The Kroger Co.

National Labor Relations Board - Board Decisions

Mar 17, 1967

163 N.L.R.B. 441 (N.L.R.B. 1967)

THE KROGER CO.
exercise of the rights guaranteed them under the Act, and
of discriminating against them on the basis of membership
in a labor organization . Further, that the unlawful acts of
Respondent may assertedly be less flagrantly violative of
the Act than the conduct in other precedent cases, of
course, provides Respondent no refuge.
On the basis of the foregoing, I find that by requiring its
office clerical employees and field representatives to
become members of Respondent in its capacity as a labor
organization and to pay the required membership dues and
fees, Respondent has violated Section 8(axl), (2), and (3) of
the Act.
Additionally, I specifically find that, considered in the
circumstances here found to exist, by requiring its office
clerical employees to attend union meetings and by
compensating them for such attendance, Respondent has
violated Section 8(a)(1) and (2) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The conduct of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it will be recommended
that it cease and desist therefrom, and that it take certain
affirmative actions designed to effectuate the policies of
the Act.
Having found that the Respondent in its capacity as an
employer unlawfully, and as a condition of employment,
requires its employees to become and remain members of
the Respondent in its capacity as a labor organization, and
to pay to Respondent, in its capacity as a labor
organization , dues, assessments , and other fees, and to
attend meetings of Respondent held in its capacity as a
labor organization, it shall be recommended that
Respondent cease and desist from such practices.
I have further found that by unlawfully, and as a
condition of employment, requiring employees to become
members of Respondent in its capacity as a labor
organization , and to pay the prescribed dues, assessments,
and other membership fees, Respondent in its capacity as
an employer has coerced its employees in a manner
violative of Section 8(axl) of the Act; and in connection
with said conduct and practice has required newly hired
employees immediately to execute membership
application forms for membership in Respondent in its
capacity as a labor organization. Accordingly, in order to
expunge the coercive effect of such illegal exaction, I shall
recommend that the Respondent in its capacity as an
employer reimburse all present and former employees of
Respondent who were not at the commencement of their
employment by Respondent members of Respondent in its
capacity as a labor organization, and whose employment
began on or after February 29, 1964 (a date 6 months prior
to the filing of the charge herein) for all dues, assessments,
and fees paid to the Respondent in its capacity as a labor
organization pursuant to the unlawful conduct herein
found. Lapeer Metal Products Co., 134 NLRB 1518,
1521-1523; Gladys A. Juett, etc., 137 NLRB 395; together
441
with interest at the rate of 6 percent per annum . Seafarers
International Union of North America , etc., 138 NLRB
1142.
On the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Retail Store Employees Union, Local 428, AFL-CIO,
is an employer within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Store Employees Union, Local 428, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. Office clerical employees and field representatives
employed by Respondent are employees within the
meaning of the Act; whereas the two business
representatives in the employ of Respondent at the time of
the hearing herein possessed and exercised managerial
responsibilities and were and are therefore managerial
personnel who, in the pertaining circumstances, are not
entitled to the Act's protection.
4. By requiring, as a condition of employment, its office
clerical employees and field representatives to become
members of Respondent in its capacity as a labor
organization , the Respondent has violated Section 8(a)(1),
8(a)(2), and 8(aX3) of the Act.
5. By requiring office clerical employees and field
representatives, as a condition of employment, to pay
dues, assessments , and initiation fees to Respondent in its
capacity as a labor organization, the Respondent has
violated Section 8(a)(1), 8(a)(2), and 8(a)(3) of the Act.
6. By requiring its office clerical employees to attend
meetings of Respondent held in its capacity as a labor
organization , the Respondent has violated Section 8(a)(1),
8(a)(2), and 8(a)(3) of the Act.
[Recommended Order omitted from publication.]
13 Sharpies Chemical, Inc., 100 NLRB 20, 33, and cases cited
therein at fn. 34, enfd. 209 F.2d 645 (C.A. 6).
The Kroger Co., and Amalgamated Meat
Cutters and Butcher Workmen of North
America, Local Union No. 430, AFL-CIO,
Charging Party. Case 9-CA-3814
March 17, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA.
On November 8, 1966, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
163 NLRB No. 59
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions
and brief, and the entire record in this case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
year, in the course and conduct of its operations in its
Dayton division, received products valued in excess of
$50,000 in interstate commerce from points and places
outside the State of Ohio, and sold and distributed
products valued in excess of $500,000, upon which it is
found that the Respondent is engaged in commerce within
the meaning of the Act.
