The Kroger Co.

National Labor Relations Board - Board Decisions

Feb 10, 1977

228 N.L.R.B. 149 (N.L.R.B. 1977)

THE KROGER CO. 149
The Kroger Co. and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO,
Local 540. Cases 16-CA-5898 and 16-RC-6827
February 10, 1977
DECISION AND ORDER
On September 30, 1975, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and Respondent filed cross-exceptions and a
supporting brief.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings , findings, and conclusions of the Administra-
tive Law Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent did not violate Section 8(a)(3) by reduc-
ing the hours of work of its employees Georgia Faye
Morton, Joyce Jillson, and Virginia Holder by
transferring these employees from its Denison, Texas,
store to its stores in Sherman, Texas,' and by, in
effect, forcing Georgia Faye Morton to quit her
employment because of her transfer. We find merit in
the General Counsel's and the Charging Party's
exceptions to these findings.
It is undisputed that during the early part of
September 1974 Morton obtained union authoriza-
tion cards from a fellow employee, Bob Overturf,
head meatcutter of the meat department. Morton
distributed these cards to Respondent's delicatessen
employees,2 informing them that if they signed the
cards the union representative could come to meet
with them and that the cards would authorize the
Union to be their representative. As a result of
Morton's efforts, all six of Respondent's delicatessen
department employees had signed authorization
cards by September 19, 1974.3 During the following
months, this organizational activity continued. On
October 17, 1974, Fred H. Tilson, a union agent, met
with the delicatessen department employees and on
October 25, 1974, Tilson demanded recognition on
their behalf.4 This demand for recognition was
renewed on November 17, 1974, by the Union's
president and business manager. Respondent refused
both demands.
That Respondent was aware of Georgia Faye
Morton's union activities is also apparent. Thus, on
Jillson and Holder were transferred to Respondent's Sherman , Texas,
store . Morton was transferred to the Sher-Den Mall in Sherman , Texas.
2 Overturf testified that one or two of the six delicatessen department
employees received their cards directly from him.
3 We affirm the Administrative Law Judge's finding that the seventh
individual working in the delicatessen department , Willis Hall, is a supervi-
sor within the meaning of Sec. 2(11) of the Act.
228 NLRB No. 19
or about December 16, 1974, Store Manager Ken
White, while unlawfully coercing employee Jillson to
withdraw her assistance and support from the Union,
stated: "We know that Faye's an instigator back
there." During the same conversation, White asked
Jillson "to talk the union down to all the girls in the
back." 5
Respondent, nevertheless, contends that Morton's
hours were reduced in mid-December 1974 because
of her failure to report for work on a morning when
she was scheduled to do the doughnut baking. In
support of this contention, White testified that
Morton previously was reprimanded for the poor
quality of her work , as well as for spending too much
time smoking in the restroom and receiving too many
personal telephone calls.
Morton, however, testified that on the occasion in
question she was scheduled for work at 7 a.m. but
overslept 1 hour. When she called Hall, the depart-
ment manager, at 8 a.m., he told her that he had
already gotten Joyce Jillson to come in and work in
her place for the day. Morton, nonetheless, went to
work to talk to Hall. When she arrived at 9 a.m., Hall
turned his back on her and told her "to get the hell
out of the store." Morton also noted in her testimony
that two former delicatessen department employees,
Richard Jones and Debbie Lambert, had been late on
occasion but were never disciplined to her knowl-
edge. When Morton mentioned these employees to
Hall, he responded: "Well, that is them, and this is
you." Morton also testified that she was never
seriously disciplined or late to work except on this
one occasion.
Shortly after this incident in mid-December 1974,
Morton's hours were cut from between 15 to 25 hours
of work to 10 hours of work per week. Stressing
White's testimony that Morton had received previous
warnings concerning her work performance and that
her failure to report for work as scheduled "might
have been extremely costly to the Respondent," the
Administrative Law Judge did not find Respondent's
reduction of Morton's hours to be coercive or
discriminatory. We disagree.
It is significant that Morton's undesirable conduct
on which the Administrative Law Judge relied
occurred during the summer of 1974, almost 5
months before Morton's reduction in hours .6 During
this period, Respondent's delicatessen department
manager, Hall, was aware that Morton was experi-
encing personal difficulties and Hall had expressed
4 Tilson testified that this was a verbal request made of Jim Sneyd, The
Kroger Co. personnel director.
5 We affirm the Administrative Law Judge's finding that White 's conduct
constitutes unlawful coercion of employees in violation of Sec. 8(a)(l) of the
Act.
6 White testified that his initial discussion with Morton concerning her
work performance occurred in August 1974.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his willingness to go along with Morton until she got
her problems straightened out.7 When viewed in this
light, the relationship of Morton's conduct in the
summer of 1974 to the tardiness incident in mid-
December appears too attenuated to support the
asserted justification for her reduction in hours. We
note , moreover, that Betty Potts, assistant manager of
the delicatessen, indicated that she was not aware of
any occasion in which doughnuts were ruined be-
cause of an employee's tardiness. According to her
testimony, more doughnuts were ruined when the
employee responsible was at work and let the
doughnuts overproof so that they became grease-
soaked. In light of the foregoing, we find Respon-
dent's asserted justification for Morton's consider-
able reduction in hours unpersuasive. Rather, we
view Respondent's reduction of Morton's hours in
mid-December 1974 as part of Respondent's escalat-
ing antiunion campaign which included the unlawful
interrogation of employees, threats to close down the
delicatessen department if the Union was allowed to
come in, the solicitation of employees to persuade
other employees to refrain from union support, and,
as discussed below, the discriminatory transfer of
three employees who had signed authorization cards.
