Kroger Co.

National Labor Relations Board - Board Decisions

Aug 31, 1993

312 N.L.R.B. 7 (N.L.R.B. 1993)

7
312 NLRB No. 2
KROGER CO.
1 Both the Respondent Employer and Respondent Union have ex-
cepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant vidence convinces us that they are incorrect. 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.
2 We find the Union’s letter sufficient to toll its backpay liability
under applicable Board precedent. See, e.g., Claremont Resort Hotel,
260 NLRB 1088 fn. 2 (1982).
3 As indicated above, the Respondent Union by letter dated Feb-
ruary 8, 1992, to the Respondent Employer, stated that it had no ob-
jection to the Employer’s assignment of Friar consistent with the
Employer’s practice predating October 28, 1991. Accordingly, we
find that in the absence of the Respondent Employer’s February 28,
1992 unfair labor practices, Friar would have been reinstated to the
hours that she was working before October 28, 1991.
4 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.’’
The Kroger Company and Mary Jane Friar
Local 876, United Food & Commercial Workers
International Union, AFL–CIO, CLC and
Mary Jane Friar. Cases 7–CA–33341 and 7–
CB–9027
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 2, 1992, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondents filed exceptions and supporting briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions, to amend the remedy,
and to adopt the recommended Order as modified and
set forth in full below.
AMENDED REMEDY
The Union argues with respect to the recommended
remedy that there is an inconsistency between finding
that Mary Jane Friar was discriminated against after
October 28, 1991, yet ordering the Employer to assign
work to her on the same basis that it had before Feb-
ruary 28, 1992. The Union argues further that, in any
event, its backpay obligation should be tolled after
February 28, 1992, because there is no allegation or
finding that it was responsible for any discrimination
against Friar after that date. These points have merit.
We shall amend the remedy to provide that the Union
make Mary Jane Friar whole for wages lost as a result
of its unfair labor practices, commencing on October
28, 1991, and terminating on February 8, 1992, 5 days
after the Union’s letter advising the Employer that it
had no further objection to assigning Friar work,2 with
interest. The Employer shall be required immediately
to resume assigning Mary Jane Friar work as a relief
assistant customer service manager on the same basis
the Employer was assigning her that work before Octo-
ber 28, 1991,3 and make her whole for wages lost as
a result of the Employer’s unfair labor practices, with
interest.
ORDER
The National Labor Relations Board orders that
A. Respondent the Kroger Company, Monroe,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to utilize Mary Jane Friar as
a relief assistant customer service manager because she
filed and pursued grievances with the Union and be-
cause she filed and pursued charges with the National
Labor Relations Board.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Assign Mary Jane Friar to work as a relief assist-
ant customer service manager on the same basis that
she was assigned that work before October 28, 1991.
(b) Make Mary Jane Friar whole for loss of earnings
she may have suffered by reason of the Employer’s
discrimination against her commencing February 28,
1992, with interest as set forth in the remedy section
of the judge’s decision.
(c) 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, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Monroe, Michigan store copies of the
attached notice marked ‘‘Appendix A.’’4 Copies of the
notice, on forms provided by the Regional Director for
Region 7 after being signed by the Respondent Em-
ployer’s authorized representative, shall be posted by
Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent Employer to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent Employer has taken to comply.
B. Respondent Local 876, United Food & Commer-
cial Workers International Union, AFL–CIO, CLC,
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See fn. 4, above.
Monroe, Michigan, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Causing or attempting to cause the Employer to
discriminate against Mary Jane Friar by denying her
work as a relief assistant customer service manager be-
cause she pursued a grievance the Union did not want
pursued and because union officials harbor ill will to-
ward her.
(b) Failing or refusing to freely and fairly represent
Mary Jane Friar in the filing and processing of griev-
ances.
(c) In any like or related manner restraining or co-
ercing employees in the exercise of rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Mary Jane Friar whole for any loss of
earnings she may have suffered by reason of the
union-caused discrimination against her commencing
October 28, 1991, and terminating on February 8,
1992, with interest as set forth in the amended remedy
section of this decision.
(b) Post at its offices and meeting halls a copy of
the attached notice marked ‘‘Appendix B.’’5 Copies of
the notice on forms provided by the Regional Director
for Region 7, after being signed by the Respondent
Union’s authorized representative, shall be posted by
Respondent Union immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent Union to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Forward to the Regional Director for Region 7,
signed copies of the notice for posting by the Em-
ployer, if it be willing, for 60 consecutive days, in
places where notices to employees are customarily
posted.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps Re-
spondent Union has taken to comply.
