The Kroger Co.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 872 (N.L.R.B. 1967)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kroger Company and Milk and Ice Cream
Drivers and Dairy Employees Union of
Greater Cincinnati and Vicinity , Local 98,
AFL-CIO. Case 9-CA-3826.
June 23, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On February 8, 1967, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8 (a)(1) and
(5) of the National Labor Relations Act, as amended,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision. The
Trial Examiner also found that the Respondent had
not engaged in other alleged violations and
recommended dismissal of such allegations.
Thereafter , exceptions to the Trial Examiner's
Decision and supporting briefs were filed by the
Respondent , the General Counsel, and the Charging
Party.
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 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 exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner , as herein modified.
As more fully set forth in the attached Trial
Examiner 's Decision , the Charging Party, on
December 3 , 1965, was certified as the collective-
bargaining representative of a unit of "all production
employees including laboratory technicians" at
the Respondent 's Springdale , Ohio, plant. The
certification was the culmination of a petition filed
on March 15 , 1965, by the Oil, Chemical and Atomic
Workers International Union, AFL-CIO, herein
OCAW. The Charging Party intervened , asserting
that a collective -bargaining agreement executed for
the period of February 22, 1965, to April 6, 1968,
with the Respondent for a unit of all production
employees at the Springdale plant , excluding
laboratory technicians , constituted a bar to the
1 General Extrusion Company,lnc , 121 NLRB 1165
z The Kroger Company, 155 NLRB 546
8 In any event , the February 22, 1965, contract was executed
more than 6 months prior to the filing of the unfair labor practice
charges in the instant -c ase (January 31, 1966). Therefore, the
petition. On November 3, 1965, we found the
February 22, 1965, contract was not a bar because it
did not conform to the principles of our General
Extrusion doctrine.' Therefore, we directed the
election subsequently won by the Charging Party.'
Our decision in The Kroger Company, supra, did
not purport to pass upon the validity of the
February 22 collective- bargaining agreement. Con-
trary to the Trial Examiner's interpretation of that
case , the finding that the contract was not a bar
cannot be equated with a finding of an inappropriate
unit for the purpose of collective bargaining. The
General Extrusion decision, supra, establishes
guidelines which are followed in determining the
efficacy of ordering an election in an expanding
complement situation despite the existence of a valid
collective-bargaining agreement. It is a contract-bar
doctrine, and its application in a representation
proceeding in no way passes upon the appropriate-
ness of the unit sought; nor does it pass upon the
validity of the contract.
The record in the instant case indicates that the
February 22 contract was freely bargained for by
both parties through the traditional processes of
collective bargaining. Neither party to the
agreement has questioned the circumstances of its
execution, nor have we previously passed upon its
validity.3 Therefore, we agree with the Trial
Examiner's finding that the February 22, 1965,
agreement is a valid collective-bargaining contract
within the meaning of Section 8(d) of the Act.
As the February 22 agreement is valid within the
meaning of Section 8(d) of the Act, it follows that the
Trial Examiner was correct in finding that the
Respondent did not violate Section 8(a)(1) and (5) of
the Act by its admitted refusal to bargain with the
Charging Party for a new contract for the entire
certified unit. Section 8(d) provides, inter alia, that a
party to a valid collective-bargaining agreement is
under no duty to discuss modifications of that
agreement (unless provided for in the contract) prior
to 60 days before the contract is to terminate. In the
instant case, the existing contract between the
Charging Party and the Respondent will not
terminate until April 6, 1968. Section 8(d) further
provides in part that: "The duties imposed upon
employers, employees, and labor organizations ...
shall become inapplicable upon an intervening
certification of the Board, under which the labor
organization or individual, which is a party to the
contract, has been superseded as or ceased to be the
representative of the employees ...." The Charging
Party in the instant case was not the superseding
representative of the Respondent's employees but
circumstances surrounding its execution cannot be utilized to
invalidate the contract because of the time bar of Sec 10(b) of the
Act Local Lodge No. 1424, IAM [Bryan Mfg Co.] v N.L R B.,
362 U S 411
165 NLRB No. 131
THE KROGER CO.
rather the prevailing incumbent. In Meat and
Provision Drivers, Local 626, etc. (Washington
Rendering Company), 126 NLRB 572, the Board in a
similar factual situation, held an existing collective-
bargaining contract not to be a bar to a
representation ', petition. Nevertheless, in the
subsequent unfair labor practice case, the same
contract was held to be binding upon the prevailing
incumbent union within the meaning of Section 8(d).
Accordingly, as the February 22 contract is a valid
existing collective-bargaining agreement within the
meaning of Section 8(d) of the Act, we find that the
Trial Examiner was correct in his dismissal of the
8(a)(1) and (5) charges with respect to the entire
certified unit.4
We cannot agree with the Trial Examiner's finding
that the Respondent violated Section 8(a)(1) and (5)
of the Act by unilaterally raising the starting salaries
of newly hired laboratory technicians at the
Springdale plant. The record indicates only that
recently hired laboratory technicians were paid $101
per week. There is no substantial evidence
presented to demonstrate that this figure represents
an increase over previous salaries paid by the
Respondent to newly hired laboratory technicians.5
Accordingly, the Trial Examiner's conclusions that
the Respondent violated Section 8(a)(1) and (5) are
reversed to the extent that these findings rely on
unilateral changes in the starting salaries of newly
hired laboratory technicians.
ORDERS
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 Respondent Kroger Company,
Cincinnati, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
We also agree with the Trial Examiner's finding that the
inclusion of three contractually excluded laboratory technicians
in the certified unit constitutes a minor variation from the
appropriate unit which is insufficient to invalidate the contract
See, e g., Mrs Homer E Ash, et al , d/b/a Ash Market and
Gasoline, 130 NLRB 641, United Butchers Abattoir, Inc, 123
NLRB 946,956
S Contrary to the Trial Examiner, we do not consider the
alleged conversation between Union President Luken and Kroger
employee Edwards as corroborative evidence The record
contains no evidence to indicate that Edwards is a supervisor
under the Act whose statements would bind the Respondent.
Luken's description of Edwards as the "laboratory
superintendent" does not present a sufficient basis for inferring
that he is a supervisor See, for example, Plastic Manufacturers
and Designers Corp, d/b/a Metal TreatingCo , 100 NLRB 656
6 Inasmuch as we agree with the Trial Examiner that the
Respondent violated 8(a)(1) and (5) by unilaterally raising the
wages of previously employed laboratory technicians, and also
concur in his dismissal of the other 8(a)(1) and (5) allegations,
there is no need to modify his Recommended Order, except to
amend paragraph 2(b) by substituting the words "on forms
provided" for the words "to be furnished "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
873
RAMEY DONOVAN, Trial Examiner: On January 31, 1966,
Milk and Ice Cream Drivers and Dairy Employees Union
of Greater Cincinnati and Vicinity, Local 98, AFL-CIO,
herein Local 98 or the Union, filed a charge of unfair labor
practices against The Kroger Company, herein
Respondent or Kroger or the Company. The charge
alleged that Kroger had refused to bargain with the Union
since December 3, 1965, in violation of Section 8(a)(1) and
(5) of the Act. The General Counsel of the Board issued a
complaint against Kroger on August 11, 1966. The
complaint alleged violations of Section 8(a)(1) and (5) of the
Act in that Kroger, since December 3, 1965, had refused to
negotiate a contract with the Union for a unit in which the
Union had been certified and that Kroger took certain
unilateral action with respect to some terms, wages, and
conditions of employees in the certified unit . In its answer
Kroger denied the commission of the alleged unfair labor
practices and asserted that there was in effect a contract
between Kroger and the Union from February 22, 1965, to
April 6, 1968.
The case was heard before me on October 11-13, 1966,
in Cincinnati, Ohio, with all parties represented by
counsel. Briefs were filed by the General Counsel, the
Company, and the Union.
Upon the entire record in the case , including
observation of the witnesses , I make the following:
FINDINGS
I. JURISDICTION
Kroger is an Ohio corporation with its main office
located in Cincinnati , Ohio, where it is engaged in the
retail sales of food , dairy products , and meats in numerous
retail stores in Ohio and in other States.
During a representative 12-month period , Kroger had
gross sales valued in excess of $500,000 . In the same
period , Kroger had a direct inflow of products , in interstate
commerce , valued in excess of $50,000, that were
purchased and shipped directly into Ohio from points
outside the State.
Kroger is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years, the Company had operated a dairy and
ice cream plant on State Avenue, Cincinnati, Ohio. The
plant processed and produced milk, ice cream, and allied
products. The Union has represented the production
employees at the State Avenue plant since 1926. In
January 1962, the Board certified the Union at the State
Avenue plant in a unit of all employees at the plant,
including , but not limited to, employees engaged in
receiving, processing, handling, shipping (loading and
unloading of trucks), and warehousing of dairy and ice
cream and allied products; excluding office clerical
employees, laboratory technicians, porters, guards,
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees, and supervisors as defined in the
Act. In a representation case decision heard on April 27,
1965, and decided on November 3, 1965, the Board found
that there were approximately 55 production employees
employed at the State Avenue plant.
In addition to operating the State Avenue plant, the
Company had operated a dairy plant at Dayton, Ohio, for
many years. The Dayton plant, unlike the State Avenue
plant, did not have an ice cream production operation. The
Board found, in the aforementioned representation case,
that there were approximately 50 employees at the Dayton
plant. Over a period of years, the Oil, Chemical and
Atomic Workers International Union, AFL-CIO, herein
OCAW, had represented the Dayton plant employees. In
1954 the OCAW was certified by the Board in a production
and maintenance employee unit at Dayton.'
Contractual relations had existed between the Company
and the respective certified unions at State Avenue and at
Dayton. Contracts most proximate were the State Avenue
contract between the Company and Local 98 for the period
April 15, 1962, to April 17, 1965, and the Dayton contract
between the Company and the OCAW from May 26, 1964,
to May 27, 1965.
By letter of October 12, 1964, the Company notified all
employees at its State Avenue plant that that plant would
be closing. The Dayton employees were also notified on
the same date that the Dayton plant would be closing. It
was mentioned and known at this time that the Company
would be building and opening a new dairy and ice cream
plant at Springdale, Ohio, a suburb of Cincinnati.
Springdale is 13 miles from Cincinnati and 47 miles from
Dayton.
In a subsequent representation hearing on April 27,
1965,2 which we will be discussing in more detail when we
come to it chronologically, the evidence regarding the 1964
announcement of plant closings was adduced. The
October 12, 1964, letter that the Company had sent to the
State Avenue and Dayton plant employees was not
introduced into evidence but was described in the
representation hearing by Bedell, labor relations
representative of the Company. He testified, without
contradiction by either Local 98 or OCAW, that the letter
to the State Avenue employees stated that the plant would
be closing and set forth "certain rules that the Company
would try to follow as far as future employment with the
Company." Other than the foregoing, we do not know what
"rules" were contained in the State Avenue letter.
With regard to the October 12, 1964, letter to the Dayton
employees, Bedell, in the same proceeding, testified that
the letter stated that the plant would be closing and
outlined "certain procedures that would be followed, and
transfers, reemployment and so forth." The witness was
then asked:
Q. And did you offer employment to any of the
Dayton employees at the new Springdale dairy?
A. Yes....
We offered employees, with 10 years of service or
more with the company, employment at the
Springdale operation. We also offered people who
were over 50 years of age employment at the
Springdale operation or in some other location.
Although it is not entirely clear that the above-
mentioned specifics regarding offers of employment to
Dayton employees with 10 or more years of service were
contained in the October 12, 1964, letter to the employees,
the record is clear that this standard was used by the
Company before any Dayton employees were assigned or
went to the Springdale plant.
In this connection, and before considering the posture of
the State Avenue employees with respect to employment
at Springdale, we are satisfied that, at least by October
1964, both Local 98 at State Avenue and the OCAW at
Dayton were aware that the Company planned to close
those two plants and to open a milk and ice cream plant at
Springdale.3
From the fact that both unions as well as the employees
at the respective plants were aware of the plans to close
State Avenue and Dayton and to operate a new plant at
Springdale, we believe that it is reasonable to infer that
there were some discussions by the respective unions with
the Company regarding details of the impending changes.
