Kroger Co.

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Houston Division of the Kroger Co. and Retail Clerks International Association Local No. 455, AFL-CIO and Amalgamated Meat Cutters & Butcher Work- men of North America, District Local 408, AFL- CIO. Cases 23-CA-4304 and 23-CA-4419 July 23, 1975 SUPPLEMENTAL DECISION AND ORDER On February 5, 1974, the National Labor Rela- tions Board issued a Decision and Order I in the above-entitled proceeding and found that the Re- spondent, Houston Division of the Kroger Co. (here- inafter Kroger or Respondent), had not violated Sec- tion 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to recognize and bar- gain with the Unions, Retail Clerks International As- sociation Local No. 455. AFL-CIO (hereinafter Clerks), and Amalgamated Meat Cutters & Butcher Workmen of North America, District Local 408, AFL-CIO (hereinafter Meat Cutters), and dismissed the complaint in its entirety. Thereafter, on February 4, 1975, the Board's Order was reversed and the case remanded by the United States Court of Appeals for the District of Columbia Circuit upon petitions for review filed by the Unions? The Board, having accepted the remand, will re- consider the above-mentioned Decision and Order in conformity with the court's opinion, which we re- spectfully recognize as binding on us for the purpose of deciding this case. The Board has again considered the record and the Administrative Law Judge's Decision dated Febru- ary 7, 1973, in light of the opinion of the United States Court of Appeals for the District of Columbia dated February 4, 1975, and for the reasons set forth hereinafter has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge. The facts are not in dispute. Respondent has sepa- rate collective-bargaining agreements with Retail Clerks Local 455 and Meat Cutters Local 408. In each of these collective-bargaining agreements, Re- spondent has agreed to recognize the Union as the exclusive bargaining representative of employees in designated classifications at all stores operated by Respondent's Houston Division in the State of Tex- as. Recognition clauses of a similar nature have ap- peared in prior collective-bargaining agreements exe- cuted by the parties and, over the years, the parties' practice has been to treat stores newly added to the division as accretions to the contract units. The in- stant controversy had its beginning in March 1972, when Kroger Co. decided, for administrative purpos- es, to shift its stores at Nacogdoches and Lufkin, Texas, from its Dallas to its Houston Division. The Unions took the position that they were entitled to recognition as the bargaining representatives of these employees under the terms of their collective-bar- gaining agreements with Respondent. The Unions formally demanded recognition on March 22, 1972, and, although their claims were based on the recogni- tion clauses in their respective contracts, both Unions offered to submit proof that they had card majorities among the employees at the stores in issue. Respondent rejected both the claim for recognition under the collective-bargaining agreements and the offer to prove majority status on the basis of cards. It is undisputed that, at the time the recognition re- quests were made, the Unions possessed valid card majorities among the employees sought. We begin our reconsideration of this case by stat- ing again our acknowledgement, recognized by the court, that the principles of accretion do not resolve the issue presented in this case, inasmuch as the stores in question have a sufficient separate existence to constitute separate appropriate units.' We also ac- knowledge that the Board has held that "additional store clauses" are valid in situations where the Board is satisfied that the employees affected are not denied their right to have a say in the selection of their bar- gaining representative.4 In White Front and a later case,' the Board made it clear that its concern for the employees' right to self-determination was the only reason that controlling weight was not given to such claims in prior cases. Here, as in White Front and Smith's, it is conceded that the Unions have a valid card majority in the units involved, which leaves no barrier to giving full effect to the contractual com- mitments of the parties. The fact that we are consid- ering these clauses in the context of a refusal-to-bar- gain charge, which was not involved in either White Front or Smith's, does not alter their validity as de- termined in those cases, but merely presents another set of circumstances in which their application must be examined. We find no reason in policy or other- wise to overrule White Front or Smith's or to alter their holdings in any way. The relevant question, therefore, is what meaning do these clauses have in 3 Melbet Jewelry Co, Inc., and LAS -Orchard Park, Inc, 180 NLRB 107 '208 NLRB 927. (1969) 2 Retail Clerks International Association, Local No. 455, AFL-CIO v. ° Retail Clerks Union, Local 870, Retail Clerks International Association, N.L.R B., 510 F.2d 802 (1975). The Clerks request for oral argument is AFL-CIO (White Front Stores, Inc.), 192 NLRB 240 (1971) hereby denied, as the position of the parties has been adequately presented 5 Smith 's Management Corporation d/b/a Frazier's Market, 197 NLRB in the statements submitted to the Board on the issues presented on remand . 