APPENDIX A
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminate against Mary Jane Friar
by refusing to assign her as a relief assistant customer
service manager because she filed and pursued griev-
ances or filed and pursued charges with the National
Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by the National Labor Rela-
tions Act.
WE WILL assign Mary Jane Friar to work as a relief
assistant customer service manager on the same basis
she was assigned before October 28, 1991, and WE
WILL make her whole for any loss of earnings she may
have suffered by reason of our refusal to so assign her
on and after February 28, 1992, with interest.
THE KROGER COMPANY
APPENDIX B
NOTICE TO MEMBERS
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause the Kroger
Company to discriminate against Mary Jane Friar be-
cause she pursued grievances we did not wish to be
pursued or because we harbor ill will toward her.
WE WILL NOT fail or refuse to fully and fairly rep-
resent Mary Jane Friar in the filing and processing of
grievances.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaran-
teed them in Section 7 of the National Labor Relations
Act.
WE WILL make Mary Jane Friar whole for any loss
of earnings she may have suffered by reason of our
causing the Kroger Company to cease using Mary Jane
Friar as a relief assistant customer service manager
9KROGER CO.
from October 28, 1991, to February 8, 1992, with in-
terest.
LOCAL 876, UNITED FOOD & COMMER-
CIAL WORKERS INTERNATIONAL UNION,
AFL–CIO, CLC
John Ciaramitaro, Esq., for the General Counsel.
John M. Flynn, Esq., for Respondent Kroger Company.
Mary Ellen Gurewitz, Esq., for Respondent Local 876,
United Food & Commercial Workers International Union,
AFL–CIO, CLC.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This con-
solidated proceeding was litigated before me at Detroit,
Michigan, on August 13, 1992, pursuant to charges timely
filed and complaints issued alleging (1) that Local 876,
United Food & Commercial Workers International Union,
AFL–CIO, CLC (the Union) violated Section 8(b)(1)(A) and
(2) of the National Labor Relations Act (the Act) by attempt-
ing to cause and causing the Kroger Company (Employer) to
discriminate against Mary Jane Friar, by breaching its fidu-
ciary duty to fairly represent her, and by such conduct re-
straining and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act; and (2) that the Employer
violated Section 8(a)(1), (3), and (4) of the Act by failing
and refusing to utilize Mary Jane Friar as a relief backup as-
sistant head cashier because she engaged in union and pro-
tected concerted activities including filing and pursuing
grievances, and because she filed and pursued the charge
against the Union in Case 7–CB–9027 and gave testimony to
the Board in that proceeding. The Union and the Employer
deny the commission of unfair labor practices.
On the entire record, and after considering the posttrial
briefs filed by parties and the testimonial demeanor of the
witnesses testifying before me, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
The Employer is a corporation with its principal office and
place of business in Cincinnati, Ohio. It is engaged in the op-
eration of retail supermarkets located in various States in-
cluding Michigan and Ohio. The Employer’s facility in-
volved in this consolidated proceeding is store 167 located
in Monroe, Michigan. During the calendar year 1991, a rep-
resentative period, the Employer derived gross revenue in ex-
cess of $500,000 from its supermarket operations in Michi-
gan and purchased and received at the Michigan super-
markets goods valued in excess of $50,000 delivered directly
from points located outside the State of Michigan. At all
times material to this proceeding the Employer has been en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act at all times material to this
proceeding.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisors and Agents
At all times material to this proceeding, Richard H. Hodg-
kins has been the store manager of store 167 in Monroe,
Michigan, and has been a supervisor of the Employer within
the meaning of Section 2(11) of the Act and the Employer’s
agent within the meaning of Section 2(13) of the Act.
At all material times the following individuals held the po-
sitions set forth opposite their respective names and have
been agents of the Union within the meaning of Section
2(13) of the Act: Ronald L. Brown, president; Ruth Davis,
executive assistant to the president; Gerald Omstead, senior
vice president; Jack Adams, business representative; and
Rodney Bradford, steward, Dixie Highway Store.
B. Collective-Bargaining Relationship and
Various Stipulations
The Employer and the Union are party to a collective-bar-
gaining agreement covering a unit of the Employer’s em-
ployees. Mary Jane Friar is a member of that bargaining unit.