The most obvious and therefore probably the most likely
matters that were raised by the employees and by their
union representatives were: what happens to the
employees at State Avenue and at Dayton and who will be
employed at Springdale. We regard it as inconceivable
that such topics were not propounded. We have referred to
evidence regarding what the standard was that the
Company was going to apply to the Dayton employees;
namely, that it would offer employment at Springdale to
Dayton employees with 10 or more years of service and to
those over 50 years of age it would offer employment at
Springdale or at some other location. Whether this was a
good standard or a bad standard is not before us, nor is
there any issue of whether there was or was not good-faith
bargaining with the OCAW, nor any issue of disparate
treatment.
The standard that the Company intended to, and did,
apply to the State Avenue employees was different from
that applied to the Dayton employees. We are able to
discern the standard applied to the State Avenue
employees, with respect to Springdale, from the record.
The Company's position was that it was relocating its dairy
and ice cream plant at State Avenue, Cincinnati, to a new
plant at Springdale, a suburb of Cincinnati. This was, to be
sure, the Company' s legal position but, from the
Company's standpoint, it was also the factual position that
it implemented. The plan was that the dairy and ice cream
At State Avenue, two or three permanent maintenance
employees , and some maintenance employees assigned to State
Avenue from a pool of such employees as needed, were
represented by the International Association of Machinists Union
Other units of employees at the plant were represented by other
unions.
s Case 9-RC-6258
For instance, as previously mentioned, the OCAW contract at
Dayton was from May 26, 1964, to May 27, 1965, at the
representation hearing , Bedell testified , without contradiction,
that in the 1964 contract negotiations with OCAW (presumably in
May or earlier) the OCAW proposed that its Dayton contract be
extended to cover the Springdale plant It seems eminently
reasonable to believe that Local 98 in 1964 was also aware of the
planned closings at State Avenue and Dayton and the new
operation at Springdale In any event , although it is likely that
Local 98 was aware of the situation at least as early as was the
OCAW, Local 98 was certainly aware of the matter by October
1964 and through January 1965 , up to and including February 22,
1965, as we shall see when we describe events in January and
February 1965
THE KROGER CO.
operations at State Avenue would be transferred to, and
carried on, at Springdale. It was also contemplated that
the foregoing would be accomplished by a phasing out of
State Avenue operations geared to the operative state of
the new plant at Springdale. What was contemplated as to
operations was also contemplated as to the State Avenue
employees represented by Local 98. In short, the State
Avenue employees would be transferred to man the
transferred jobs at Springdale in accordance with the
aforedescribed phasing of operations. At such point as all
operations had been transferred to Springdale, State
Avenue was to be closed permanently.
In the foregoing picture, one facet of an otherwise
exclusive State Avenue-Springdale composition was left
open for the Dayton employees. A predictable maximum of
Dayton employees could become employees at Springdale
if they wished. The maximum member consisted of those
with 10 or more years service at Dayton. Those employees
at Dayton who were over 50 years of age were also a
predictable maximum and, additionally, the Company had
agreed only to offer the latter category employment at
Springdale or some other location. Dayton employees who
did not qualify and accept employment at Springdale were
to be terminated and were not to be on layoff status. The
Dayton plant was to be closed.
For employment at Springdale, as between the State
Avenue employees and the eligible Dayton employees,
there was instituted a common seniority roster in which
each employee would have a place according to his
respective seniority as acquired at State Avenue or at
Dayton. The roster would, of course, have no Dayton man
with less than 10 years' service (and possibly 50 years old
or older men whom the Company chose to offer
employment to at Springdale rather than elsewhere). But
the roster would embrace the names of all State Avenue
employees, even those with 1 year of service, unless the
State Avenue employee had indicated a desire not to work
at Springdale.'
In the foregoing connection, it is to be borne in mind
that, with respect to the matters we have been describing,
there is no issue, and, as far as we are aware, there has
been no issue, that any plans, determinations, dealings, or
implementations with respect to the State Avenue,
Dayton, or Springdale plants involve Section 8(a)(1), (2),
(3), or (5) of the Act. Nor is this reference intended to
intimate that at any time the facts were or were not
susceptible to unfair labor practice connotations under the
Sections of the Act abovementioned. We have, for
instance , described the Company's approach to the
matter, as a relocation of the State Avenue dairy from
downtown Cincinnati to a suburb of that city, Springdale,
with the closing of State Avenue and Dayton and with
limited employment rights being accorded to Dayton in the
The foregoing situation with regard to Springdale employment
is confirmed by a contract that we will soon consider that was
executed by the Company and Local 98 on February 22, 1965
5 Local 98 took the same position as the Company in the
representation hearing
6 We do not undertake to predict the result if Springdale had
been manned and was to be manned exclusively by State Avenue
personnel and not by personnel from both State Avenue and
Dayton Cf General Extrusion Company, Inc, 121 NLRB 1165,
1167-68, Builders Emporium, 97 NLRB 1113,1115
' On January 19, 1965, after prior negotiations, the parties had
signed a contract that was very similar to that signed on
February 22 However , on January 19, an important part of the
875
new Springdale plant.5 From such a premise of relocation,
certain conduct followed, as we have described it above.
We are, of course, aware that in the representation case
the Board found that there was not a "relocation."
However, in representation proceedings involving
contract-bar issues, "relocation" is a word of art and when
there is a merger of two or more operations resulting in a
new operation with major personnel changes, there is not a
relocation for contract-bar purposes.6 We do not question
the Board's decision in the representation case on
"relocation" or otherwise. Nor do we undertake to
relitigate the relocation issue or others previously decided.
We have described the Company's plan and its approach
to the manning of the Springdale plant. And, because the
Company's approach was that it was relocating its State
Avenue plant into Springdale, it adopted a certain policy
as to the source of employees for Springdale. Good or bad,
this was the fact and on the record before us and the
allegations made, we have no warrant to infer otherwise.
The materiality of the evidence in this background
perusal is that the Company by plan and by contract with
Local 98 established an exclusive pool of employees for
the manning of the Springdale plant. This pool, in addition
to being exclusive, limited as it was to State Avenue and
Dayton employees, was a weighted pool and was weighted
in favor of the State Avenue employees. The State Avenue
employees were members of and were represented by
Local 98 and the Dayton employees bore the same
relationship with the OCAW.
B. The Events of 1965 and 1966
On February 22, 1965, Local 98 and Kroger signed a
collective-bargaining contract.? The contract was
approved and ratified by the union membership. In a
subsequent representation proceeding, both Local 98 and
the Company contended that the February 22, 1965,
contract constituted a bar to the petition for an election
and certification. We do not agree with the contention of
the General Counsel and Local 98 in the instant case that
the contract that must be considered is a contract of
January 19 or February 1, 1965. We regard the contract to
be that which was executed on February 22, 1965.
The contract is a complete instrument dealing with
wages, hours, and working conditions. In the recognition
clause it is recited that:
The Employer recognizes the Union as the sole and
exclusive bargaining representative of the persons
employed in the Dairy and Ice Cream plant in
Cincinnati, Ohio (Springdale) including but not
limited to employees engaged in receiving,
processing, handling, shipping (loading and unloading
of trucks), and warehousing of dairy and ice cream
contract , the seniority list, was not available and the parties met
again on February 1 On that date a reference to a particular
letter, (see attached letter, ) was handwritten on one section of
the contract and this was evidently for the purpose of
incorporation by reference Also, on February 1, the parties made
some changes in the job classifications in the contract and the
seniority list was available at that time The parties went over the
latter and questions were raised , clarifications made, and one
physical deletion was made thereon The Union then took the
aforesaid documents and retyped all matters into a final
document, including the seniority list The retyped document was
signed by both parties on February 22
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and allied products, excluding office clerical
employees, laboratory technicians, drivers and
warehouse drivers, maintenance employees, guards,
professional employees and supervisors as defined in
the Act.
There was a union-security and checkoff clause and a no-
strike clause , as well as a grievance and arbitration clause.
Under seniority, the contract provided, inter alta,
A seniority list agreed upon by the Company and the
Union and attached hereto, Appendix B, is the initial
seniority list. Employees from the former Dayton
Dairy with ten or more years seniority have had their
seniority incorporated on this list [the other
employees on the list were State Avenue employees].
Job classifications were set forth in Appendix A of the
contract with three wage rates for each classification. One
rate was "effective with the signing of contract." The next
rate, "effective 4-10-66," was higher than the initial rate.
The third rate, "effective 4-9-67," was higher than its
1966 predecessor.
The expiration clause of the contract provided:
This Agreement shall be effective upon the date of
signing and supplant immediately the previous
agreement between the parties [covering the State
Avenue plant and expiring by its terms on April 17,
1965] for its operation at the new location in
Springdale, Ohio, and shall supplant the previous
agreement for any remaining dairy or ice cream
operations that remain at the State Avenue plant
beyond 11:59 P.M., April 17, 1965. This agreement
shall continue in effect through April 6, 1968... .
Shortly after the contract was signed and ratified, the
Union, Local 98, sent and distributed copies thereof "To
All Kroger Dairy Employees." The covering letter stated
that "attached is a copy of the complete agreement at
Springdale plant." It was also stated therein that "we
would like to emphasize that seniority in accordance with
the Seniority, List, Appendix `B' [of the contract] is the
sole criterion for determining eligibility to work ...."
Both Local 98 and the Company appear to have acted in
good faith in negotiating and executing the contract. They
considered it valid and in effect on February 22, 1965, and
they put into effect the provisions of the contract and
operated under the contract. For instance, the wage rates
specified were placed in effect, including a wage increase
specified on April 10, 1965; the union-shop and checkoff
provisions were fully operative under the contract, as were
the seniority provisions; grievance procedure and other
provisions were utilized.
On March 15, 1965, the OCAW filed a petition for
certification with the Board for the production employees
at the Springdale plant, excluding office clerical
employees, laboratory technicians, guards, drivers, and
supervisors. A hearing on the petition was held on
April 27, 1965, with the Company, Local 98, the OCAW,
the Machinists Union, and other unions represented. At
the hearing, Local 98 and the Company contend that their
February 22, 1965, contract constituted a bar to an
election and to a certification. Before the Board in the
representation proceeding, evidence was, of course,
introduced to support the various positions. The basic
contention of the Company and Local 98 in the
8 General Extrusion Co , Inc , 121 NLRB 1165
° The Kroger Company, 155 NLRB 546
10 The Board had elsewhere noted that the Company "closed
both its Dayton and State Avenue plants . " About 15 ice
representation case was that Springdale constituted a
relocation of the State Avenue plant and they referred to
the Board's General Extrusion doctrine, including the
"representative members of employees" aspect of that
doctrine.8
The Board issued its Decision in the representation case
on November 3, 1965.8 In its Decision, the Board stated
that: Kroger "had operated" a dairy and ice cream plant at
State Avenue for a period of years where it employed
"approximately 55 production employees and 2 or 3
permanent maintenance employees"; Local 98 had
represented the State Avenue production employees since
1926; "until the last week of February 1965" (when the
Dayton plant closed permanently), Kroger had operated a
dairy plant in Dayton , but had no ice cream operation in
Dayton, and that approximately 50 employees had once
been employed in Dayton where the OCAW had
represented them since 1950; in October 1964, Kroger
had notified employees at State Avenue and at Dayton that
these operations would be closed and that a new plant
would be opened at Springdale; about February 8,
1965, 2 or 3 State Avenue maintenance employees were
transferred to the new plant to ready it for production and
"Beginning in February and continuing through March
and April additional numbers of production and
maintenance employees were transferred from the State
Avenue and Dayton plants to the Springdale plant and at
the time of the hearing on April 27, 1965, the total number
at the Springdale plant was 69. Of these approximately 5
or 6 were maintenance employees ... of the 69 employees
at the Springdale plant at the time of the hearing, 27 had
been transferred from the Dayton plant and 42 had been
transferred from the State Avenue plant ... ; the record
shows only that there were 64 production employees at
the Springdale plant at the time of the hearing; that prior
to the execution of the agreement [the February 22, 1965,
contract] 15 production employees made pilot runs at the
Springdale plant and that there was an interchange
between the State Avenue and the Springdale plants
involving an unspecified number of employees during
February."