Particularly probative in this vein is Respondent's
indication that Morton was viewed as the union
instigator. When we consider this in the context of
Respondent's other unlawful antiunion activity, we
are impelled to conclude that Respondent's reduction
of Morton's hours was discriminatorily motivated in
violation of Section 8(a)(3), and we so find.
The inquiry into Respondent's motive for the
transfer of Jillson and Holder to the Sherman, Texas,
store, the subsequent reduction of their work hours,
and the transfer of Morton to the Sher-Den Mall in
Sherman, Texas, must also start with the fact that
Respondent's decision came in the midst of the union
organizational campaign, with Respondent's knowl-
edge of the pending representation petition. In this
vein, particularly suspect is the timing of the transfers
in that the three employees were informed of their
transfers on January 10, 1975,8 less than 4 weeks
before the February 3 election.9 That their transfer
was substantially motivated by Respondent's effort to
decimate the Union's strength is evidenced by the
record testimony. Thus, Bob Overturf testified that in
discussing Morton's transfer to the Sher-Den Mall
with Store Manager White,10 White stated that
Morton "had to go over there as a checker" and that
"she'd probably go over there for two or three days
... and then they'd have to let her go because she
couldn't check."" Overturf further testified that in
subsequently discussing the situation with Delicates-
sen Department Manager Hall, Hall noted with
respect to the shortage of help in the delicatessen that
it did not make any difference because he "wasn't
going to get his girls back because of. . .`the Union
mess,' and if the union mess continued and if [the
delicatessen ] did go Union, that [Respondent] would
shut it down anyway." Joyce Jillson similarly testified
that, on the day she was advised of her transfer, she
asked Hall if there was a chance of returning to the
Denison store. Hall responded: "Yeah, but it'll be
after all this mess is straightened out." Also revealing
of Respondent's real motive is the testimony of Betty
Potts. Potts indicated that on February 2, 1975, while
speaking with Hall about the Union, Hall informed
her that Mr. Sneyd 12 would close down the delicates-
sen before he would let it go Union. Hall also
indicated that Sneyd added: "Now, that's not a
threat, that's a promise."
Notwithstanding the foregoing, Respondent con-
tends that its decision to transfer the three employees
stemmed from its new method of operation in the
delicatessen department relative to the preparation of
doughnuts and pastries. To support its position,
Respondent produced evidence indicating that for
1974 the Denison delicatessen operated at a net loss
of $10,000. Both Mr. White and Mr. Logan 13 testified
that as a result of this loss they discussed the
feasibility of reducing labor costs in the delicatessen
department by finding a local supplier of the dough-
nuts and other pastries which were being prepared on
the delicatessen premises. It was further explained
that the decision to alter the delicatessen's method of
operation was economical14 since it enabled Respon-
dent to increase profits and to reduce the total
number of employee work hours per week. Thus,
White testified that prior to this change in operation
about 180 to 200 employee work hours were alloted to
the delicatessen, whereas after the change the hours
were reduced to about 125.15
' Morton testified that , in discussin& her work with Hall, she informed
him that her mother had been seriously ill and had passed away and that she
was having family problems.
8 Around the same time , Geneva Farrington was advised that she was
being laid off. Her layoff, however, is not alleged as a violation of Sec. 8(aX3)
and (l)
9 The tally was one vote for the petitioning union , one against, and five
challenged . Because the objections filed by Petitioner were directly related to
the unfair labor practice charges herein , the cases were consolidated for
heanng
10 Overturf was also present when White informed Morton of her
transfer Overturfs conversation with White took place later in the same day.
11 Morton testified that she had no previous experience as a checker. It is
also noteworthy that Morton told White that she could not possibly accept
the transfer because she did not have transportation. White indicated that if
Morton refused the transfer she was without alob.
i2 As mentioned , Jim Sneyd is the Kroger Co. personnel director.
13 George J. Logan is the delicatessen baking merchandiser for Respon-
dent's Dallas division.
14 White testified that, while he made the decision to alter the delicates-
sen's operation , Mr. Sneyd arranged the transfers
15 Betty Potts testified that the hours were reduced to about 150.
THE KROGER CO. 151
The record also indicates, however, that the prepa-
ration of doughnuts on the delicatessen premises took
only about 15 to 16 hours per week. On a weekly
basis, therefore, the hours no longer necessary for the
baking of doughnuts do not even begin to approxi-
mate the 55-80-hour reduction effected by Respon-
dent. Delicatessen employee Betty Potts testified,
moreover, that shortly after the Denison delicatessen
stopped baking doughnuts on the premises it began
baking its own bread. Potts further indicated that it
takes about 2 hours a day to bake bread, which, on a
weekly basis, would almost equal the number of
hours saved through the elimination of doughnut
making.
