilbish that he needed
to ‘‘break up the unauthorized union meeting’’ and get back
to work. In fact, according to Hilbish’s uncontradicted and
credible testimony, Rampey told Hilbish, ‘‘You and your
outlaw sessions are going to get some people in trouble
around here.’’
None of the statements described above are denied by Har-
ris, Dreiser, or Rampey. The record is replete with evidence
that informal conversations between drivers at and on the
loading dock were the accepted norm rather than the excep-
tion. The only explanation or defense offered by Respondent
in Respondent’s posttrial brief for interfering in these con-
versations is that telling employees to break up their union
meetings and go back to work ‘‘hardly seems coercive in
view of the amount of working time apparently spent in such
discussions.’’ This argument, however, begs the question, be-
cause there is no evidence whatever that Respondent made
it a general practice of interfering with informal conversa-
tions between drivers in order to tell them to get to work.
In fact, the content of these statements made by Harris,
Dreiser, and Rampey show perfectly clearly that it was the
perceived or actual subject matter of the conversations, not
the conversation as such, which was being targeted. I agree
with counsel for the General Counsel the record adequately
establishes that Respondent was engaged in a disparate pro-
hibition of talk concerning the Union and work-related mat-
ters, while other general conversation was allowed. Such a
disparate prohibition violated Section 8(a)(1) of the Act, and
I so find.
5. August 23: Unilateral change regarding use of the
copy machine and telephones
On August 23, 1991, Assistant Distribution Manager Paul
Kemme posted a notice to employees prohibiting them ac-
cess to the copy machine and telephones in the office at Re-
spondent’s distribution center. On the same day, Respondent
mailed a copy of the notice to the Union. It is undisputed
that prior to August 23, drivers were permitted free access
to the office to use both the copy machine and telephones.
The only evidence that Respondent’s action was unilateral
came from the testimony of Union Steward Ken Hilbish,
who testified that he was never notified or given an oppor-
tunity to bargain prior to the notice being posted to employ-
ees. Hilbish also testified that Business Agent Ed Flournoy
told Hilbish he had received no notice of this change except
the copy of the notice mailed on the date it was posted to
employees. This testimony by Hilbish is clearly hearsay, and
I will not rely on it to make such a finding. Flournoy was
not called as a witness by counsel for the General Counsel.
Assistant Distribution Manager Kemme testified Union
Steward James Webb reported that drivers were complaining
other drivers were going through their trip sheets, contained
in the office. Kemme testified he spoke to Union Business
Agent Flournoy more than once regarding misuse of the of-
fice, telephones, and complaints from drivers regarding other
employees going through their files and payroll records. Ac-
cording to Kemme, Flournoy agreed with Kemme that the
contract covered such matters. Indeed, ‘‘Shop Rule’’ No. 10
provides, ‘‘There shall be no unauthorized use of the tele-
phone, facilities and equipment of the employer.’’ According
to Kemme, he assured Flournoy that in an emergency, em-
ployees would still be allowed to use a telephone in the of-
fice. Kemme then posted the notice to employees, mailing a
copy to Flournoy.
Counsel for the General Counsel argues that ‘‘the
conclusionary and vague testimony of Paul Kemme designed
to imply, without actually stating, that there was notification
and bargaining must be discounted.’’ I disagree. The burden
of proof is on counsel for the General Counsel. The burden
does not shift to Respondent as a result of counsel for the
General Counsel introducing unreliable hearsay testimony.
This is particularly true where, as here, a specific existing
contractual shop rule implies on its face that the employer
has the right to authorize or restrict use of the telephone, fa-
cilities, and other equipment. I find that counsel for the Gen-
eral Counsel has failed to carry its burden of proof on this
issue, and I shall dismiss this allegation from the complaint.
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6. September 4: The attempted discharge of David
Leffers and Eddie Wyche
As I have found above, Respondent hurried background
checks of employees immediately after, and as a result of,
employees electing new union shop stewards who were less
to Respondent’s liking than previous stewards. In addition,
Respondent used these hurriedly acquired background checks
to question the employment qualifications of some employ-
ees. The questioning of Union Steward Hilbish’s qualifica-
tions is described above.
On September 4, Transportation Manager Johnson and As-
sistant Distribution Manager Kemme expressed an intent to
terminate employee David Leffers because of the alleged fal-
sification of his employment application by stating that he
had never been convicted of a crime.
When Union Steward Hilbish learned of Respondent’s in-
tention to discharge Leffers, he immediately began an inves-
tigation. Hilbish learned from Leffers that Leffers had been
convicted of a crime when Leffers was 17 years old pursuant
to the Youthful Offenders Act, which expunges the convic-
tion from the individual’s record upon reaching adulthood
provided the individual maintains a clean record. Only when
it was pointed out to Respondent that Leffers’ conviction
was pursuant to the Youthful Offenders Act, and his record
had been expunged, did Respondent back off its assertion
that Leffers had falsified his employment application.
Later in the day on September 4, Kemme called Leffers
into Kemme’s office, telling Leffers that it was to ‘‘ease his
mind’’ regarding the termination. Leffers testified credibly
that during this conversation with Kemme, after telling
Leffers that he would not be discharged after all, Kemme
went on to issue a warning to Leffers. Leffers testified
credibly that Kemme stated:
‘‘I want to give you some advice because I like you,’’
he said, ‘‘I think you’re a good guy and all.’’ He said,
‘‘But, you need to back off and get out of this Union
thing—and just basically get out from under the spot-
light.’’ He said, ‘‘I’ve given this advice to several other
people and they haven’t listened to me,’’ and he said,
‘‘I hate to see you lose your job over it.’’
Kemme not only does not deny issuing this warning to
Leffers, he admits he told a number of drivers to get out of
the limelight, including Anthony Toney, as more fully de-
scribed below. I credit Leffers completely. There can be no
question whatever that Kemme was threatening Leffers with
possible reprisal, including discharge, if Leffers remained a
union activist, and by doing so Respondent violated Section
8(a)(1) of the Act.
Also on September 4, Respondent expressed an intent to
terminate employee Eddie Wyche, also for allegedly fal-
sifying his employment application by stating that he had
never been convicted of a crime. Union Steward Hilbish
began an immediate investigation of Wyche’s situation.
Hilbish learned from Wyche that he, too, had been convicted
of a crime pursuant to the Youthful Offenders Act, and that
his conviction had also been expunged. When this was
brought to Respondent’s attention, Respondent was forced to
back off its intention to discharge Wyche as well.
Although Respondent did not carry through with the dis-
charge of Leffers or Wyche, I find that its stated intention
to discharge them, as well as Kemme’s threats to Leffers
were all undertaken with an unlawful motive as retaliation
against employees for engaging in protected activities, and
all violated Section 8(a)(1) of the Act. Further, Respondent’s
actions amply support a finding that the hurried receipt of
Van Ella reports, and their use, were for an unlawful purpose
of Respondent trying to rid itself of certain particularly active
union reformists.