The Board found that "on February 22, 1965 the
Employer and Milk and Ice Cream Driver [Local 98]
signed an agreement effective from its execution date until
April 6, 1968, covering production employees at
Springdale and any dairy or ice cream employees
remaining at the State Avenue plant after April 17,
1965."10 In rejecting the contention of Local 98 and the
Company that the contract constituted a bar to the
petition, the Board cited its General Extrusion doctrine,
supra. It was found that Springdale constituted a new
operation "with major personnel changes" and, therefore,
it was not a relocation of the State Avenue plant. As a
consequence, the Board found, pursuant to General
Extrusion, that the contract was not a bar because less
than 30 percent of the complement of production
employees employed "at the time of the hearing was
employed at the time the contract was executed."
In its Decision, the Board, in effect, found that either a
unit of production employees, including laboratory
technicians, would be appropriate or that a unit of
production and maintenance employees, including
cream employees were still at State Avenue , as the Board noted,
but their transfer was, in effect , a matter of relatively short time
and did occur shortly thereafter.
THE KROGER CO. 877
laboratory technicians, would be appropriate. The
maintenance employees were placed in a separate voting
group and were thereby afforded a self-determination
election. For present purposes , it can be stated that, as
provided by the Board' s Decision , if the maintenance
employees voted for the Machinists Union, they would be
in a separate maintenance unit . This is what occurred in
the election on November 24, 1965. On that same date, in a
separate voting group of production employees, there were
76 eligible voters. Fifty-three votes were cast for Local 98;
15 votes were cast for the OCAW; 1 vote for neither; and
no challenged or void ballots. The Board certified Local 98
on December 3, 1965, as the bargaining representative of
"all production employees including laboratory
technicians" in the Springdale plant.
The Board, in the course of its representation case
decision, had discussed the "approximately 3 laboratory
technicians ." Although the Board found that the
laboratory technicians should be included in the
appropriate production unit , and although the
February 22, 1965, contract excluded laboratory
technicians from the production unit , the Board, in
rejecting the contract as a bar , did not state that the
reason , or one of the reasons, for doing so, was that the
exclusion of laboratory technicians from the contract unit
rendered that unit inappropriate and, therefore, no bar to
the petition. It is our opinion that the exclusion of the
laboratory technicians from the contract unit was a minor
and insubstantial variance from what the Board
subsequently found to be the appropriate unit . Neither in
representation cases involving contract bar, nor in Section
8(a)(5) proceedings involving to bargain, has the Board
regarded insubstantial and minor variations from an
appropriate unit to be determinative. I I
In connection with the representative case proceeding,
the Company, subsequent to the Board's Decision of
November 3, 1965, and before the election of
November 24, 1965, filed a "Motion for Reconsideration of
Decision and Direction of Elections" with the Board. This
motion was directed solely to the Board's inclusion of the
laboratory technicians in the unit . The Company urged
reconsideration of this point and the exclusion of the
technicians. On November 22, 1965, the Board denied the
motion.
As we have seen, both Local 98 and the Company
continued to operate under and give effect to their
contract from February 22, 1965, to at least November 3,
1965, the date of the Board's Decision, and they both had
contended before the Board that the contract was a bar to
the petition. We shall now consider the situation after
November 3.
On November 5, 1965, Luken, president of Local 98,
issued a letter "To All Kroger Members," explaining that
the Board had held that the unit "in the contract of our
union" was not appropriate and had ordered an election. It
was then stated in the letter that "This is a reversal of the
NLRB's previous position as they held in 1950 that the
laboratory employees must be excluded."12 The letter
went on to state that "the present labor agreement will be
set aside and the winner of the election will negotiate a
new labor agreement to take its place. As a practical
matter, from November 3, until the date of the election the
present wages and working conditions as reflected in the
present agreement will remain in effect ... we believe that
the Company is required by law to continue present rate
structure and present working conditions." The letter
concluded by stating that the eligible voters would be
those who worked the week prior to November 3 or who
were on layoff with the right of recall. "This is exactly the
same number of people who are on the seniority list, and in
addition those nonsupervisory laboratory employees.13
There was a telephone conversation on November 11,
1965, between Luken and Parker, vice president of the
Company. Each expressed confidence that Local 98 would
win the impending election.'' Parker proposed that the
Union and the Company agree that, after the Union won
the election, both parties would ignore the Board's
inclusion of the laboratory technicians in the unit and
allow the February 22 contract to stand and continue.
Parker said that if the Union would not agree to the
foregoing, the Company was considering an appeal to the
Board. He also said that, absent such a proposed
agreement , the Company was considering appealing to the
courts and that the Company would refuse to bargain with
the Union (quite evidently after the Union won the
election) since the Company believed that such a refusal
was the only method by which it could secure court review
of the Board's finding that laboratory technicians belonged
in the appropriate unit . Luken said that he "could not"
and "would not" agree to the Company's proposal.
From the foregoing conversation, there is no indication
that the Company believed that the Board's Decision had
outlawed or had affected the February 22 contract, except
to the extent that the unit should include laboratory
technicians and, of course, to hold that the contract did not
bar an election. Parker's proposal indicates that the
Company considered the inclusion or exclusion of the
laboratory people to be a fringe issue and not of the
essence of the appropriateness of the unit . Certainly, there
is no intimation that Parker believed that the Board had
found the contract to be no bar because the unit therein
excluded laboratory technicians and therefore the contract
" See, for instance , C G Willis, Inc , 119 NLRB 1677, where
the Board had certified a particular unit The parties then entered
into a contract that included a category that the Board had
excluded from the unit The Board, however , held that the
contract was a bar . Ash Market and Gasoline , 130 NLRB 641,
involved Sec 8(a)(5) of the Act in an unfair labor practice
proceeding The Union had requested bargaining in a unit of
grocery clerks , produce clerks , checkers , and other categories but
excluded meatcutters The Board found that meatcutters should
be included in the appropriate unit but, referring to the difference
as "minor, " a refusal to bargain was found on the part of the
employer See Industrial Union of Marine & Shipbuilding
Workers [Bethlehem Steel Co ] v N L R B , 320 F 2d 615,617-618
(C.A 3), cert denied 375 U S 984, United Butchers Abbatoir, Inc ,
123 NLRB 946,956
i2 It may be noted that in the entire letter the inappropriateness
of the contract unit by reason of its exclusion of laboratory
employees is the sole reason cited for the Board's decision and
the ordering of an election
13 This is a reference to the seniority list that was in effect and
operative with the February 22, 1965, contract from the date of its
execution on February 22 There were 74 names on the seniority
list on February 22 and thereafter, and the record shows that
there were 79 eligible voters in the election, the difference being
apparently due to the eligibility of laboratory employees to vote
We have previously seen that this seniority list determined not
only the hiring and employment of all production employees at
Springdale but the initial eligibility for employment from the
inception of employment at the plant There were approximately
25 former Dayton employees on the seniority list, the others being
members of Local 98 from State Avenue
14 See the previous footnote for the reason why such confidence
was not unwarranted
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had an inherently inappropriate unit which could not stand
regardless of who won the election. If the foregoing
observation is not correct, we must assume, contrary to
that we believe to be the facts, that Parker's proposal to
Luken was to continue operating under a contract unit that
was fatally and, in essence, defective, and had been so
found by the Board, by reason of the exclusion of
laboratory people. In short, it would be comparable to a
situation where the contract unit included production
employees, office clerical employees, guards, and
supervisors and the Board had held such a unit
inappropriate and that, therefore, the contract was not a
bar; but the employer proposed that when the union won
the election, the parties continue to operate under the
contract unit. Having stated what Parker said on
November 11 and what we believe is the accurate
interpretation of what he said, what he intended, and what
he did not intend, we turn to Luken. Primarily, we believe,
neither man fully understood what was the underlying
basis of each other's position.
There is some basis to believe that Luken's rejection of
Parker's proposal was based on the fact that, at that time,
at least , Luken regarded the contract unit as having been
invalidated by the Board principally with respect to the
contract's exclusion of laboratory employees. In short, the
contract unit was illegal and therefore Luken "could" not
agree to Parker's proposal to continue a contract with such
a unit . Further, Luken "would" not agree to Parker's
proposal because, as Luken testified, Luken wanted to
represent the laboratory employees. And, Finally, there
was a discernible practical advantage in negotiating a new
contract instead of continuing the February 22 contract to
1968 as provided by its terms.
The day after the Parker-Luken conversation, the
Company filed its motion for reconsideration with the
Board regarding the Board' s unit finding in the
representation case with respect to laboratory technicians.
As we have seen, the Board denied the motion on
November 22.
On November 17, 1965, the Union wrote the Company,
referring to a check of November 15 received from the
Company. The check was the amount of dues checked off
pursuant to the contract. The Union stated that the
deduction was improper because "the Government held
there was no effective contract in force ...... It was stated
that the Union was refunding the dues to its members.
Also, by letter of November 17, the Union sent
individual checks of $5 to its members explaining that it
was the dues that had been deducted from the employee's
pay. The letter said that "the Labor Board's decision
cancelled the contract and, therefore, we cannot accept
check off dues ...." It was suggested that the employee
continue membership voluntarily, endorse the check, and
return it.
The Company continued to remit the checked off dues
to the Union in December and in all succeeding months,
and the Union did not return the checks to the Company or
remit the dues to individual members as it had done in
November. The Union informed its members that "we
were operating under an expired agreement or the status
quo" and that if the Company honored it, the Union was
not going to tell the Company not to. The Union informed
its members that if an individual wanted his checkoff dues
15 The contract provides for 1 week's notice of layoff for
employees having 6 or more months of employment The contract
also deals with distribution of overtime work
returned, the Union would give it to him. Since December
1965, there was one instance of a man who requested his
dues and it was given to him.
A Local 98 letter of November 19 to its members
referred to various campaign assertions of the OCAW and
urged a vote in the impending Board election for Local 98,
stating that the bigger the vote for Local 98 "the easier it
will be to make improvements in the negotiations for a new
contract that follows the election."
As we have seen, Local 98 won the election on
November 24 by a vote of 53 to 15.
On November 26, the Union sent a telegram to the
Company protesting certain layoff notices as not providing
1 week's notice and as coming at a time when there was
excessive overtime in the plant. A day or so before the
telegram, Luken had discussed the same matter with the
Company, protesting the contemplated layoffs as in
violation of the contract.15 Apparently, after receipt of the
telegram, the parties discussed the matter further.
Luken spoke to Company President Davis by telephone
on December 4, Davis said that he had heard that the
Union was calling a strike. Luken said, this was not true.
Luken mentioned what Parker had told him on
November 13 about the Company's position on laboratory
technicians and about the Company's intention not to
bargain. Davis said he did not think that would happen and
that he was sure they could work out an agreement
covering the laboratory technicians.
Luken wrote to Company Production Superintendent
Rice on December 8, referring to the certification received
that week and proposing negotiations about the middle of
January. Luken proposed continuation of the status quo
pending negotiations , and particularly with regard to layoff
of employees "on the original seniority list" of the
contract.
Not having heard from the Company, Luken telephoned
Kroger Employee Relations Supervisor Baker on
January 10, 1966. Luken asked when they could sit down
for negotiations. Baker said that the matter was being
handled at a higher level in the Company. Baker suggested
that Luken write to him and Baker would take it up with
his superiors.'s Luken wrote to Baker on January 11,
enclosing a copy of his December 8 letter and requesting
negotiations "for a new contract ... as a result of our
being certified for the existing bargaining unit as set out in
NLRB Case 9-RC-6258."
Baker called Luken around January 25 and asked him to
attend a meeting with the Company on January 31. Baker
said that the meeting was not to be a negotiation session.
Luken, in his testimony, refers to a conversation that he
had with Rice on January 17. Although the parties, in their
briefs, refer to various meetings and conversations
between the Union and the Company during this and other
periods, neither the Company, the General Counsel, nor
the Union refer to a January 17 conversation between
Luken and Rice. Luken asserts that he told Rice that the
principal issues to be negotiated were the rates for factory
employees; work schedules for all employees in the plant;
and rates for the "dele" department. In any event, we
believe that Rice, who had not replied to Luken's
December 8 letter, supra, was not handling the
negotiations and Luken had been informed by Baker on
January 10 that the matter was being handled at a higher
16 Baker had not seen the letter that Luken had sent to Rice on
December 8
THE KROGER CO.
company level. There is no evidence that Rice, under the
circumstances, conveyed to other company people, these
particular remarks of Luken that were made in the course
of discussing other matters and which Luken described as
"a more or less one sided conversation" on Luken's part.
