Lindy's Food Center

National Labor Relations Board - Board Decisions

Oct 7, 1977

232 N.L.R.B. 1001 (N.L.R.B. 1977)

LINDY'S FOOD CENTER
Lindy's Food Center and Amalgamated Meat Cutters
& Butcher Workmen of N.A., AFL-CIO, Local
Union 576. Cases 17-CA-7112 and 17-CA-7245
October 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 7, 1977, Administrative Law Judge
Thomas E. Bracken issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge, and
to adopt his recommended Order,3 except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Lindy's Food
Center, Topeka, Kansas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I In the absence of exceptions thereto, we adopt proforma the dismissals
of allegations made by the Administrative Law Judge.
2 Respondent contends that meatcutter Rasch is a supervisor and
therefore outside the protection of the Act. We have carefully examined the
record and conclude that Rasch exercises none of the indicia of supervisory
authority contemplated by the Act, but is indeed no more than an
experienced leadman who sometimes assists his less experienced assistant in
the meat department.
3 The notice is modified to reflect the Administrative Law Judge's
recommended Order.
4 See. generally. Isis Plumhing & Healing Co, 138 NLRB 716 (1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Amalgamated Meat Cutters & Butcher Workmen
of N.A., AFL-CIO, Local Union 576, or any
other labor organization by discriminatorily
failing or refusing upon their unconditional
request to reinstate any of our employees who
have engaged in a lawful strike and are lawfully
entitled to reinstatement.
WE WILL NOT threaten employees with reprisals
because of their membership in or activities on
behalf of the above-named Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them in Section 7 of
the Act.
WE WILL offer to employees Donald Rasch and
James Lytle immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and WE WILL make them whole for any
loss of pay they may have suffered as a result of
our discrimination, with interest.
LINDY'S FOOD CENTER
DECISION
STATEMENT OF THE CASE
THOMAS E. BRACKEN, Administrative Law Judge: This
case was heard at Topeka, Kansas, on September 15 - 16,
1976.' The original charge was filed by the Union on May
3, and the complaints was issued on June 15; a second
charge was filed by the Union on August 5, and the second
complaint was issued on August 18; by Order issued on
August 19, the two cases were consolidated for all
purposes. The cases present the following issues:
(a) whether the Union gave the notices required by
Section 8(dX3) of the Act to the Federal Mediation and
Conciliation Service and to the Kansas Department of
Labor;
(b) whether Respondent threatened on or about April 15,
that it would never again utilize the exclusive hiring hall
provided for in the last current collective-bargaining
agreement, and that it would not enter into a subsequent
collective-bargaining agreement with the Union;
I All dates are in 1976 unless otherwise stated.
2 Amended at the heanng so as to correct the first name of the
Respondent's general manager.
232 NLRB No. 161
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) whether the Respondent has unlawfully refused to
bargain with the Union in an appropriate unit;
(d) whether the strike commenced by the Union on April
19 was an unfair labor practice strike or an economic
strike;
(e) whether the striking employees through their Union
made an unconditional offer to return to work, and, if so,
whether Respondent lawfully refused and failed to rein-
state them.
Upon the entire record in this case, including my
observation of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel,
the Employer, and the Union, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Employer (herein Respondent or Store), an unincor-
porated association, is engaged in the retail grocery
business at its store in Topeka, Kansas, where it annually
purchases goods and services valued in excess of $50,000
directly from sources located outside the State. The
Employer's annual gross volume of business exceeds
$500,000. The Employer admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE AlILEGED UNFAIR I.ABOR PRA(TICES
A. Background
The facts and chronology in this case are for the most
part uncontroverted. Respondent operates a single grocery
store which in the latter part of 1975 and the first quarter of
1976 employed two persons in its meat department.3 The
Respondent has had successive collective-bargaining agree-
ments with, and recognized the Union since 1966, as the
collective-bargaining representative of its meat department
employees. The last collective-bargaining agreement be-
tween the parties was executed in 1974, and was for the
period of April 7, 1974, through April 10, 1976. 4 This
contract provided for its reopening as follows: "The entire
agreement may be reopened for negotiation of changes, if
desired, on April 10, 1976, upon sixty (60) days notice in
writing from either party to the other party."
B. Notices Sent by the Union
On December 15, 1975, the Union, by the action of its
Business Representative George Hart, and over the
signature of its secretary-treasurer Carl Nathnagel, sent a
three-line letter from its office in Kansas City, Kansas, to
:' The Store also had a grocery department, but the grocery employees
are not involved in this case. The record does not disclose if the grocery
employees were represented by a union.
4 The Union also had a collective-bargaining agreement for the same
period of time with the Topeka Grocers Association that covered an
unspecified number of grocery stores. Respondent was not a member of this
Association.
Lloyd Hall, the owner of the Store, by certified mail, return
receipt requested, which tersely stated: "This letter will
serve as our notice to reopen the meat cutters contract
which expires April 10, 1976. Contract proposal will
follow." Hall signed the receipt for the letter on the next
day, December 16, 1975.
