The Kroger Co.

National Labor Relations Board - Board Decisions

Aug 22, 1985

275 N.L.R.B. 1478 (N.L.R.B. 1985)

1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kroger Company and Tommy J. Boyett and
Wayne Romines and General Truckdrivers,
Warehousemen and Helpers , Local Union No.
891 a/w International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America , Party to the Contract . Cases 15-
CA-9185-1 and 15-CA-9185-2 -
22 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon charges filed 25 November 1983 and 29
November 1983 by Tommy J. Boyett and Wayne
Romines (the Charging Parties), respectively, and
an amended charge filed 12 December 1983 by
Boyett, the General Counsel of the National Labor
Relations Board issued a consolidated complaint on
6 January 1984. The complaint alleges that the Re-
spondent violated Section 8(a)(1) and (2) of the Na-
tional Labor Relations Act by entering into a con-
tract with and by recognizing as the sole bargain-
ing agent for its employees at its Jackson, Missis-
sippi warehouse the General Truckdrivers, Ware-
housemen and Helpers, Local Union No. 891 a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (the
Union) at a time .when the Union did not represent
a majority of the employees in the described unit.
On 22 August 1984 the General Counsel, the
Charging Parties,. the Union, and the Respondent
filed a motion to transfer proceedings to the Board
and stipulation. The ,parties waived a hearing and
the issuance of a decision by an administrative law
judge and submitted the case directly to the Board
for findings of fact, conclusions of law, and deci-
sion. The parties also agreed that their formal stip-
ulation of facts and the exhibits attached thereto
would constitute the entire record before the
Board.
On 27 November 1984 the Board issued an order
granting, the parties' motion,, approving the stipula-
tion, and transferring the proceeding to, the Board.
Thereafter, the General Counsel, the Respondent,
and the Union each filed a brief.
The National Labor-Relations' Board has delegat-
ed its authority in this proceeding, to a three
member panel.
On the entire record and the. briefs, the Board
makes the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is an Ohio corporation with
United States including a facility in Jackson, Mis-
sissippi, where it is engaged in the business of dis-
tributing dry groceries to its retail grocery stores.
In the course and conduct of its business operations
at the Jackson warehouse, the Respondent has an-
nually purchased and received goods and materials
valued over $50,000 directly from parties located
outside the State of Mississippi. We find that the
Respondent is an employer ' engaged' in'commetce
within the meaning of Section 2(6) and (7) of the
Act and that' the Union is -a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
The Respondent opened its Jackson warehouse
on 17 October 1983.1 On 7 September an Interna-
tional representative of the Union advised the Re-
spondent that Teamsters Local 891 had jurisdiction
in Jackson. On 10 October the Respondent and the
Union reached a tentative collective-bargaining
agreement applicable to the warehouse employees
and drivers of the Jackson warehouse. Between 10
October and 17 October, the Respondent hired
three of its planned complement of nine warehouse
employees. These three employees began work on
17 October, and on that date they voted unani-
mously to accept the proposed collective-bargain-
ing agreement and then signed authorization and
dues-checkoff cards. Later that day, the Union in-
formed the Respondent that the three employees
had -unanimously ratified the agreement, and the
Union and the Respondent then executed the
agreement . As of 17 October, the Respondent had
not hired any drivers for the Jackson warehouse.
After 17 October but before 24 October, the Re-
spondent -informed the Union that it could not
extend recognition to the Union and that the con-
tract could not be effective until such time as the
Union could prove that it represented a majority of
all employees _ at the Jackson warehouse. Both
before and after 17 October, the Respondent's
warehouse manager advised each employee at the
time of hiring that the Respondent did not object
to dealing with a union, that there was no require-
ment that the employee join any union or work
under a union contract, and that the Respondent
would "employ the employee without regard to
whether or not he joined a union.
Between 24 October and 10 November, Union
Business Agent Virgil Keefer met with several of
the Respondent's employees who had been hired
places of business located in' several States of the ' All dates are 1983, unless otherwise noted
275 NLRB No. 202
KROGER CO 1479
after 17 October, and solicited their signatures on
authorization and dues-checkoff cards.