Perhaps of even greater significance is that Jillson
and Holder, whose transfers were assertedly necessi-
tated by the change in the Denison delicatessen's
operation, were transferred to a store which appar-
ently had no need for them. When Jillson and Holder
began work at the Sherman store, their hours of work,
which were reduced from approximately 36 to 15
hours per week, were created by deducting hours
from the eight employees who were already working
regularly in the Sherman delicatessen. The record
further indicates that the Sherman store, which also
suffered a financial loss in 1974, does only slightly
more business than the Denison store. Nevertheless,
after the transfers of Jillson and Holder, the Sherman
delicatessen employed 10 whereas the Denison deli-
catessen employees were reduced to 3. This belies
Respondent's expressed concern of financial stress
and the need for more efficient operation.
Mr. Logan also testified that, while none of
Respondent's 22 delicatessens in the Dallas district
made a profit in 1974, the Denison delicatessen was
one of the "top three," with respect to sales and gross
profits. It is also evident that prior to January 1975
only 1 of these 22 delicatessens bought doughnuts
from an outside supplier.16 In this context, that
Respondent chose to alter the operation of one of its
most successful delicatessens in a manner purported-
ly requiring the transfer of three of its employees, and
at a time when that delicatessen's employees were in
the midst of an organizational campaign, is highly
suspicious.
16 Respondent 's store in Shreveport began its purchase of doughnuts
from an outside supplier sometime during the fall of 1974. It is also evident
that, shortly before the hearing in this matter on July 8 and 9, 1975,
Respondent's Sherman store , to which employees Jillson and Holder were
transferred , similarly altered its operation . Jillson testified that she was
informed by Margaret Clark, the Sherman delicatessen's manager , that the
change in operation would not necessitate any layoffs whatsoever. This is in
apparent contrast to Respondent's contention regarding the effects of the
similar change at the Denison delicatessen in January.
17 For the reasons stated in his separate opinion in Drug Package
Company, Inc. 228 NLRB 108 (1977), Member Walther agrees that
Respondent has violated Sec. 8(aX5), and that a bargaining order, effective
December 15, 1974, is the appropriate remedy.
Indeed, when the foregoing is viewed against the
background of Respondent's unlawful antiunion
activity, Respondent's contention that its transfer of
employees Martin, Jillson, and Holder was solely
economically motivated and was unrelated to union
organization is not impressive. Rather, we view the
transfer of Jillson and Holder, the subsequent reduc-
tion in their hours, and the offer of transfer to Morton
as designed to undermine the Union's strength in the
Denison delicatessen. We therefore conclude, con-
trary to the Administrative Law Judge, that Respon-
dent's conduct violated Section 8(a)(3) and (1) of the
Act, and we shall issue an appropriate remedy.
We further find that Respondent's refusal to
bargain violated Section 8(a)(5) and (1) of the Act.
Under the principles set forth in Trading Port, Inc.,
219 NLRB 298 (1975), we find that Respondent had a
duty to bargain as of December 15, 1974, the date on
which Respondent embarked on a clear course of
unlawful conduct which undermined Petitioner's
majority status and made the holding of a fair
election improbable.17 Notwithstanding that the
complaint, as amended, did not specifically allege
Respondent's refusal to bargain as an independent
violation of the Act, the facts with respect to this
violation-the Union's demand for recognition based
on a card majority, Respondent's refusal, and Re-
spondent's commission of various unfair labor prac-
tices-were fully litigated at the hearing and are
supported by the evidence. These are the necessary
elements for an 8(a)(5) finding. Since these issues
have been litigated, it is therefore appropriate for us
to find a violation of Section 8(a)(5) in Respondent's
refusal to bargain.18
THE REMEDY
In order to effectuate the policies of the Act, we
find that it is necessary that Respondent be ordered
to cease and desist from the unfair labor practices
found; to take certain affirmative action, including
offering Georgia Faye Morton, Joyce Jillson, and
Virginia Holder reinstatement to their former jobs at
the Denison delicatessen or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges; to make Jillson and Holder whole for any
Members Fanning and Jenkins would find that Respondent refused to
bargain in violation of Sec. 8(a)(5) as of the Union's October 25, 1974,
demand for recognition. As indicated in his concurring opinion in Trading
Port, Inc., Member Fanning would base his finding upon his view that under
N.L.RB v. Gissel Packing Co., Inc., 395 U S. 575 (1969), a union may
establish its exclusive representative status through the use of authorization
cards where , as here , an employer makes the holding of a fair election
improbable as a consequence of its unfair labor practices . Member Jenkins
concurs in this view.
18 See, e.g., Schwab Foods, Inc., d/b/a Scotts IGA Foodlmer, 223 NLRB
394(1976).
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of earnings they may have suffered by reason of
their discriminatory reduction in hours, with said
losses to be computed from January 10, 1975, the
date of their transfer, until full reinstatement is
offered; to make Morton whole for any loss of
earnings she may have suffered by reason of the
discriminatory offer of transfer made to her by
Respondent on January 10, 1975, with said losses to
be computed from January 10, 1975, until full
reinstatement is offered;19 and to make Morton
whole for any loss of earnings she may have suffered
by reason of the discriminatory reduction in her
hours in mid-December 1974, with said losses to be
computed from mid-December 1974 until January
10, 1975. Backpay shall be computed on a quarterly
basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
We have also concluded that Respondent's transfer
of Morton, Jillson, and Holder, as well as the
reduction in their hours, was designed to undermine
the Union's majority strength. 20 Since we are also of
the view that Respondent's unlawful conduct is so
serious and substantial in character as to render a fair
and free election improbable, we shall order issuance
of a remedial bargaining order. In light of this
remedy, we shall vacate the Administrative Law
Judge's recommended Order that a second election
be conducted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
The Kroger Co., Denison, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees employed in the delica-
tessen department of its Denison, Texas, store con-
cerning their union activities and interests or solicit-
ing employees to persuade other employees to refrain
from union activities.