Also, on December 15, 1975, the Union sent to the
Federal Mediation and Conciliation Service in St. Louis,
Missouri, by certified mail, return receipt requested, the
following brief letter:
This letter will serve as our Notice to the Federal
Mediation and Conciliation Service that the contract
between Meat Cutters Local 576 and retail stores in
Topeka, Kansas area will expire April 10, 1976.
An identical letter was sent by certified mail, return receipt
requested, to the Kansas Department of Labor, in Topeka,
Kansas, on the same date, with the only change being the
substitution of Kansas Department of Labor in the body of
the letter in place of Federal Mediation and Conciliation
Service. The Union received return receipts showing that
the Kansas Department of Labor received its letter on
December 16, 1975, and that the Federal Mediation and
Conciliation Service received its letter on December 18,
1975.
C. The Early Prestrike Events
On February 19, the Union mailed to Hall a copy of the
Union's three and one-quarter pages of proposed changes
to the existing contract, and advised him in an accompany-
ing letter that, "We will contact you in the very near future
for a mutual meeting date." No further contact was made
between the Union and the Store until April 2, when Union
Agent Hart was in Topeka and telephoned Hall. Hart had
serviced the Respondent since the inception of the
bargaining relationship, and had dealt with Hall in 1974, in
securing the execution of the current contract. Hart was
concerned about the slowness with which the Union's
negotiations were proceeding with the Topeka Grocers
Association. 5 Hart testified that he told Hall that it was
very possible that there would be no negotiations with
Lindy's prior to the April 10 expiration date of their
contract, "and that I was interested in having assurance of
retroactivity [of wages] by him." According to Hart, Hall
said he could go along with that, and Hart then assured
him that "anything else becomes a negotiable factor as far
as the contract, including itself." The brief conversation
then ended. Hall did not testify, and I credit Hart's
uncontradicted testimony.
D. The 2 Weeks Before the Strike
In the first week of April, the Store had two employees in
the meat department, Donald Rasch and Jim Lytle, both
members of the Union. Rasch had been hired in July 1975,
5 The Union, during this period of time, was also negotiating an
agreement with the Kansas City Grocers Association. and the Topeka
Grocers Association had requested of the Union that the Topeka area
negotiations be delayed until after the Kansas City contract was consum-
mated.
1002
LINDY'S FOOD CENTER
as the head meat cutter. A job description for this
classification is set forth in article III of the contract as
follows:
The Head Meat Cutter shall be a qualified journey-
man meat cutter. He may perform all of the duties of a
journeyman in the Meat Department. Because of the
greater working skill and experience the Head Meat
Cutter must possess, he shall in the performance of his
work direct the movements and operations of the less
skilled employees in the Meat Department.
Lytle had gone to work for Lindy's as a journeyman
meat cutter in October, 1975. His attendance record, as
testified to by Rasch, was not always regular, and he would
be off a day or 2 during a month to 8-week period. On
several occasions, Lytle called in and told Rasch that he
had a severe headache, or his ulcer was acting up, with his
last call being on or about April 5. Rasch, as he had done
before, consulted with Store Manager James W. Bloomar
and then approved Lytle's absence.
Subsequent to this last call, Rasch consulted with
Bloomar, and suggested that someone be hired for a day or
2 to fill in for Lytle. 6 As he had done on the previous
occasion of Lytle's call-in's Bloomar telephoned the Union
hiring hall in Kansas City, talked to Hart, and asked for a
replacement for the balance of the week, i.e., Thursday,
Friday and Saturday. Hart referred Don Keagy, a regular
employee of Safeway in Topeka, who was off work on the
last day of his vacation. Keagy, a competent meat cutter,
worked on Thursday. Later that afternoon Hart called
Bloomar and informed him that he was sending Carl Berg
for the balance of the week, but that he was not familiar
with the quality of his work, or his experience. Hart
admitted on the stand that it was very possible that he did
not have qualified meat cutters to send to Lindy's on April
9 through the 14th, as this was a vacation period. Berg
worked on Friday and Saturday. However, on Saturday
evening, Rasch advised Bloomar that Berg could not do the
work of a journeyman meat cutter, but could only be used
as a wrapper and a scaler. Bloomar informed Rasch that
the Store would use Berg on Monday (April 12), but to give
him his notice at the end of that day.7 Monday was Berg's
last day. This left Rasch the only person in the meat
department that week, and during that period Bloomar at
times assisted Rasch.
Rasch testified on direct examination that on April 15,
Thursday, Bloomar came in the meat department about 9
a.m. and spoke with him. Rasch capsuled their conversa-
tion as follows: "At that time he stated that Mr. Hall
instructed him to tell me that we wouldn't contact the
union hiring hall any more, that they had no intentions of
going ahead with the new contract. They did offer to pay
me as I was working, the conditions I was working under at
the time, and they had no idea of going on with the union
contract." During this conversation Bloomar related to
Rasch some of the "particulars" of the Union's proposal,
one of which was that if the employer used a part-time man
I The contract had an elaborate hiring hall clause; art. I, and sec. I
thereof provided that: "The Union shall be the sole and exclusive source of
referrals of applicants for employment."