By 10 November, the Respondent had hired all
Jackson warehouse employees, consisting of 9
warehouse employees and 12 drivers. On 10 No-.
vember, the Respondent held a safety meeting
which the employees were free.to attend on a vol-
untary basis, without pay. Before the safety meet-
ingp Keefer asked. the Respondent about conducting
another ratification vote with respect to the con-
tract. Keefer was told by the Respondent that he
could meet with the employees at the conclusion of
the safety meeting..
At the conclusion of the safety. meeting , Keefer
discussed the -Union and the proposed contract
with those employees present. None of the Re-
spondent's supervisors or officials were present in
the room during any part of this meeting. Keefer
distributed to the employees several copies of the
contract, asked them to look it over, and then left
the room for approximately 20 minutes. Upon re-
turning.to the meeting, Keefer conducted,a ratifica-
tion vote by secret ballot. The results of the vote
were 18-2 in favor of ratification. After the vote,
Keefer solicited authorization, and dues-checkoff
cards from the employees who had not previously
signed such.cards.
After the meeting, Keefer advised the Respond-
ent of the results of the vote. On or after. 10 No-
vember, Keefer presented the Respondent with
checkoff authorization cards, from a majority of the
employees. The contract has been in effect since 10
November.
B. Contentions of the Parties
The General Counsel argues that the Respondent
violated Section '8(a)(1) and (2) of the Act when it
recognized and executed a contract with the Union
on 17 October, before' the Respondent had em-
ployed a substantial and representative complement
of its work force. Bootlegger Trail, Inc., 242 NLRB
1255 (1979). He cites the two-pronged' test in
Herman Bros., 264 -NLRB 439, 440 (1982),, for- de-
termining if recognition of a 'union is ' lawful: (1•)' at
the time recognition is extended, the ',lobs or-job
classifications designated for'the operationinvolved
must be substantially filled;` and (2) the operation
involved must be in normal production. The Gen-
eral Counsel contends that the Respondent failed
both prongs of this test, as only 3 out of a full com-
plement of 21 employees. were working as-of 17
October;;, and ' as the Respondent ' could not have.
been in normal production without -any triickdriv-
ers.
The General Counsel also argues that the Re-
spondent's subsequent rescission of. the contract
and withdrawal of recognition does not cure its
8(a)(1) and (2) violation of 17 October. He argues
that. the Respondent's initial granting of unlawful
recognition 'to the Union so tainted their relation-
ship that the violation cannot be "self-cured" and
that "any subsequent actions are immaterial." The
General Counsel cites R. J. E. Leasing Corp., .262
NLRB 373, 380 (1982), and Ladies Garment Work-
ers v. NLRB, 366 U.S. 731, 736 (1961), for the
proposition that the initial illegal recognition taint-
ed all that followed so that the fact that the Union
gained . majority. status prior to the execution of the
contract is immaterial.
The Respondent and the Union contend that the
Respondent's initial grant of recognition to the
Union was either lawful or was simply a technical,
isolated violation, devoid of any coercive effects,
and therefore does not warrant any remedy. More-
over, assuming that the initial recognition was un-
lawful,' the Respondent and the Union argue that
the Respondent's subsequent action of withdrawing
recognition and rescinding the contract cured its
earlier violation. The Respondent and the Union
also note in this regard - that the Respondent in-
formed each employee at the time of hiring that he
would not have to join a union or work under a
union ' contract; and that the Respondent would
employ him without regard to whether or not he
joined a union. The Respondent and the Union
note that, in several 8(a)(1) cases, the Board has
held that an employer may relieve himself of liabil-
ity for unlawful conduct by repudiating that con-
duct. E.g., Gray Drugs, 272 NLRB 1389 (1984);
Agri-International, Inc., 271 NLRB 925' (1984); Pas-
savant Memorial Area Hospital, 237 NLRB 138
(1978). ,
The Respondent distinguishes the instant case
from Ladies Garment Workers v. NLRB, supra. In
ILGWU, the Supreme Court reasoned that even if
a union subsequently gains 'majority support, an
employer's initial unlawful grant of recognition
would taint that majority by affording the union "a
deceptive cloak of authority with which to persua-
sively elicit additional employee support." ILGWU,
366 U.S: at 736. The Respondent asserts that it re-
moved any possible "cloak of authority" b_ y with-
drawing recognition from the Union and advising
employees of 'their Section -7 rights, and therefore
the Union's demonstration of majority status on 10
November should not be suspect.