(b) Threatening or coercing employees of the
delicatessen department of the Denison, Texas, store
by indicating in any manner that the department
might be closed in the event the employees should
19 We note that, unlike Jilison and Holder, Morton did not accept her
offer of transfer to the Sher-Den Mall store , in Sherman , Texas, as a cashier
Morton testified that while she was able to walk to her employment at the
Denison store she was unable to accept the transfer to the Sher -Den Mall
store , which is approximately 5 miles from the Demson store , because she did
not have an automobile As mentioned , Respondent was unwilling to make
an accomodation of Morton's lack of transportation , indicating instead that
if Morton did not accept the transfer she was out ofajob While there is also
testimony in the record that Morton was frequently able to obtain a ride to
the Denison store during periods of inclement weather , we do not view this as
sufficient to negate Morton 's explanation as to her inaccessibility to the Sher-
select the Union as their collective-bargaining repre-
sentative; or that the Respondent would never accept
a collective-bargaining representative on behalf of the
delicatessen department employees at the Denison,
Texas, store.
(c) Discouraging membership in or activity on
behalf of Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local 540,
or any other labor organization, by transferring
employees to jobs at different stores and by reducing
employees' work hours.
(d) Refusing to recognize and bargain collectively
with Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, Local 540, as the
exclusive bargaining representative of its employees
in the appropriate bargaining unit described below.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith
with the Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, Local 540,
for the unit described herein with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment. The bargaining unit
is: 21
All regular full-time and regular part-time delica-
tessen employees employed in the Respondent's
store in Denison, Texas, exclusive of all grocery,
produce, dairy and meat employees, package
boys, office clerks, guards, watchmen, and super-
visors as defined in the Act.
(b) Offer Georgia Fay Morton, Joyce Jillson, and
Virginia Holder immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prejudice
to any rights and privileges to which they are entitled,
and make them whole in the manner and in accord-
ance with the method set forth in the section herein
entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
Den Mall store We find therefore that Respondent 's offer of transfer to
Morton, in effect, constitutes a constructive discharge for reasons proscribed
by Sec 8(a)(3)
70 As mentioned, all six of the Denison delicatessen employees had signed
authorization cards by September 19, 1974
21 The unit description found appropriate herein is set forth in par 10 of
the amended complaint which was admitted by Respondent in its amended
answer We note further that on February 3, 1974, pursuant to a Stipulation
for Certification Upon Consent Election, an election was conducted in the
unit described herein in accordance with the mutual agreement of the parties
THE KROGER CO.
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Denison, Texas, store copies of the
attached notice marked "Appendix." 22 Copies of said
notice, on forms provided by the Regional Director
for Region 16, after being duly signed by an autho-
rized representative of Respondent, shall be posted
by it, immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the election held on
February 3, 1975, among Respondent's employees in
the appropriate unit, be, and it hereby is, set aside
and that the petition in Case 16-RC-6827 be, and it
hereby is, dismissed.
22 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate our em-
ployees concerning their union activities or solicit
employees to persuade other employees to refrain
from union activities.
WE WILL NOT threaten to close our store in the
event the Union is selected by our employees.
WE WILL NOT discourage membership in Amal-
gamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local 540, or any
other labor organization , by transferring employ-
ees to jobs at other stores and by reducing
employees ' work hours.
WE WILL NOT refuse to recognize or bargain
collectively with Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO,
Local 540, as the exclusive bargaining representa-
tive of our employees in the appropriate bargain-
ing unit described below.
153
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of rights guaranteed them by the National
Labor Relations Act.
WE WILL, upon request, recognize and bargain
collectively in good faith with Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, Local 540, as the exclusive bargaining
representative of all regular full-time and regular
part-time delicatessen employees employed in our
store in Denison , Texas , exclusive of all grocery,
produce , dairy and meat employees , package
boys, office clerks , guards , watchmen , and super-
visors as defined in the Act.
WE WILL offer Georgia Faye Morton, Joyce
Jillson , and Virginia Holder immediate and full
reinstatement to their former jobs or , if those jobs
no longer exist, to substantially equivalent posi-
tions without prejudice to any rights and privileg-
es to which they are entitled , and WE WILL make
them whole for any losses incurred as a result of
our discrimination against them.
THE KROGER CO.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: These
consolidated cases were heard by me in Sherman, Texas, on
July 8 and 9, 1975.1 The original charge in Case 16-CA-
5898 was filed by the Union on January 10 and served on
Respondent by registered mail on January 13; the first
amended charge was filed by the Union on January 15 and
served on Respondent by registered mail on or about
January 17. The complaint was issued on March 31.
Respondent's answer of April 7, and amended answer of
June 23, admitted certain facts, but denied any illegal or
improper conduct.
