Kroger Co., 928 (1974)

Houston Division of the Kroger Co. and Retail Clerks International Association Local No. 455, AFL-CIO and Amalgamated Meat Cutters & Butcher Workmen of North America, District Local 40& AFL-CIO. Cases 23-CA-4304 and 23-CA-4419

February 5, 1974 DECISION AND ORDER

On February 7, 1973, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding, to which thereafter the Respondent-filed exceptions and a supporting brief, and the Charging Parties filed a brief in answer to the Respondent's exceptions.

The Board has considered the record and the Administrative Law Judge's Decision in light of the exceptions and briefs and has decided to reverse the Administrative Law Judge's conclusion that Respondent has violated Section 8(a) (5) of the Act by refusing to recognize and bargain with Retail Clerks Local 455 and Meat Cutters Local 408 with respect to certain employees in two of its stores which were recently transferred from one of its administrative divisions to another. However, we affirm the Administrative Law Judge's findings of fact to the extent consistent herewith.

Respondent is engaged in the operation of a chain of retail food stores in Texas and 19 other States. The Company's retail food chain store operations are divided for managerial and operational purposes into geographical areas or 'Divisions' as designated by the Company. The Company's 'Houston Division' covers approximately the southern halves of Texas and Louisiana, while the 'Dallas Division' corresponds roughly to the northern halves of these two States.

The initial status of a multistore unit of Retail Clerks within the Houston Division was established in 1956 when the Board certified the incumbent Union, Retail Clerks Local 455, as the-representative of all employees within the forerunner of the Houston Division operating in Texas. Meat Cutters Local 408 has been recognized as bargaining agent for nearly 40 years for a unit of meat employees at all Kroger stores within its Houston Division.

Respondent's contracts with Retail Clerks Local 455 since 1963 have contained language virtually the same as that within the current contract as follows:

  1. The Union shall be the sole and exclusive bargaining agent for all employees employed by the Houston Division of Kroger Food Stores in stores operating in the state of Texas, excluding all persons employed in the meat departments ....

    [Emphasis supplied.] The pertinent contract between the Meat Cutters Local and Kroger, which expired April 14, 1973, contains the following language:

  2. The Employer recognizes Meat Cutters Local No. 408 as the exclusive and collective-bargaining agent for all employees in the meat department in all of Employer's retail stores located in the state of Texas operated by the Houston Division of the Kroger Co.

  3. The parties agree that this contract shall cover and the Union which is a party hereto shall have jurisdiction over all meat department employees in retail stores that are, or will be, owned, leased, or operated by the Employer. [Emphasis supplied.] Although there are obvious differences in language between the two contracts, they both purport to add after-acquired stores to the existing multistore units of the Respondent's Houston Division. We shall characterize this type of clause as an additional-store clause.

    The dispute in the instant case arose from an administrative transfer of two of the Respondent's stores, viz, the Nacogdoches and Lufkin stores, from the Dallas to the Houston Division. The Unions contended that the above-quoted contract language brought these two stores, theretofore unrepresented as far as the clerks at both stores and the meatcutters at Nacogdoches were concerned, into the existing multistore units. Furthermore, the Retail Clerks Local claimed to represent a majority of clerk employees at both stores and the Meat Cutters Local to represent a majority of meat employees at the Nacogdoches store.' Admittedly, the Unions accompanied their respective recognition demands on March 22, 1972, for the Retail Clerks Local and on May 26, 1972, for the Meat Cutters Local with an offer of proof of majority support in the form of authorization cards. It is not disputed that the Unions possessed genuine cards signed by a majority of the employees at the time of these demands.

    Respondent, however, rejected the demands for recognition and petitioned for separate elections among clerk employees at the two stores. The Regional Director dismissed these petitions on August 30, 1972, presumably because of the pending of unfair labor practice proceedings which are the subject of this case.2

    During the period from November 15, 1966, 1 Meat Cutters Local 4th did not seek to represent meat employees in the Lufkin store because they are already represented by a sister local.