II. LABOR ORGANIZATION
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local Union No. 430, AFL-CIO, is a labor
organization within the meaning of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, The Kroger Co.,
Dayton, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' We agree with the Trial Examiner's conclusion that General
Aniline and Film Corporation, 124 NLRB 1217, on which the
Respondent relied, is distinguishable from the instant case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard before me at Dayton, Ohio, on June 28 and 29,
upon allegations in the complaint of the General Counsel
issued on March 28, 1966, based upon charges filed on
January 19, 1966, that the Respondent violated Section
8(a)(1) and (5) of the Act by refusing to furnish the
Charging Party, herein called the Union, upon proper
demand, information pertaining to "Respondent's
efficiency ratings," which information was alleged to be
necessary to the Union in order to properly administer the
terms of the current collective-bargaining agreement and
in order to effectively process grievances thereunder. In
its answer, the Respondent denied that it violated the Act
as alleged.'
Upon the entire record in this case, from my
observation of the witnesses, and after due consideration
of the briefs filed by the General Counsel and the
Respondent make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. RESPONDENT'S BUSINESS
Respondent, an Ohio coroporation, engaged in the retail
grocery business in several States of the United States,
including the Dayton, Ohio, area, during the past calendar
' In its brief, the Respondent asserts that the General Counsel
failed to prove -hat it had a system of "efficiency ratings," and
urges that the c implaint should therefore be dismissed, arguing,
in effect, a fata variance between the pleadings and the proof
There is no merit in this contention, inasmuch as the facts show
that the Respondent was clearly aware of the issues which it was
called oil to face in this proceeding
2 At the times material to this proceeding, the Union had been
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that the Respondent, in
1965, instituted a new program in its Dayton division
(referred to in the record as the "O.R." program), which
affected the working conditions of employees in the
bargaining unit covered by the collective-bargaining
agreement between the Respondent and the Union, and
thereafter refused, in violation of the Act, to give the
Union, upon request, information with respect to that
program, which information was relevant and necessary to
the administration of the collective-bargaining agreement
by the Union.
On the other hand, the Respondent contends that it had
no obligation to supply the information sought, in effect, on
the basis that the OR. program does not involve
conditions of work within the meaning of the Board
decision assertedly controlling here, and that the General
Counsel failed to prove that the information sought was
necessary or relevant to the processing of any specific,
outstanding problem between the Union and the
Respondent. To the extent that problems of head
meatcutters were adduced in evidence, Respondent
contends that the head meatcutters are supervisors, and
not employees within the Act, and, therefore, there is no
statutory obligation to supply the information sought with
respect to those individuals.
The Respondent further contends that the Union has
waived, or bargained away, any right to the information
requested, under the terms of the collective-bargaining
agreement between the Union and the Respondent, and
that, in any event, Respondent should not be required to
provide information with respect to the O.R. program
because it is confidential and a trade secret.
B. Genesis of the Dispute
The Union has been the collective -bargaining
representative of the meat department employees in the
Respondent ' s Dayton division since about 1943 , and at all
times material to the issues here involved the operation of
these meat departments was covered by a bargaining
agreement between the Respondent and the Union.2
and continues to be the exclusive bargaining representative,
within the meaning of Section 9(a) of the Act, of the following
employees who constitute an appropriate unit within the meaning
of Section 9(b) of the Act- All employees in the meat departments
of the stores in Respondent's Dayton, Ohio Division, excluding all
guards, professional employees, and supervisors as defined in the
Act, and all other employees
THE KROGER CO. 443
Since Respondent operates on a small profit margin,
and a substantial part of its operating costs consists of
labor expense, effective use of manpower has been one of
its major concerns . Prior to 1965 , Respondent used several
formulas, or guides, by which its store managers estimated
the number of employee working hours that would be
necessary to take care of the workload anticipated for the
coming week.
In the case of the meat departments , at least , it appears
that the number of straight -time employee working hours
allotted by the store managers might vary from week to
week depending primarily upon the amount and type of
meat products featured for sale that week . In addition, the
estimate of the workload , and consequently the amount of
employee hours needed to do the work, might be affected
by other factors, such as the season of the year, the
neighborhood of the store , and the equipment in the store.
Based upon the anticipated workload for the coming
week , the store manager each week advises the head
meatcutter of the number of straight -time working hours
allotted to the meat department for the following week and
the employees are scheduled accordingly . The testimony
indicates that if the head meatcutter considers that the
manpower hours allocated to the meat department are
insufficient for the workload in the department , it is quite
difficult for him to secure additional hours.3 In particular,
it is plain that allotment of overtime work hours is
strenuously discouraged by Respondent.