7. September 4: Discharge of Anthony Toney
Anthony Toney and Ken Hilbish knew one another before
Toney was hired by Respondent. Sometime in early 1990,
Toney mentioned to Hilbish that he would like to get a better
job than he had at the time. Hilbish, who already worked for
Respondent, told Toney that Kroger was a good place to
work, and encouraged Toney to apply. Toney replied that he
did not think he could be hired by Respondent because he
had a DUI (driving-under-the-influence) traffic violation that
would show on his record. All parties agree that D.O.T. reg-
ulations require employers of over-the-road drivers to inves-
tigate the driving records of new employees for the past 3
years. Usually this is done through prospective employees
providing, and employers independently obtaining, a M.V.R.
(motor vehicle report) from the driver’s state Department of
Motor Vehicles. Hilbish told Toney that he had been hired
by Respondent in 1989 on the basis of a 3-year M.V.R. and
that this was what Toney would need to submit to Respond-
ent with his application. Hilbish suggested that Toney wait
until the DUI would no longer appear on a 3-year M.V.R.,
and then apply for work with Respondent.
In August 1990, Hilbish’s wife had a birthday party for
Hilbish at their home, and Toney was invited. While there,
the subject of employment at Kroger came up again, and
Hilbish gave Toney an application. Hilbish told Toney to fill
out the application and to get a current 3-year M.V.R. Toney
did so, and returned both the application and the M.V.R. to
Hilbish. This M.V.R. submitted by Toney is now alleged by
Respondent to have been altered or ‘‘doctored,’’ and is the
fact which Respondent now relies on to support its decision
to discharge Toney. This M.V.R. is discussed at length
below. I find the credible testimony of Toney, Hilbish, and
Hilbish’s wife significant, however, in that it convinces me
Toney returned the completed application and the M.V.R. to
Hilbish. It was then Hilbish who, in turn, took the applica-
tion and M.V.R. directly to Transportation Manager Randy
Johnson. Hilbish gave Johnson the application, telling John-
son that Toney was a good worker and a safe driver with
no commercial or personal vehicle accidents.
In September, Toney arranged to meet Johnson personally,
and thereafter called Johnson regularly asking about job
openings with Respondent. Finally, Johnson interviewed
Toney personally. I credit Toney that during their interview,
Johnson had Toney’s application and M.V.R. in front of him
while they talked. I also credit Toney that Johnson offered
Toney a job with Respondent that day, but since Toney had
to give notice to his current employer, they agreed on a re-
porting date of November 12, 1990. I do not credit Johnson
that during this interview, or at any other time, he told Toney
that Toney would have to provide a 7-year M.V.R. I find
that a 3-year M.V.R. was already in front of Johnson, and
that the subject of another M.V.R. was never raised either
1195KROGER CO.
during this interview or during any of the telephone con-
versations which preceded it.
Toney reported for work as scheduled on November 12,
1990. At the time he was hired, one of the documents Toney
was asked to complete was a ‘‘Motor Vehicle Driver’s Cer-
tification’’ listing traffic violations over the past 12 months.
On this certification, Toney listed two traffic tickets he had
not listed on his original application since they had not ap-
peared on his M.V.R. at the time. As the issue of Toney’s
discharge is analyzed, it is important to keep in mind that
all parties and all witnesses agree it is common and accepted
practice, regardless of the basic honesty or dishonesty in-
volved, for drivers to acknowledge only those traffic viola-
tions and citations which they know appear on an official
M.V.R. issued by a State’s Department of Motor Vehicles.
Further evidence of this, and its implications, are discussed
in greater detail below. Before reporting to work for Re-
spondent, Toney obtained another more recent 3-year M.V.R.
to see if the two other tickets he knew he had received had
been entered into the Department of Motor Vehicle’s com-
puter. Since these two additional ticket did show on the later
M.V.R., Toney acknowledged and listed them on the ‘‘driv-
er’s certification’’ completed on November 12. When Toney
was hired, nothing was said about the inconsistencies be-
tween his application and his ‘‘Driver’s Certification,’’ or
about his failure to report on his application two of the three
tickets he knew he had at that time but which did not yet
appear on his official M.V.R. Toney was put to work. There-
after, he successfully completed his probationary period of
30 dispatches, which took approximately 50 to 60 calendar
days.
During 1991, Toney joined with the group of employees
who pressed for elected, rather than appointed, union stew-
ards. Toney became particularly active in that campaign.
During June 1991, Toney was working a ‘‘yard bid’’ at both
the Bouldercrest and East Point facilities, shuttling trailers in
the yards. In this job, Toney had an opportunity to see most
of the drivers at one time or another. Hilbish prepared a peti-
tion for employee signatures calling for an election of shop
stewards. After getting seven signatures on the petition,
Hilbish turned it over to Toney. For the next 10 days to 2
weeks, Toney openly solicited employee signatures on this
petition both while working in the yard and while in the em-
ployee breakroom. Toney obtained approximately 90 signa-
tures on the petition. I credit Toney that he was observed in
this activity by a number of supervisors and managers, in-
cluding Transportation Manager Randy Johnson and Super-
visors Gary Rampey and Joe Scarborough.
Toney was especially forceful in ensuring that employees
received notice of the shop steward election held on July 14.
Toney went to the union hall, demanded a copy of the elec-
tion notice from Business Agent Ed Flournoy, then at his
own expense made and distributed copies of that notice to
fellow employees at work. Toney also went personally to As-
sistant Distribution Manager Paul Kemme and asked Kemme
to issue a memo to all drivers letting them know they were
free to go and vote in the steward election. I credit Toney’s
testimony that after agreeing to issue the memo, Kemme told
Toney, ‘‘but you don’t have enough whiskers to be doing
what you’re doing.’’ In the context of Toney’s recent union
activities and his purpose in approaching Kemme, there is no
questions whatever that Kemme was warning Toney away
from being so active in union matters in view of his relative
lack of seniority.
After the shop steward election on July 14, and until the
time of his discharge in September, Toney remained one of
the most active proponents of stronger representation. As I
have found above, flyers and cartoons questioning the exist-
ing relationship between Respondent and incumbent union
stewards continued to appear around Respondent’s facilities,
and continued to be posted on employee bulletin boards.
Transportation Manager Randy Johnson admitted that, in his
view, these cartoons created a disturbance among employees.
Assistant Distribution Manager Paul Kemme admitted that, in
his view, these cartoons were creating ‘‘quite a disturbance.’’
The record reflects quite clearly that both Johnson and
Kemme suspected Toney of creating and posting these car-
toons. In fact, as cartoons and literature were torn down or
removed by management from employee bulletin boards, a
fact which Respondent admits, Toney would replace them
with new copies.