7 On that same day. April 10, Mrs. Lytle had come to Lindy's and
for over 8 hours, he would become automatically a full-
time employee; Bloomar informed Rasch that Hall could
not accept that. On cross-examination, Rasch admitted tht
Bloomar told him that Lindy's had no intention of signing
the proposal which the Union had previously submitted;
Rasch further testified that to him, a proposal is the same
as a contract.
Bloomar, the only witness called by the Respondent,
appeared very briefly on the stand. According to Bloomar,
after Berg had finished working in the Store, he had had a
conversation with Rasch about the hiring hall. Bloomar
testified, "I said to Don Rasch, 'George Hart told me that
Carl Berg was the only man he had to send us and that if he
is the only man he has to send us, I don't know what more
purpose we would have to call the union hall.' " Bloomar
testified that Rasch replied "I know they are real short of
people, that they have vacations going now, as I under-
stand it, there are no more meat cutters available." On
cross-examination when Rasch was asked if he told
Bloomar that he knew that the Union could not supply the
Store with a qualified journeyman, the usually forthright
and candid witness answered weakly "I might have." I
credit Bloomar's testimony and further find that Rasch
said there were no more meat cutters available.
On the following day, April 16, Rasch learned that
Lindy's had placed an advertisement in a Topeka newspa-
per on the previous day, for a meat cutter. Rasch
telephoned Hart in Kansas City and relayed this informa-
tion to him, whereupon Hart instructed him to report to
work the next day, and await further instructions. On the
same day, Rasch and Bloomar had a very brief conversa-
tion regarding the newspaper ad. When Rasch asked him
who placed the ad in the newspaper, Bloomar admitted
that he had, as Hall had instructed him to do so. Rasch
ended the conversation by stating that Hall "must like
trouble."
On Saturday, Hart telephoned the Store from his office
in Kansas City and told Bloomar that he wanted to talk to
Hall about retroactivity, as he was very disturbed by the
information Rasch had passed on to him as to what Hall
had told Bloomar. Hart informed Bloomar that he should
get a hold of Hall and have Hall call him within an hour
and, if this was not done, that he would be on his way with
picket banners. Bloomar informed Hart that he should talk
to the Respondent's lawyer, William G. Haynes, a resident
of Topeka. Haynes was known by Hart, but Hart did not
call him. However, Rasch was instructed by the union
attorney, Robert L. Kimbrough, to report to Kimbrough's
house on the following morning, April 18, which coinciden-
tally was Easter Sunday.
On that day, Hart, who had brought from Kansas City
strike banners, Rasch, Carl Berg, and two others met with
attorney Kimbrough at Kimbrough's home in Topeka for
about an hour. Rasch testified that he told those present "I
stated that I thought there was no chance for getting a
contract signed and there was no chance of being able to
negotiate without a picket." After reviewing the situation, it
informed Rasch that her husband had been committed to the Veterans
Hospital for approximately 2 weeks April 10 was also the expiration date of
the parties' collective-bargaining contract.
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was decided that a strike would be commenced at the Store
on the next day. Kimbrough then telephoned Respondent's
attorney Haynes at his residence and informed him of the
meeting then being held at the union attorney's house.
Kimbrough advised him of the decision to place pickets at
the store on the next day, and told him "that I surely
wished I could talk to him and get this thing straightened
out so we could stop the pickets because I hated pickets."
According to Kimbrough, Haynes berated him for calling
him on Easter Sunday at his home, refused to discuss the
matter, and abruptly terminated the brief conversation.,
E. Events After the Strike Commenced
On Monday, April 19, at 8 a.m., the Union commenced
picketing at Lindy's with Rasch and Berg serving as the
initial pickets. On April 23, Lytle, who had been released
from the hospital on the previous day, joined the picket
line.
On May 20, the Union, by its President Ted F. Wolff,
forwarded to the Store a "memorandum of agreement" the
original of which had been executed with the Topeka
Grocers Association on May II, and approved by the
union membership on May 15. The letter attached then
concluded:
Please initial the same and return to this office. Please
be advised that the complete contracts will be delivered
to your address for your signature as soon as the same
is prepared.
The Union received no response to its May 20 letter, and
the picketing continued. On June 26, a Saturday, Rasch
and Kimbrough met and discussed the bleak situation,
whereupon Kimbrough drafted a letter to the Respondent,
directed to Lloyd L. Hall, president. Kimbrough reviewed
the sending of the Topeka memorandum of agreement to
Lindy's, its nonexecution, and concluded his first para-
graph by stating "that there was little likelihood of
settlement in this entitled action."
The letter thereupon continued as follows:
In view of the foregoing, the striking employees of
Lindy's Food Center and Local Union 576, has [sic]
directed the undersigned to unconditionally offer their
return to work for Lindy's Food Center immediately.
Said employees state they are ready and willing to
return to work and let any differences that presently
exist, between the parties, be settled by the National
Labor Relations Board in the matter above referred
and any further litigation that might be commenced
between the parties.
The letter concluded by requesting that Hall advise
Kimbrough and the employees, "at their hereinafter listed
addresses, when you wish said employees to return to
work." Copies of the letter were sent to Haynes, Bloomar,
Rasch, Lytle, Nathnagel, and the Board's Seventeenth
Regional Office.9
8 Haynes did not testify, and Kimbrough's testimony stands uncontrad-
icted and credited
I The record does not contain the date on which Hall received this letter,
On the following Monday morning, June 28, the Union
removed its picket signs at Lindy's premises and there was
no picketing at the Store. Rasch and the former pickets did
no patrolling, but just "sat," apparently in the area of
Lindy's premises. They continued to sit for 4 days, and
upon receiving no response from Lindy's, on July 1, at 6
p.m., resumed their picketing.