Both Robert Cottrell , Respondent 's director of
industrial engineering , and Kenneth Pfarrer, a
representative of the Union , testified that formulas used
prior to 1965 for the purpose of attempting to match
employee working hours to the workload had been
somewhat unsatisfactory for the purpose. Pfarrer's
testimony was that prior to 1965 , the Union had processed
grievances with respect to workload and employee work
hours in stores in the Dayton division . He also testified
that, prior to 1965, in the Dayton division, the Respondent
had provided the Union with information in respect to
workload and work hours in the meat departments, and
the formulas involved, in connection with the processing
of grievances. Although Cottrell testified that he con-
sidered this information confidential, he also stated that
he did not know whether it had been given to the Union.
Pfarrer's testimony that the information had previously
been provided is credited.
In an-effort to come up with better methods for the
measurement and control of working hour usage in its
stores, beginning in 1959 , Respondent began an extensive
study of the operations of 60 of its stores in several States,
including stores located in its Dayton division. As
described by Cottrell , the method used in this study was a
work-sampling technique by which the operations of the
various departments as a whole, as well as job categories
in the departments , were studied under the various
conditions which obtained in the departments , rather than
a time and motion study of individual employees.4
Respondent 's studies were completed in 1963, and
according to Cottrell , the resultant plan, or guides, called
the O . R. program , was put into effect in the Dayton
division in April 1964 . However , neither the employees
nor the Union were advised of the institution of these new
procedures . In fact, the Respondent did not advise its
head meatcutters of the details of the plan, and they
apparently did not become aware of its use until about
September 1965.
As used in the Dayton division , the O . R. program
consists of five guides , each based upon different sales
plans of Respondent , whereby the store manager is
enabled to estimate how many working hours will be
required to handle the expected workload for that week
under the sales plan designated for that week, or as
Cottrell stated , "How many people we need to properly
service the customer ." Cottrell further testified that the
O.R. plan was not used to measure individual
performance, or as a standard for discipline. Cottrell
additionally stated that Respondent does not have an
efficiency rating program for employees or for individual
stores. He did agree , however , that one factor which
Respondent would consider in assessing the operating
efficiency of a store or department would be whether the
operation was "in line with this particular guide as an
indicator."
Although it was stated that the store managers have
discretion in applying the various O.R. plans, the record as
a whole raises considerable doubt that this is a wide
discretion . Thus, when the store managers experienced
early difficulty in applying the proper O.R. guide,
Respondent began the practice , in September 1965, of
placing a code reference on its weekly sales plans, which
are distributed to the store managers and head
meatcutters , so that the store managers would know which
of the five O.R.plans to apply to the following week's work
covered by the sales plan applicable.
It is clear that the meat department employees became
aware that the O.R. plans involved a relation of their
working hours to their workload , although it appears that
management officials , generally , attempted to avoid the
use of the term "O.R." Kerns, the head meatcutter at the
Miracle Lane store, testified that on occasions when he
would ask his store manager how many hours were called
for by the O.R. plan for the amount of business anticipated
for the following week , the store manager would not
answer.
However , Kerns testified that on one occasion when he
saw an O . R. code sheet in the hands of the assistant store
manager, a supervisor within the meaning of the Act, the
assistant store manager advised Kerns that the hours
worked in the meat department had varied from that
called for by the code for that period.
Meatcutter Richard Ecabert , presently employed in the
Miracle Lane store, testified that the O.R. plan was known
and generally discussed among employees in the meat
department of the store in which he had previously
worked. He further stated that, at the Miracle Lane store,
he had a conversation with the assistant store manager
concerning O.R., as follows: "Well, I asked him according
to the O.R. that our sales plan was set up for that week
how we came out on it . . . . And he said that we were
allowed-I couldn't tell you the exact figures, a specific
3 This is particularly supported by the testimony of Robert
Kerns, one of Respondent ' s head meatcutters In making this
finding, I have noted that in his pretrial affidavit , Kerns stated that
any time he asked for help-he received it From Kerns' more
specific testimony , however, it is clear that such additional help
as he obtained was secured by strenuous and persistent efforts.
4 Cottrell's testimony indicates that the procedures followed in
making the studies conformed to the generally recognized
techniques of work sampling See Hansen , "Work Sampling for
Management " (Prentice- Hall, 1960), Barnes, "Work Sampling"
(John Wiley, 1957)
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of hours and that the department that particular
week was under the amount allowed by that code for that
week." Ecabert further testified that when he asked the
assistant manager what the meat department's efficiency
rating was for that week, the assistant store manager gave
him a percentage figure which he stated he did not remem-
ber exactly, but indicated variously as "about 113 percent
efficiency," and again as "about 118 percent efficiency."