Pursuant to a Stipulation for Certification Upon Consent
Election, an election by secret ballot was conducted on
February 3 in the following agreed-upon appropriate
bargaining unit:
All regular full-time and regular part-time delicatessen
employees employed in the Employer's store in Deni-
son, Texas, excluding all grocery, produce, dairy and
meat employees, package boys, office clerks, guards,
watchmen and supervisors as defined in the Act.
There were seven votes cast, with five votes challenged and,
of the two remaining, one was cast for the petitioning union
and one for no union. On February 7, the Petitioner filed
timely objections to conduct affecting the results of the
election. The Regional Director found the election objec-
tions to be directly related to the alleged discrimination and
I All dates hereinafter shall be in 1975 unless otherwise indicated
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other alleged acts of interrogation, threats, and coercion of
the employees, which had been alleged as violative of
Section 8(ax 1) and (3) of the Act in Case 16-CA-5898. On
June 13 the Regional Director issued an amended com-
plaint and notice of hearing consolidating the unfair labor
practice case and the questions raised by the objections to
the election and the challenged ballots for hearing before an
Administrative Law Judge.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, Petitioner, Charg-
ing Party, and Respondent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, The Kroger Co., is, and at all times material
herein has been, a corporation organized under and existing
by virtue of the laws of the State of Ohio. Respondent
maintains an office and principal place of business in the
city of Dallas, Texas, where it is engaged in the retail
grocery business. Respondent maintains retail grocery
stores at various locations throughout Texas, including
Denison and Sherman. During the 12 months preceding the
issuance of complaint, which period is representative of all
times material herein , Respondent , in the course and
conduct of its business operations at the Denison, Texas,
retail grocery store, sold grocery and other related items
valued in excess of $500,000. During the same period,
Respondent purchased and received goods valued in excess
of $50,000 directly from suppliers located outside the State
of Texas. Upon the basis of these admitted facts, I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Respondent admits, and I herewith find, the Amal-
gamated Meat Cutters and Butcher Workmen of North
America , AFL-CIO, Local 540, to be , and all times
material herein to have been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Is Willis Hall a supervisor within the meaning of
Section 2(11) of the Act?
2. Are the union authorization cards "tainted" because
of supervisory solicitation?
3. What were the real motivating forces causing Re-
spondent to change the delicatessen operation in its
Denison, Texas, store?
4. Was the reduction in hours and the transfer of
employees Morton, Jillson, and Holder from the Denison,
Texas, store to the Sherman, Texas, stores discriminatory in
violation of Section 8(a)(3) of the Act?
2 While this may be a possible violation of Sec . 8(a)(1) of the Act , only the
events occurring between the date of the filing of the petition , December 23,
1974, and the date of the election , February 3 , may serve as a basis for
5. Did Respondent's supervisors interrogate, threaten,
or make promises in violation of Section 8(a)(1) of the Act?
6. How does the resolution of the above issues affect the
voting rights of those voters whose ballots were challenged
at the February 3 election? Should a new election be
ordered?
B. The Evidence
During the first half of September 1974, one of Respon-
dent's delicatessen employees at the Denison, Texas, store,
Georgia Faye Morton, obtained union authorization cards
from a fellow employee, Bob Overturf, the head meat cutter
of the meat department. Morton distributed these cards to
the employees of the delicatessen department, although
Overturf testified that one or two of the employees obtained
their cards directly from him. In any event, by September
19, 1974, six of the seven employees working in the
delicatessen department (Willis Hall is the seventh employ-
ee and his status as a supervisor is at issue) had signed
union authorization cards (see G.C. Exhs. 2, 3, 4, 6, 7, and
8).
Fred H. Tilson, a union agent, testified that he had a
meeting with the deli department employees on October 17,
1974, and on October 25 he demanded recognition on
behalf of the deli department employees. This was a verbal
request made of Jim Sneyd, the Kroger Co. personnel
director. Tilson further testified that the president and
business manager of the Union renewed the demand for
recognition on November 17, 1974.
The petition in Case 16-RC-6827 was filed on December
23, 1974, requesting that an election be held in an
appropriate bargaining unit described as including all
regular full-time and regular part-time delicatessen employ-
ees employed in the Respondent's store in Denison, Texas,
but excluding all grocery, produce, dairy and meat employ-
ees, package boys, supervisors, guards, watchmen and
office clerks as defined in the Act. On January 23, the
Respondent and the Union entered into a Stipulation for
Certification Upon Consent Election and the election was
held on February 3. As heretofore indicated, the election
resulted in five ballots being challenged and one ballot
being cast for the Union and one for no union.
Employee Betty Potts testified that on or about Decem-
ber 15, 1974, while she was working in the delicatessen
department Irby Smith, assistant manager of the store,
approached her and asked, "Betty, who's prounion back
here?" The Respondent did not call Irby Smith to testify
and this questioning of a rank-and-file employee by the
assistant manager stands in the record undenied.2
Employee Joyce Jillson testified that on or about Decem-
ber 20 she and Willis Hall were working together in the
delicatessen at which time Hall asked her, "Joyce, just what
- just what do you stand to gain from joining the Union?"
And she said, "Mr. Hall, they have good benefits... .