1156 (1972). HOUSTON DIV. OF THE KROGER CO. the circumstances of this case. Interpreting these clauses to mean that an employ- er can voluntarily recognize a union or demand an election renders them totally meaningless and with- out effect, for unions need no contract authorization to establish their representation status in a Board- conducted election. However, these clauses can be read to require recognition upon proof of majority status by a union. As stated above, there is no need to hold these clauses totally invalid simply because they do not contain an explicit condition that unions must represent a majority of the employees in a new store, inasmuch as the Board will impose such a con- dition as a matter of law. It is evident that under the circumstances present in this case, the Unions have lived up to the requirements imposed by the Board and therefore the agreements between them and the Employer should be enforced. The court examined these clauses in the context of this case and found that they constituted a waiver by Kroger of its right to demand an election in these circumstances. Upon reconsideration we now adopt this view as the only reasonable interpretation which saves these clauses from meaninglessness or from impinging on functions reserved solely to the Board .6 Finally, having concluded that these clauses are valid and constitute a waiver of the Employer's right to demand an election, we must consider the court's last question on remand, as to whether there exists any considerations of national labor policy which would require us to find these clauses illegal, not- withstanding our other findings. We not only find that no such negative considerations exist, but agree with the suggestion in the court's opinion that na- tional labor policy favors enforcing their validity. As we have interpreted them, these clauses are contractual commitments by the Employer to forgo its right to resort to the use of the Board's election process in determining the Unions' representation status in these new stores. To permit the Employer to claim the very right which it has forgone, perhaps in return for concessions in other areas, would violate the basic national labor policy requiring the Board to respect the integrity of collective-bargaining agree- ments. Since the Unions' majority is conceded by all concerned, there is no countervailing considerations of policy not to give effect to these agreements. The fact that the literal language of the agreements them- selves can be read as going beyond what the Board 6 While these clauses could be interpreted as an agreement concerning the appropriate unit, we agree with the court that the Board's ultimate right to establish appropriate units would render them illusory if they were so con- strued, since any such agreement which did not coincide with Board policy would be unenforceable whenever a Board certification was involved. Vol- untary recognition would not present the problem we face here. 389 would permit, in determining by contract that an ac- cretion had occurred when in fact the contract can- not resolve this issue, provides little reason for invali- dating the entire agreement when it, plus the conduct of the Unions, can reasonably be read as we have read it. The Board has held that an employer may agree in advance of a card count to recognize a union on the basis of a card majority,7 and we can perceive of no reason why it may not contract with the union to do so in advance of the time the union has com- menced organization. For the foregoing reasons, we find that Respondent's refusal to honor its commitment to rec- ognize the Unions as the exclusive bargaining repre- sentatives in such units, in accordance with the con- tractual agreements of the parties, violated Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Houston Division of the Kroger Co., Nacogdoches and Lufkin, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Clerks Local No. 455 as the exclusive representative of its employees in Retail Store No. 990 in Nacogdoches, Texas, and in Retail Store No. 110 in Lufkin, Texas, in the unit found appropriate as set forth below: All employees employed by the Houston Divi- sion of Kroger Food Stores operating in the State of Texas including Retail Store No. 990 in Nacogdoches, Texas, and Retail Store No. 110 in Lufkin, Texas, but excluding all persons em- ployed in meat departments, store managers, co- managers, management trainees, professional employees, guards and supervisors as defined in the National Labor Relations Act. (b) Refusing to recognize and bargain with Meat Cutters Local 408 as the exclusive representative of its meat department employees in Retail Store No. 990 in Nacogdoches, Texas, in the unit of such meat department employees found appropriate as set forth below: All employees in the meat department in all of Respondent's stores located in the State of Tex- as operated by the Houston Division of the Kro- ger Co., including Retail Store No. 990 in Na- cogdoches, Texas, but exclusive of all other 7 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709 (1961) 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, guards, watchmen and supervisors as defined in the Act. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, recognize and bargain collec- tively with the aforesaid Clerks Local No. 455 as the exclusive representative of its employees in its Retail Store No. 990 in Nacogdoches, Texas, and in its Re- tail Store No. 110 in Lufkin, Texas, as part of the appropriate unit. (b) Upon request, recognize and bargain collec- tively with the aforesaid Meat Cutters Local 408 as the exclusive representative of its meat department employees in its Retail Store No. 990 in Nacogdoch- es, Texas, as part of the appropriate unit. (c) Upon request, apply and extend to the employ- ees in its Retail Store No. 990 in Nacogdoches, Tex- as, and Retail Store No. 110 in Lufkin, Texas, as part of the appropriate unit, the existing collective-bar- gaining agreement it has with Clerks Local No. 455, with retroactive effect from and after the date of that Local's demand for recognition. (d) Upon request, apply and extend to the meat department employees in its Retail Store No. 990 in Nacogdoches, Texas, as part of the appropriate unit, the existing collective-bargaining agreement it has with Meat Cutters Local 408, with retroactive effect from and after that Local's demand for recognition. (e) Post at its Retail Store No. 990 in Nacogdoch- es, Texas, and Retail Store No. 110 in Lufkin. Texas, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Re- gional Director for Region 23, after being duly signed by the 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 Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 9In 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." 9 208 NLRB 927 (1974) (Members Fanning and Jenkins dissenting). MEMBER KENNEDY, dissenting: I do not agree with the reversal of the Board's orig- inal decision. Accordingly, I dissent. This case had its genesis 3 years ago when Respon- dent decided for administrative reasons to shift its stores at Nacogdoches and Lufkin, Texas, from its Dallas to its Houston Division. At the time of the transfer, the Nacogdoches and Lufkin stores employ- ees were unrepresented and the Houston Division store employees were represented by the Unions un- der collective-bargaining contracts which contained "additional store clauses" set out at length in the original decision. The Unions demanded the Re- spondent recognize them as the representatives of the transferred store employees and proferred signed au- thorization cards to establish their majority in the two stores. Respondent rejected the demand for rec- ognition and an offer of a card check stating that it believed authorization cards were not a reliable indi- cator of employee support. It then filed petitions seeking separate elections at each of the transferred stores. The Regional Director dismissed the petitions presumably because of the pendency of the unfair labor practice proceedings which are the subject of this case. In its original decision,9 the Board decided that the Nacogdoches and Lufkin stores were not an accre- tion to the Houston Division, that Respondent could have lawfully recognized the Unions since there was proof of a card majority, but it was not required to do so and instead could lawfully insist upon an elec- tion as a condition precedent to recognition. Further the Board held that the "additional store clauses" did not waive or eliminate Respondent's options. It re- jected the argument that the language of the "addi- tional store clauses" constituted an advance agree- ment to honor a card majority and hence under Snow & Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687 (C.A. 9, 1962), Respondent was bound to submit to a card check. The court of appeals reversed the Board's Order and remanded the case to the Board essentially upon the ground that the "additional store clauses" could have no purpose other than to waive the Employer's right to a Board-ordered election.10 The court de- duced that the "true purpose of the Board's ruling was not to interpret the contract but to declare that `additional store clauses' are inconsistent with au- thorization card policy and, therefore, illegal." It therefore remanded the case to the Board so that the Board may "overtly advance" that position and ex- plicate why national labor policy requires that "addi- tional store clauses" be held illegal. The majority has i° Retail Clerks International Association, Local No 455, AFL-CIO v. N.L.R.B., 510 F.2d 802 (1975). HOUSTON DIV. OF THE KROGER CO. accepted