In late July or early August 1991, Supervisor Gary
Rampey spoke to employee Tim Floyd about management’s
suspicion that Toney was responsible for the cartoons. Floyd
testified credibly that Supervisor Rampey told him, ‘‘You
know the cartoons got started up again. . . . Randy [John-
son] and Paul [Kemme] are really upset about this . . . and,
when they catch the guy putting them up, its going to be his
job.’’ Floyd asked, ‘‘Do they know who it is?’’ It is
undenied that Rampey replied, ‘‘They think its Toney.’’
Ken Hilbish testified credibly that also during August, Su-
pervisor Rampey told him that Respondent was pretty sure
Toney was the one responsible for the cartoons. Rampey ex-
plained his logic to Hilbish, ‘‘Toney was the only one work-
ing on a Sunday and at 6:00 a.m. cartoons were every.’’
Rampey also noted, ‘‘A cartoon had also been left in the
copying machine after Toney was there.’’ Rampey finalized,
saying, ‘‘All evidence points to him being the one.’’
Near the end of July or the first part of August 1991,
Toney learned from a former employer that a background
check was being conducted on him by Respondent. Toney
went to Assistant Distribution Manager Kemme to question
why this was being done long after his probationary period
had expired. Toney told Kemme he believed that Transpor-
tation Manager Johnson was trying to find a reason to fire
him. Toney described how angry Johnson had become over
the grievance he had filed on July 31, discussed above. I
credit Toney that Kemme then told Toney if Toney had a
problem, he could come directly to Kemme, adding, ‘‘but
Toney, you need to get out of the limelight and back off.’’
Kemme admits telling Toney he should ‘‘get out of the lime-
light,’’ but claims this advice was not related to Toney’s
union activities. Kemme even claimed that he was totally un-
aware Toney was in any way involved in circulating the em-
ployee petition, literature, or cartoons. I found Kemme’s
claims altogether incredible. Kemme attempted a convoluted
explanation that what he suggested to Toney was that Toney
change jobs since he appeared to be unhappy at Kroger. It
is clear to me, however, that Kemme was referring to
Toney’s union activities, urging him to back off from the ac-
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I note too the credible testimony of employee Raymond Branch
who testified that Kemme once told him Toney was ‘‘pushing this
union stuff too hard, he needs to back off to this stuff.’’ On another
occasion, 2 or 3 weeks prior to Toney’s discharge, which would
have been shortly after Toney approached Kemme, Kemme again
stated to Branch, ‘‘Mr. Toney doesn’t have the whiskers to push this
union issue like he—he’s pushing too hard; he needs to backup,
backoff.’’
tive role he had taken.6 The intended message in Kemme’s
comment to Toney that he should ‘‘get out of the limelight’’
is shown not only by the context of that conversation, but
also by the context of similar comments by Kemme to other
employees, including the statement by Kemme to Leffers on
September 4, the very day Toney was fired, ‘‘You need to
backoff and get out of this union thing—and just basically
get out from under the spotlight. I’ve given this advice to
several other people and they haven’t listened to me. I hate
to see you lose your job over it.’’ I find that Kemme’s state-
ment to Toney, like his statement to Leffers, warned employ-
ees to cease engaging in union and concerted activities in
violation of Section 8(a)(1) of the Act.
As noted and discussed above, Respondent made the deci-
sion to terminate Leffers, Wyche, and Toney all on Sep-
tember 4, and advised Union Steward Ken Hilbish of that de-
cision that day. As also discussed, Hilbish was able to con-
vince Respondent that it had no grounds for discharging
Leffers and Wyche since their criminal violations occurred
when they were minors and had been expunged from their
records. In the case of Toney it is important to note that
when Respondent advised Hilbish on September 4 of its de-
cision to discharge Toney, Respondent stated as the reason
that Toney, like Leffers and Wyche, had allegedly lied on his
employment application.
Respondent’s claim that Toney altered or ‘‘doctored’’ a
M.V.R., the ground on which Respondent now relies, was
not raised until the following day, September 5. Transpor-
tation Manager Johnson admitted, and Respondent in its
posttrial brief acknowledges, that Johnson had a supervisor
obtain an official 9-year M.V.R. from the State of Georgia
on September 5. It is quite apparent that when Respondent
notified Hilbish on September 4 of the decision to terminate
Leffers, Wyche, and Toney for the same reason, i.e., fal-
sification of the employment application, Respondent was in-
tentionally building a case of consistency. When it was
forced to withdraw the decision to discharge Leffers and
Wyche, Respondent shifted its asserted reason on September
5 for discharging Toney from the alleged falsification of his
employment application to the alleged doctoring of an
M.V.R. Whether this M.V.R. was in fact ‘‘doctored’’ by
Toney is discussed at length below. What is significant at
this point is that Respondent shifted its asserted reason for
discharging Toney after the decision had already been made
to terminate him.
In short, counsel for the General Counsel has presented a
convincing prima facie case that Toney’s union activities
played a substantial part in Respondent’s decision to dis-
charge Toney. Counsel for the General Counsel has clearly
met its burden of proof described in Wright Line, 251 NLRB
1083 (1980). In 1991, Toney joined with other employees
who desired stronger union representation, including the elec-
tion of union stewards. Toney openly and actively solicited
employee signatures on a petition demanding an election of
stewards. Toney also became active in the campaign to un-
seat existing appointed stewards by distributing literature and
cartoons around Respondent’s facility questioning the exist-
ing relationship between Respondent and the Union. Trans-
portation Manager Johnson and Assistant Distribution Man-
ager Kemme both admitted that in their view such cartoons
created a significant ‘‘disturbance’’ among employees.
Kemme warned Toney and other employees that they should
‘‘get out of the limelight’’ and ‘‘back off’’ such union activi-
ties. As I have found above, in retaliation against employees
for this campaign, beginning in mid-July Respondent placed
a new and greater emphasis on securing long-overdue Van
Ella driving records of current employees. Part-and-parcel of
that retaliatory response, Respondent began background
checks of the employment history of current employees,
which it had not previously anticipated doing. As a part of
that program, Respondent made a decision on September 4,
1991, to discharge employees Leffers, Wyche, and Toney.
Pursuant to Wright Line, the burden shifts to Respondent
to prove that even in the absence of the unlawful motive, Re-
spondent would have discharged Toney in any event. It is at
this juncture that Respondent’s claim of the ‘‘doctored’’
M.V.R. requires further scrutiny. As one of its last witnesses,
Respondent called Tina Snyder, who lived with Toney for
about 6 months preceding September 1990, and who testified
she saw Toney actually alter the M.V.R. in question before
giving it to Respondent. Snyder testified that Toney sat at the
table in their apartment, cut up, and then reassembled an of-
ficial M.V.R. in order to remove certain traffic violations be-
fore applying for work with Respondent. Snyder testified that
she and Toney then went to a copy machine that made
‘‘rough copies’’ so that ‘‘nobody would be able to tell he
had doctored his motor vehicle record.’’ Snyder testified that
after making this ‘‘rough’’ M.V.R., she then went with
Toney to Kroger and sat in the truck while Toney submitted
his application and M.V.R. to Respondent.