The parties stipulated to the following facts:
1. Within the bargaining unit at each store is a customer
service manager and one or more assistant customer service
managers. The latter are also known as backup head cashiers
or backup head checkers. These positions known as ‘‘back
up’’ jobs are permanent full-time positions whereas ‘‘relief’’
head checkers or head cashiers only work in that capacity on
a temporary basis when the permanent job incumbent is un-
available for work.
2. Mike Siebarth began his employment on October 8,
1977, and worked as a bagger part time until March 3, 1980,
when he became a full-time employee as a clerk/cashier.
March 3, 1980, is his beginning date of continuous service,
sometimes referred to as the BDCS date or job date. Siebarth
became an assistant customer service manager on November
1, 1991.
3. Mary Jane Friar was hired as a part-time clerk/cashier
on December 7, 1988, and has no BDCS date because she
is still part time. Her job date is December 7, 1988.
4. Jan Reaume was hired on June 10, 1974, and became
an assistant customer service manager on August 17, 1979.
She has been on medical leave since April 2, 1992.
5. Terry Waterson was hired June 20, 1977. For at least
2 years prior to September 13, 1991, she was an assistant
customer service manager. On or about September 13, 1991,
she became a clerk/cashier. Her BDCS date is August 21,
1977, because she is a full-time employee. She has been
serving as a relief assistant customer service manager in Jan
Reaume’s absence, and similarly relieved in the absence of
other permanent assistant customer service managers prior to
April 2, 1992, at various times.
6. Jim Benier was hired February 7, 1984, has a job date
of June 26, 1987, and a prospective classification date of Au-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Of the witnesses appearing before me Friar was the most impres-
sive. She was the most certain, detailed, and believable. In terms of
demeanor she was composed and appeared to be truthfully reciting
only that which she recalled without embroidery or invention. With
respect to this last item, the fact that she continues in the employ
of Kroger makes it rather unlikely that she would deliberately con-
coct falsehoods contrary to the interests of her employer who con-
trols her future working history, see, e.g., Unarco Industries, 197
NLRB 489, 491 (1972), or the interests of the Union to whom she
must look for representation in grievance and other contractual mat-
ters affecting her working conditions. Her testimony which is con-
sistent with her previous writings to the Union and Employer con-
cerning matters now before me is in large part uncontroverted and
is credited in those instances where it is contradicted by other wit-
nesses. The only other witnesses appearing were Bradford, Davis,
and Hodgkins. Bradford is not credited where it is a choice between
his testimony and that of Friar because he was neither as certain nor
believable as she, particularly when he stated he was not bothered
by the fact that she had previously gone over his head to higher
union officials, which is inconsistent with his testimony and hers that
he had cut a conversation with her short by telling her that she was
going over his head anyway when she asked what he would do for
her in the way of representation concerning her job bid. Davis was
a pleasant, intelligent witness whose testimony suffered by reason of
her assertions at various times that she could not recall, something
might have been, or she was not quite sure. These representations
are not denials and do not serve to rebut Friar’s testimony. Here
again Friar’s testimony was the more impressive in terms of cer-
tainty and contained no hint of evasion. Hodgkins did not impress
me as a witness of candor equal to that of Friar, and he is not cred-
ited where their testimony differs.
2 Adams did not testify.
gust 3, 1992, because he has since that date been performing
the duties of assistant customer service manager on a 60-day
trial basis. If he successfully completes his trial period his
classification date will be August 3, 1992.
C. Relevant Facts1
On or about March 2, 1990, Friar started working 15 hours
or more each week, as much as 30 hours some weeks, as a
relief assistant customer service manager (relief ACSM), and
continued to so do until June 1991. Prior to June 1991,
Hodgkins had told Friar in March 1991 that she would have
to start rotating with Jim Benier, a college student, in this
relief work effective in June. Bradford, the Union’s steward
at the Employer’s Monroe store, was aware Hodgkins so in-
structed Friar. Bradford opined Friar might not have to start
this rotation, and said he would talk to Jack Adams, the
Union’s business representative. That same day, Friar called
Adams concerning the matter. Adams advised that Bradford
had not as yet talked to him, but he would look into the situ-
ation.2 A few days later, Hodgkins told her to call Adams.
She did. Adams accused her of lying about her length of
service, and told her the rotation would go into effect under
an agreement with Hodgkins that only she and Benier would
be used in the rotation. Hodgkins was standing by during the
phone conversation and agreed that only the two would be
used in that work. Adams concluded by telling Friar, ‘‘You
either do things the manager’s way or I will come down and
pull you out of the office altogether.’’