the remand. I voted to seek certiorari. I respectfully submit that the court was in error in deducing that the true purpose of the original majori- ty decision was to declare "additional store clauses" illegal. The Board had no such intention. It stated explicitly that this type of clause was lawful "so long as it is not used to foreclose either the right to self- determination or free access to our processes." Fur- ther it said: "Since we do not regard such clauses, properly applied, as in contravention of the Act, we reaffirm the rationale of the Smith's Management decision." What the Board did decide was that the particular "additional store clauses" involved in this case could not be construed as tantamount to an advance agree- ment to honor a card majority. The present majority in reversing the Board's decision now adopts the court's view that the "additional store clauses" could have no other purpose than to waive Respondent's right to a Board election. Unless this view is adopted, the majority holds, the clauses would be meaningless or would impinge on functions reserved solely to the Board. I think this view of the clauses is a fiction manufactured out of whole cloth. There is not a sin- gle word in the clauses which says anything about majority support by an election or by cards. Indeed, as stated in the original decision, "it is dubious whether the parties held this subject within their con- templation." To the argument that unless the as- cribed meaning is given to the clauses it is mean- ingless, I give the following answer: Parties do agree to meaningless or redundant clauses in contracts. They are not therefore to be construed in a way the parties never intended. For example, it is customary in collective-bargaining con- tracts to include a recognition clause defining the unit. If the union had previously been certified, the clause is redundant since the Board's certification de- fines the unit and the Act imposes the requirement of recognition. The clause is therefore meaningless since it is unnecessary. Does it thereby mean something different from what it says? Another example: Col- lective-bargaining contracts frequently include claus- es forbidding employer discrimination because of union activities. Such a clause is meaningless since the prohibition of discrimination is imposed by stat- ue. Is it to be thereby construed in a way the parties never considered? The truth is that redundancy is a common practice in legal writing, particularly in con- tracts, occasioned by conservatism or a desire for symmetry. Just because a contract clause repeats the obvious is no reason for giving it an esoteric mean- ing. " Smith 's Management Corporation d/b/a Frazier's Market, 197 NLRB 1156 (1972). 391 Moreover, I do not agree that the clause is mean- ingless unless it is given the meaning ascribed to it by the majority. It can reasonably be construed to mean and I think it does mean that as the Union acquires the right to represent employees in additional stores in the division such stores will be added to the multi- store unit and will be covered by the existing divi- sionwide bargaining contract. Such an interpretation does not impose a requirement of the statute and conforms more closely to the language and sense of the clause than the interpretation of the majority. The Supreme Court decided in Gissel 12 and Linden Lumber 13 that an employer faced with a demand for recognition by a labor organization has the right to insist upon an election as the means for determining the labor organization's majority status provided that the employer has not engaged in unfair labor practic- es which impair the electoral process. An employer may waive this right as in a Snow & Sons situation 14 where it agrees to accept a card check as a means for determining majority. But a waiver must be in "clear and unmistakable" language.15 The "additional store clauses" is anything but "clear and unmistakable." Nothing in its language suggests that Respondent has surrendered its right to an election in new stores in favor of a card check. The Supreme Court in Linden pointed out the time advantage in determining a union's majority status by an election rather than in an unfair labor practice proceeding. The instant case, which had its origin 3 years ago, is an object lesson in truth of this general assertion. When the Unions made their demand for recognition, Respondent promptly filed representa- tion petitions. There was absolutely no obstacle to immediate elections. Respondent's course of dealing with the Unions indicates clearly that if the election had shown that the employees wished to be repre- sented by the Unions, Respondent would have bar- gained with the Unions. The dispute could therefore have been expeditiously resolved and the case closed. Instead of following this expeditious course, the Unions filed unfair labor practice charges claiming that Respondent was bound to recognize them as representatives on the basis of signed authorization cards. Three years later, after the expenditure of thousands of dollars by the Federal Government, and the parties; not to speak of the time consumed by this Agency and by the court, the case is still not 12 N.L R B. v. Gissel Packing Co., Inc, 395 U.S. 575 (1969). 