On July 7, Rasch received a letter at his home from
Respondent's attorney Haynes. (Resp. Exh. 6). Haynes
stated therein that Kimbrough, on behalf of the Union, had
"notified Mr. Hall that striking employees of Lindy's Food
Center are making an unconditional offer to return to work
immediately." Haynes then went on to inform Rasch:
If the strike is terminated and if Lindy's Food Center
receives written assurances from the Union the strike
and picketing is terminated and will not resume in the
future you are hereby offered immediate reinstatement
to the position held by you prior to the strike with all
terms and conditions restored which you previously
enjoyed.
Following the receipt of Haynes' letter, Rasch met Hart
at the picket line, and then both went into the Store to see
Bloomar. When they learned that Bloomar was absent that
day, Rasch returned to the picket line and resumed
picketing. On the next morning, while Rasch was walking
the picket line, Bloomar stopped by and asked Rasch what
he had wanted on the day before. Rasch told him that he
and Hart had come in response to the letter they had
received and that they would like to talk to him. Bloomar
informed them that he would talk with them when his
lawyer was present. At about 11 a.m., Bloomar returned to
the picket line and advised Rasch that he had set up an
appointment for 2 p.m. that day at Haynes' office. At 2
p.m. Rasch and the other picket, John Sims, went to
Haynes' office. Haynes was not in, but called in shortly
after their arrival, and talked first with Bloomar. Rasch
then got on the phone and Haynes, after apologizing for
forgetting the appointment, asked him what he was there
for. Rasch informed him that he was there in response to
Haynes' letter. When Haynes advised Rasch that he would
have to bring him an unconditional guarantee that the
Union would not picket further, Rasch informed him that
they had taken the pickets off for 4 days, and Haynes
responded that he did not know that. Following the
conversation, Rasch returned to the picket line, and the
picketing was continuing as of the date of the hearing.
IV. ANALYSIS AND CONCLUSIONS
A. The 8(d)(3) Notices
While Respondent has raised many defenses to the
complaint, the threshold issue is whether the Union gave
the statutory notice required by Section 8(dX3) of the act,
to the Federal Mediation and Conciliation Service and to
the Kansas Department of Labor. Respondent contends
that the Union did not give the required notices, and
and there was no contention that he did not receive it. Haynes introduced
the letter into evidence, and stipulated that he received a copy of the letter.
1004
LINDY'S FOOD CENTER
therefore engaged in an illegal strike on April 19 when it
commenced its picketing, which caused its members Rasch
and Lytle to lose the protection of the Act. The relevant
provisions of Section 8(d) provide:
[WJhere there is in effect a collective-bargaining
contract covering employees in an industry affecting
commerce, the duty to bargain collectively shall also
mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such
termination or modification -
(I) serves a written notice upon the other party to the
contract of the proposed termination or modification
sixty days prior to the expiration date thereof, or in the
event such contract contains no expiration date, sixty
days prior to the time it is proposed to make such
termination or modification;
(2) offers to meet and confer with the other party for
the purpose of negotiating a new contract or a contract
containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation
Service within thirty days after such notice of the
existence of a dispute, and simultaneously therewith
notifies any State or Territorial agency established to
mediate and conciliate disputes within the State or
Territory where the dispute occurred, provided no
agreement has been reached by that time; and
(4) continues in full force and effect, without
resorting to strike or lockout, all the terms and
conditions of the existing contract for a period of sixty
days after such notice is given or until the expiration
date of such contract, whichever occurs later:
* * *
Any employee who engages in a strike within the sixty-
day period specified in this subsection shall lose his
status as an employee of the employer engaged in the
particular labor dispute, for the purposes of sections 8,
9, and 10 of the Act, as amended, but such loss of status
for such employee shall terminate if and when he is
reemployed by such employer.
Respondent contends that the notices sent by the Union
to the Federal Mediation and Conciliation Service and the
Kansas agency were not proper notices, because the
notices failed to meet the requirements of Section 8(d)3),
in that the notices were not sent within 30 days "after
giving the other party a 60 day notice," and that the notices
failed to notify the agencies of the existence of a dispute
between the Union and Lindy's.
Respondent cited many cases in its brief which establish-
ed that a 30 day notification to FMCS and the State agency
are mandatory, and that if such notices are not received 30
days prior to the expiration date of the contract, a strike
called thereafter is illegal. However, no cases were cited
that a 30 day notice could only be made 30 days after the
60 day notice, and not concurrent with it.