Bradford later told Friar that he had indeed talked to
Adams about the rotation, and Adams had lied when he de-
nied talking to Bradford. In closing, Bradford said that he
had told her that going to Adams would not do any good.
It is not clear in the record whether Bradford had previously
so told her.
In late August or early September 1991, a full-time ACSM
position became open. Friar, Mike Siebarth, and Linda
Pietscher bid for the job. After interviewing the three appli-
cants, Hodgkins told Friar on September 10 that the job had
been awarded to an employee at another store who had sub-
sequently turned the offer down and, therefore, Hodgkins
was giving the job to her, Friar asked what he would do if
Siebarth, who had more seniority, grieved. Hodgkins replied
he had been advised by the Employer’s human resources de-
partment that he could give the job to Friar on the basis of
her skills and her relief performance in the job for a year and
a half. He added that in interviewing Siebarth he found no
evidence Siebarth was capable of doing the job. Friar began
working as a full-time ACSM on September 15, 1991.
On about September 7, prior to her talk with Hodgkins on
September 10, Bradford asked Friar if her interview had been
done correctly. When Friar responded it had, he advised he
did not believe Siebarth and Pietscher had been correctly
interviewed and that he would help them file a grievance if
the bidder from the other store got the job as expected. Friar
then asked what the basis for a grievance would be. Bradford
replied he did not know why she asked because she would
do things her way in any case. He added that he would help
the other two file a grievance but not her, and that by going
over his head before she had found she could not do any-
thing. I conclude and find Bradford was referring to the time
Friar had gone directly to Adams concerning the rotation of
her and Benier.
Siebarth did file a grievance. Bradford and Adams per-
suaded Hodgkins to reinterview Siebarth. That interview con-
sisted of one question, ‘‘Why should I choose you above
Mary Friar to fill this position.’’ When Siebarth replied that
he wanted the challenge and the opportunity, had been with
the Company a long time, felt like he could do a good job,
and wanted to fill the position, this, says Hodgkins, per-
suaded him to replace Friar in the job with Siebarth. I do not
believe this was the real reason. Noting that Hodgkins says
he had told Friar that he did not think Siebarth would make
it through a 30-day trial and did not have the necessary skills
and ability, Siebarth’s response to the question contains noth-
ing that comes close to evidence of skill or ability. The Em-
ployer’s posttrial brief states Hodgkins took this step in view
of Siebarth’s response and in order to resolve the grievance.
It probably is more accurate to say that Hodgkins created an
excuse in order to pacify the Union by resolving the griev-
ance in Siebarth’s favor.
On September 12, 1991, Hodgkins told Friar of her re-
placement by Siebarth. That evening they again talked about
it. He told her that Siebarth would win a grievance because
he had more seniority and, therefore, he may as well give
him the job right then. When she protested and threatened
to take some action on the matter, he asked her to wait be-
cause he did not think Siebarth could successfully complete
the 30 days’ training, and she would therefore regain the job.
This statement of lack of faith in Siebarth’s ability and the
emphasis on seniority further illuminates the fact the reinter-
view was held solely to provide an excuse for a decision al-
ready made.
At this juncture it is appropriate to explain that what really
happened here was a tug-of-war between the Employer and
11KROGER CO.
the Union over differing interpretations of the clause in the
collective-bargaining agreement reading as follows:
Promotions shall be based on seniority provided that
demonstrated skill and ability are approximately equal.
Friar was originally granted the bid on a skill and ability
basis. The Union takes the stance seniority should have pre-
vailed, and also clearly opposes use of the skill and ability
standard and intends to vigorously contest its application.
On September 23, 1991, Friar called Adams and asked
why he was pulling her off the job and giving it to Siebarth.
Adams cited Siebarth’s seniority as the reason. She told him
she was filing a grievance. Adams not surprisingly said there
was no reason for a grievance. The next day Friar presented
Hodgkins with a handwritten grievance protesting her re-
moval from the ACSM position. Then she called Adams and
told him of the grievance she had given to Hodgkins. He
again said there was no basis for the grievance, but added
he would pick it up in about a week. The same day, Septem-
ber 24, Friar called Ruth Davis, the executive assistant to the
president of the Union, explained the situation, and told her
Adams was not acting like he was going to do anything.
Davis said she would look into it.