On another occasion, Ecabert overheard the store
manager tell a group of grocery employees that all of
Respondent's stores were going to have to operate at 100
percent efficiency, and that the only department in the
Miracle Lane store which was operating at better than 100
percent efficiency was the meat department.
Neither the store manager nor the assistant store
manager testified, and the testimony of Kerns and Ecabert
given above was not controverted. It is credited.
It appears from the testimony of Pfarrer, Kerns, and
Ecabert that a number of complaints were made to the
Union by meat department employees during this period
concerning their workload and the inadequacy of the
manpower provided to do the work required.5 During a
conference with Respondent, on November 11, 1965, with
respect to the grievance of a meatwrapper over reduction
of hours, Pfarrer states that he "made a request to the
Company to give us certain information on what we
thought was a new O.R. plan and which we thought was
established we think as an efficiency rating for the
employees, and at that particular time I made a request of
the Company to give us the studies on the program so that
we could effectively examine it and see if it was a fair
standard." Pfarrer advised Respondent's personnel
manager for the Dayton division, Walter St. Pierre, that
employees had stated that Respondent had put an
efficiency rating of 150 percent on their store and Pfarrer
asked St. Pierre how the Respondent had arrived at this.
St. Pierre first said that he did not have the information to
give Pfarrer and later, when Pfarrer asked him to obtain
the information, St. Pierre stated that wasn't possible.
Pfarrer advised St. Pierre that the Union had to have this
information in order to represent their members employed
at Respondent's stores, and further asserted his opinion
that "because of a strict limit of hours in some of the stores
that there was a danger factor because our people were
being overworked and there was a possibility of danger
because they work with dangerous equipment."6
Thereafter, the same day, Pfarrer sent St. Pierre the
following letter:
As in accordance with our discussion this morning, I
am hereby making a formal request that you furnish
the necessary information in regards to your
5 The testimony of Kerns and Ecabert establishes the fact that
the workload at the Miracle Lane store was heavy during this
period Kerns' testimony that this condition became worse after
Respondent began coding the 0 R plans on the weekly sales
plans is credited That the Miracle Lane meat department was
undermanned is further confirmed by the fact that an apprentice
meatcutter was shortly thereafter added to the personnel of the
department Cottrell's testimony that the hours worked in the
Dayton division stores increased by 4 percent in the fourth
quarter of 1965 as compared with the fourth, 1964, while tonnage
of meat sold was only up 2 percent for the same period for the
whole division, does not, of course, detract from the findings as to
the workload of the Miracle Lane store, itself
6 Pfarrer expressed a similar concern to Kerns in a discussion
efficiency rating for the Meat Departments under our
jurisdiction.
To arrive at any rating where a one hundred percent
of efficiency is involved, extensive time, motion,
and/or pace studies had to be taken by a qualified
industrial engineer, and a record of the elements built
into each job must be a part of any program. Whether
you use this efficiency rating for a guide line or an
actual practice it is not really the question at hand,
because it has been pointed out to us that every
market interprets this efficiency rating in their own
manner . When in any given market the store manager
expects an efficiency rating over one hundred percent
a safety factor becomes involved, and because of this
we should have the full information necessary to
safeguard our members from any such unsafe
practices.
Therefore, if this Local Union is to give service to it's
members in a reasonable efficient manner the above
information is necessary in pursuit of this goal.
Hoping to hear from you at your earliest possible
convenience, I remain ....
Pfarrer testified that in telephone discussions with St.
Pierre thereafter, in respect to the O.R. plan, he was told
by St. Pierre that the latter could not give the Union
information concerning the O.R. plan. Pfarrer, on
January 3, 1966, wrote again to St. Pierre, complaining
that the original letter had not been answered and
requesting that the information requested be supplied as
speedily as possible. Pfarrer stated that he received no
reply to this letter. Union Vice President Glenn Fahey,
however, testified to a telephone conversation with St.