The parties met on January 31. 17 In substance, Luken
said that he was there to negotiate a new contract for the
Springdale plant . The Company said that there was a
contract in effect for the plant. The Examiner is uncertain
whether the Company said that it considered that the
Board had made an error or whether it said that the Board
had made an error with respect to the laboratory
employees. In view of Parker's prior proposal to Luken
about the laboratory employees, supra; Davis' remark to
Luken, supra; and the fact that the Company's motion to
the Board on November 12 was confined to the matter of
the laboratory employees, it may well be that the Company
did make a brief mention of the laboratory people in the
above context. In any event, Luken made no specific
reference to the laboratory employees but confined
himself to readiness to negotiate a contract for Springdale.
The entire session was very brief and the Company in
substance took the position that there was an existing
contract. We believe that issue was not joined at that time
on respective positions regarding laboratory employees
alone.
Parker wrote to Luken on February 24, 1966, stating
that there appeared to be some confusion regarding the
Company's willingness to negotiate wages with the Union
for the Springdale laboratory technicians "for whom you
were recently designated as bargaining agent." Parker
said that the Company is willing to negotiate a supplement
"to our existing agreement" to cover wages of the
laboratory people. Luken replied by letter of February 25.
He stated that the Union was not recently designated as
bargaining agent for the laboratory technicians but for the
unit certified on December 3, 1965. The Union, said
Luken, was at all times willing to bargain in accordance
with the certification and had never been requested to
bargain for part of a unit nor had it ever done so and would
see no reason to do so "unless there was an accretion to an
existing unit ." The letter stated that the Board had not
held that there was an accretion to an existing unit but had
held that there was no unit in existence on February 22,
1965. It was again stated that the Union was prepared to
negotiate for the certified unit of December 3, 1965.
Parker replied on March 4, stating that the laboratory
employees were an accretion to the contract unit. He said
that the Company was willing "to negotiate with respect to
them" but was not willing to negotiate a contract for
employees covered by the 3-year February 22, 1965,
contract.
Shortly prior to March 18, 1966, the Union left a
proposed contract with Cornett, the Springdale plant
manager . The format of the contract was basically that of
the February 22, 1965, contract. However, in addition to
specifying wage rates for laboratory employees, the
proposal contained a new expiration date of April 9, 1969;
it also provided increased wages for the various jobs and
classifications on three dates during the contract; as well
as changes of general application in other articles of the
February 22 contract. The recognition clause was the
same as that in the February 22 contract except in two
879
respects. Laboratory technicians were no longer
enumerated as an excluded category and in the
"included" portion that referred to employees engaged in
"receiving, processing, handling, shipping," the word
"testing" was added, evidently being a reference to the
laboratory technicians.
The parties met on March 18. In a meeting that lasted
several hours the Union's position was essentially that it
wanted the contract proposal that it had given to Cornett
shortly before the meeting. The Company's position was
essentially that such a proposal was not acceptable since
there was a valid contract in existence. The Company, in
substance, proposed placing the laboratory employees in
specific wage classifications, which it named, of the
existing contract. For instance, the Company proposed
that laboratory employees be placed in classification D of
the February 22 contract. Under that contract the rate for
such classification on April 10, 1966, was $3.05. Under the
Union's proposed contract, the laboratory employees were
in classification D with the initial rate of April 10, 1966,
being $3.05. Under the February 22 contract, the next and
highest rate under the contract for that classification was
$3.12 on April 9, 1967. The union proposal had $3.12 on
April 9, 1967, and $3.25 on April 9, 1968, in this
classification. The parties never did get down to
negotiations on the laboratory technicians alone but were
apart on their basic disagreement, described above,
concerning whether the February 22 contract was in
effect, or whether an overall new contract was to be
negotiated. The union proposal regarding laboratory
technicians was part of an overall contract proposal and
the Company's proposal on these people was limited to
incorporation into the existing contract as aforedescribed.
On March 21, 1966, the Union struck the Company's
Springdale plant. Luken, on March 24, issued a letter to
the union membership. He stated that he had done his best
to defend and validate the February 22 contract before the
Board but the Board "did void the contract" when it
ordered an election in a different unit and by affording the
employees a choice, inter alta, to vote "no union." The
letter referred to the Company's position that "the
contract is still valid." Continuing, Luken said,
"Notwithstanding ... I recommended that we try to live
with the contract even though we were not legally
obligated to do so. When it was clear to me that a majority
of our members ... did not want to do this ... I strongly
recommended that we use the Company's alleged contract
as a basis of negotiations and change only those clauses
that were obtained by the Company by misinformation,
whether deliberate or accidental. The committee and the
membership eventually agreed to this and this was the
Union's position. We also suggested a new three year
agreement with very minor cost factors ......
On March 21, the Company petitioned the Hamilton
County Court of Common Pleas alleging that the Union
was violating the no-strike clause of the contract. The
Union removed the case to the Federal District Court for
the Southern District of Ohio. Kroger filed a motion to
remand td the State court. After hearing, the district court
remanded the case to the Court of Common Pleas. On
remand, the latter court held a hearing and, on March 29,
issued a temporary restraining order against the Union and
its strike; the order is still in effect and the order has been
iT Bedell, labor negotiator for the Company, Hoffman, vice
president, Cornett, the Springdale manager, and Gooch, a
personnel official Luken was there for the Union
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complied with by the Union. In an opinion , the court found
that the parties had entered into a contract "fairly and
openly" and "intended to abide by its terms." The court
stated that, in an election, the employees involved chose
the same union which had negotiated the contract and this
amounted to ratification of the contract and there is a valid
and subsisting contract. The court also stated that both
parties agreed "that the NLRB could not, directly, vitiate
the agreement ." Hoffman, vice president of the Company,
wrote to Luken on March 30, 1966, stating that the
Company desired to meet with him to continue
negotiations with respect to the Springdale laboratory
technicians "only."
The parties met on April 20. The Company's position
was that it would bargain only for the laboratory
technicians and said that it considered its prior proposal
on such employees to be fair since the wage rates were
practically the same as those provided for such employees
in the written proposal that the Union had previously
submitted. At one point, Luken queried how he could be
expected to negotiate for such employees when the
Company had taken away his "economics" by a court
order.18 Luken testified that "the Company had made
their position very clear" that it was not there to bargain
for the entire certified unit but only for the laboratory
employees "and they [the Company] insisted ... they
would not proceed in the manner we wished ...." Luken
took the basic position that the negotiations should
embrace the entire unit and that he wished to preserve
that position. He testified that he did make a proposal on
laboratory employees, telling the Company that there was
a possibility that he was obliged to do so under the court
order. The record does not disclose what the
aforementioned proposal was. In any event, after talking
together, the parties reached no agreement on laboratory
employees. No further contract negotiations were
thereafter held or requested by either party.
C. The Allegation that Respondent, Since December 3,
1965, Has Violated Section 8(a)(5) of the Act by Refusing to
Bargain With the Union for a Contract Embracing the
Certified Unit and All the Employees in the Certified Unit
Almost from its inception, the Board has been
confronted with situations in representation cases, where
there is a petition for certification by a union in a plant
covered by a contract between the employer and another
union, the incumbent. As the Board has stated many
times, it must balance two major considerations, in
deciding whether or not to hold an election in such cases.
One consideration is the interest of the parties and the
public in stability and tranquillity of labor-management
relations. This consideration, if given dominant effect,
would lead to the dismissal of a petition for election and
certification where there is an existing contract in effect.
But another major policy also must be considered. This is
the employees' statutory right "to select and change their
Is The "economics" being apparently the right to strike
19 The principles we are here describing are to be found in
numerous Board cases and in practically every Annual Report
issued by the Board. The above quotation is taken from the 1950
report but the same material, verbatim or in substance , is to be
found in the Annual Reports and cases before 1950 and after that
date. The year 1950 is a rough intermediate date in the Board's
history since 1935 to the present
z° Cf. Consolidated Edison Co of New York v. N L.R.B , 305
U S. 197, 235
representative" and this consideration can lead to the
direction of an election, despite an existing contract.19 The
purpose of the election is, of course, to enable the
employees to select and change their representative,
which in practical terms, in situations involving an
incumbent union and a rival union, generally means an
opportunity to vote for the incumbent, the rival, or no
union.
The Board's familiar "contract-bar" rules are
administrative and policy standards evolved by the Board
for nonadversary representation proceedings. These rules
serve as administrative standards for the Board in
determining whether or not it will direct an election in the
face of an existing contract. A contract that has been
determined not to constitute a bar to an election is not
thereby invalidated, since the invalidation of contracts is
cognizable under Section 10(c) of the Act, pursuant to a
complaint attacking the contract in an unfair labor
practice proceeding.20
Indeed, the various contract-bar rules indicate the
dichotomy between a determination that a contract is not a
bar and a determination that the contract is illegal under
Section 8(a) or (b) or under contract law. Thus, the Board
may determine that a contract is not a bar because it is of
unreasonable duration. Over the years, the duration of a
contract that may be held unreasonable, and thus not a
bar, has varied. We believe that the present period is 3
years.21 And a contract with a definite 3-year term would
be a bar for that period. Conversely, a contract for a 5-year
term would not be a bar for 5 years but only for 3 years.
However, as far as validity or contract law are concerned,
there is nothing wrong with a 5-year contract unless it is
successfully attacked because of its 5-year term, in a
Section 10(c) proceeding, on same basis that we do not at
the moment perceive; or on some ground proscribed in
Section 8(a) or (b) of the Act. Much the same observations
are applicable to various other contract-bar rules, such as
the rule that an oral contract cannot bar an election; or
that a prematurely extended contract is not a bar. If it suits
the contracting parties, an oral contract is valid in contract
law and presumably under the Act, although an employer
in a Section 10(c) proceeding violates Section 8(a)(5) of the
Act if he refuses to sign or to embody in written form an
agreed-upon contract with the collective-bargaining agent.
The same is true of a prematurely extended contract as a
matter of contract law. Here,22 as in the foregoing
instances, our observations are intended to focus attention
on the fact that the Board's contract-bar rules, valid
administrative and policy standards in representation
cases, are not to be equated with rules and principles of
general contract law.
Even in those contract-bar rules that are of a slightly
different nature, their character remains essentially that of
a limited administrative representation case rule. Thus,
the Board declares that a contract with a union-security
clause that is illegal on its face and by its terms is not a
bar. The Board will not consider, in a representation case,
21 Auburn Rubber Company, Inc, 140 NLRB 919.
12 "In order to provide employees an opportunity to change
representatives, if they wish, at reasonable and predictable
intervals, the Board has consistently held that the parties to an
existing contract cannot forestall a redetermination of
representatives by extending the term of their contract before its
automatic or terminal renewal date . Such a premature extension
is no bar . ." Twenty-Third Annual Report of the National
Labor Relations Board, 1958, p 28
THE KROGER CO.
evidence that a union-security clause, although valid on its
face, is, in fact, illegal because of administration of the
clause.23 Nor, of course, will the Board, in a representation
case, where it finds a union-security claim illegal on its
face, order the respondent or respondents to cease giving
effect to such a clause although such would be the
customary order if the matter was in issue in an unfair
labor practice proceeding. The limited scope of a
representation case and the basic focus of such a case is
illustrated by the fact that a contract containing a "hot
cargo" clause, unlawful under Section 8(e) of the Act, has
nevertheless been held to be a bar. The following excerpt
from the last mentioned decision effectively summarizes
much of what we have been saying and emphasizes the
focal point in the Board's determination when it holds that
a contract is or is not at bar:24
The contract-bar rules are not prescribed by
statute. They are a creation of the Board and have
been changed from time to time. Their purpose is to
strike a balance between the competing statutory
objectives of stability in labor relations, and employee
freedom of choice in selecting a bargaining
representative. In the Hager Hinge case the Board
said that it would not hold as bar a contract containing
an unlawful union-security clause because the
"existence of such a provision acts as a restraint upon
those desiring to refrain from union activities ...." In
other words, such a clause interferes with one of the
objectives sought to be balanced by the bar rules ....