They also give us representation....Also I might even get
a pay increase out of it." And he said "Why should I join
the Union when every time they get a raise in Sherman, I
get it over here, and I don't even have to pay the union
objections to the election . Ideal Electric and Manufacturing Company, 134
NLRB 1275( 1961).
THE KROGER CO.
dues." Jillson said , "Well, Mr. Hall who do you think got
you that raise? . . . The Union is the one that fought for it,
and got it for you." On another occasion testified to as
being on or about December 16, Jillson testified, the store
manager, Ken White, spoke to her alone and said, "I hope I
can count on a no vote from you" in the election which will
be coming up in 3 or 4 weeks. He also asked her "To talk
the Union down to all the girls in the back." White did not
deny having had such a conversation with Jillson.
Employee Betty Potts also testified that on or about
December 27 while she was working in the delicatessen
department that Willis Hall said to her, "Betty, I'm going to
be mighty unhappy if I lose my job over this mess." Hall
continued, "I sure would hate standing in the unemploy-
ment line ." To which Betty Potts replied, "Well, Mr. Hall, if
you do, I'm sure you won't be the only one." Hall went on
to say, "They're not going to pay this kind of wages to this
store when they don't pay that kind of wages to another.
That don't make sense ." Betty Potts further testified that on
or about February 2, while she was baking cookies in front
of the oven, Willis Hall came over to her and said that
Sneyd was not going to let it go. Moreover, Potts testified
that there were various times when Hall commented to her
that Kroger was not going to let it go union, "That there
wasn't no way it would go union." On one occasion, he
said, "Now that's not a threat. That's a promise." This
testimony stands in the record unrefuted.
On one occasion in mid-December 1974, Georgia Faye
Morton was scheduled to report for work at 7 a.m. to do the
donut baking and preparation for the day. On this occasion,
Morton testified that her alarm did not go off and that she
overslept. When she called and spoke to Hall about 8 a.m.,
he told her that he had already gotten Joyce Jillson to come
in and work in her place for the day. Thereafter, Morton's
hours were cut from between 15 to 25 hours of work, to 10
hours of work per week. Morton testified that she had never
been seriously reprimanded or late to work except on this
one occasion.
White, however, testified that he was the one that was
responsible for the reduction in her hours and that she had
previously been reprimanded for the poor quality of her
work, as well as spending too much time smoking in the
restroom, and she received too many personal telephone
calls.
Both Respondent' s witnesses and General Counsel's
witnesses testified that George J. Logan, the delicatessen
bakery merchandiser for the Dallas division of Respondent,
held a meeting with the delicatessen employees on January
2 at which time he reviewed the financial performance of
the Denison delicatessen department for the past year. This
financial report, while reflecting favorably on the total
dollar volume of business generated by the Denison
delicatessen , nevertheless, indicated that the department
operated at a net loss of approximately $10,000 for 1974
(see Resp . Exh. 1). Shortly after this financial report was
received both White and Logan testified that they discussed
the feasibility of reducing labor costs in the delicatessen
3 Sec 2(11) of the Act reads as follows:
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
155
department by finding a local supplier of the donuts and
other pastries which were being baked or fried on the
premises of the delicatessen. By January 10 this new
method of operating had been accomplished and Geneva
Farrington was advised that she was being laid off, and
employees Jillson and Virginia Holder were offered trans-
fers to the delicatessen department of the Sherman, Texas,
store and employee Georgia Faye Morton was offered a
transfer to the Sher-Den Mall store in Sherman, Texas, as a
cashier. According to the testimony of White, he made the
decision to alter the method of operating the deli, but the
transfers, or offers of transfers, were arranged by Sneyd.
Employees Jillson and Holder accepted the transfer to the
Sherman delicatessen although their hours of work were
reduced to approximately one-half of what they had been
working in the Denison store. Employee Morton testified
that she was unable to accept the transfer because she did
not have an automobile, and it would be impossible for her
to work at the Sher-Den Mall store.
It is the General Counsel's contention that the action of
reducing the hours of work of Morton, Jillson, and Holder,
when viewed in light of the threats to close down the
delicatessen, the interrogation of the employees about their
union activities and desires, and the solicitation of the
employees to abandon the Union, clearly emerges as a
violation of Section 8(a)(3) of the Act. Respondent defends
its conduct on the basis of economic justification and
presented economic data indicating that, for the first half of
1975, the new method of operating resulted in a net
operating gain or profit instead of the substantial loss that
had occurred for the corresponding period in 1974. (See
Resp. Exhs. 2 and 3.)
Analysis and Legal Considerations
Respondent denies that Willis Hall, delicatessen depart-
ment manager, is a supervisor within the meaning of the
Act,3 while at the same time contending that the union
authorization cards were "tainted" because of "Supervisor
Overturf s" limited participation in the distribution of the
cards to the employees. While I am quite sure, based on the
testimony of the store manager , Ken White, that Willis Hall
does not have the authority to hire and/or fire employees, I
am convinced that he does have the responsibility to direct
the activities of the employees in the delicatessen depart-
ment. While Hall performed a substantial amount of
manual work in much the same fashion as did the other
employees, nevertheless, he directed the other employees
and assigned them various tasks as the occasion arose. He
also prepared the weekly schedules which were, in turn,
approved by White, but in doing so Hall had ample
opportunity to reward or discipline the other employees.