I found Snyder less than credible for numerous reasons.
Snyder’s testimony and demeanor showed her to be angry
and spiteful toward Toney because Toney had been seeing
another woman, his ex-wife, even during the short time
Toney and Snyder were living together. Snyder admitted that
even during their brief relationship, she and Toney did not
get along well. Next, Snyder’s claim that she and Toney
went to a copy machine that made ‘‘rough copies’’ sounds
too good to be true. Snyder’s testimony drips of embellish-
ment. In Snyder’s effort to tell what she thought would
sound like a logical story, Snyder claimed that she rode with
Toney to Kroger while Toney delivered his employment ap-
plication and the ‘‘doctored’’ M.V.R. Snyder’s testimony is
directly contradicted by credible testimony not only of
Toney, but Ken Hilbish and even Hilbish’s wife. All three
testified credibly that Toney brought his completed employ-
ment application to Hilbish’s house and gave it to Hilbish’s
wife, who, in turn, gave it to Hilbish, who then delivered it
personally to Respondent. I credit their testimony.
A logical argument might be constructed that Toney gave
his employment application and one M.V.R. to Hilbish,
while he delivered a second ‘‘doctored’’ 7-year M.V.R. to
Respondent directly. That, however, is not the testimony of
any witness. Moreover, such a conclusion is directly contra-
dicted by the testimony of Transportation Manager Randy
Johnson himself. Johnson specifically testified that only one
1197KROGER CO.
M.V.R. was ever turned in by Toney, and this was the one
with Toney’s employment application. Nevertheless, Johnson
also points to the numerous telephone calls from Toney seek-
ing employment. Johnson claimed that during one of these
calls, he told Toney to submit a 7-year M.V.R., and that this
is what Toney did. Johnson, however, failed to provide even
an estimate as to the date of this alleged instruction. Further,
Johnson gave no context whatsoever as to how it allegedly
came up.
All in all, Johnson’s testimony was not particularly reliable
on the issue of Toney’s application. As indicated, Johnson
claimed he told Toney that Toney would have to submit a
7-year M.V.R. When asked by counsel why he did this,
Johnson replied that it was Kroger standard procedure to re-
quire prospective employees to submit 7-year M.V.R. Further
analysis, however, reveals that Respondent really had no
standard procedure in this regard. On further questioning,
Johnson admitted that DOT regulations require only a 3-year
M.V.R. for investigation. One might argue that Respondent
was simply more cautious and more careful than meeting
minimum DOT requirements in hiring drivers with particu-
larly exemplary driving records. The evidence here, however,
shows that Respondent was hardly concerned with employing
only drivers with exemplary records, as more fully discussed
below. Johnson claimed that he had reviewed 52 records of
employees hired between 1986 and 1990 who are still em-
ployed, and he found only two hired on the basis of a 3-year
M.V.R. In fact, the evidence submitted by Respondent shows
that at least five employees, in addition to Toney, were hired
on the basis of 3-year M.V.R. Respondent’s records corrobo-
rate the testimony of Union Steward Ken Hilbish that he was
one of these employees hired on the basis of a 3-year
M.V.R. Clearly, Hilbish had no reason to believe that Toney
would need anything other than a 3-year M.V.R., and the
credible evidence shows that this is precisely what he in-
structed Toney to submit.
Finally, the testimony of Officer Eugene Hyde should be
considered before leaving the issue of the alleged ‘‘doc-
tored’’ M.V.R. Officer Hyde, a captain with the Georgia De-
partment of Public Safety, was called as a witness by Re-
spondent. Prior to his current assignment, Officer Hyde spent
9 years as the supervisor of that agency’s computer records
section. During that time, Hyde helped develop the current
format used in issuing computer generated M.V.R.’s. Hyde
testified that the allegedly altered M.V.R. proffered by Re-
spondent appeared in format to be a document issued by the
Georgia Department of Motor Vehicles. Upon analysis of the
substantive information contained on that document, Hyde
testified that in his opinion it appeared to have been altered
or ‘‘doctored.’’ I do not for a moment doubt the honesty of
that opinion. Further questioning by me of Officer Hyde,
however, revealed several discrepancies in the document for
which even Officer Hyde could offer no explanation. I am
left with the conclusion it is not all that clear that the altered
or ‘‘doctored’’ M.V.R. was in fact altered or ‘‘doctored.’’
What is clear is that even if the proffered M.V.R. was al-
tered or ‘‘doctored,’’ it was not necessarily altered by Toney.
The proffered M.V.R. on its face purports to be a 7-year
M.V.R. Toney denies that this is the M.V.R. which he pre-
sented to Respondent with his application. Toney and Hilbish
present a logical and credible explanation to support the con-
clusion that Toney very carefully and intentionally supplied
Respondent with only a 3-year M.V.R. Without making a
finding to this effect, I agree with counsel for the General
Counsel there is the distinct possibility that Respondent, not
Toney, altered or ‘‘doctored’’ a purported 7-year M.V.R. be-
tween the time of its decision on September 4 to discharge
Toney and the meeting on September 5 with Hilbish and
Toney, where that decision was effectuated, specifically for
the purpose of bolstering its decision to discharge Toney. It
is both possible and plausible that since Hilbish had been
able to force Respondent on September 4 to back off its de-
cision to discharge Leffers and Wyche, someone with Re-
spondent decided that it was not going to have the same re-
sult with Toney. It is not necessary to make such a finding,
however, and I refrain from doing so. It is sufficient to point
out that it is Respondent’s burden of proof on this issue.
While Respondent has presented evidence from which it
weaves what at first blush appears to be a consistent thread
establishing that Toney presented Respondent with an altered
M.V.R., further and careful analysis shows that Respondent’s
evidence is not credible, is at times self-contradictory, and in
the final analysis is inconclusive. I find that Respondent has
failed to carry its burden of proof that Toney presented Re-
spondent with false evidence in support of his employment
application.
Finally, before leaving the issue of Toney’s discharge, I
note considerable evidence establishing that regardless of the
asserted reason for discharging Toney, the asserted reasons
were pretextual. In this regard, it is important to note again
that it was not the allegedly altered M.V.R. which Respond-
ent relied on in making its decision to discharge Toney.