Friar again called Davis on September 26. She credibly re-
lates that Davis told her that she (Davis) had talked to
Adams and knew what was going on. Davis added the Union
did not like the skill and ability language in the contract, pre-
ferred the application of seniority, did not have to honor the
skill and ability language, and, moreover, it was the union
members who had voted for that language, not the union
committee which opposed it. Asked if she had bid on jobs
outside the office, Friar explained she had not because she
had none of the experience called for in the bid postings.
This drew the response from Davis that the Union was not
guided by the requirements the Employer listed on the bid
sheets. Davis said Adams would pick up the grievance on
September 27. He did not. Friar therefore mailed it to him
that day.
On September 28, Friar called Adams and asked if he had
received the grievance. He merely replied that he was busy
and would see what he could do in a couple of weeks. This
moved her to call a representative of the International union
on September 30 and report what was happening vis-a-vis
her grievance. Friar was advised to exhaust the grievance
procedure and call back if the Union failed to act within 60
days. That same day Friar wrote a letter to Ronald Brown,
the president of Local 876, setting out the basis of her griev-
ance and complaining of Adams’ conduct.
On October 4, 1991, Bradford gave Friar an official griev-
ance form which she completed and mailed to Adams on Oc-
tober 7. Nothing happened so she telephoned Gerald
Omstead, the Union’s senior vice president, and related what
had happened concerning her grievance. As a result Brad-
ford, Adams, and Davis met with Friar at the Monroe store
on October 28. Davis presented Friar with a letter explaining
that Friar’s grievance was without merit because Siebart’s
had merit. This did not satisfy Friar. Davis therefore advised
Friar that if she wished to proceed further she would have
to request a hearing from the Union’s executive board. Friar
said she would proceed further and started to leave. As she
did, Bradford said that her weekly relief ACSM work in the
office, which ranged from 15 to 30 hours, was contrary to
the collective-bargaining agreement and she should not be al-
lowed to so work. This upset Friar who accurately pointed
out that Bradford had long known she regularly worked in
the office, as Adams had known since March 1991 when the
issue of rotation with Benier was raised, and, when Davis
said the union contract did not permit Friar to work in the
office every week, Friar pointed out correctly that Davis had
known since Friar told her about it on September 24. She
then asked why this issue of her continuing work in the of-
fice was now being raised. Bradford said it was apparent she
was not happy with being in the office. Friar protested that
she had never said she wanted to leave the office work. Friar
then left the meeting. As she left Davis asked her to send
Hodgkins to meet with the union representative. Friar did so.
Hodgkins then met with the union representatives. Friar
was not present. Hodgkins was told he was misusing the re-
lief ACSMs and thereby violating the collective-bargaining
agreement, which Hodgkins denied he was doing. Hodgkins
first testified he knew the union people were talking about
the way he assigned relief ACSMs but when asked if he did
not understand they were talking about the assignment of
Friar he answered, ‘‘Ms. Friar and Mr. Benier.’’ Here Hodg-
kins was being evasive because he knew, as he testified, that
Benier was then back in college and only working weekends.
The Union knew, Hodgkins knew, and I conclude that the
Union’s complaints were directed at the assignment of Friar.
Hodgkins promised the union representatives that he would
only use a relief ACSM in the office for vacations, personal
days off, or illness.
After meeting with the Union, Hodgkins immediately told
Friar the Union had said he had to remove her from the of-
fice. Three days later he further told Friar he had discussed
the matter with Employer officials and had to either establish
another full-time ACSM position or wait until contract time
to try to construct a relief position on a part-time basis. He
concluded by telling her he would have to remove her from
the office. She was not thereafter regularly assigned to relief
work in the office as she had been in the past.
After Hodgkins advised her that there would be much less
relief work for her, Friar called the Union’s senior vice presi-
dent, Omstead, and asked why the Union was now pulling
her out of the office. He referred to a contractual requirement
the job had to be bid if an employee was used on it over
30 days. Friar charged the Union was retaliating because she
was pursuing her grievance. He denied that charge and told
her to file with the executive board but, as far as he was con-
cerned, nothing else could be done. She did file with the ex-
ecutive board on November 6, 1991. It decided not to pro-
ceed to arbitration on her grievance. She then wrote to the
International executive board on December 18, 1991, appeal-
ing the action of the local executive board. The International
president referred the appeal back to Local 876 on January
14, 1992, for investigation and, on March 4, 1992, advised
Friar the handling of her grievance had been proper and the
matter was closed.