As the Board recently pointed out in Jet Line Products,
Inc. 229 NLRB 322 (1977), "Section 8(d) was designed to
10 Mastro Plaslics Corp. and French-Amercuan Reeds MAfg Co. In. v.
N.L.R.B. 350 U.S. 270, 287. 288 (1956): N. .. R Bv. Lion Oil Comparn. 352
U.S. 282282 6 (1957).
eliminate the 'quickie strike' by providing a particular 60-
day period during which unions may not strike and
employers may not lockout in support of bargaining
demands." 1 In Local Union 219, Retail Clerks Internation-
al Association, AFL-CIO v. N.LR.B. 265 F.2d 814, 818
(1959), the court set forth that the Mediation Service is
given a discretionary and not a mandatory function in
proffering its services in a labor dispute, and that "the
whole thrust of the section is to give the Service sufficient
time to intervene in an effective manner in advance of a
stoppage of work, rather than after its has occurred, should
the Service deem intervention necessary or desirable." The
fact that the Union's notices to the FMCS and State
agency were received approximately 115 days prior to
April 10, and not just 30 days, does not negate the fact that
such notices afforded the FMCS and the State agency
"sufficient time" to intervene.
It is true that the Union's letters to FMCS and to the
State agency did not state specifically that it had a dispute
with Lindy's Food Market. However, by setting forth that
the contract between the Union and "retail stores in the
Topeka, Kansas, area will expire April 10, 1976," the clear
inference that a dispute existed was present. The term labor
dispute in Section 2(9) of the Act is defined with a very
broad brush:
The term "labor dispute" includes any controversy
concerning terms, tenure or conditions of employment,
or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing,
or seeking to arrange terms or conditons of employ-
ment, regardless of whether the disputants stand in the
proximate relation of employer and employee.
Clearly from the letter received from the Union, the
FMCS and State agency had notice that the Union was
seeking to arrange terms or conditions of employment, and
they therefore had notice of a dispute.
The Union's failure to specifically name Lindy's Food
Service in its notice is troublesome. Certainly clear
draftsmanship and good office procedure would indicate
that Lindy's should have been specifically named therein.
However, when I look to the purpose of Section 8(d) as
enunciated by the Board and Courts, I find that the
Union's notice designating "retail stores in the Topeka,
Kansas, area" sufficiently put the FMCS and the State
agency on notice to intervene and offer its services to the
Union and to Lindy's in the final 30 days of their contract.
From the letters received, the FMCS and the State agency
had the specific name of the Union, the industry involved.
and the geographic area of the dispute. Had the Agencies
wished to intervene in this dispute in Topeka from March
10 to April 10, they had the information necessary to allow
them to do so. I therefore find that the Union complied
with the requirements of Section 8(d)(3), and gave FMCS
and the State agency proper notification.
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Use of Hiring Hall and Future Contracts
General Counsel contends that the Respondent breached
its duty to bargain with the Union by threatening that it
would never again use the hiring hall, and by threatening
that it was refusing to ever sign another union contract. If
the facts established that the Respondent so threatened,
such statements unquestionably would be violative of the
Act. However, I do not find that the General Counsel has
established by a preponderance of the evidence that such
threats were made. General Counsel bases those two
contentions on the testimony of Rasch, who was attempt-
ing to repeat what Bloomar said to him on the morning of
April 15; Bloomar in turn was purporting to state what
Hall had said to him on the previous day." The chain of
speakers as to what was said by Hall does not lend itself to
reproduce clear and precise testimony.
While it is not disclosed how many times, if at all, the
Respondent used the hiring hall in past years, the record
does show that in early April, when Bloomar learned that
he needed a replacement meat cutter because Lytle would
not be in, without hesitation, he telephoned the Union
hiring hall on April 8, talked to Hart and requested that the
hiring hall provide Lindy's with a meat cutter for the
balance of the week. The hiring hall did provide a
competent meat cutter, Keagy, but it turned out that he
could only work that 1 day, as he was a regular employee
of a Safeway store, who happened to be on the last day of
his vacation. Later that day, Hart telephoned Bloomar and
notified him that the hiring hall was sending a second
replacement for Lytle, Berg. Hart himself had some
reservations about Berg's qualifications as he advised
Bloomar that he was not familiar with the quality of Berg's
work or his experience. After Berg commenced work on
Friday, it soon became evident that he was not a meat
cutter, but a wrapper. Rasch advised Bloomar on Saturday
afternoon that Berg was not a qualified journeyman, an
observation shared by Bloomar. Berg was allowed to work
on Monday, April 12, and was discharged at the end of the
day, which was 2 days after the termination of the contract.
Thus, on April 15, when Bloomar and Rasch had the
conversation on which General Counsel relies, the Store
had just come through a bad experience with using meat
cutters from the hiring hall. I have previously found that in
the course of their discussion, Rasch had stated to Bloomar
that there were no more meat cutters available from the
hiring hall, and I find that to be a logical observation to
Bloomar's statement that "I don't know what more
purpose we would have to call the union hall.' 2
When Bloomar made his statement about the hiring hall,
the relations between the Company and the Union were in
a state of even balance, and the Union had not even
contemplated a strike. Rasch's brief recap of Bloomar's
statement is too weak a reed on which the General Counsel
"1 When Bloomar talked to Rasch, Rasch had the right to believe that
the Store manager was acting as an agent conduit for the Employer.