Pierre during the second week in January 1966, in which
St. Pierre acknowledged the receipt of the two letters and
advised Fahey that the Respondent was not going to give
the Union the information requested.7
Thereafter, this issue came up again during a
conference between the Union and the Respondent with
respect to the grievance of head meatcutter Robert Grewe
over Respondent's written criticism of Grewe's failure to
perform his duties. When Pfarrer asserted that Grewe
claimed that he was unable to do his work properly
because he was not allotted sufficient hours, Respondent's
zone manager, Groninger, replied this was not true,
"because we are not even asking Mr. Grewe to live up to
the O.R. program." Pfarrer replied that he had no
knowledge of what Grewe was allotted under the O.R.
program, and, if informed, might agree with Groningen. At
this point, St. Pierre advised Groninger to "forget about
of the working conditions at the Miracle Lane meat department
Cottrell testified that the 0 R program does not "have anything
to do with safety standards," but agreed the values in that
program anticipate the performances of employee work in a safe
manner
Pfarrer contended, under questioning by Respondent, that
the written requests for information made to St Pierre
constituted presentation of a grievance under the bargaining
agreement, and stated that he verbally advised St Pierre that the
Union would like to arbitrate the issue St Pierre denied that
Pfarrer had asked him to arbitrate the issue It is unnecessary to
resolve this issue. Clearly, Pfarrer did not make any sustained
effort to have this matter taken to arbitration under the provisions
of the contract
THE KROGER CO. 445
it," and the matter was not pursued. Grewe subsequently
asked to be relieved of his duties as head meatcutter, and
the Union did not process his grievance further.8
C. Contract Provisions Involved
In its brief , the Respondent chiefly relies upon two
provisions of the collective -bargaining agreement in
support of its contention that the Union has waived in
advance any right it might have to the information
requested . These provisions are as follows:
ARTICLE IV. MANAGEMENT RIGHTS
The management of the business and the direction
of the working forces, including the right to plan,
direct , and control store operations , hire, suspend, or
discharge for proper cause, transfer or relieve
employees from duty because of lack of work or for
improved production methods or facilities , and the
right to establish and maintain rules and regulations
covering the operation of the store , a violation of
which shall be among the causes for discharge, are
vested in the Employer , provided however , that this
right shall be exercised with due regard for the rights
of the employees , and provided further that it will not
be used for the purpose of discrimination against any
employees , and provided further that this right is not
inconsistent with terms and conditions of this
Agreement.
had been communicated to one of Respondent's
competitors , but that the detailed facts of the program had
not been given out. Cottrell stated that Respondent
considered the plan of value to it in consideration of the
amount of time , effort, and resources which had gone into
its development.
Cottrell asserted that if information with respect to the
O.R. plan were given to the Union , it would be necessary
to supply the current sales and tonnage mix of the
products handled in the meat departments . He agreed, on
cross-examination , however , that this information was
presently available to the head meatcutter, but stated that
to his knowledge the head meatcutters did not go to the
effort of accumulating the data involved.
It was further stated that if the requested information
were supplied to the Union , "We would have to give them
the values that have been developed through the studies
for relative values of different systems of different levels of
service, of different types of merchandising , of different
equipment that 's in use and so forth." Cottrell asserted
that since the Union was aware of the wage rates in effect,
if they had these values they could determine the cost of
handling the Respondent 's products.
In essence , it appears that Respondent 's primary
contention is that disclosure of the time values which it
has assigned to various operations or its meat
departments , as reflected in the O.R. plan , would be of
assistance to its competitors and would deprive
Respondent of the benefits of exclusive use of this
management program which it formulated.
E. Conclusions
ARTICLE IX. WORKING CONDITIONS
A. The hours for each employee shall be scheduled
by the Employer. A work schedule shall be posted in
each store. Fulltime employees and part-time
employees who work regularly will be scheduled the
week in advance and the schedule for the succeeding
week shall be posted not later than store closing time
on Friday of the current week. The schedule shall
show days off and the starting and quitting times.
In addition to the above, Respondent calls attention to
other articles in the agreement which it asserts show that
the scheduling of hours should be in the sole and exclusive
control of Respondent . (Articles VII, VIIIB, X, XV.)
Finally, Respondent refers to paragraphs E and F of
Article XVI, in which the Union affirmatively recognizes
the need for improved methods and output and for
conservation and elimination of waste, and agrees to
cooperate with the Respondent to those ends.
It is also noted that in Article I, "Intent and Purpose,"
the contracting parties state that the agreement was
intended, inter alia , "to provide a channel through which
information and problems may be transmitted from one to
the other ...."