A "hot cargo" clause, although unlawful, does not in
any sense act as a restraint upon an employee's choice
of a bargaining representative. [Footnotes omitted;
emphasis supplied.]
It is apparent from all the foregoing that the Board's
basic motive, purpose, and decisional direction is the same
in all its contract-bar cases and that the latter embody
representation case principles. These principles are
equally present in contract-bar situations where the Board
finds no bar because the contract unit is not appropriate.
The inappropriateness of such units may be of two basic
kinds. Thus, the contract unit may be e e plant, whereas
the Board may determine that the aI , . ;priate unit is a
three-plant, multiplant unit ; or, the contract unit may
include production employees, office clerical employees,
guards, and supervisors, but exclude company officers. By
their terms and on their face both of the foregoing contract
units are inherently defective when compared with what
the Board determines is the appropriate unit. But, on the
other hand, as in the instant representation case, the
Board may determine that the contract is not a bar
because the contract unit is not appropriate solely because
a representative 30 percent of the employees was not
employed on the date the contract was executed. The
contract t.,•_', is, on its face and by its terms, appropriate,
23 Paragon Products Corporation, 134 NLRB 662
24 Food Haulers, Inc , 136 NLRB 394,395
25 We have previously discussed that the exclusion or inclusion
of a few laboratory technicians was a minor aspect in a unit that
was otherwise appropriate by its terms and the Board did not
determine that the contract was not a bar because of the exclusion
of such employees from the unit
26 As we understand it, the General Counsel's case, and that of
Local 98, rests on this assumption . The complaint does not
mention the contract and, of course , does not attack it as illegal
In his brief, the General Counsel states that the Board's
determination in the representation case "makes that contract
overall vulnerable to attack as being illegal" and in conflict with
881
except for the representative number of employees being
employed on the date of execution.25
In the foregoing paragraph, we have assumed in our
discussion that, when the Board concluded that the
February 22, 1965, contract was not a bar because a
representative number of employees was not employed on
the execution date, this was a finding that the unit at the
time of the contract execution was not "appropriate" and,
therefore, the union did not represent a majority in the
appropriate unit.26 The basis for this assumption presents
some difficulty since the Board did not use the terms
appropriate or inappropriate unit in the context of
declaring the contract no bar. Nor did it use such terms in
the basic General Extrusion decision. The principle of the
latter and the principle in the instant representation case
was simply that "a contract will bar an election only if at
least 30 percent of the complement employed at the time
of the hearing had been employed at the time the contract
was executed, and 50 percent of the job classifications in
existence . . . ." In representation cases where the basis of
decision is inappropriateness of unit, the Board so states
and the terms are well known and are easily used when so
desired.27 It may be that the General Extrusion rule, both
in that case and in the instant representation case and
others, is no more than it is stated to be, namely, a rule
that, in expanding complement situations, the Board uses
a contract-bar rule that an election will be directed unless
the General Extrusion standards (contract-bar rules) are
met.28
Arguably, rather than constituting a finding that the unit
is inappropriate, a finding, that there was not a
representative number of employees in the unit at the time
of contract execution, is no more than a finding that there
was not what the Board's contract-bar principles declare
to be a necessary quorum in the appropriate unit, and that
therefore there should be an election. Let us assume that
under a constitution or rules, it is the requirement in a
State that the senate, not the house, is the proper or
appropriate body or unit to contractually commit the State
in a construction contract with a private citizen. It is also
required that 30 percent of the senators must be present
and vote to approve the awarding of such contracts. On a
particular occasion, 10 percent of the senators are present
and vote to award a contract to A. B, another contractor,
thereafter protests and submits his bid for the contract.
The State's attorney general decides that because only 10
percent of the senators were present and voted on the
contract award to A, the contract should be put up for bids
and awarded, with the required percentage of senators
being present and voting. Quite clearly, the attorney
general did not decide, in the above suppositious decision,
that the senate was not the appropriate voting unit. He
simply declared that the required representative number
of senators was not present in voting on the original or first
contract.
the principle of Sec 9(a) of the Act (majority in an appropriate
unit)
21 "The contract covers an inappropriate unit of employees
Therefore the Intervenor 's contract is no bar . " Lockheed
Aircraft Corporation , 90 NLRB 685,686
21 If the General Extrusion rule required 51 percent of the
employees in the complement to be employed when the contract
was executed in order to constitute a bar, it might well be equated
with appropriate unit under Sec 9(a) of the Act and a finding,
that, in an expanding complement in a representation case, there
was no contract bar, might be, in effect , that there was no majority
in an appropriate unit.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bearing in mind that General Extrusion is a
representation case principle, unfair labor practice cases,
where the complaint attacks a contract under Sections
8(a)(1), (2), and (3) of the Act, are distinguishable from the
instant case. We have no quarrel with the allegations and
proof in unfair labor practice cases where illegal
assistance is found because a contract was entered into
before a representative complement of employees was
employed.29 But, in the instant case, the Board's
representation case finding, according to the General
Counsel, is to be construed as a finding that the contract
unit was and is inappropriate with the legal consequence
of illegality of the contract. In fact, the consequence
attributed to the Board representation case finding is
indistinguishable as a practical matter from that which
would have resulted had there been a successful unfair
labor practice complaint under Section 8(a)(1), (2), and (3)
of the Act, with the customary Board order that the
Company was required to withdraw recognition from the
contracting union, Local 98, and cease giving effect to its
contract.3o
Despite the problems that we have described, we are
prepared to conclude and do conclude, that the Board's
findings are properly construed as a finding that, at the
time the contract was executed, the unit was inappropriate
within the meaning of Section 9(a) and (b) of the Act,
although Section 9(b) of the Act speaks of the Board's
authority to decide the appropriate unit in terms of "the
employer unit, craft unit, plant unit, or subdivision
thereof" and nowhere refers to unit in terms of numbers in
the unit; i.e., representative number in a unit as being a
determinant of the unit. However, we beheve the Board's
authority is broad enough to encompass the latter type of
unit. In fact, without successful challenge, the Board has
adhered to a position that it will not certify a one-man unit
and this position is based on a number concept.3i
In an expanding complement situation, we are of the
opinion that there are, in effect, two units. One is the
maximum or perhaps the optimum unit; i.e., the full
number of, say, production employees that the employer
plans to employ according to original plans or the number
employed at the time of the representation case hearing.
The alternate unit, decided upon by the Board in its
General Extrusion case, is an appropriate unit that
consists of at least 30 percent of the complement
employed at the time of the hearing. The appropriate unit
at the time of execution of the contract is one that embraces
at least the aforementioned 30 percent of employees, and,
when that 30 percent was not employed when the contract
was executed, a finding so stating is a finding that
that unit, at the time of contract execution, was not an
29 " an employer illegally assists and supports a union by
granting it exclusive recognition before he has a representative
complement in an appropriate unit in his employ . " The
Englander Company, Inc, 114 NLRB 1034, 1043, enfd as
modified 237 F 2d 599 (C A. 3) Here, again, does the language
mean that the unit, while appropriate, nevertheless, lacked a
sufficient complement, a sufficient number, in the unit to be
representative, or does it mean that the unit is inappropriate, or is
the distinction inconsequential, since on either approach the
execution of a contract at the time gave unwarranted and illegal
assistance to the contracting union by granting it exclusive
recognition at such a time.
30 As mentioned, the Board, in the representation case, simply
found that "as the record does not establish, that the required
percentage of production employees was employed at Springdale
when the contract was signed, we find that the agreement (the
appropriate one. As a consequence, majority or lack of
majority in the inappropriate unit, in this context, is
irrelevant although the net result in terms of Section 9(a) of
the Act is expressed by the statement that the contracting
union did not represent a majority in an, or the,
appropriate unit when the contract was signed.
The Company, in the case before us, asserts, inter alia,
that Section 8(d) of the Act is a defense to the Section
8(a)(5) allegations.32 The General Counsel and the Union
contend that, because the Board in the representation
case found the unit to be inappropriate at the time the
contract was executed, there is no collective-bargaining
contract in effect as referred to in Section 8(d) of the Act.
We are of the opinion that there are two aspects to the
foregoing. First, is the February 22, 1965, contract a
collective-bargaining contract within the meaning of these
terms as used in Section 8(d) of the Act. Secondly, is the
February 22 contract "in effect" as the term is used in
Section 8(d). Answering the second question first, we
believe that the contract is in effect. No one with authority
to pass on such matters has held that the contract is not in
effect. The Board has not, and no court has held that the
contract is not in effect. In fact, the sole adjudication on
the matter has been by a State court that held that the
contract is in effect and has enjoined the union to honor
the contract, and the court is being complied with.
Moreover, in the instant complaint or in any other
proceeding, the General Counsel has not attacked the
contract or alleged that it is not in effect. It is thus
apparent that of the two questions or issues that we have
posed above, the first is the crucial one. Is the contract a
collective-bargaining contract within the meaning of that
term in Section 8(d) of the Act. If the answer is in the
negative, the issue of whether it is in effect or not is
immaterial, at least as far as this aspect of the case is
concerned.
It is our opinion that the term "collective-bargaining
contract," as used in Section 8(d), means a collective-
bargaining contract within the meaning of Section 9(a) of
the Act.
This conclusion is not arrived at without encountering
some problems. Congress was, of course, fully aware of
Section 9(a) when it wrote Section 8(d) and it referred to
Section 9(a) specifically in Section 8(a)(3) when it
permitted union-security provisions "if such labor
organization [the contracting union] is the representative
of the employees as provided in Section 9(a) ...." It can
be argued, therefore, that the difference is significant and
that in Section 8(d) Congress meant any collective-
bargaining contract or any collective-bargaining contract
valid on its face that could thereby qualify as a collective-
contract with Local 98) does not bar the petition (for an election)
3i Cutter Laboratories, 116 NLRB 260, 261, Luckenbach
Steamship Company, inc , 2 NLRB 192
32 The pertinent part of the Section is
That where there is in effect a collective-bargaining
contract covering employees in an industry affecting
commerce, the duty to bargain collectively
s • * s
shall not be construed as requiring either party to discuss
or agree to any modification of the terms and conditions
contained in a contract for a fixed period, if such modification
is to become effective before such terms and conditions can
be reopened under the provisions of the contract
THE KROGER CO.
bargaining contract. And to the argument that this would
afford the mantle of Section 8(d) to invalid and illegal
contracts, Congress might have answered that it
contemplated in the Act that such contracts were subject
to attack in Section 8(a) and (b) of the Act and that, if a
contract was not, or had not been, attacked and
invalidated in an appropriate proceeding, it was
presumptively, on its face, a collective-bargaining contract
under Section 8(d) and not subject to attack under that
section. It can be argued further that the reference
elsewhere in Section 8(d) to Section 9(a)is clearly confined,
as it states, to the situation where the Union, party to the
contract, "has been superseded as, or has ceased to be,
the representative of the employees subject to the
provisions of Section 9(a) .. " In other words, where
there is a presumptively valid contract (Section 8(d)
making such an assumption , subject only to Section 8(a)
and (b)), the provisions of Section 8(d) became inapplicable
only when the contracting union has been superseded or
has ceased to be the representative under Section 9(a)
circumstances. However, it is our view, that the collective-
bargaining contract referred to in 8(d), while
presumptively valid under 8(d), and while subject to direct
attack only in Section 8(a) and (b), must be considered in
the context of a finding by the Board in a valid
representation case that the same contract that is invoked
under 8(d), covered an inappropriate unit at the date of
signing.33 Consequently, the presumption of validity
attached to a collective-bargaining contract invoking
Section 8(d) was in fact rebutted and revoked by a Board
finding in an independent but related valid proceeding
under the Act, to the extent of the Board's finding in such
proceeding. Under such circumstances, to the extent of
the Board's finding, we do not believe that Section 8(d) is
effectively invoked herein. It is unreasonable to conclude
that it was intended that 8(d) not apply only where there
was supercession or cessation of the contracting union in
accordance with the principles of Section 9(a) but that 8(d)
would apply in the face of an independent finding that the
collective-bargaining contract covered an inappropriate
unit when signed.