Respondent in its answer to Case 17 CA-7112 admitted that Bloomar was a
statutory supervisor, but in its answer to Case 17-CA-7245 denied that he
was such a supervisor. Respondent in its brief did not raise the issue of
Bloomar's supervisory status, and did not deny his agency. Bloomar. as the
Store manager, responsibly directed the employees and was clearly a
supervisor under the Act.
can rely to prove the alleged threats, and I find and
conclude that General Counsel has not met his burden of
proving by a preponderance of the evidence that the
Respondent stated that it would never use the hiring hall.
General Counsel relies on the same brief conversation of
Bloomar on April 15 to establish that the Respondent
threatened that it would refuse to ever sign another union
contract. An examination of Bloomar's words disclosed
that Rasch testified on direct examination that Bloomar
actually said that the Respondent had "no intention of
going ahead with the new contract." Later, on cross-
examination, Rasch clarified his understanding of what
Bloomar said, by stating that Bloomar had told him that
the Respondent had no intention of signing the proposal
that the Union had forwarded to the Store. This proposal,
which had been forwarded on February 19, contained a
laundry list of changes and improvements over the existing
contract; among other items, substantial increases of
wages, overtime pay, additional paid holidays, increased
vacations, increased payments for health and welfare
benefits, increased pension contributions, severance pay,
and sick pay. Bloomar had discussed one item of the
proposal with Rasch, which he and Hall interpreted as
meaning that if an employer used a part-time man for over
8 hours, such person automatically became a full-time
employee. 13
The record is clear that on April 15 Bloomar's remark to
Rasch was that Lindy's was not going to accept the
proposal that the Union had sent to them on February 19.
It is a long established and accepted practice in labor
relations that the first proposal made by a union in
negotiations contains demands for far higher increases in
wages, and improvements in conditions, than the Union
actually expects to achieve in the final signed agreement. It
would be a rare employer who ever agreed to the first
proposal offered to it by a union. Bloomar's statement to
Rasch that the Respondent had no intention of signing that
proposal was a normal and proper observation, and I find
that it did not violate the Act.
C. The Alleged Refusal To Bargain
The General Counsel bottoms his case on the refusal to
bargain charge on the statements made by the Respondent
on April 15. Since I have found that Bloomar's repetition
of Hall's words on that date did not violate Section 8(aX I)
of the Act, these statements did not constitute a refusal to
bargain. Moreover, from the totality of the Respondent's
actions from the time of sending by the Union of its
notification to reopen the contract in December 1975 to the
date of the hearing, I can find no refusal to bargain.
The Union's contract with Lindy's covering a unit of two
employees in Topeka obviously had a very low priority
with the union officials in Kansas City. The union officials,
as they had operated in past years, had the multiemployer
12 Hart admitted at the heanng that it was "very possible" that the hiring
hall did not have any qualified meat cutters available to send to Lindy's on
April 8-14, as that was the vacation period when he has the biggest demand
for vacation relief help.
1:l The proposed clause that Bloomar was referring to was the last clause
of art. IV-Wages, p. I of G. C. Exh. 3: "No market shall employ more than
one (I) extra meat cutter in excess of eight (8) hours or I day a week."
1006
LINDY'S FOOD CENTER
collective-bargaining negotiations coming up with the
Kansas Grocers Association. They then had to engage in
multiemployer negotiations with the Topeka Grocers
Association. Thus, on February 19, when the Union sent its
proposal to Lindy's, the Union in its accompanying letter
did not request negotiations, but cursorily stated "We will
contact you in the very near future for a mutual meeting
date."
A month and half passed with no meeting date being
requested by the Union. Then, on April 2, Hart was in
Topeka and talked to Hall on the telephone, telling him
that because of the slowness of the Union's negotiations
with the Topeka Grocers Association, it was very possible
that there would be no negotiations with Lindy's until after
April 10. Thus April 10, the contract expiration date, came
and went without the Union requesting that the Respon-
dent meet with it to engage in bargaining. During the week
following the contract expiration, the Union made no
attempt to request that Lindy's bargain with it, as
obviously it had not completed its area agreement with the
Topeka Grocers Association. On Saturday, when Hart
telephoned the Store and talked to Bloomar about
retroactivity. he did not request that Respondent meet with
him at reasonable times, as required by the Act. Hart laid
down an ultimatum: have Hall call him within an hour, or
else. Kimbrough's telephone call to Haynes on Easter
Sunday morning requesting that they talk about "this
thing" cannot be classified as a request to meet at
reasonable times to negotiate an agreement.s4 The record
does not disclose that the Union ever asked Respondent to
meet and confer in good faith as required by the Act.
Certainly, the Union's perfunctory mailing on May 20 of a
copy of the memorandum of agreement signed by the
Topeka Grocers Association, to the Respondent stating,
"Please initial same and mail to this office," was not a
request to bargain. Under all the facts of this case, I am
therefore unable to find that the Respondent has failed and
refused to bargain collectively in good faith with the
Union, and I conclude the Respondent has not violated
Section 8(a)(5) of the Act.
D. The Cause of the Strike
The General Counsel contends that the strike from its
commencement was an unfair labor practice strike. I do
not agree. General Counsel points to the statements of
Bloomar on April 15 as unfair labor practice statements
and, in addition, in his brief points to the ad placed by the
Respondent in the newspaper, and Hall's alleged breach of
Hart's agreement with him on retroactivity. I have
previously found that Bloomar's remarks on April 15 did
not violate the Act, and I turn to the ad placed by the
Respondent in the Topeka newspaper on April 15.