While Hall was paid on an hourly rate and received
overtime payments for hours in excess of 40 per week or 8
responsibly to direct them, or to adjust their grievances, or effectively to
recommend such action , if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per day, his hourly rate was 60 to 70 percent greater than
the next highest paid employee in the department .4 The
testimony is undisputed that the employees looked to Hall
in the day-to-day performance of their duties, and I am
convinced that the General Counsel established a prima
facie case as to the supervisory status of Hall, which the
Respondent did not effectively rebut .5 I fmd Willis Hall to
be a supervisor within the meaning of Section 2(11) of the
Act and, accordingly, Respondent shall be held account-
able for his conduct.
There can be no doubt that Bob Overturf, meat depart-
ment manager at the Denison store, who had a classifica-
tion of head meat cutter, occupied a status similar to that of
Willis Hall and, unquestionably, is a supervisor within the
meaning of the Act. The evidence, however, indicates that
his union activity among the delicatessen employees was
confined to responding to the employees' questions, making
available union authorization cards, and accepting and
delivering to the Union those cards which employees
returned to him. There is nothing in the evidence to indicate
the slightest degree of coercion, intimidation, or even mild
pressure on the part of Overturf to encourage or promote
the signing of union authorization cards. In my opinion, he
was nothing more than a conduit or servant of the
employees' desires. Enforcing the Board's decision in
N.LR.B. v. WKRG-TV, Inc., the Fifth Circuit Court of
Appeals said:6
It is actual pressure and coercion we are seeking to
avoid by our rule disallowing cards tainted by supervi-
sory influence. A mechanical rule that requires a finding
of supervisory solicitation in situations such as we have
here, where there is no hint of intimidation, is too broad.
D
There must be a more substantial exhibition of
pressure than a passing remark or a statement of
prounion conviction. So long as nothing in the words,
deeds, or atmosphere of the alleged "solicitation"
contain the seeds of potential reprisal, punishment, or
intimidation, the involvement of the supervisors does
not rise to the level of supervisory "solicitation" that we
condemmed in American Cable Systems, Inc., supra.
Here the supervisors attended a few union meetings and
at various times made rather tame statements regarding
their approval of the Union. There is not a sufficient
showing to throw out any of the cards, and the Board
was correct in refusing to allow the minimal supervisory
participation in this organization drive to frustrate the
union's otherwise valid majority .7
On the basis of the record testimony and the authorities
indicated, I conclude and fmd that none of the authoriza-
tion cards are invalid as contended by Respondent.
White testified that to his best recollection Hall's rate was approximate-
ly $5.57 per hour, and the next highest paid employee 's was approximately
$3.57 per hour. Other employees in the department testified that their rate of
pays was $2 .90 per hour.
Screwmanc, Inc., 218 NLRB 1372 (1975).
6 190 NLRB 174 (1971), 470 F.2d 1302 (1973).
r The citation for American Cable in the quoted paragraph is- 414 F.2d
661 (C A. 5,1969).
Neither Irby Smith nor Willis Hall, the assistant manager
of the Denison store and the department manager of the
delicatessen at the Denison store, was called by Respon-
dent to testify nor was there any explanation given as to
why they were not called to testify. Not only does the
testimony of Betty Potts and Joyce Jillson stand in the
record undenied, but it is a reasonable inference that had
Smith and/or Hall been called to testify their testimony
would have been adverse to the interests of Respondent .8
No proof of coercive intent or effect is necessary under
Section 8(a)(l), the test being "whether the employer
engaged in conduct which, it may reasonably be said, tends
to interfere with the free exercise of employee rights." Time-
0-Matic, Inc., 264 F.2d 96 (C.A. 7, 1959). Thus, when a
supervisor of a company which has unequivocally ex-
pressed its antiunion sentiments asks an employee about his
union affiliation there is going to follow a natural coercive
effect on the questioned employee .9 This is particularly true
where, as here, there was no legitimate purpose for the
questioning, and the employee was not given assurances
against reprisal.10 I fmd that Respondent by and through
the conduct of its supervisors, White, Smith, and Hall, did
interrogate employees concerning their union membership
and activities and did threaten and coerce employees by
commenting that the delicatessen department would be
closed before the Union was allowed to come in, all of
which is in violation of Section 8(a)(1) of the Act.
The General Counsel alleges the disciplinary action of
Respondent toward Georgia Faye Morton in mid-Decem-
ber when her hours of work were reduced, the transfer of
Jillson and Holder to the Sherman, Texas, store and
subsequent reduction of their work hours, and the transfer
of Georgia Faye Morton to the Sher-Den Mall in Sherman,
Texas, all occurred because said employees joined or
assisted the Union or engaged in other union activity or
concerted activities and thus were discriminatory in viola-
tion of Section 8(a)(3) and (1) of the Act.
Morton's hours were reduced in mid-December because
of her failure to report for work on a morning when she was
scheduled to do the donut baking, which could have
resulted in a substantial loss of money to the Respondent.