Discussion
If an employer grants recognition to and exe-
cutes a contract with a union before it employs a
,substantial and -representative complement of its
work force, it violates Section 8(a)(1) and (2) of the
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Bootlegger Trail, Inc., 242 NLRB at 1255
(1979). The Board in Herman Bros., 264 NLRB at
430 (1982), used a two-pronged test for determin-
ing-if recognition of a union is lawful: (1) ' at the
time recognition is extended, the jobs or job classi-
fications designated for the operation involved
must be substantially tilled and (2) the operation in-
volved must be in normal production.
We find that -the Respondent failed both -prongs
of this test when it extended recognition to the
Union on 17 October at the Jackson -warehouse.
First, only 3 out of a full complement of 21 em-
ployees were working as of that date.2 Second, no.
truckdrivers had been hired, and therefore the Re-
spondent could not have been.in normal produc-
tion at the Jackson warehouse, as that- facility's
function is to distribute dry groceries to retail
stores. Thus, the Respondent initially violated Sec-
tion 8(a)(1) and (2). by recognizing and entering
into a contract with the Union on 17 October. -
We also find, - however; that the Respondent
cured this violation when shortly after 17 October
it informed the Union that it could not recognize
the Union and that the contract could not be effec-
tive until the Union-could prove that it represented
a majority of all the employees at the Jackson
warehouse. The Respondent also informed each
employee at the time of hiring that the- employee
did not have-to join a union or work under a union
contract, and that he would be employed without
regard to whether he joined a union.
. In Passavant Memorial Area Hospital, supra, the-
Board explained that for an employer's repudiation
to be effective, it must meet the following stand-
ards: - -
[It] must be "timely," "unambiguous," "specif-
ic in nature to the coercive conduct," and
"free from. other proscribed illegal conduct"
. . . . Furthermore, there must be adequate
publication of the repudiation to the employ-
ees involved and there must be no proscribed
conduct on the employer's part after publica-
tion . . . . And, finally . . . such repudiation
. . . should give assurances to employees that
in the future their employer will not interfere
with the exercise-of their Section 7 rights. [237
NLRB at 138-139.]
We find that the Respondent met these standards in
its repudiation of its unlawful conduct on 17 Octo-
ber. The Respondent's repudiation was timely, as it
- 2 We reject the Respondent's argument that it lawfully,extended rec-
ognition to its warehouse employees on 17 October since three out of a
planned complement of nine warehouse employees had been hired as of
that date We find that the contract executed by the parties on 17 Octo:,
ber applied to a unit of warehouse employees and drivers, and therefore
we decline to consider the warehouse employees as a separate unit
occurred within days of 17 October; it was unam-
biguous and, specific in nature to the unlawful con-
duct, as the Respondent expressly withdrew recog-
nition and rescinded the contract, and assured all
employees of-their free choice'-in regard to joining
a union; there was adequate- publication and the
employees were assured that their- Section 7 rights
would not be interfered with in the-future, as the
Respondent told each employee that he would not
have to join a union or work under a' union con-
tract and that he would be employed regardless of
whether' he joined a union; and there was no other
illegal conduct by the Respondent:3 ' '
We find the instant case distinguishable from
ILGWU, supra, R. J. E. Leasing, supra, and SMI of
Worcester,' 271 NLRB 1508 (1984), all of which
state that an employer's initial unlawful recognition
of -a union so tainted subsequent events that the
union's eventual-receipt of majority support was ir-
relevant and did not validate the initial recognition.