I do not find that the mere placing of the ad for a meat
cutter is evidence of a refusal to bargain. While it is true
that the hiring hall clause of the expired contract provided
that the Union shall be the exclusive source of referral of
14 General Counsel did not charge in the complaint or argue in his brief
that Kimbrough's call was a request to bargain, or that Ha) nes' curt refusal
to discuss the situation with him was a refusal to bargain. he matter was
not full) litigated and I can make noi 8(a() finding based thereon
5 If the hiring hall clause, like union securit) clauses and checkoff
applicants, the clause also provided the Employer some
relief if the Union cannot supply referrals. If the Union
does not supply applicants for full-time employment within
24 hours of the Employer's request (12 hours for part-time
employees) "the Employer may procure workmen from
any other source or sources." Assuming, arguendo, that the
hiring hall clause remained in effect after the termination
of the agreement,s5 the Union had amply demonstrated in
the previous week that it could not supply a meat cutter.
and Lindy's placing an ad in the newspaper was but a
reasonable step in the process of securing applicants from
other sources. I do not find Respondent's exercise of this
right to be a threat, or evidence of a refusal to bargain in
good faith.
Although General Counsel maintains in his brief that
Bloomar told Rasch that he "would not receive retroactivi-
ty in regard to the wage rates negotiated by the Topeka
Area Grocers," I do not find that to have been said by
Bloomar in the April 15 conference with Rasch. On direct
examination Rasch recounted his conversation with Bloo-
mar, and then stated: "They did offer to pay me as I was
working, the conditions I was working under at the time,
and they had no ideas of going on with the union
contract." Following this statement, when asked: "Was
there any mention of retroactivity?" Rasch replied firmly
"No." Thus I do not find that the Respondent violated his
oral agreement with Hart that wages would be retroactive.
Retroactivity simply was not discussed by Bloomar and
Rasch in that conversation.
Thus on the morning of April 18 when Hart met with
Rasch and others at Kimbrough's house, Hart was ready
for a test of strength. Hall had not telephoned him on the
previous afternoon to discuss retroactivity, as Hart had
demanded, and he had brought with him from Kansas City
the paraphernalia necessary to conduct a strike. Rasch had
advised him that in his opinion there was no chance of
getting a signed contract, and "there was no chance of
being able to negotiate without a picket."
Hart, feeling snubbed by Hall on the previous day, and
having heard Rasch's gloomy prediction, decided that a
strike was necessary on the following day to enforce the
Union's economic demand that any pay raises secured be
retroactively paid commencing with April 11, and in the
new agreement, no matter what else it contained, that the
hiring hall provisions be maintained as before. Thus, I find
that the strike was commenced by the Union to enforce its
demands for improved wages and other terms and
conditions of employment, and was therefore at its origin
an economic strike, not an unfair labor practice strike.
E. The Offer To Return to Work
Respondent contends in its brief that the striking
employees never made an unconditonal offer to return to
work. I do not agree. Union Attorney Kimbrough's letter
clauses. was no longer effective as of the expiration date of the contract.
then the Respondent was clearly free to secure employees from an) source
However, it is not necessary that I decide that Issue under the facts of this
case.
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of June 26 to President Hall specifically stated that the
striking employees' 6 of Lindy's had directed him "to
unconditionally offer their return to work for Lindy's Food
Center immediately." The letter contained no qualifica-
tions or conditions that had to be met by the Employer
prior to or subsequent to their return to work and, by any
objective test, constituted an unconditional offer to return
to work by Rasch and Lytle.
These employees amply demonstrated that they had
abandoned the strike on the Monday following the date of
the letter, when they removed their picket signs, and did
not walk or patrol in the area of Lindy's premises for the
next 4 consecutive days. The pickets sat in a car, and were
available to be called to work by the Respondent.
Haynes' letter of July 6 to Rasch recognized therein that
the employees had made an unconditional offer to return
to work, when he stated that Kimbrough had notified Hall
"that striking employees of Lindy's Food Center are
making an unconditional offer to return to work immedi-
ately."
However, Haynes then went on to lay down conditions
that must be met before the strikers would be offered
reinstatement. Haynes' conditions were that if the strike
was terminated, and if Lindy's received "written assurances
from the Union the strike and picketing is terminated and
will not resume in the future," then, and only then, was
Rasch offered reinstatement. The imposition of these
conditions violated the pickets' right to strike guaranteed
by Sections 7 and 13 of the Act and, as the Board has
previously held, a no-strike guarantee attached to an offer
of reinstatement is an unlawful condition. Albion Corpora-
tion d/b/a Brooks, Inc., 228 NLRB 1365 (1977); Roadhome
Construction Corp., 170 NLRB 668 (1968).
It is well settled that absent a legitimate and substantial
business justification for not reinstating them, economic
strikers are entitled, upon application, to immediate
reinstatement to their former or substantially equivalent
positions of employment unless such positions have been
permanently filled or eliminated or are unavailable.