D. The Alleged Confidential Nature of the O .R. Program
Respondent 's director of industrial engineering, Robert
Cottrell, testified that the general nature of the O.R. plan
It is now well established that a labor organization
obligated to represent employees in a bargaining unit
with respect to the terms and conditions of their employ-
ment is entitled, upon appropriate request, to such infor-
mation as may be relevant, or reasonably necessary, to
the proper performance of that obligation, Fafnir Bearing
Co. v. N.L.R.B., 362 F.2d 716 (C.A. 2); Curtiss-Wright
Corporation, Wright Aeronautical Division v. N.L.R.B.,
347 F.2d 61 (C.A. 3).
However, the Respondent denies that the O.R. plan
constitutes, or is so intimately related to, the terms and
conditions of employment of the employees in the bar-
gaining unit that the plan, or information about it, must be
furnished to the bargaining representative upon request.
Without question, Respondent's employees have a
direct and immediate interest in the number of hours
allotted to them for work and in the workload which they
are expected to accomplish within the assigned work
period. As the statutory representative of Respondent's
employees in the bargaining unit , these matters are also
properly a concern of the Union. See Local Union No. 189,
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, et al. v . Jewel Tea Co., Inc., 381 U.S.
676,691,694,696-697.
Further, on the record in this proceeding , there can be
no doubt that Respondent 's O.R. plan has a direct and
substantial relation to the work hours and the workload of
Respondent 's meat department employees. The plan,
admittedly, has a purpose of adjusting employee working
8 The General Counsel also adduced evidence of other
instances allegedly bearing on the workload in the meat
departments which I feel need not be discussed in this decision
They have been noted and considered , but have been given no
weight.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours to an estimated workload, and its application to
Respondent's operations clearly has an immediate and
material impact upon the employees' wages, hours, and
working conditions.'
Respondent, however, strongly argues that the Board's
decision in General Aniline and Film Corporation, 124
NLRB 1217, is on all fours with and should be considered
controlling, in the present situation. In that case the Board
found, in effect, that the information concerning
management reports sought by the union was not so
intimately related to wages, hours, and working conditions
of employees that the union was entitled to the information
in aid of its colletive-bargaining negotiations with the
employer. One of the reports in the General Aniline case,
the so-called Proudfoot report, and the O.R. plan under
consideration here do have a number of similarities. The
Proudfoot report, like the O.R. plan, was based upon a
form of work sampling,to and contained recommended
"methods and procedures for work prescheduling."" In
essence, the Proudfoot report contained rough time
standards which were used by supervisors to schedule the
flow of work, and the assignment of employees in a
warehouse operation, which was apparently part of a large
production and maintenance facility. The recommenda-
tions in that report, however, do not seem to have
contemplated a procedure of varying working hours to
match changing workloads within short periods of time.
Nor does it appear that the use of some formula to
accomplish such a result was considered essential to the
operations involved.
In the present matter, however, it is quite clear that the
application of refined (if not exact) time standards to
various work tasks in the meat departments, and the
weekly adjustment of employee work hours to those time
values are considered essential to the successful operation
of Respondent's business. The O.R. plan, further, is only
the latest and most refined of a number of formulas
employed by the Respondent for the same purpose, and
recognized in the past by the Respondent and the Union as
creating conditions of employment in which the Union and
the employees have a grievable interest.
As the Board and the Courts have admonished us, each
of these cases must be considered on the basis of its own
particular facts and circumstances. See General Aniline
and Film Corporation, supra, at 1217. Although the Board
in that case found no significant relationship between the
reports there involved and the working conditions of the
employees'12 I am convinced on the basis of the record in
this matter that a significant and substantial relationship
does exists between the O.R. plan and the working
conditions of the employees represented by the Union, and
it is so found. Compare Fafnir Bearing Co. v. N.L.R.B.,
supra, with N.L.R.B. v. Otis Elevator Co., 208 F.2d 176
(C.A. 2).
Contrary to the contention of the Respondent, since the
information sought pertains to the working conditions of
employees in the bargaining unit represented by the
Union, no special evidence of necessity for the production
of such information need be advanced. As stated by the
court in Curtiss-Wright Corporation v. N.L.R.B., supra, at
69:
... wage and related information pertaining to
employees in the bargaining unit is presumptively
relevant, for, as such data concerns the core of the
employer-employee relationship, a union is not
required to show the precise relevance of it, unless
effective employer rebuttal comes forth ....
. Once relevance is determined, an employer's
refusal to honor a request is a per se violation of the
Act. Reasonable necessity for a union to have relevant
data is apparent; necessity is not a separate and
unique guideline, but is directly related to the
relevance of the requested data.
Nor is the information sought any less relevant to the
Union's obligation to represent the employees and
administer the collective-bargaining agreement, because
no specific grievance with respect to workload or
allotment of hours appears to be presently pending
between the Union and the Respondent. Clearly, these are
issues which have previously been handled as grievances
under the collective-bargaining contract in effect, with
disclosure by the Respondent to the Union of the relevant
factors involved. The record is convincing that these
issues constitute a current problem in the relationship of
the parties.