Unlike-the instant case, in these three earlier cases
the employers did not revoke their- recognition nor
rescind their contracts with the unions. In' the in-
stant 'case, the Respondent withdrew recognition,
rescinded the contract, and advised each employee
that he -would be' employed - whether or not he
chose to join a union. Thus, we find that the Re-
spondent effectively removed from the Union the
"deceptive cloak of authority" which the Supreme
Court spoke of -in ILGWU, 366'-U.S. at 736, and
therefore the Respondent remedied its earlier viola-
tion. Accordingly, we dismiss the complaint in its
entirety. .
CONCLUSIONS-OF LAW-
1. The Respondent is an employer engaged in
commerce within the meaning - of Section 2(6) and
(7) of the Act. =
2. The Union is a labor organization within' the
meaning of Section 2(5) of the Act.
3. By recognizing and executing a contract with
the Union on 17 October 1983, at which time the
Respondent did not employ - a substantial and repre-
sentative complement, of its work force,, the Re-
spondent violated Section 8(a)(1) and (2) of the
Act.
3 Our dissenting colleague suggests that the manner of the subsequent
ratification vote on 10 November added to the prior unlawful recognition
rather than helped to cure it She notes the fact that the Respondent al-
lowed the Union to conduct the vote at the warehouse immediately fol-
lowing a company meeting, and she also notes the mechanics of the vote
In response, we note that the company meeting was voluntary, and that
no supervisors or officials of the Respondent were present at the follow-
ing ratification meeting Moreover, we note that the General Counsel
does not contend that the conduct of the Respondent in allowing the
Union to discuss ratification with the employees immediately after a com-
pany meeting and/or the mechanics of the ratification vote were unlaw-
ful or support a finding that the earlier recognition was not cured
KROGER CO 1481
4. By withdrawing recognition and rescinding
the contract shortly after 17 October 1983, and by
informing each employee at the time of hiring that
he would not have to join a union or work under a
union contract, the Respondent remedied its 8(a)(1)
and (2) violation.
ORDER
The complaint is,dismissed.
MEMBER DENNIS, dissenting.
I agree with my 'colleagues that the Respondent
violated Section 8(a)(2) and (1) of the Act by rec-
ognizing the Union on 17 October and entering
into a contract with it. I disagree, however, with
their finding that the Respondent's subsequent con-
duct cured this violation; the stipulated facts do not
convincingly demonstrate that the Respondent re-
moved from the Union_ the "deceptive cloak of au-
thority" its earlier conduct had created.
• In order to repudiate its unlawful conduct, the
Respondent at a minimum would have had to
dispel in a clear and unequivocal manner the 'im-
pression that it recognized the Union. While the,
actions the majority relies on were steps in the
right direction, they were inadequate in'several re-
spects. First, although the Respondent originally
recognized the Union based on its first three em-
ployees' authorization cards, there is no evidence
that it informed the three after 17 October that it
had withdrawn recognition. Second, its statements
to the later hires did not include an assurance that
the Respondent would not recognize a union that
did not first demonstrate it represented an un-
coerced majority of employees.' Third, on 10 No-
vember, the Respondent helped reinforce the im-
pression that it already recognized the Union by al-
lowing the contract ratification vote to be conduct-
ed at the company warehouse, immediately follow-
ing a company-sponsored safety meeting. At the
ratification meeting , the Union..first presented the
collective-bargaining agreement that was the prod-
uct of the Respondent's unlawful recognition of the
Union, and did not solicit authorization cards until
after the employees ratified the contract: This un-
usual sequence of events rendered the employees'
cardsigning on' 10 November a mere formality.2
The Respondent's conduct, at best, created un-
certainty as to whether the Union was already rec-
ognized when the employees ratified the contract
and signed authorization cards. Under these cir-
cumstances , the Board's election process' provides
the best means for ascertaining the employees' rep-
resentational desires.3
' Indeed , the statements on which the majority relies to find repudi-
ation do not reach significantly beyond a generalized statement of the
Respondent 's legal obligations
2 Some employees had signed cards before 10 November
3 Because I find the Respondent 's attempted repudiation in this case
inadequate, I find it unnecessary to decide whether an employer ever can
repudiate a premature recognition of a union, thereafter voluntarily rec-
ognize the same union , and avoid an 8(a)(2) violation on the basis of
having cured the premature recognition