In the meantime, Friar had filed the original charge in
Case 7–CB–9027 with the Board on December 24, 1991, and
followed up with an amended charge on February 27, 1992,
which resulted in the present complaint about the Union’s
conduct which issued on February 28, 1992. On or shortly
before February 3, 1992, the Union was advised by the
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Relief employees are sometimes erroneously referred to as
backups.
4 Here I believe Friar was referring to her charge filed with the
Board.
Board’s Region 7 that a complaint would issue in Case 7–
CB–9027. The Union, by Davis, then wrote a letter to the
Employer on February 3, 1992, advising that the complaint
was imminent, characterizing the Board’s allegations as ridic-
ulous, and advising that pending litigation on the matter ‘‘the
Union has no objection to your assigning Ms. Friar to the
backup assistant customer service manager position as you
were previously doing.’’ Davis went on to explain, ‘‘We are
taking this position at the present time to avoid further pos-
sible financial liability. Do not consider this letter as a waiv-
er of our right to enforce all contract provisions.’’ The Em-
ployer had been provided with copies of the charges and
complaint in Case 7–CB–9027 as they were filed or issued.
Friar took a vacation in February 1992. Before she went
on vacation she bid and was interviewed for an ACSM job
at another of the Employer’s locations. When she returned
from vacation she found that she had not been successful in
her bid. She further discovered that Hodgkins had been train-
ing Pietscher to work in the office. On February 27 she
asked him why. He assured her this training had taken place
because he assumed her bid would be successful, but now
she would still be his backup.3 Notwithstanding this assur-
ance on February 27, Hodgkins told Friar on February 28 he
was not going to so use her in the future and would use
Terry Waterson, who had been an ACSM in the past, be-
cause it cost the Company less. Later that day, Friar met
with Hodgkins in his office and asked why he was doing this
to her. He then told her that he had told her in September
not to start anything, she had since caused nothing but trou-
ble, and he did not have to use her in the office. Friar re-
sponded by referring to the Union’s February 3 letter stating
the Union had no objection to her working in the office.
Hodgkins heatedly replied he did not care what the Union or
the Board said because he could assign anyone he wanted to
that work and he was not going to so assign her. Friar did
not let up and continued to argue by reminding him of his
March 1991 decision to use only her and Benier for the relief
work. Hodgkins repeated his lack of concern for what the
Union or the Board said. Friar relentlessly pushed on by ar-
guing she had a right to file a grievance and do what she
was doing and her grievance against the Union4 had nothing
to do with her being in the office so far as Hodgkins was
concerned. At this Hodgkins flatly told her the Union had
wanted her out of that work and therefore he had no choice
and she was staying out of the office. This recitation of what
occurred between Friar and Hodgkins on that occasion is
based on the credited testimony of Friar which is not rebut-
ted by Hodgkins whose very general and fragmentary testi-
mony concerning what then was said is punctuated with fail-
ures of recollection and simply does not meet the specificity
of Friar’s testimony. Although I note, as does the Employer
in its posttrial brief, Hodgkins’ statement that he had no
choice but to keep Friar out of the office because the Union
wanted her out seems inconsistent with his earlier statement
of independence from Union or Board pressure, I conclude
that Hodgkins’ statement of independence was pure bravado
and his reference to union pressure to keep Friar out of the
office was an admission against the Employer’s interest enti-
tled to great probative weight even though inconsistent with
his earlier claim of independence. The witnesses were not se-
questered and Friar testified before Hodgkins did. He there-
fore had ample opportunity to credibly controvert her testi-
mony if he could or explain why he told her what she says
he did. His testimony does neither. Here, as he had pre-
viously done in the Siebarth situation, Hodgkins bowed to
union pressure to remove relief ACSM work from Friar.
Conclusions in Case 7–CB–9027
Friar had been working from 15 to 30 hours each week
as a relief ACSM for more than a year prior to October
1991, with the exception of the summer of 1991 when she
and Benier rotated weeks. Even then she worked the same
hours during the weeks she was scheduled as she had before.