13 Linden Lumber Div., Summer & Co v. N.L R. B., 419 U.S. 301 (1974). 14 134 NLRB 709 (1961 ), enfd. 308 F.2d 687 (C.A. 9, 1962) 15 Timken Roller Bearing Company v. N.LR B., 325 F.2d 746, 751 (C.A. 6, 1963). While the waiver doctrine usually arises in a situation where the union is alleged to have waived a statutory right, it is equally applicable to an alleged waiver of a right by an employer. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resolved. The Unions have had no benefit of their asserted representation . Meanwhile, according to the latest statement of Respondent, the store in Lufkin has been closed and the store in Nacogdoches had been returned to the Dallas Division for administra- tive reasons. Factually, if not legally, the case has become moot. Mighty has been the labor, paucity has been the result. I wonder why the Unions were unwilling to go to elections to avoid this result. Was it because they doubted that the employees who signed cards would vote the same way in secret elections? MEMBER PENELLO, dissenting: Contrary to my colleagues in the majority, I would reaffirm the Board's original conclusion that Re- spondent did not violate Section 8(a)(5) by refusing to recognize the Unions as the collective-bargaining representatives of the employees of its Nacogdoches or Lufkin stores and would therefore dismiss the complaint. The facts are undisputed and are set out in full in the majority opinion and in the dissenting opinion of Member Kennedy. It is clear that at the time the Unions requested recognition they possessed valid card majorities among the employees sought. Re- spondent could certainly have voluntarily recognized the Unions in these circumstances. But that is not the question. What is in issue is the Unions' position that Respondent was required to recognize them under the terms of the so-called "additional store" clauses in the Respondent's contracts with the Unions. Be- cause these clauses clearly do not establish a specific method for determining union majority, a Board election is still necessary in my opinion to protect the Section 7 rights of Respondent's employees. Before the clauses can be properly analyzed, a brief recitation of the applicable statutory provisions and precedents is necessary. Section 8(a)(5) of the Act provides that it shall be an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of Section 9(a)." Section 9(a) provides, in pertinent part, that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropri- ate for such purposes, shall be the exclusive represen- tatives of all the employees in such unit." In addi- tion, Section 9(c) provides machinery for the holding of secret ballot elections and granting of certifica- tions by the Board of a union's status as the employ- ees' majority representative in an appropriate unit.16 16 Sec. 9(c)(1)(B) gives employers the right to file their own representation petitions (RM petitions). Respondent filed petitions seeking separate elec- tions at each of the stores involved herein Although Section 9(a) refers to representatives "designated or selected" by a majority of the employ- ees, it does not delineate precisely how the represen- tative is to be chosen. Board-conducted elections, it is clear, are "the most satisfactory-indeed the pre- ferred method of ascertaining whether a union has majority support." 17 However, it is well settled that such elections are not the only method. The Supreme Court in the Gissel case, supra, held that an employer would be bound by a union's presentation of authori- zation cards as proof of its majority support in cases in which the employer "engages in contemporaneous unfair labor practices likely to destroy the union's majority and seriously impede the election." 11 At the same time, the Court left open the question of "a union's right to rely on cards as a freely inter- changeable substitute for elections where there has been no election interference...." 19 The Court did, however, take note of what it characterized as the Board's "current practice" with respect to this prob- lem, namely that: When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, an employer need not grant recognition immediately, but may, un- less he has knowledge independently of the cards that the union has a majority, decline the union's request and insist on an election, either by requesting the union to file an election peti- tion or by filing such a petition himself under §9(c)(1)(B).2° In Linden Lumber 21 and Wilder," the Board held that it would not require bargaining based solely on a showing that the employer may have had knowledge, independent of the cards, of the union's majority. Thus, in those cases, the Board refused to require bargaining where a majority of the employers' em- ployees had both signed cards and gone on strike. The Board did hold, however, that it would require bargaining based on a card majority if (1) the em- ployer agrees that the union's majority may be de- termined by a means other than a Board-conducted election," or (2) the employer itself undertakes to de- termine the union's majority status. The Board's decisions in Linden and Wilder were subsequently upheld by the Supreme Court.24 Signifi- n N.L.R B v. Gissel Packing Co., Inc, 395 U.S. 575, 602 (1969). ib Gissel , supra, 600. 