Rather, it was Toney’s alleged falsification of his employ-
ment application by checking ‘‘No’’ in the box on his sup-
plemental application which asked whether Toney had ever
been convicted of a crime. The ‘‘crime’’ which Toney failed
to reveal was a DUI violation which appeared on the M.V.R.
obtained by and included as a part of the Van Ella report on
Toney. The supplemental application at issue contains ques-
tions about the applicant’s driving record. Every question on
that supplemental application except one specifically requests
information only for the past 3 years. Only one question is
even arguably open-ended, and that is the question to which
Toney allegedly gave false information by not revealing a
prior DUI. The question asked is whether the applicant has
‘‘ever been convicted of a crime.’’ Toney testified he
checked ‘‘No’’ because he ‘‘didn’t know (a DUI) was a
criminal offense. I think a criminal offense is somebody that
takes drugs, sells drugs, robs somebody, steals cars, mur-
der.’’ There is little doubt that in common parlance the word
‘‘crime’’ is often associated only with a felony, and traffic
violations, unfortunately even including DUI’s, are generally
not thought of as crimes. Whether a DUI is technically a
crime, however, is simply not the issue. The evidence is in-
escapable that even Respondent treats DUI’s rather lightly,
for even current drivers who receive DUI violations are not
terminated unless their driver’s licenses are suspended. Even
in such circumstances, Transportation Manager Randy John-
son admits that he tries ‘‘to work with my employees’’ so
that they might take vacation time or even a medical leave
to cover the period of the suspended license.
The record is replete with evidence, not all of which needs
to be discussed in every detail, that Respondent reached far
to find a reason to discharge Toney while looking the other
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Pursuant to the collective-bargaining agreement, bid drivers do
have priority if a bid run is canceled. However, they are supposed
to be given a run at approximately the same time and involving the
same number of hours as the canceled run. Lewis’ grievance claimed
violation of this contractual provision.
way to retain other employees in far worse situations. One
such example is the case of Milwood Lowe, who was ulti-
mately terminated, but only after Respondent gave him re-
peated chances to ‘‘straighten out’’ his problems. Lowe was
actually arrested by police near Respondent’s premises for
driving without proof of insurance. Two weeks later, Lowe
was still employed by Respondent and still being given an
opportunity to ‘‘clear up’’ his situation. Only when Lowe
failed repeatedly to follow instructions to bring in past cita-
tions was a final decision reached to terminate him.
Employee John Beck also answered ‘‘No’’ to the question
whether he had been convicted of a crime. The Van Ella
background report on Beck revealed that he had been con-
victed of possession of marijuana. Beck, however, was kept
while Leffers, Wyche, and Toney were to be discharged. Re-
spondent’s purported claim that Beck, like Leffers and
Wyche, was protected by the Youthful Offenders Act is
belied by the fact that Beck was 22 years old when convicted
of this crime as shown on the face of the documents in evi-
dence.
Perhaps the most outrageous example of Respondent cov-
ering its eyes for some employees while reaching out to dis-
charge Toney is shown in the case of employee Charlie
Heard. Heard, like Hilbish and Toney, was hired on the basis
of a 3-year M.V.R. On Heard’s supplemental application,
Heard had written ‘‘none’’ as to tickets received in the past
3 years. A M.V.R. obtained by Respondent during its back-
ground investigation showed that Heard had received a sus-
pended license for a DUI conviction which should have
shown up even on a 3-year M.V.R. When Assistant Distribu-
tion Manager Kemme confronted Heard with this evidence,
Heard explained that he had paid a Teamsters official who
had promised to have this ticket ‘‘fixed.’’ Heard admitted
this had been done and therefore he thought it would not ap-
pear on his official M.V.R. Kemme took no action whatso-
ever against Heard for falsification of his application, or for
the flagrant dishonesty in ‘‘fixing’’ and concealing the DUI.
Instead, Kemme had Heard fill out a new page on his job
application reflecting the DUI for the first time. Heard was
retained, while Toney was discharged.
The conclusion is inescapable that Toney’s job application
and M.V.R. were scrutinized in every detail in order to find
a pretext for discharging Toney. Toney’s reasonable expla-
nation concerning why he filled out his application as he did
was ignored, while Heard’s explanation that he paid off a
business agent to fix his DUI conviction was accepted by
both Johnson and Kemme. Extenuating factors taken into
consideration for others were given no consideration what-
ever or short shrift for Toney. In short, Respondent has failed
at every turn to meet its burden of proof under Wright Line,
supra. Respondent has not only failed to prove that it would
have discharged Toney even in the absence of his union ac-
tivities, but in fact the opposite conclusion is warranted. I
find that Respondent discharged Toney in violation of Sec-
tion 8(a)(1) and (3) of the Act.
8. September 16: George Lewis’ reassignment of work
George Lewis is a senior employee who has worked for
Respondent since 1978. During recent years, Lewis was
openly outspoken about work-related issues which he thought
were important. Lewis did not hesitate to express himself to
anyone, including Transportation Manager Randy Johnson
and Assistant Distribution Manager Paul Kemme. During
1991, when employees began mobilizing for change in the
ranks of union stewards, Lewis joined the activist group.
Lewis signed the petition demanding an election of shop
stewards; spoke out when drivers met on Respondent’s prem-
ises on June 23, and thereafter was interrogated first about
the meeting, as described above.
Respondent’s drivers bid every 6 months on the basis of
seniority for desired dispatch times or runs. ‘‘Bid drivers’’
go to specific assigned destinations. ‘‘Open mileage drivers’’
have specific reporting times, but in theory do not have spe-
cific guaranteed destinations. ‘‘Extra board drivers’’ handle
what is left. There is no dispute about the fact that over a
period of time, a practice developed of consistently giving
certain runs to some of the ‘‘open mileage drivers’’ assigned
to report at certain specific times. Two open mileage bids,
including ‘‘the Pontiac run,’’ developed such consistency that
in August 1991 Respondent and the Union agreed in writing
to convert them to bid runs when new bids became effective
in October.
During the 6-month period prior to October, employee
George Lewis was the open mileage driver who had regu-
larly been assigned the ‘‘Pontiac run.’’ On September 16, a
bid driver whose run was not available that day was brought
in to work 5 hours early and assigned to take the Pontiac
run. Lewis immediately filed a grievance.7
No one disputes the fact that the September 16 reassign-
ment of the Pontiac run originally covered only that day.
Further, it is undisputed that once Lewis filed the grievance
on September 16 over the reassignment of that run, Lewis
was never assigned to drive the ‘‘Pontiac run’’ again. In-
stead, a number of different drivers were assigned the Pon-
tiac run until it became a ‘‘bid run’’ in October. Lewis testi-
fied credibly that he would occasionally lose the Pontiac run
to a bid driver, but that before September 16, he had never
lost the Pontiac run to ‘‘extra board drivers’’ as he did after
that date. The record establishes that other ‘‘open mileage
drivers’’ whose runs had become consistent by practice con-
tinued to enjoy their usual assignments until October, while
Lewis was deprived of his.