The fact that no specific grievance may currently be
under consideration between the parties, in the words of
the court in Curtiss-Wright "does not detract from the
potential value of [the information sought] as perti-
nent data with which the Union should be supplied in
order to assist it in its task of deciding whether to institute
grievance proceedings or use other policing tools under
the existing bargaining agreement and to guide the Union
in contract negotiations themselves." (347 F.2d 70.) As the
court further stated, "Demands for information are usual
precursors to the submission of complaints and grievances
to grievance and arbitration machinery. This is only
natural, for as the Trial Examiner pointed out, unions
would be forced to grope blindly through the very stages
of the grievance procedure unless adequate information
" As noted above, the Respondent contends that the head
meatcutters, though covered by the bargaining agreement, are not
employees within the meaning of the Act However, since it is
clear that the working conditions of all the meat department
employees, and not just those of the head meatcutters, are
affected by the operation of the 0 R plan, there is no need to
determine whether the head meatcutters are supervisors within
the meaning of the Act, as urged by the Respondent. In any event,
without relevant information concerning the working conditions of
the head meatcutter, the Union plainly could not administer the
bargaining agreement on behalf of the employees in the unit
effectively.
10 It is stated in the Board's decision that "no time or motion
studies" were made in the course of the Proudfoot observations of
employees However, work sampling necessarily involves a
correlation of time to function The 0 R. plan assigns time values
to work functions in the meat department.
" It was stated that the Proudfoot report did not discuss
"rearrangement of jobs, elimination of jobs, relation of labor costs
to output , analysis of/obs performed by various classifications, or
downgrading of personnel " [Emphasis supplied ] Cottrell's
testimony shows that the 0 R plan involved at least the italicized
matters noted Whether it involved the other matters set forth is
not shown. The Proudfoot report did result in the elimination of a
number of jobs over a period of time as a result of a decrease in
the amount of nonproductive time of employees
11 No discussion is deemed necessary of the so-called
"applicator report" in the General Aniline case, which was used
by the employer there exclusively for the purpose of comparing
costs in part of its operations with norms published in standard
sources
THE KROGER CO.
were preliminarily available." (347 F':2d 71.) See also
Fafnir Bearing Co. v. N.L.R.B., supra, at 721.13
Essentially, Respondent's refusal to disclose its current
formulas for the calculation of workload and working
hours appears to be rooted in its desire to keep this
information confidential. In particular, concern was
expressed by Respondent's director of industrial
engineering, Cottrell, that Respondent's investment in the
O.R. plan might be lost if the plan were disclosed, and the
Union might be better able to figure Respondent's costs if
the Union were apprised of the factors involved.
Aside from the difficulties that I have in assessing the
soundness of these contentions because of the general and
conclusionary manner of their presentation, the reasons
stated, on the basis of this record, cannot be accepted as
valid justification for the refusal and failure to provide the
Union with the relevant information requested in aid of its
statutory obligation to the employees it represents.
Indeed, if the right to disclosure of relevant information
could be defeated by the mere claim that the information
was the product of a business investment by the employer,
or by the assertion that its disclosure might advantage the
union or others, the right of the employees to effective
representation in the negotiation and adjustment of their
working conditions would be seriously impaired. On the
present record, in any event, no sound basis appears for
holding that Respondent's interest in keeping the
requested information secret should outweigh the
statutory right of the employees and their representative to
such relevant information. As well stated by the court,
"the relevance of the data requested in the instant case to
appropriate representation of unit employees themselves
[has been] so well established that confidentiality cannot
serve as a shield to protect the [Respondent] from the
consequences of its refusal to divulge this relevant data."
(Curtiss-Wright Corporation, etc. v. N.L.R.B., 347 F.2d at
71.)i4
Respondent's claim that, by the terms of the bargaining
contract, the Union had waived its right to the information
sought requires little discussion. The decisions of the
courts and the Board make it clear that no waiver of
statutory rights may be found in the absence of proof of
clear intent to knowingly relinquish such rights. See
Clifton Precision Products Division, Litton Precision
Products, Inc., 156 NLRB 555. The contract language
relied upon here does not evidence such intent on the part
of the Union to knowingly relinquish its statutory right to
information concerning employee workload and allotment
of working hours. It appears that the Union had agreed
that the Respondent should have exclusive designation of
which employees should work the times and hours
allotted. But this a far cry from saying that the agreement
ceded to the Respondent the unilateral right to determine
employee workload by exclusive determination of the
amount of hours necessary to perform the work at hand,
without the right of effective protest by the employees and
the Union.