This disciplinary measure occurring as it did in the midst of
a union organizational campaign arouses some suspicion;
however, I credit the testimony of Store Manager Ken
White to the effect that Georgia Faye Morton had been
warned concerning her lack of attention to duties, excessive
smoking, and use of the telephone for personal calls. Her
failure to report for work as scheduled reflected a lack of
responsibility and might have been extremely costly to the
Respondent. I find nothing coercive or discriminatory in
Respondent's conduct in reducing Morton's hours in mid-
December and shall recommend dismissal of that allegation
in the complaint.
8 M. J. Pirollt & Sons, Inc., 194 NLRB 241 (1972), and Capitol Engineering
and Mfg. Co., 191 NLRB 641(1971).
9 Cf. N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696 (C.A. 8,
1967).
iU N.LR.B. v. Spotlight Company, Inc, 440 F.2d 928 (C A. 8, 1971).
THE KROGER CO. 157
There remains to be considered the layoff of the delica-
tessen department employees Morton, Holder, Jillson, and
Farrington.11 Ken White, manager of the Denison store,
testified that the decision to try a different method of
operating in the delicatessen department insofar as the
preparation of the donuts and pastries were concerned was
his. A consideration of the problem and a possible solution
to be tried immediately followed the revelations to White
by Logan of the financial contribution, or lack of contribu-
tion, from the delicatessen department. He denies that his
decision to change the method of operating the delicatessen
department was influenced in any way by the appearance
of the Union on the scene and points to the general
downturn of business and the attendant layoff of employees
in other departments of the store that occurred about the
same time. Moreover, the wisdom of the managerial
decision is graphically displayed in Respondent's Exhibit 2
when compared with a corresponding period in the previ-
ous year as reflected by Respondent's Exhibit 3. The
question is one of ascertaining motive. Even if Respon-
dent's business reasons were not the best, unless the change
is illegally motivated, it is not violative of the Act. Here the
business reasons were sound, and I am unable to infer an
illegal motive. Evidence that points in two directions points
in neither. The General Counsel has not satisfied the
required burden of proof. I find nothing discriminatory in
the layoff by Respondent of part-time employees Holder,
Jillson, Morton, and Farrington. Holder and Jillson were
offered transfers to the delicatessen department of the
Sherman, Texas, store and accepted. The fact that Georgia
Faye Morton was unable to accept the transfer to the Sher-
Den Mall store in Sherman because of a lack of transporta-
tion was certainly not the Respondent's fault.12
I have credited the testimony of Ken White, the store
manager, whom I believe to have been an honest, straight-
forward, and candid witness. Under all the circumstances
in the record herein, I find there is no reasonable expectan-
cy on the part of employees Holder, Jillson, Morton, and
Farrington of returning to work in the delicatessen depart-
ment of the Denison store. It follows from what has
heretofore been found that the five challenged ballots
would, under ordinary circumstances, be sustained, and the
results of the election certified. However, in view of the
findings of violation of Section 8(a)(1) of the Act on the
part of Respondent, I shall also find that this same conduct
interfered with the conduct of the election and is sufficient
to warrant setting aside the election, and I shall direct that a
second election be held.13
General Counsel has requested a Gissel-type remedy 14 on
the theory that Respondent's wrongful conduct has effec-
11 While the layoff of Farrington is not alleged as a violation of Sec
8(a)(3) and (1) of the Act, nevertheless, so far as the record reveals the basic
cause of her layoff is the same as that for Holder , Jillson , and Morton and
needs to be considered in order to resolve the status of her challenged ballot
12 There was undisputed testimony in the record that the Sher-Den Mall
store was not more than 5 miles distance from the Denison store and while
Morton was able to walk to her employment at the Denison store , there was
also testimony by her that she frequently was able to obtain a ride during
periods of inclement weather.
tively destroyed the Union's majority, and a fair and free
election would be impossible. In view of my findings
relating to the layoffs and subsequent transfers, we are left
with nothing more than a modicum of 8(a)(1) conduct
which hardly rises to the level of "outrageous" and
"pervasive" conduct where the effects cannot be eliminated
by the application of the traditional remedies.
CONCLUSIONS OF LAW
1. The Respondent, The Kroger Co., is an employer
engaged in commerce within the meaning of the Act.
2. The Union, Amalgamated Meat Cutters and Butcher
Workers of North America, Local 540, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. Willis Hall, delicatessen department manager of the
Respondent's Denison, Texas, store, is a supervisor within
the meaning of Section 2(11) of the Act.
4. By the acts and conduct of Respondent's supervisors
in questioning employees concerning their attitudes and
intentions regarding the Union, and by veiled references to
the closing of the delicatessen and by indications that the
Union would never be accepted, Respondent has engaged
in unfair labor practices proscribed by Section 8(a)(1) of the
Act.15
5. The result of the election held among the employees
of the delicatessen department at The Kroger Co.'s,
Denison, Texas, store on February 3, 1975, is tainted and
shall be set aside and a new election held.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
13 See Holmes Foods, Inc., 170 NLRB 376 (1968). Much of the wrongful
conduct of Willis Hall occurred between December 23, 1974, and February
3, 1975
14 N L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969); also Steel-
Fab, Inc., 212 NLRB 363 (1974).
15 See The Karte! Corporation, d/b/a Big Ben Shoe Store, 172 NLRB 1523
(1968); Peerless of America, Inc., 198 NLRB 982 (1972); and Milco, Inc., 159
NLRB 812 (1966), enfd. 388 F.2d 133 (C.A. 2, 1968).