Respondent does not dispute Lewis’ credible testimony
that as a result of its refusal to assign Lewis the Pontiac run
after September 16, he lost hundreds of dollars in wages
until he began a new bid on October 13. Lewis filed a sec-
ond grievance on September 26 over Respondent’s refusal to
assign him the ‘‘Pontiac run.’’ In response to Lewis’ griev-
ances, Respondent simply took the position that they could
give Lewis ‘‘any work they wanted to give him at the time
he was scheduled to come in,’’ and therefore had not vio-
lated the contract. However, a simple contractual privilege
does not authorize discrimination against employees based on
union activities, as proscribed by Section 8(a)(3) of the Act.
Respondent’s explanation for refusing Lewis the Pontiac
run after he filed the grievance on September 16 is both cir-
cuitous and unconvincing. Transportation Manager Randy
Johnson attempted on direct testimony to link the denial of
the Pontiac run to a change in the time of the run occasioned
1199KROGER CO.
by a change in operations at Pontiac beyond Respondent’s
control. On cross-examination, however, Johnson admitted
that the change in operations in fact had nothing to do with
how Lewis was assigned work from September 16 to Octo-
ber 13. In Respondent’s posttrial brief, it offers no better de-
fense, arguing simply that it ‘‘strains all credulity to believe
. . . the Company discriminatorially assigned or re-assigned
work to Lewis.’’ I find that counsel for the General Counsel
has established a prima facie case that Lewis was removed
from his regular duties as a result of filing the grievance on
September 16. Respondent has offered no reasonable expla-
nation for its actions which might counter counsel for the
General Counsel’s prima facie case, and I find that by re-
moving Lewis from his regularly assigned duties, Respondent
discriminated against Lewis in violation of Section 8(a)(1) of
the Act.
9. September and October 1991: Kemme’s interrogation
of employees about membership in ‘‘Teamsters for a
Democratic Union’’
During late September 1991, after Anthony Toney’s third
step grievance hearing, employees David Leffers and Ken
Hilbish had a lengthy conversation with Assistant Distribu-
tion Manager Kemme in Kemme’s office. The conversation,
which lasted almost 3 hours, began just between Leffers and
Kemme. Then at some point during the conversation, Hilbish
came into the room and remained. Leffers candidly admitted
that he could not recall everything that was said in this
lengthy conversation. Leffers testified credibly, however, as
follows:
The conversation led towards the Union and then at
some point he [Kemme] started talking lower, and as
he talked lower, he kept looking at the door and he got
up and shut the door and went back and sat down. . . .
[Kemme] then said, ‘‘Are you all in T.D.U. [Teamsters
For A Democratic Union]?’’ Ken [Hilbish] said, ‘‘Not
yet.’’ and, I didn’t say anything.
Hilbish corroborated Leffers that Kemme asked both of
them if they were members of Teamsters for a Democratic
Union. Hilbish testified credibly Kemme went on to say that
although he was sympathetic to things TDU wanted to do to
clean up the Union, ‘‘They were really too hard core and
radical and they didn’t need that kind of stuff around here.’’
Kemme then told Hilbish that as a union steward he ‘‘needed
to swear allegiance to the people in the office at the union
hall now.’’
Employee George Lewis testified credibly that in late Sep-
tember or early October, Kemme also questioned him about
membership in TDU. Lewis testified that he was called into
Kemme’s office. Kemme proceeded to question Lewis con-
cerning whether he was happy with his new job bid. After
this, Kemme raised the subject of TDU. As Lewis testified,
Kemme stated, ‘‘We had black against black, white against
black, union member against union member, and we need to
put it all behind us and concentrate on Winn Dixie [a com-
petitor].’’ Kemme then stated to Lewis that Lewis was
‘‘probably a member of TDU.’’ Lewis responded that yes, he
was. Lewis then went on to say what a strong union man he
was, and explain why he supported TDU.
Union Steward Hilbish testified credibly that several
weeks after the lengthy conversation Kemme held with him
and Leffers in Kemme’s office, Kemme again raised the sub-
ject of Teamsters for a Democratic Union. Hilbish testified
credibly that on this second occasion, following a grievance
session, Kemme stated to Hilbish, ‘‘I know you son of a
bitches are TDU.’’ Hilbish did not respond.
The credible testimony of employees Hilbish and Leffers
shows that on at least one occasion, Assistant Distribution
Manager Kemme came right out and interrogated them about
their membership in Teamsters for a Democratic Union.
Kemme’s further comment to Hilbish that Teamsters for a
Democratic Union ‘‘were really too hard core and radical
and they didn’t need that kind of stuff around here’’ shows
that Kemme was not just engaged in idle conversation. Given
Kemme’s clear disapproval of TDU and his comment that
Hilbish should ‘‘swear allegiance’’ to incumbents in the
Union, Kemme’s interrogation of employees concerning their
membership status in that organization was coercive as con-
templated by Rossmore House, supra. When Kemme got less
than a direct answer to his interrogation, he then went on to
raise the subject with Lewis and a second time with Hilbish.
Although these later conversations did not involve direct in-
terrogation, it is clear from their context that Kemme’s state-
ments were designed to illicit a response. In the case of
Lewis, Kemme was successful, for Lewis felt obligated to
explain and defend himself. I find that in each instance de-
scribed above, Kemme unlawfully interrogated employees
about their internal union activities in violation of Section
8(a)(1) of the Act.
E. Second Stewards Election and Following Events
On February 23, 1992, a second shop stewards election
was held among Respondent’s employees. By this time, the
employees desiring stronger representation were thought by
Kemme, and undoubtedly by other supervisors of Respondent
as well therefor, to be associated with Teamsters for a
Democratic Union. Indeed, as the second stewards election
approached, a great deal of TDU literature was being posted
on employee bulletin boards around Respondent’s facilities
by employees. It is undisputed that at both the East Point and
Bouldercrest facilities, there are general purpose bulletin
boards which have customarily been used by employees to
post any variety of materials, including ‘‘for sale’’ signs,
poems, cartoons, and union notices. It began to appear, how-
ever, as if TDU literature was being removed almost imme-
diately after being posted.
In March 1992, after the second stewards election, inter-
ested employees were still trying to post TDU literature on
the general purpose bulletin boards around Respondent’s fa-
cility. During March, employee Raymond Branch finally ap-
proached Supervisor Gary Rampey and asked Rampey why
Rampey was taking down TDU literature from the bulletin
board. Rampey told Branch that Assistant Distribution Man-
ager Kemme had issued an order that TDU literature be re-
moved immediately when found. Several weeks later, Branch
observed Kemme actually removing TDU literature from the
bulletin board. When Branch protested, Kemme replied,
‘‘Oh, hell, its just TDU stuff; we’ll just leave that up there
anyway.’’ Union Steward Ken Hilbish testified that at about
that same period of time, he observed Transportation Man-
ager Randy Johnson coming out of the employee breakroom
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at East Point, where a general purpose bulletin board was lo-
cated, wadding up some TDU flyers.