is N L R.B v Winter Garden Citrus Products Cooperative, 260
F 2d 913 (C A 5), cited by the Respondent, is not to the contrary,
since the court's decision in that case was bottomed upon its
findings that the union there was not in good faith in seeking the
information requested, and further that the information sought, in
any event, had "no connection with or relevancy to bargaining,"
which fully distinguishes the situation before the court in that
matter from that involved here
14 The Respondent relies upon American Cyanamid Company
447
I have further considered the effect of the statement in
the preamble of the agreement of the parties' intent to use
the agreement as a channel of information. While there is
considerable doubt that this language of purpose actually
creates any obligation under the agreement not otherwise
inherent in the document, it is quite plain that this
language does not purport to make the contract an
exclusive means of securing information. In such
circumstances, the existence of a contractual avenue
whereby the information sought might be obtained does
not serve to displace the right of the Union to resort to the
processes of the Board in vindication of its statutory
rights. See Curtiss-Wright v. N.L.R.B., supra, at 71-72;
Fafnir Bearing Company v. N.L.R.B., supra, at 721-722.
On the basis of the above, and upon the record as a
whole, it is found that by failing and refusing to supply the
Union with the information requested concerning
Respondent's O.R. plan, the Respondent engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is 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. The appropriate unit for collective bargaining within
the meaning of Section 9(b) of the Act is that set forth in
footnote 2 above.
4. At all times material to this proceeding, the Union
was, and continues to be, the exclusive representative of
the employees in the appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent violated the
Act by its failure and refusal to supply the Union with
information about Respondent's O.R. program relevant to
the Union's obligation to represent Respondent's
employees in the appropriate bargaining unit, the
following order, which is necessary to effectuate the
policies of the Act, is recommended:
ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
(Marietta Plant), 129 NLRB 683 , and McCulloch Corporation, 132
NLRB 201 However , the holding of the Board in those cases was
merely that , in the circumstances there obtaining , the union was
not entitled to insist upon the exact form or manner in which
relevant information was to be supplied Cf. The Ingalls
Shipbuilding Corporation , 143 NLRB 712. The situations there
presented are quite different from this matter , in which
Respondent categorically refused all information , without giving
the union any reason for this refusal
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kroger Co., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated
Meat Cutters and Butcher Workmen of North America,
Local Union No. 430, AFL-CIO, as the exclusive
bargaining representative of its employees by refusing to
furnish to the Union or its agents information with respect
to Respondent's O.R. program relied upon by the
Respondent in determining anticipated workloads in the
meat departments of its Dayton division and in allocating
employee working hours to those departments, and the
data upon which the O.R. program is based.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Furnish to the Union, upon request, the information
and data described in paragraph 1(a) above.
(b) Post at its stores in the Dayton, Ohio, division,
copies of the attached notice marked "Appendix.""
Copies of said notice, to be furnished by the Regional
Director for Region 9, after being duly signed by the
representative shall be posted by the Respondent,
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insuie that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith. 16
'' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
in In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Rcommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Amalgamated Meat Cutters and Butcher Workmen of
North America, Local Union No. 430, AFL-CIO, as
the exclusive bargaining representative of our
employees by refusing to furnish to it or its agents
information with respect to the Company's O.R.
program used by the Company in determining
anticipated workloads in its Dayton division meat
departments and in allocating employee work hours to
those departments, and also the data upon which the
O.R. program is based.
We will not in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights under the law to form, join,
or assist any labor organization, or to bargain
collectively through representatives of their choosing,
or to engage in concerted activities for their mutual
aid or protection.
WE WILL, upon request, furnish to Amalgamated
Meat Cutters and Butcher Workmen of North
America, Local Union No. 430, AFL-CIO, or its
agents, information concerning the Company's O.R.
program.
THE KROGER CO.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or complaince with its provisions, they may communicate
directly with the Board's Rgional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.
Congreso De Uniones Industriales De Puerto
Rico , Ind. and Gayley Rico Company
Congreso De Uniones Industriales De Puerto
Rico , Ind. and Bayamon Transport Service.
Cases 24-CB-570 and 24-CB-571.
March 17,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 30, 1966, Trial Examiner John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
certain other alleged unfair labor practices, and
recommended dismissal of such allegations.
Thereafter, the General Counsel filed exceptions to
the Decision 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions,
163 NLRB No. 60