Snowshoe Company, 217 NLRB 1056 (1975), enfd. 530 F.2d
969 (C.A. 4, 1975); N.L.R.B. v. Fleetwood Trailer Company,
Inc., 389 U.S. 375 (1967). The Respondent did not attempt
to offer a legitimate and substantial business justification
for not reinstating Rasch and Lytle, hut demanded
categorically that they give up their protected right to strike
and picket. This demand made by Respondent's attorney
was clearly a threat that if the employees did not cease
their picketing they would never get their jobs back. Also,
the denial of reinstatement was a strong signal to Rasch
and Lytle that the Union could not help them, and that
they would be better off out of the Union.
I find that by failing to return Rasch and Lytle to
employment in the week of June 28, 1976, the Respondent
discriminated against these individuals because of partici-
pation in a lawful strike, thus discouraging membership in
and activity on behalf of the Union, and by imposing
conditions for reinstatement violated their right to strike
and picket as guaranteed by Sections 7 and 13 of the Act.
The Respondent has thereby engaged in unfair labor
1i Page two of Kimbrough's letter shows that copies of his letter were
mailed to Rasch and L.ytle. I.ytle had been released from the hospital on
April 23. and commenced picketing on April 24.
practices within the meaning of Section 8(aX3) of the Act.
This conduct also coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and, I find, the
Respondent thereby engaged in unfair labor practices
within the meaning of Section 8(a)X ) of the Act.
On July 8, when Rasch went to Haynes' office, Haynes,
over the telephone, repeated his demand to Rasch, that
Rasch "would have to bring him an unconditional
guarantee that we would not picket further," and thereby
caused Respondent to again violate Section 8(a)(1) and (3)
of the Act.
I further find that when the Respondent refused the
striking employees' unconditional offer to return to work,
the strike was converted from an economic one to an unfair
labor practice strike. When Rasch and Lytle returned to
the picket line after being rebuffed by the Respondent they
were picketing because of the Respondent's violation of
their 8(a)(1) and (3) rights, and not merely to enforce
economic demands. But for the Respondent's unfair labor
practices, the picketing would have ceased and Rasch and
Lytle would have been back to work.
CONCLUSIONS OF LAW
I. Lindy's Food Center is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All meat department employees, including: head
meat cutters, journeyman meat cutters, first cutters,
apprentices and wrappers engaged in the receiving, cutting,
grinding, slicing, curing, displaying, preparing, processing,
sealing, wrapping, bagging, pricing, prefabricating and
selling of all meat products, sausage, poultry, rabbits, fish
and seafood products, canned hams, bacon, pork loins, and
picnics, whether such products are fresh, frozen, chilled,
cooked, cured, smoked or barbecued, including those
employees operating equipment used in wrapping, cubing,
and tenderizing of such meat products and who perform
their duties in all areas where such products are prepared,
displayed and offered for retail sale in service or self-
service cases at Lindy's Food Center, 2000 California,
Topeka, Kansas, but EXCLUDING guards and supervisors as
defined in the Act and all other employees, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times since on or about April 7, 1974, the
Union has been and is the representative of a majority of
employees in the unit described above for the purposes of
collective bargaining and, by virtue of Section 9(a) of the
Act, has been and is the exclusive representative of all the
employees in said unit for the purposes of collective
bargaining.
5. Respondent has not failed and refused to bargain in
good faith with the Union.
6. By refusing reinstatement to Rasch and Lytle in the
week of June 28, 1976, upon their unconditional offer to
return to work, and by imposing conditions precedent to
1008
LINDY'S FOOD CENTER
their return to work, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend that it cease and desist
therefrom, and take certain affirmative action designed to
effectuate the policies of the Act. Since the Respondent
unlawfully refused to reinstate its striking employees,
Rasch and Lytle, upon the Union's unconditional applica-
tion in their behalf, it will be recommended that Respon-
dent offer them immediate and full reinstatement to their
former positions or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, discharging, if
necessary, any replacements hired after their unconditional
application in order to provide work for such strikers. It
will also be recommended that Respondent make them
whole for any loss of pay they may have suffered by reason
of Respondent's discrimination against them by paying to
each of them a sum of money equal to the amount he
normally would have earned as wages from June 28, 1976,
to the date of Respondent's offer of reinstatement, less his
net earnings during said period. The amount of backpay
shall be computed according to the Board's policy set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest or backpay computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 17
The Respondent, Lindy's Food Center, Topeka, Kansas,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in Amalgamated Meat
Cutters & Butcher Workmen of N.A., AFL-CIO, Local
i7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
Union 576, or any other labor organization, by discrimina-
torily failing or refusing upon their unconditional request
to reinstate any of its employees who have engaged in the
strike and are lawfully entitled to reinstatement.
(b) Threatening its employees with reprisals because of
their membership in or activities on behalf of the above
named Union.
(c) In any other manner interfering with, restraining or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Donald Rasch and James Lytle immediate and
full reinstatement to their former positions or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay due and to
analyze reinstatement rights under the terms of this
recommended Order.
(c) Post at its store in Topeka, Kansas, copies of the
attached notice marked "Appendix." s Copies of said
notice on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT 15 ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
19 In the event that the Board's 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."
1009