Rampey was not called as a witness. Kemme admitted to
removing TDU literature from the general purpose bulletin
boards. Kemme first attempted to imply that he only re-
moved literature which was out dated, but eventually con-
ceded that he also removed material he deemed ‘‘controver-
sial.’’ Kemme admitted that other material, such as ‘‘for
sale’’ signs, sometimes stay up for 4 to 6 months. I find that
by disparately removing TDU literature from general purpose
bulletin boards at Respondent’s facility, Respondent violated
Section 8(a)(1) of the Act. See NLRB v. Magnavox Co., 415
U.S. 322 (1974); Roadway Express, 279 NLRB 302 (1986).
On March 25, 1992, Respondent held meetings with all of
its employees to discuss Respondent’s general economic po-
sition. Separate sessions were held with several different
groups of employees. Four witnesses were presented by
counsel for the General Counsel to testify about these meet-
ings, and each attended a separate session. Distribution Man-
ager John Moreau was the principal speaker at each session,
although Assistant Distribution Manager Paul Kemme and
Transportation Manager Randy Johnson also spoke. There
were no written or prepared speeches, and what was said at
each meeting was therefor similar but slightly different.
Counsel for the General Counsel contends that in each meet-
ing, Moreau told employees in similar words that a new
freezer facility which had been planned for Atlanta had been
placed ‘‘on hold’’ because of employees’ union activities.
Counsel for the General Counsel contends that these state-
ments to employees, not the failure to build the freezer facil-
ity itself, violated Section 8(a)(1) of the Act because they
blamed employees’ union activities for Respondent’s failure
to build the freezer.
Employee/Union Steward Ken Hilbish testified that at the
session he attended, Moreau told employees that a new, large
freezer facility had previously been approved for Atlanta, but
had been put ‘‘on hold’’ pending the outcome of union un-
rest and labor disputes ‘‘everywhere in the Kroger system.’’
Employee John Wood testified that in the session he at-
tended, Moreau attributed the freezer being put ‘‘on hold’’
to ‘‘friction.’’ According to Wood, Moreau also told employ-
ees, ‘‘I’m pissed,’’ and that the cartoons discussed above had
‘‘really made him mad.’’ According to Wood, Kemme spoke
up and added that there were only 600 distribution employ-
ees, but 19,000 store employees. Kemme then said, ‘‘Don’t
think for a minute that they can’t get supplied by someone
else.’’ Kemme then told employees they ‘‘needed to be
Krogerites and not unionists.’’
Employee Tim Floyd testified that in the session he at-
tended, Moreau told employees he was upset because the
freezer facility had been approved, complete with an ice-
making unit, ‘‘but that Cincinnati put it on hold due to labor
unrest, not specifically in Atlanta but in the country as a
whole.’’ Floyd testified that in this session, like in Wood’s
session, Kemme then added that Respondent was not going
to let 173 drivers dictate the policy for 19,000 employees. Fi-
nally, employee George Lewis testified that in the session he
attended, Moreau told employees not only that the freezer
had been approved, but that there was money for it, but that
the freezer had nevertheless been put ‘‘on hold’’ because of
contract union activities in Atlanta and throughout the sys-
tem. Lewis testified credibly that Moreau also told employ-
ees frankly, he did not like that, and, ‘‘All I have to say is
if you don’t like it here, quit.’’
Respondent did not call Distribution Manager Moreau as
a witness. Instead, it called only Assistant Distribution Man-
ager Kemme to testify both to what he said and to what
Moreau said. Kemme admitted Moreau told employees that
Respondent’s relationship with the Union was a reason for
putting building of the freezer ‘‘on hold.’’ Kemme asserted,
however, that other reasons were also given, including uncer-
tainty about the economy and about competition. I have seri-
ous doubts about Kemme’s testimony, particularly in view of
the fact that Respondent did not bother to call Moreau to
give his version of what he said to employees. Union Stew-
ard Ken Hilbish testified credibly on rebuttal that the only
reason given by Moreau for putting the freezer on hold was
labor problems. Hilbish explained credibly that at Moreau’s
meeting with employees, the economy was discussed, but not
as one of the reasons why the freezer was put on hold.
I have little doubt that the general state of the economy
played a role in Respondent’s decision to place building of
the freezer on hold. However, I credit employee witnesses,
including specifically Ken Hilbish, in finding that this was
not a reason given by Respondent at the meeting with em-
ployees on March 25. At that meeting, Moreau simply placed
blame for the freezer being put on hold on union unrest, fric-
tion, and labor disputes. Moreau expressed clear and un-
equivocal anger, telling employees he was ‘‘pissed,’’ and
that if employees did not like working for Respondent, they
should quit. In its posttrial brief, Respondent argues that
since the Union’s contract with Respondent did not expire
until September 1992, ‘‘It is difficult to discern any coercive
impact such comments could have on these employees.’’
Counsel for the General Counsel argues that Moreau threat-
ened loss of jobs and other reprisals. While Moreau’s com-
ments to employees did not expressly threaten loss of jobs,
I find that they were both intended to be, and were, threat-
ening and coercive to employees in violation of Section
8(a)(1) of the Act. Moreau’s comments blamed employee
union activities and labor unrest for Respondent not building
the freezer in Atlanta. Moreau’s expression of anger and his
telling employees that if they were not happy, they should
quit constituted an implied threat of reprisal. For both rea-
sons, I find that Moreau’s comments violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. Respondent, The Kroger Co., is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local No. 528, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men, and Helpers of America, AFL–CIO is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent interrogated employees about their con-
certed activity, threatened them with discharge and written
warnings for engaging in such concerted activity, issued dis-
cipline to employees for engaging in such concerted activity,
and threatened employees with discharge for posting cartoons
challenging the relationship between incumbent union stew-
ard and Respondent’s management, and Respondent thereby
violated Section 8(a)(1) of the Act.
1201KROGER CO.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4. Respondent instituted new procedures for background
checks of employees in retaliation against employees for
electing new and more active union stewards, and Respond-
ent thereby violated Section 8(a)(1) and (3) of the Act.
5. Respondent impliedly threatened to discharge employee
Anthony Toney for filing a grievance pursuant to the collec-
tive-bargaining agreement between Respondent and the
Union, and for engaging in other concerted activities, and
Respondent thereby violated Section 8(a)(1) of the Act.
6. Respondent threatened reprisal against employees in re-
taliation for a grievance filed by employee David Leffers,
and Respondent thereby violated Section 8(a)(1) of the Act.