I do not believe that Rodney Bradford, the union steward at
the Monroe store who has known Friar since she was first
employed, or Richard Hodgkins, the store manager for 4
years at the time of the hearing, were not aware of the hours
Friar had been working. Apart from the fact that to conclude
otherwise would imply that both of them were derelict in
their duty to know what was happening with the work force,
a supermarket is not General Motors employing thousands in
a single factory and requiring dozens of overseers to keep
track of what is going on in the shop and, as previously
noted, Bradford and Hodgkins were not particularly impres-
sive witnesses. Jack Adams, the Union’s business agent, had
known that Friar was working a considerable number of
hours as a relief ACSM at least as early as March 1991. His
threat then to pull her out of the office fairly implies he well
knew where and when she was spending much of her
worktime. The testimony of Ruth Davis, the executive assist-
ant to the president of the Union, and her October 25, 1991
letter replying to Friar’s grievance shows that Davis was
aware Friar had regularly served as a relief ACSM for quite
some time, and it is most unlikely that the other union agents
involved did not advise her of Friar’s work history, an obvi-
ous topic of consideration inasmuch as Friar’s experience in
that position was the evidence Friar advanced in support of
her claim of supervisor skill and ability. In Friar’s September
30, 1991 letter to Ronald Brown, the Union’s president, she
expressly advised she had worked in the office every week
as a relief ACSM since March 2, 1990. Friar repeated this
information in her grievance dated October 4, 1991. Notwith-
standing all this available information about Friar’s work his-
tory as a relief ACSM, Davis testified she did not know of
the extent of Friar’s relief work before October 28, 1991. I
do not believe this testimony. I further note that none of the
union representatives claim that prior to October 28, 1991,
they even considered an investigation to see if Friar’s relief
work in the office was either relevant to her claim of skill
and ability or permissible under the terms of the collective-
bargaining agreement. For the foregoing reasons, I conclude
and find the Union, as well as the Employer, long before Oc-
tober 28, 1991, knew that Friar had worked a considerable
number of hours weekly in the office for many months as
a relief ACSM and had not been particularly concerned about
it.
When Friar met with Davis, Bradford, and Adams on Oc-
tober 28, 1991, she was dealing with a group two-thirds of
whose members had demonstrated both an unwillingness to
13KROGER CO.
5 Friar recalls only 4 weeks after October 1991 in which she per-
formed such work.
6 Friar had a substantially higher wage rate when working as a re-
lief ACSM compared to her normal rate as a clerk/cashier.
7 The Employer’s October acquiescence to the Union’s demands is
not alleged as an unfair labor practice and cannot be so alleged be-
cause it occurred more than 6 months prior to the filing and service
of the charge in Case 7–CA–33341. See Sec. 10(b) of the Act.
8 NLRB v. City Disposal Systems, 465 U.S. 822 (1984).
assist her and personal ill will toward her. Adams had ac-
cused Friar of lying to him, threatened to pull her out of the
office in March 1991, and displayed a studied lack of con-
cern regarding when he might get around to attending to her
September 1991 grievance. Bradford was unhappy with Friar
because she had bypassed him to deal with his superiors in
the union hierarchy, and he had flatly told her in September
1991 that he would not help her with a grievance. It is there-
fore no surprise that when Friar refused to accept Davis’ ex-
planation in satisfaction of her grievance that it was Bradford
who, for the first time notwithstanding he had long known
of her work history, charged that her hours of work as a re-
lief ACSM violated the contract and she should no longer be
allowed to so work. When Friar protested, Bradford’s state-
ment that it was apparent she was not happy with her work
in the office fairly conveyed the message her aggressive pur-
suit of her grievance could mean the loss of the relief work
she was now performing. Upset by Bradford’s comments,
Friar protested correctly that she had never said she wanted
to leave the office work. Davis, agreeing with Bradford that
the contract did not permit Friar to work as much as she had
been doing, then told Hodgkins his use of relief ACSMs, of
which Friar was then the only one, violated the contract.
Hodgkins agreed to limit the use of relief ACSMs. Then he
met with Friar and told her the Union said he had to remove
her from the office, which I find, noting Bradford’s com-
ments to Friar and Adams’ earlier threat in March, is exactly
what the Union wanted and what Hodgkins understood they
wanted. Accordingly, Friar was assigned only a few weeks5
of relief ACSM work after October 31, 1991, until the time
of the hearing.