We desire to make clear that our above conclusion is
limited to, and limited by, the Board's finding. That
finding is that the unit was inappropriate "when the
contract was signed" on February 22, 1965. Therefore, we
have concluded that, on the date when the contract was
signed, there was not a "collective- bargaining agreement,"
within the meaning of Section 8(d). But, in our opinion, the
application of Section 8(d) is not limited, either by its
terms or by anything else, to the date of contract signing.
The question remains whether at any time after the
signing of the February 22 contract and until the time of
the instant hearing there was a collective-bargaining
contract in effect between the parties as set forth in
Section 8(d). If the answer is affirmative, and, in our
opinion, it is, then Section 8(d) is applicable.
" As detailed previously, we have so construed the Board's
finding Moreover, the reference to Sec. 9(a) in Sec 8(d), although
in context of supercession or cessation of the con tracting union,
implies the applicability of Sec 9( a) at all stages of the contract
Boston Machine Works Company, 89 NLRB 59,61
With regard to the duty of the Employer and the
representative of its employees to bargain now or in the
future upon the basis of the current contract or for a new
883
The record justifies no other statement than that Local
98 and the Company entered into the February 22 contract
in good faith and intended it to be effective and intended to
operate in accordance with its terms. The contract was put
into effect and the parties, union, employees, and
Company, operated under the contract from February 22,
1965, to at least December 3, 1965, the date of the Board's
decision in the representation case. They defended the
contract before the Board and asserted that it was a bar to
an election and their contention was clearly that they
should continue under the contract without the
intervention of an election. Neither the OCAW petition for
an election and certification, nor the hearing, interrupted
the contracting parties' adherence to the effectiveness of
the contract at all times after its original signing. There
was clearly a collective-bargaining contract in effect.
There has been no Board or court decision finding that
the contract was, or is, illegal and no order by the Board or
a court has nullified the contract. The General Counsel
has not issued a complaint alleging that the contract is or
was illegal and in the instant case the General Counsel
relies only on the Board's decision in the representation
case on the issue of contract bar. As we have previously
demonstrated, the contract-bar doctrine is an
administrative tool that has, and purports to have, a very
limited scope. In the representation case, the Board did
not pass upon the legality of the contract at any time. And,
if, contrary to the fact, it be said that the Board, in the
representation case, did make a determination regarding
contract legality, it explicitly limited such determination to
the situation at the date of the contract's execution, stating
that there was not a representative complement of
employees at the time the contract was signed and
therefore the latter did not bar an election. 34
Although we have recognized the Board's finding in the
instant representation case as a finding that there was not
a representative complement of employees and hence
there was an inappropriate unit on the date the contract
was signed, this is not dispositive of the issue which is now
before us.
We are prepared to assume, for the reasons previously
explained, that, on the date that the contract was signed,
there was not a "collective-bargaining contract" in effect
within the meaning of Section 8(d) of the Act. This for the
reason that the Board found that on the date of contract
execution there was a nonrepresentative complement, and
hence, the unit at that time was inappropriate. But, in our
opinion, the evidence is clear that, thereafter, the parties
to the contract by their manifest and unequivocal intent,
actions, and conduct, adhered to, affirmed, and continued
the contract as being in effect and operative and binding
between them. They performed under the contract. There
was contract "consideration." There was no disaffirmance
of the contract and the contract by its terms or otherwise
was not illegal or impossible of performance. These factors
are elementary contract law ingredients that manifest the
contract, we do not believe it to be this Board's function, in a
representative proceeding , to pass upon this issue
Generally, in cases of this nature the Board has not
attempted to rule upon the validity or invalidity of the current
contract It has decided only that the employees should be
permitted to determine through an election the identity of the
labor organization which they desired to have represent
them
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existence of a contract and, in this case, the contract was a
"collective-bargaining contract."35 Since the contract by
its terms and on its face was valid, including the unit, it is
presumptively valid and cannot be attacked in this
proceeding.36 Moreover, neither the complainant nor the
General Counsel nor the Union have sought to attack the
contract. They have made the limited contention or attack
that the Board found that the unit was nonrepresentative
and hence inappropriate at the date the contract was
signed. There is no contention or evidence or attempt to
introduce evidence that after February 22, there was never
an appropriate unit. Yet, after February 22, as we have
shown, there was a contract.37 We believe that contract,
valid on its face, including the unit, was a collective-
bargaining contract within the meaning of Section 8(d).
However, we believe that the foregoing reasoning can be
supplemented, or, in fact, that an even more convincing
approach is available. Since there was a bilateral contract
in effect dealing with wages, hours, and working
conditions, its only possible vulnerability, as to coming
within the ambit of Section 8(d), in the context of this case,
is the matter of the appropriateness of the unit on the
aspect of whether there was a representative complement
at the time when there was a contract between the parties.
In this connection, we will adopt the Board's finding in
the representation case. It is clear that the Board found
that the Springdale complement at the time of the hearing,
on April 27, 1965, was representative. Indeed, 30 percent
of that complement was representative and would have
been representative on February 22 or thereafter.
Therefore, at least by April 27, there was an appropriate
unit.38
There has never been any contention or finding in the
representation case regarding Local 98's majority status.
The contentions and findings were limited to the
representative or appropriate character of the unit on the
date of contract signing. Certainly, on April 27, at the time
of the hearing when an appropriate unit existed, Local 98
represented a majority in that unit. The Board found that,
of 69 employees in the unit, 42 had come from the State
Avenue plant, and 27 from Dayton. The evidence shows
that all the State Avenue employees had been and were
members of Local 98. Further, under the terms of the
contract, from February 22, 1965, all 69 employees in the
unit were required to be and were members of Local 95.38
Finally, the results of the Board election demonstrate
Local 98's majority status. This is true as of the date of the
election and thereafter but, in view of the evidence in the
record, and the lack of evidence to the contrary, it justifies
an inference that the election confirmed the preelection
majority status of Local 98.
In any event, whatever date is considered, after, and
with the exception of, February 22, 1965, and, certainly, on
a' In the American Law Institute Restatement of Contracts, par
539, p. 1045, a situation is listed where in a particular jurisdiction
contracts for the purchase and sale of goods are illegal if made on
Sunday On Sunday, A and B enter a bilateral contract for the
purchase and sale of goods On Monday, A and B have a
conversation (and engage in the actual delivery and receipt of the
goods) justifying the inference that they intended to carry out the
contract A contract is then formed (and is performed) identical in
terms with the contract made on Sunday There is a valid contract
between A and B
The instant case is much stronger than the foregoing example
since there is no finding of illegality regarding the instant contract
or prohibition of its continuance and the instant case show
sustained actual performance of the terms of the contract
36 Or, in any other proceeding, because of Sec 10(b) of the Act
April27 and November 24, 1965, and, in between and
thereafter, there was a collective-bargaining contract in
effect, and Local 98 represented a majority of the
employees in the appropriate unit. The contract, that was
in effect, ran until April6, 1968. The parties had
considered that the contract commenced on February 22
and it did. The exact date of commencement of the
contract would appear to be immaterial under Section 8(d).
The important consideration is whether theere was a
contract in effect for a fixed period which would include an
expiration date. However, if we wish to consider when the
contract was in effect with the Union representing a
majority in an appropriate unit, we can use almost any
date after, and except, February 22, 1965. For
convenience, and in view of the proof previously
considered, we find that, from April 27, 1965, to April 6,
1968, there was and is in effect a contract between Local
98 and the Company; and that the substantive terms of
that contract are set forth in the contract instrument
executed by the parties on February 22, 1965; and while
the parties considered the contract valid and operative
from February 22 and did place the contract in effect from
that date, they also continued to operate under that
contract and continued to effectuate it from April 27, 19659
at which time it is evident that the Union represented a
majority in the appropriate unit. The contract was a
collective-bargaining contract within the purview of
Section 8(d) of the Act.
Our conclusion, that there was, and is, a contract in
effect, is not altered by the Union's contention, and
apparently the General Counsel's, that, after the Board
decision in November 1965, the Union was operating
under what the Union described as the "status quo" and
not under the contract. The said status quo, as a practical
matter, was indistinguishable from the terms of the
contract. Assuming, contrary to the fact, that the Board
had nullified the contract by its decision, we recognize the
terms of employment and working conditions could not be
changed unilaterally by the Company in the face of the
presence of a bargaining representative. But the union-
security and checkoff provisions of the contract were
another matter. While the Union did tell its members that
the Board had cast the contract aside, it did not state, in so
many words, that membership in the Union was no longer
a condition of employment. From the commencement of
the contract, with the exception of November 1965, and
from December 1965 onward, the Union received the dues
checked off under the contract or checked off under the
"status quo." While it is true that the Union advised its
members that anyone desiring to have his dues returned
could obtain it upon request, this shifted the burden and
the spotlight to the individual employees. The alleged
disaffirmance of the contract would be more evident if the
31 Under the Board's contract-bar rules, the date of contract
execution was the critical date, and the contract was not a bar
But, other than this, any infirmities in the contract would be
subject to a 10(c) proceeding which never took place.
38 The evidence in the representation case indicates that in
March 1965, when the Springdale plant was in actual production,
there was a representative and appropriate unit However, any
other date, except the contract execution date, was irrelevant
under the Board's contract-bar rules which were the focal point in
the representation case
39 If Local 98 did not represent a majority, the contract would
be illegal under Sec 8(a)(1) and (2) and 8(b)(1)(A) of the Act and we
are unable to question the majority in the circumstances of the
instant case
THE KROGER CO.
Union had returned the checked-off dues to the Company
or to the individual employee directly, thereby assuming
the burden to collect dues without checkoff, instead of
accepting the checkoff and placing the burden or the
responsibility on the employees to undo the checkoff. We
do not regard these factors as of major importance since
we incline to believe that the Union, as an effective labor
organization , did have the loyalty of its members and
probably dues in this period were paid voluntarily, at least
by the clear majority who had voted for the Union.
More dispositive, however, regardless of whether the
Union disaffirmed the contract completely or not after
November 3, 1965, is the legal fact that neither the
Company nor the Union was in a position to disavow the
contract. They had executed and performed under the
contract since February 22, 1965. If the contract was not
effective for contract-bar purposes as of its date of
execution , the parties considered it effective and they
affirmed it by their conduct and performance and
continued it after February 22 until at least November 3,
1965. The parties were not minors or otherwise
incompetent when they entered into, affirmed, and
continued the contract. In November or December 1965,
or at any date after the contract was in effect by its terms
until 1968, there was no right in either party to unilaterally
disavow, disaffirm, or repudiate the contract. Moreover, as
we have previously found, the contract that was in effect,
prior to November and December 1965, was a contract
within the meaning of Section 8(d), including majority in
an appropriate unit , and the principles stated above about
the absence of the right of repudiation of an existing
contract, are applicable.
Finally, we consider equitable and policy considerations
that may be present in this case. In the representation
case, the Board ordered and held an election so that a full
complement of employees of the Springdale plant might
select their representative. They could select Local 98 or
the OCAW or no union . The voters were all members of
Local 98 under the terms of their employment, to wit, the
contract. The majority of the voters had been members of
Local 98, without interruption , between State and
Springdale, at the State Avenue plant before coming to
Springdale; and this subsequent Springdale majority had
been and was the constituency of Local 98 when it
negotiated the February 22 contract for the Springdale
plant . These same constituents ratified the contract
according to its term which ended in 1968. They worked
under the terms of the Springdale contract, including the
benefits. The minority of Springdale employees, those who
had come from Dayton, also worked under the Springdale
40 The wage rates at Springdale were higher than those that had
existed under the OCAW contract at Dayton The wage rates over
the term of the Springdale contract were higher than the rates
that had prevailed at State Avenue under Local 98's contract at
that plant.