7. Respondent engaged in a disparate prohibition of talk
concerning the Union and work-related matters by employ-
ees, while other general conversation was allowed, and Re-
spondent thereby violated Section 8(a)(1) of the Act.
8. Proof is not sufficient to establish that Respondent uni-
laterally restricted access to its offices and to use of tele-
phones and office equipment without notifying the Union or
giving it an opportunity to bargain about such matters, and
that allegation is hereby dismissed from the complaint.
9. Respondent stated an intention to discharge David
Leffers and Eddie Wyche as retaliation against them for en-
gaging in protected concerted activities, and Respondent
thereby violated Section 8(a)(1) of the Act.
10. Respondent discharged Anthony Toney in retaliation
against him for engaging in protected concerted and union
activities, and Respondent thereby violated Section 8(a)(1)
and (3) of the Act.
11. Respondent removed employee George Lewis from his
regularly assigned duties in retaliation against Lewis for fil-
ing a grievance pursuant to the collective-bargaining agree-
ment between Respondent and Union, and Respondent there-
by violated Section 8(a)(1) of the Act.
12. Respondent interrogated employees about their internal
union activities, including their membership in Teamsters for
a Democratic Union, and Respondent thereby violated Sec-
tion 8(a)(1) of the Act.
13. Respondent disparately removed Teamsters for a
Democratic Union literature from general purpose bulletin
boards at Respondent’s facility, and Respondent thereby vio-
lated Section 8(a)(1) of the Act.
14. Respondent blamed employees’ union and concerted
activities for its decision not to build a new freezer facility,
and impliedly threatened employees with loss of jobs for en-
gaging in concerted and union activities, and Respondent
thereby violated Section 8(a)(1) of the Act.
15. The unfair labor practices which Respondent had been
found to have engaged in, as described above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow
of commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Accordingly, on these findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended8
ORDER
The Respondent, The Kroger Co., Atlanta, Georgia, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their concerted activi-
ties, threatening employees with discharge and written warn-
ings for engaging in concerted activity, issuing discipline to
employees for engaging in concerted activity, and threatening
employees with discharge for posting cartoons challenging
the relationship between incumbent union stewards and Re-
spondent’s management.
(b) Instituting new procedures for background checks of
employees in retaliation against employees for electing new
and more active union stewards.
(c) Threatening or impliedly threatening discharge or other
reprisals against employees in retaliation against them for fil-
ing grievances pursuant to the collective-bargaining agree-
ment between Respondent and the Union.
(d) Disparately prohibiting talk concerning union and
work-related matters by employees.
(e) Discharging, attempting to discharge, or stating an in-
tention to discharge employees as retaliation against them for
engaging in protected, concerted, and union activities.
(f) Removing employees from regularly assigned duties in
retaliation against them for filing grievances pursuant to the
collective-bargaining agreement between Respondent and the
Union.
(g) Interrogating employees about their internal union ac-
tivities, including their membership in Teamsters for a
Democratic Union.
(h) Disparately removing Teamsters for a Democratic
Union literature from general purpose bulletin boards at Re-
spondent’s facility.
(i) Blaming employees’ union and concerted activities for
its decision not to build a new freezer facility, and impliedly
threatening employees with loss of jobs for engaging in con-
certed and union activities.
(j) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Expunge from the file of employee Allen Watkinson
the discipline issued to him, and disciplinary records of any
kind issued to any other employees, for attending the em-
ployee meeting held at Respondent’s facility on June 23, and
notify them in writing that this has been done, and that evi-
dence of the unlawful discipline against them will not be
used as a basis for future personnel action against them.
(b) Offer Anthony Toney immediate and full reinstatement
to his former position or, if that position no longer exists, to
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
a substantially equivalent position, without prejudice to his
seniority and other rights and privileges.
(c) Make whole Anthony Toney and George Lewis for any
loss of earnings or benefits they may have suffered by reason
of the discrimination against them by paying him a sum of
money equal to the amount they normally would have earned
from the date of said discrimination to the date of Respond-
ent’s offer of reinstatement, less net interim earnings, with
backpay to be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest thereon
to be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
(d) Expunge from its files any reference to the discharge
of Anthony Toney and notify him in writing that this has
been done and that evidence of the unlawful discharge will
not be used as a basis for future personnel actions against
him.
(e) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, time cards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
order.
(f) Post at its Atlanta, Georgia distribution center facilities
copies of the attached notice marked ‘‘Appendix.’’9 Copies
of the notices, on forms provided by the Regional Director
for Region 10, after being signed by Respondent’s represent-
ative, shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
said notices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interrogate employees about their concerted
activities, threaten employees with discharge and written
warnings for engaging in concerted activity, issue discipline
to employees for engaging in concerted activity, or threat-
ening employees with discharge for posting cartoons chal-
lenging the relationship between incumbent union stewards
and Respondent’s management.
WE WILL NOT institute new procedures for background
checks of employees in retaliation against employees for
electing new and more active union stewards.
WE WILL NOT threaten or impliedly threatening discharge
or other reprisals against employees in retaliation against
them for filing grievances pursuant to the collective-bar-
gaining agreement between Respondent and the Union.
WE WILL NOT disparately prohibit talk concerning union
and work-related matters by employees.
WE WILL NOT discharge, attempt to discharge, or state an
intention to discharge employees as retaliation against them
for engaging in protected, concerted, and union activities.
WE WILL NOT remove employees from regularly assigned
duties in retaliation against them for filing grievances pursu-
ant to the collective-bargaining agreement between Respond-
ent and the Union.
WE WILL NOT interrogate employees about their internal
union activities, including their membership in Teamsters for
a Democratic Union.
WE WILL NOT remove Teamsters for a Democratic Union
literature from general purpose bulletin boards at our facili-
ties.
WE WILL NOT blame employees’ union and concerted ac-
tivities for its decision not to build a new freezer facility, and
impliedly threatening employees with loss of jobs for engag-
ing in concerted and union activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
WE WILL expunge from the file of employee Allen
Watkinson the discipline issued to him, and disciplinary
records of any kind issued to any other employees, for at-
tending the employee meeting held at our facility on June 23,
and notify them in writing that this has been done, and that
evidence of the unlawful discipline against them will not be
used as a basis for future personnel action against them.
WE WILL offer Anthony Toney immediate and full rein-
statement to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority and other rights and privileges.
1203KROGER CO.
WE WILL make whole Anthony Toney and George Lewis
for any loss of earnings or benefits they may have suffered
by reason of the discrimination against them by paying him
a sum of money equal to the amount they normally would
have earned from the date of said discrimination to the date
of Respondent’s offer of reinstatement, less net interim earn-
ings, with appropriate interest.
WE WILL expunge from our files any reference to the dis-
charge of Anthony Toney and notify him in writing that this
has been done and that evidence of the unlawful discharge
will not be used as a basis for future personnel actions
against him.
THE KROGER CO.