    2 It does not appear that a petition was filed for meat employees at.either store.

    208 NLRB No. 122

    THE KROGER CO.

    through August 25, 1972, the Company consistently and without question recognized the two locals as the representatives of the employees in each of 27 different newly constructed stores it opened in that period by virtually automatic agreement and without Board-conducted representative elections.

    We have held that the individual retail stores of a large retail chain may constitute individual appropriate units, depending on the facts and circumstances of the case.3 We are in agreement with the Administrative Law Judge that the Nacogdoches and Lufkin stores constituted independent appropriate units for the reasons whicl- were given in his opinion.

    We have held that we will not permit parties to include employees in a newly created presumptively appropriate unit into a larger unit without a proper assessment of employee sentiment as to representation.4 As we stated in the Melbet decision:

    We will not, however, under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them.

    In Melbet, the Board found violations of the Act by the parties' having caused the accretion of a third store to an existing two-store unit in accordance with an additional-store clause in the current labor agreement. Critical to these findings was the fact that the third store was an appropriate unit by itself and that the union lacked majority support in such separate unit. Had the requisite majority support been found, a different result undoubtedly would have obtained.

    Voluntary recognition is an acceptable procedure so long as majority support is demonstrated in some reasonable form. An employer may lawfully recognize a union under circumstances which do not require recognition of the union. Whether he may do so requires one test; whether he must is a different matter.

    Without regard to the additional-store clauses herein, Respondent could have recognized the Unions for the additional stores, because there was 3 Sav-On Drugs, Inc., 138 NLRB 1032 (1962).

    4 Melbet Jewelry Co, Inc, and I D S-Orchard Park, Inc, 180 NLRB 107, 110 If there is a true accretion, the desires of employees are not the critical factor in issue. On the other hand, the employees' wishes become critical if the new unit, as here, is not in fact an accretion.

    5 Linden Lumber Diwsion, Summer & Co., 190 NLRB 718.

    6 Arthur F Dersc, Sr, President, and Wilder Mfg Co., Inc., 198 NLRB No. 123, reviewed and remanded sub nom. Textile Workers Union of America v. N.L.R B. 487 F.2d 1099 (C.A.D.C., 1973).

    929 proof of a card majority. However, in our view, the Respondent was not required to do so.5 It would have been able to, and did, seek Board elections. It could have agreed to a card check, which it did not do. It could have insisted that the Union establish its majority status in Board-conducted elections or have remained in a stand-pat positions We do not think the additional-store language waives or eliminates the Respondent's above options.

    In Snow & Sons,7 the Board held that the employer violated the Act by reneging on an agreement to honor a majority card check. That case involved a specific agreement to honor a card check in the context of a specific demand for recognition in a specific unit. There the employer essentially extended voluntary recognition after having full opportunity to make a considered assessment of the situation.

    In contrast, the additional-store clauses herein involve general language, unspecified future stores, and the absence of specific facts and circumstances.

    We believe this language should be construed differently than the specific agreement in Snow & Sons.

    We do not view an additional-store clause as tantamount to an advance agreement to honor a card majority. The contract language omits all reference to the question of majority support obtained by any means; indeed, it is dubious whether the parties held this subject within their contemplation.8 We believe our language in Linden Lumber9 is appropos here:

    We repeat for emphasis our reliance here upon the additional fact that the Respondent and the Union never voluntarily agreed upon any mutually acceptable and legally permissible means, other than a Board-conducted election, for resolving the issue of union majority status. By such reliance we recognize and encourage the principle of voluntarism but at the same time insure that when voluntarism fails the 'preferred route' of secret ballot elections is available to those who do not find alternative route acceptable.

    We stated in Wilder: io [We have] refused to enter a bargaining order on the basis of cards or other circumstantial evidence of majority status, where there has been no 7 Fred Snow, Harold Snow and Tom Snow, d/b/a Snow & Sons, 134

    NLRB 709, enfd. 308 F.2d 687 (C A 9, 1962) R This is where the dissenters seriously...

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