41 Cf "The Board has held that an employer illegally supports
and assists a union by granting it exclusive recognition before he
has a representative complement in an appropriate unit in his
employ "The Englander Company, Inc, 114 NLRB 1034, supra
11 In Meat and Provision Drivers, Local 626, et a/, 126 NLRB
572, 573, the incumbent union had previously urged its contract as
a bar in a representation proceeding. The Board , however, had
directed an election because it found that there was a question of
representation ; i.e., an issue whether the Union represented a
maionty in the appropriate unit, at the time the contract was
executed In a subsequent unfair labor practice case, the General
Counsel had issued a refusal-to-bargain complaint against the
885
contract of Local 98.40 As is the case with most, if not all,
jobs in this country, the employees from State Avenue and
Dayton came to Springdale as regular employees on a
voluntary basis. They worked under and were aware of the
terms of Local 98's Springdale contract.
Local 98 went into the election under propitious
circumstances. As we have seen, a majority of the voters
were relatively longtime members of Local 98. The
Company had already concluded a union-shop contract for
Springdale with Local 98. The contract provided for wage
increases and other benefits over its term . It is fairly
evident that these factors were advantageous to Local 98,
and we assume that, in view of the background facts and
other circumstances of this case, the relationship was
basically proper.41
The election that was ordered and held by the Board
allowed a full and representative complement of
employees of the Springdale plant to select their
bargaining representative. By a vote of more than three to
one, the employees voted for the incumbent, Local 98.
As in most preelection campaigns , it is reasonable to
infer that the competing unions promised the employees
that each would outdo the other in what they would secure
for the employees if designated as representative. An
incumbent administration, whether in the Union, political,
or other fields, necessarily runs on its record and is judged
by the voters, in large measure, on that record. Not only
does the incumbent run on its records but it also generally
promises more and greater accomplishments in the future,
if elected. The Kroger employees voted for Local 98,
presumably on its record of many years, including its
contracts with the Company.42 The most recent OCAW
contract with the Company at the Dayton plant was not
superior to either the February 22, 1965, contract of Local
98 at Springdale or to the prior Local 98 contract at State
Avenue. OCAW no doubt promised that it would
accomplish more if elected at Springdale, and Local 98, in
turn , promised that it would surpass its most recent
contract. We cannot regard as determinative the fact that
Local 98 stated that the Board decision had abrogated its
contract and that it would negotiate a new and better
contract. The opinions of the parties and their predictions
regarding decisions and elections cannot establish criteria
that became dispositive of later issues. A preelection
statement by a union that it would obtain a 40-cent wage
increase would not be determinative of a subsequent legal
contest in which the employer was accused of not
bargaining in good faith because he refused to grant such
an increase to the victorious union . Nor would a campaign
statement , that Board decisions made it clear that the
Union alleging that it was refusing to comply with the
requirements of Sec 8 (d) "at a time when a collective-bargaining
agreement which it had executed . with the Employer was
still in effect " In its Decision, the Board stated
The Board did not, in the representation case, purport to pass
on the validity or effect of Respondent's contract for other
purposes [The Board noted that the incumbent contracting
union had won the subsequent election and had been
certified ]
Now, having requested and received a Board certification,
Respondent alleges for the first time that, in effect, it was
unlawfully assisted, and therefore that its contract with the
Employer was unlawful and not a "collective-bargaining
contract" for purposes of Sec. 8(d) We do not believe that
the statutory duty to bargain imposed by that section can be
so easily evaded
299-352 0-70-57
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer would be obliged to grant an arbitration clause in
the contract that the union would negotiate after the
election, be dispositive, on either legal or equitable
grounds, of the rights of the parties.
A concluding factor is that Section 8(d) of the Act
provides that its provisions "shall become inapplicable
upon an intervening certification of the Board, under
which the labor organization or individual, which is a party
to the contract, has been superseded or has ceased to be
the representative of the employee subject to the
provisions of Section 9(a) .. " The reasonable
implication of the foregoing is that the section does apply
to an incumbent contracting union that has been certified
and that has not been superseded or has not ceased to be
the representative of the employees, at least in the
circumstances of the instant case.
D. Alleged Unilateral Changes in Employees' Rates of
Pay and Working Conditions
In July and September 1965, Luken met with company
supervisors regarding wage rates of unit employees
Bardua and Crooker. Luken's testimony indicates that the
original rates for both employees was $2.97 43 under
classification D of the contract.44 When Bardua, a former
State Avenue plant employee, was first working at
Springdale, he was filling orders or order picking and was
receiving the rate for that job which was $3.05 under
classification C of the contract. When Luken met with the
Company on this matter, the Company said that
"somebody had goofed" and that Bardua should have
been cut back to $2.97. Crooker, who apparently had the
same job status as Bardua, had a rate of $2.97. Luken
asked that both employees receive $3.05. The Company
refused and both men thereafter received $2.97.
Without further contact on the above subject between
the Union and the Company, the latter, on January 10,
1966, sent a joint memorandum to Bardua and Crooker,
with copy to the Union, "Subject: Temporary Rate
Increase and Job Change." The memorandum stated that
effective immediately their rate was being changed to
$3.05 and the job functions expected of the employees
were set forth. The concluding point was that "this job
change and rate change is temporary and subject to
cancellation by Ice Cream Foreman." The Union did not
protest the above action at the time or under the grievance
procedure of the contract, but the matter was raised in the
instant hearing by means of the complaint and evidence.
In its brief, the Company cites the following provisions
of the contract in justification of its action:
Article 10 I. Other Work. In addition, or [in] lieu of
their regular job, employees shall temporarily perform
any work in the bargaining unit which supervision
may direct. Any employee temporarily assigned to a
higher rated job shall be paid the higher rate for the
time spent on such job. Any employee assigned to a
lower rated job shall receive his regular rate....
The contract also provides, in Appendix A thereof, where
the classifications and wage rates under the contract are
set forth, that:
In addition, or in lieu of, their regular job, employees
shall temporarily perform any work in the bargaining
unit which supervision may direct. Employees
4 + Perhaps $2,975
44 This was, of course, the February 22,1965, contract.
41 International Shoe Company, 151 NLRB 693, citing
temporarily assigned to a higher rated job shall be
paid the higher rate for the time spent on such job....
There is no contention or evidence that, on January, 10, the
two employees were not given temporary rate increase and
job change as stated by the Company and as provided in
the contract. We find no violation of Section 8(a)(5) of the
Act regarding the above matter. 45
With respect to the laboratory technicians, the general
posture of the contract and negotiations between the
parties have previously been described in detail. Overall,
their respective positions came down to the Union's
contention that the bargaining should embrace the entire
certified unit, including laboratory technicians, and the
Company's contention that bargaining should be restricted
to the laboratory employees as an accretion to the contract
unit. We have set forth our position on that basic issue,
above.
On the allegation of unilateral action regarding
laboratory technicians, the General Counsel introduced
into evidence a company document headed "Springdale
Dairy Laboratory Technicians," which the Company had
mailed to the Union on June 27, 1966. This document
shows that two laboratory technicians and one junior
laboratory technician were hired and received certain
wage rates. Thus:
Yike, hired May 8,1960
November 3, 1965 102.50
January 2, 1966 105.30
Fleming, hired December 29, 1964
November 3, 1965 102.50
January 2, 1966 105.50
Harvey, hired August 2, 1965
November 3, 1965 87.50
January 2, 1966 90.50
Then, there is listed five names; two of these persons were
hired in January 1966; one each in March, April, and May
1966; the hiring rates of all these latter five persons is
shown as $101. For convenience, we shall refer to the first
group of three as group A; the second group of five is
referred to as group B.
We do not know the hiring rates of the employees in
group A but the evidence, in our opinion, shows that they
received a wage increase on January 2, 1966. The contract
was in effect on this latter date and the Union had been
certified prior to this date. The parties' postcertification
bargaining positions had not yet fully crystallized prior to
January 2, 1966. Parker had proposed that if the Union
won the election, the parties agree to ignore or exclude the
laboratory technicians from any contract and had
indicated that the Company might bring about a court test
of the inclusion of the laboratory technicians in the unit, by
refusing to bargain regarding such employees. The Union
refused to agree to such a proposed exclusion. On
December 4, 1965, the Company President Davis told the
Union, in effect, that he thought that the parties could
negotiate an agreement on the laboratory technicians.
However, we are satisfied that the Company did, on
January 2, 1966, unilaterally grant wage increases to the
three laboratory technicians in group A.
International News Service of the Hearst Corporation, 113 NLRB
1067,1071-72
THE KROGER CO.
It is also our opinion that the starting rate for laboratory
technicians on January 12, 1966, to May 1966, group B,
was higher than was the starting rate prior to January 12,
1966. This conclusion is not supported directly by a
perusal of the document, above, that the Company sent to
the Union. The Company thereon does not show the
starting rates for the laboratory technicians in group A nor
did it introduce, at the hearing, evidence that the starting
rate of $101 in January 1966 had been in effect for many
years or for some time, or what the starting rate was prior
to January 12, 1966. While the burden of proof rests with
the General Counsel, we believe that under all the
circumstances he has met that burden without
contravention by evidence that was particularly within the
Company' s possession on the subject of pre-1966 hiring
rates.
Confirmatory of the foregoing is Luken's
uncontroverted testimony that in early January 1966, the
Local 98 union steward reported to him about some
disciplinary action that had been taken against employees
at Springdale in the unit represented by the Machinists
Union "for making google eyes at a very voluptuous girl
who had been hired as a laboratory technician."46 The
steward and Luken were concerned the employees in the
Local 98 unit might have similar proclivities and thus incur
possible disciplinary action.
Luken states that on January 17, therefore, he went to
the plant and discussed the above matter with Jeff
Edwards, "the laboratory superintendent." There was no
objection to this characterization of Edwards and there is
no evidence that such was not his title. In the course of the
conversation with Edwards, the latter remarked that the
operating people, himself and Williams, the plant chemist,
had won an argument with the personnel people, Gooch
and Baker, and "had managed to get the hiring rate of the
laboratory technicians raised appreciably ... [because]
the hiring rate was unrealistically low and they couldn't
get people of any quality for what they were paying."
Luken asked Edwards what the raise was and the latter
said that it had nothing to do with the Union and "was
completely within the Company."
In its brief, the Company points out that there is no
evidence in the record that Edwards was a supervisor
within the meaning of the Act and therefore the Company
is not bound by any of Edwards' statements since he is not
shown to have been an agent.
The record reflects, without dispute or objection or
contrary evidence, that Edwards was superintendent of
the laboratory. The word "superintend" is defined as, "to
have or exercise the charge and oversight of; to oversee
with the power of direction; to supervise"47 and a
superintendent is one who superintends; i.e., "one who
has the oversight and charge of some place, institution,
department or the like."46
It is possible, of course, in view of the limited record,
that the superintendent of the laboratory loaded trucks or
swept floors but it is our opinion that the superintendent of
49 In group B of the above-mentioned exhibit, a "June Roots" is
shown as hired on January 12, 1966, as a laboratory technician.
17 Webster's New Collegiate Dictionary, 1959
48 /dem.
99 It is a fair presumption or inference, albeit rebuttable, that a
manager manages and a superintendent superintends. The
presumption or inference has not been rebutted in the instant
case The American Law Institute Restatement of Agency states,
under sec 26, Creation of Authority, that "a . . the
887
the laboratory can most reasonably be inferred to be a
person of some authority in the laboratory, certainly
distinguishable from rank-and-file laboratory employees
and thereby, and by title, and designation, and probably by
function, identified with management.49 Whether the
superintendent was a supervisor within the meaning of the
Act is difficult to determine on this record but such record
as the parties, including the Company, made, would
indicate that, in the absence of contrary evidence, a
superintendent exercises charge, direction, and
supervision in his particular area.
Moreover, the Union and its president, Luken, who had
been dealing with the Company and its management
people in various departments in the Company's
Cincinnati and vicinity dairy and ice cream operations for
many years, were reasonably familiar with the centers of
management authority and responsibility. On January 17,
the potential disciplinary problem of production male
employees, by reason of a new attractive female laboratory
technician, arose. Luken did not go to discuss the matter
with any of the four laboratory technicians then employed
but he went to Edwards, the superintendent of the
laboratory. Edwards did not say that he was not the proper
person to be contacted on such a matter nor did he refer
Luken to someone else. Confident of his own authority and
judgment, he simply dismissed the "danger" of the
"voluptuous" laboratory technician as inconsequential
and humorous. He then proceeded to mention how he and
Williams, the operating people in the laboratory, had
prevailed over the personnel people, Gooch and Baker,
and had gotten the hiring rate of the laboratory technicians
raised. Gooch and Baker were supervisors and
management representatives. Baker testified at the
hearing but made no mention of such incident or whether
or not the hiring rates had been raised. There is no
showing that Edwards was psychotic or afflicted by
megalomania , yet he spoke of the matter involving Gooch
and Baker as if he and Williams, the operating people, had
debated a management problem, with the personnel
people, as more or less equals and certainly on a
management level. How or why can this be dismissed as
fantasy on the part of the identified superintendent. And
we regard it as confirmatory of his own actual
identification with management.