Friar had regularly worked the relief for a number of hours
weekly. The Union never protested this assignment prior to
October 28, 1991, and Adams condoned it in March 1991
when he directed Friar to abide by the rotation set up by
Hodgkins even though this had Friar and Benier on alternate
weeks working the same amount of time Friar had regularly
worked for about a year prior thereto. It was only when Friar
on October 28 expressed her determination to process her
grievance further that Bradford, exasperated at her obduracy,
raised the issue and threatened her with the loss of relief
work. It was Friar’s persistence, not a noble effort to enforce
the contract, that moved Bradford to suggest and Davis to
adopt a course of pressing Hodgkins to, as Hodgkins cor-
rectly interpreted the Union’s message, remove Friar from
regular relief work. Hodgkins complied. I am persuaded the
Union would not have taken this action had not Friar so vig-
orously pursued her grievance and had not Adams and Brad-
ford, and thus the Union, harbored ill will toward her. The
Union’s conduct violated Section 8(b)(2) and (1)(A) of the
Act by attempting to cause and causing the Employer to cur-
tail Friar’s relief work and thereby deprive her of higher
earnings6 because she pursued a grievance the Union did not
want pursued and because union agents harbored ill will to-
ward her. This conduct of the Union also violated Section
8(b)(1)(A) because, as the complaint alleges, it shows a
breach of the Union’s duty to fully and fairly represent Friar,
a unit and union member, without resort to unfair, arbitrary,
and invidious reasons.
Case 7–CA–33341
Hodgkins told Friar on February 28, 1992, that he was de-
nying her any further relief ACSM work. When she asked
why, he said that he had told her not to start anything, she
had since caused nothing but trouble, and the Union wanted
her out of the office. What she had done was press forward
on a grievance and file unfair labor practice charges against
the Union. Those items were the only things Friar has been
shown to have started Hodgkins could have been referring to.
With respect to his reference to union wishes in the matter,
I find he was but speaking the truth as evidenced by the
Union’s unlawful efforts in October 1991.7 There is enough
here to support an inference that Friar’s grievance and charge
filing activities and the Union’s demands were motivating
factors in the decision to eliminate or at least drastically re-
duce her relief ACSM work. Hodgkins’ reaction to the
Union’s demand is consistent with his earlier easy acquies-
cence to the Union’s demands resulting in a reinterview of
Siebarth and replacement of Friar with Siebarth on the basis
of a vague statement of good intentions by Siebarth. Accord-
ing to Hodgkins, his reason for using Waterson in the relief
ACSM job instead of Friar was a saving of $4 an hour in
wages because Waterson, who had formerly been an ACSM,
was already being paid a rate within a few cents of that re-
quired for the relief work and Friar’s regular clerk/cashier
rate was $4 less than the relief rate. The record supports
Hodgkins’ description of the variance in additional cost be-
tween using Waterson and Friar, but this does not outweigh
his firm declaration to Friar that the Union’s demands and
the trouble she had caused by her protected activities were
the reasons for Hodgkins’ action. The Employer has not
shown by a preponderance of the credible evidence that the
February 28, 1992 denial of relief ACSM work to Friar
would have taken place absent her grievance and charge fil-
ing activities and the Union’s demand for curtailment of Fri-
ar’s relief work. The General Counsel has therefore shown
by a preponderance of the credible evidence the reduction of
Friar’s work was designed to placate the Union and discour-
age her grievance activity, which is protected activity,8 and
therefore violative of Section 8(a)(3) and (1) of the Act, and
to discourage her charge filing activity in violation of Sec-
tion 8(a)(4) of the Act.
CONCLUSIONS OF LAW
1. The Employer is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By attempting to cause and causing the Employer to
cease utilizing Mary Jane Friar as a relief assistant customer
service manager on or about October 28, 1991, because she
pursued a grievance the Union did not want her to pursue
and because she went over the heads of union agents in pur-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
suing grievances, the Union violated Section 8(b)(2) and
(1)(A) of the Act.
4. By reducing the use of Mary Jane Friar as a relief as-
sistant customer service manager on and after February 28,
1992, because she filed and pursued grievances with the
Union and because she filed and pursued charges against the
Union with the National Labor Relations Board, the Em-
ployer violated Section 8(a)(1), (3), and (4) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the notice-posting and cease-and-desist re-
quirements, the Union shall be required to notify the Em-
ployer in writing, with copy to Mary Jane Friar, that it has
no objection to assigning Mary Jane Friar to relief assistant
customer service manager work on the same schedule she
was assigned prior to October 28, 1991, and requests that she
be so assigned, and shall make Mary Jane Friar whole for
wages lost as a result of its unfair labor practice, with inter-
est thereon. The Employer shall ‘‘be required to immediately
resume assigning her to such work on the same basis the
Employer was assigning her up to February 28, 1992, and
make her whole for wages lost as a result of the Employer’s
unfair labor practices, with interest thereon. All backpay
shall be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest computed as
in New Horizons for the Retarded, 283 NLRB 1173 (1987).9
[Recommended Order omitted from publication.]