Luken in his testimony referred to Williams as the plant
chemist. There was no evidence offered in the instant case
to show that this was not a generally accurate description.
However, in the record of the representation case, which is
before us, the plant manager testified that Williams was in
charge of quality control, evidently for the entire
operation, the State Avenue and Springdale plant , both of
which were then in existence. The manager testified that
Williams was a supervisor and that he supervised the
laboratory technicians but was "in and out." The overall
indication is that Williams was probably a professional
chemist or engineer with responsibility for the technical or
professional aspect of product quality control in the dairy
manifestation [superintendent of the laboratory] and not the
intention of the principal is important"; again, in sec . 27, ".. a
manager has apparent authority to do those things which
managers . customarily do", sec 159b, " . Anyone who has
relied upon appearances for which the principal is responsible
can acquire rights against the principal by dealing with an
unauthorized agent" (there is no evidence in the instant case that
the laboratory superintendent was an unauthorized agent or not a
management agent).
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and ice cream plant. The work of the laboratory and
laboratory technicians was under his jurisdiction and
supervision but his jurisdiction and supervision were, in all
likelihood, not confined to the laboratory alone but
extended to other aspects of the operation where the
control of the quality of products was involved. The "in
and out" aspect of Williams' work probably accounts for
the regular laboratory superintendency of Edwards, with
the overall supervision or cosupervision of Williams over
the laboratory.
The Company, in its brief, asserts that the evidence,
aside from its objectionable nature, does not show that the
alleged increase, or the decision to grant it, occurred after
the certification of the Union as the representative, inter
alga, of the laboratory technicians.
As we view the evidence, on January 17, Edwards told
Luken that Edwards and Williams "had managed to get
the hiring rate of the laboratory technicians raised
appreciably. . . ." It is of course possible that the hiring
rate was raised before December 3, 1965, the date of
certification, but the evidence and circumstances indicate
the contrary. On and before December 3, the Company
had three laboratory technicians. No new laboratory
technicians were hired until January 12,1966. Of the three
laboratory technicians employed on or before December 3,
one resigned on January 7, 1966, and one resigned on
January 8. This left one laboratory technician in the
employ on January 8, of a normal complement of at least
three. This would be the normal circumstance that gave
rise to the matter of hiring new laboratory technicians and
the hiring rate that would be offered to the latter. On
January 12, the Company hired the first of the new
technicians, a female. Luken was aware of the new
technician and, on January 17, spoke to Superintendent
Edwards about her presence. In this context, Edwards
said that he and Williams had gotten the hiring rate raised
because they could not secure qualified technicians at the
old rate. (Another new technician had been hired that
same day, January 17.) We are satisfied that Edwards was
referring to the hiring rate of technicians hired on
January 12 and 17 and thereafter, and not to some remote
past period.50 Edwards was speaking of the immediate and
current situation in a context of a newly hired female
technician that Luken had mentioned. Moreover, if
contrary to our conclusion, the Company had decided
upon a new hiring rate at a time prior to the certification,
the evidence is clear that the first new hire was on
January 12, 1966. Under such circumstances, we believe
that the Company was obligated to advise the certified
bargaining agent of its decision and plan to offer any newly
hired technicians a higher rate than that which had
prevailed and, certainly to do so, before placing such new
rate in effect while the Union was the certified bargaining
agent.
While it would have been preferable to have had
Edwards as a witness at the hearing so that his status
might have been elicited directly and his affirmation or
denial of Luken's testimony might have been appraised,
this did not occur. With Luken's testimony before us
regarding what Edwards had told him, the Company,
under the hearsay aspect, was deprived of the opportunity
to test the accuracy of its superintendent's powers of
observation and his knowledge and veracity, with respect
to what Luken credibly testified Edwards had told him.51
What Edwards told Luken is a fact established by the
direct testimony of the latter. The accuracy of what
Edwards said is the hearsay aspect, and, as mentioned
above, the Company neither examined its superintendent
(who did not testify), nor objected on hearsay grounds, nor
did it introduce other evidence, clearly in and within its
control and possession, as to whether the hiring rate was
or was not $101 prior to January 12, 1966.
With awareness of the General Counsel's burden of
proof, we find, under all the facts and circumstances,
substantial and probative evidence leading to the
conclusion that on January 12, 1966, the Company
unilaterally placed into effect a higher hiring rate for
laboratory technicians than that which had previously
prevailed.
It is our opinion that the complaint, the evidence, and
the litigation apprised the Company of the contentions of
the General Counsel. Paragraph 7(c) of the complaint
alleges a violation of Section 8(a)(5) and (1) of the Act, in
that, "on or about January 10, 1966, in unilaterally
changing the wages and working conditions of the
employees in the unit described in paragraph 5 [the
certified unit that included laboratory technicians] above
without notice to or negotiation with the Union." Luken's
testimony was in evidence and he was subject to cross-
examination. Further, with respect to the January 2, 1966,
wage increase for laboratory technicians which we have
previously considered, above, the General Counsel
introduced his Exhibit 12, a document prepared by the
Company. The General Counsel stated at the time of
introduction, "Well, we only alleged [with respect to
Exhibit 12] Mr. Examiner, unilateral wage increase. And
this document shows wages of lab technicians raised on
January 2, 1966, which was subsequent to the issuance of
the certification of representative, and that is the only
purpose for which this document is being offered."
We find that by unilateral wage increases to laboratory
technicians on January 2, 1966, the Company violated
Section 8(a)(5) and (1) of the Act. We find that by
unilaterally paying newly hired laboratory technicians on
January 12, 1966, and thereafter, a higher starting rate
than that which previously had existed, the Company
violated Section 8(a)(5) and (1) of the Act.
E. A Procedural Aspect
At the time Respondent commenced introducing its
defense in the instant proceeding, the Union and the
General Counsel, the latter in a somewhat qualified
manner, objected that Respondent was seeking to
relitigate the issues in the representation case. The
Respondent denied such an intent but said that he
proposed to show that there was a valid contract on
February 22, 1965, since this was essential to its Section
8(d) defense in the unfair labor practice case. The
Examiner allowed the Respondent to proceed, indicating
that, when the record was complete, the Examiner would
50 The last prior hiring of a laboratory technician was in
December 1964.
51 "It is thus apparent that the Essence of the hearsay rule is a
requirement that testimonial assertions shall be subjected to the
test of cross-examination ...." V Wigmore, Evidence, § 1362
Luken, of course, was subjected to cross-examination but
Edwards, whose assertions were described by Luken, was not.
"Hearsay That which does not derive its value solely from the
credit of the witness but rests mainly on the veracity and
competence of other persons," Black's Law Dictionary, 4th
edition.
THE KROGER CO. 889
still be in a position to rule upon the propriety of the
evidence and would do so.
Respondent introduced evidence that is, in many
respects, more detailed and amplified and different from
that introduced in the representation hearing and
considered by the Board. The Respondent asserts that the
evidence shows a named number of employees employed
at Springdale on February 22 and that the figure is more
than 30 percent of the later full complement . The General
Counsel and the Union, although preserving their
objection to the evidence, dispute Respondent's
conclusions as to what the evidence establishes. We have
found it unnecessary, in view of our previously delineated
view of the case, to decide what such evidence establishes.
We have relied upon the Board's findings and decisions in
the representation case since we regard them as binding
and not relitigable before us.52 Evidence seeking to
establish a different factual picture on February 22, 1965,
when the contract was signed, than that shown by the
evidence before the Board and passed upon in its decision,
is not within the Examiner's proper cognizance . There is
no showing that the evidence is newly discovered or that it
was not available at the time of the representation hearing.
Respondent, in fact, had filed a motion for reconsideration
with the Board after the representation decision but
limited the motion to the matter of the inclusion of
laboratory technicians. Respondent has offered no
convincing reason why such evidence should now be
considered. In its brief to the Examiner, Respondent
states simply: "It is unfortunate that the detailed evidence
with respect to employment status at Springdale was not
made available to the Board by the parties in the RC
case." While it may be unfortunate, as Respondent states,
the fact is that such evidence was particularly within the
Respondent's knowledge and control at the time of the
representation hearing.
While we do not consider such evidence cognizable in
the instant case on the issue that was before the Board,
namely the employment picture at Springdale on
February 22, 1965, the critical date under contract-bar
rules, we would regard such evidence as proper, on
employment and other matters after February 22, since
such matters were not before the Board and were not
passed upon by the Board.53 However, as mentioned, our
theory of the case, has made it unnecessary to rely upon
such newly adduced evidence in reaching our decision
with respect to Section 8(d). We have found the Board's
decision adequate and sufficient insofar as it is relevant
herein.
CONCLUSIONS OF LAW
1. Respondent, by refusing to bargain with the certified
Union with respect to a new contract for the entire
certified unit has not violated Section 8(a)(5) and (1) of the
Act.
2. The February 22, 1965, contract is a collective-
bargaining contract within the meaning of Section 8(d) of
the Act.
3. Respondent, by unilaterally raising the wages of
laboratory technicians on January 2, 1966, has violated
Section 8(a)(5) and (1) of the Act.
4. Respondent, by unilaterally paying a higher starting
wage to newly hired laboratory technicians on January 12,
1966, and thereafter, than that prevailing and in effect
before January 12, 1966, has violated Section 8(a)(5) and (1)
of the Act.
5. Except, as found in paragraphs 3 and 4 above,
Respondent has not refused to bargain with respect to the
laboratory technicians.
THE REMEDY
We shall recommend that Respondent cease and desist
from the unfair labor practices found hereinabove and
from any like or related conduct and that it bargain with
the Union as prescribed by Section 8(a)(5) of the Act with
respect to laboratory technicians and, in like or related
situations, with respect to other unit employees
represented by the Union, subject to the limitations of
Section 8(d) of the Act regarding nonlaboratory unit
employees, as found in our decision hereinabove.
Upon the foregoing findings and conclusions and upon
the entire record, the following is issued:
RECOMMENDED ORDER
The Kroger Company, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Unilaterally changing the wage rates of laboratory
technicians in the collective-bargaining unit represented
by Milk and Ice Cream Drivers and Dairy Employees
Union of Greater Cincinnati and Vicinity, Local 98,
AFL-CIO.
(b) In any like or related 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:
(a) Bargain collectively with the aforenamed Union with
respect to laboratory technicians and, in like or related
situations, with respect to other unit employees
represented by said Union, subject to Section 8(d) of the
Act.
(b) Post at its office and plant at Springdale, Ohio,
copies of the attached notice marked "Appendix. 1154
Copies of said notice, to be furnished by the Regional
Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by it to insure 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 receipt of this Decision, what steps
have been taken to comply herewith.55
52 Esquire, Inc (Coronet Instructional Films Division), 109
NLRB 530, enfd 222 F 2d 253 (C A. 7); Pittsburgh Plate Glass
Company v N L R B , 313 U.S. 146, Burroughs Corporation, 118
NLRB 1177
'3 Except, of course, the employment picture at the time of the
representation hearing as compared with the situation on the date
of the contract execution
54 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 "
s' 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 "
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
before changing the wage rates of laboratory
technicians or of other similar or related employees in
the collective-bargaining unit represented by the
aforementioned Union.
Pursuant to the Recommended 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 you that:
WE WILL NOT unilaterally , without negotiation with
Milk and Ice Cream Drivers and Dairy Employees
Union of Greater Cincinnati and Vicinity, Local 98,
AFL-CIO, change the wage rates of laboratory
technicians or of other similar or related employees in
the collective-bargaining unit represented by the
aforementioned Union.
WE WILL bargain collectively with the
aforementioned Union with respect to laboratory
technicians and we will negotiate with the said Union
THE KROGER COMPANY
(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 compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.