19 Gissel, supra, 595, In. 18. 20 Grssel, supra, 591 21 Linden Lumber Division, Summer & Co, 190 NLRB 718 (1971). 22 Arthur F. Derse, Sr., President, and Wilder Mfg Co, Inc., 198 NLRB 998 (1972). 23 Snow & Sons, supra, 710 24 Linden Lumber Division, Summer & Co v N.L.R.B, 419 U.S. 301 (1974). HOUSTON DIV. OF THE KROGER CO. 393 cantly, the Court stated at footnote 10: We do not reach the question whether the same result obtains if the employer breaches his agreement to permit majority status to be de- termined by means other than a Board election. See Snow & Sons, 134 NLRB 709 (1961 ), enfd. 308 F.2d 687 (C.A. 9, 1962). In the instant cases the Board said that the employers and the unions "never voluntarily agreed upon any mu- tually acceptable and legally permissible means, other than a Board-conducted election, for re- solving the issue of union majority status." [Ci- tations omitted.] Applying these principles to the facts herein, al- though the Unions have obtained authorization cards from a majority of the employees in each of the transferred stores, their majority has never been demonstrated in a Board-conducted election. More- over, the Respondent has not committed any unfair labor practices . Thus, under the principle of Linden- Wilder, the Respondent was under no obligation to recognize and bargain with the Unions unless the principle is for some reason inapplicable . However, my colleagues in the majority argue in effect that this case is within the "Snow & Sons" exception to the Board's ruling in Linden- Wilder, i.e., that the facts and circumstances here indicate that the Respondent had agreed with the Unions that the Unions' majori- ty status at the two stores in question would be de- termined by means other than a Board -conducted election. In my view, for the reasons set forth hereaf- ter, the Board properly rejected this conclusion in its original decision. There is, of course, no dispute that the Respondent and the Unions never made a specific agreement, as did the parties in Snow & Sons, supra, to submit to and be bound by a check of the Unions' authoriza- tion cards as a means of testing the Unions' majority status in the two stores in question . My colleagues in the majority contend , nonetheless, that the "addi- tional store" clauses in the contracts are the equiva- lent of such an agreement . On its face, the clauses make no such provision at all. As was noted in the original decision , the "contract language omits all reference to the question of majority support ob- tained by any means ; indeed, it is dubious whether the parties held this subject within their contempla- tion." 25 Moreover, the prior practice of the parties under the "additional store" clauses provides no basis to support a finding of waiver . For that practice was not for the Respondent to recognize the Unions in each newly opened store after the Unions presented it with valid authorization cards from a majority of the employees. Rather, the practice was for the Respon- dent to "accrete" automatically the employees in new stores into the existing multiemployer unit without a showing of majority status based on cards or any other means . Since it is unlikely that the stores previ- ously added were true accretions , the parties' prior practice was plainly unlawful. 26 Assuming that the new stores previously added were true accretions to the existing multistore unit, the practice would be of no relevance here since, as my colleagues concede, the stores in issue here were not true accretions. In either case, the practice can have no precedential val- ue in determining whether the Respondent intended to waive its Linden- Wilder rights in the situation pre- sented here. Accordingly, there is no basis for inferring that these clauses eliminate the need for a Board-conduct- ed election in which the desires of the employees may be ascertained as guaranteed by Section 7 of the Act. Furthermore, it is well established that purported waiver of a statutory right must , to be effective, be expressed in "clear and unmistakable" terms. The clauses here in no way meet this standard and the Board, therefore, was amply warranted in concluding in its prior decision that under these facts the em- ployees' and Respondent's "access to NLRB proce- dures cannot be said to have been consciously waived." 27 and a Board election is the "preferred method" for determining the employees' wishes. Finally, I believe that preserving free access to our orderly election machinery, in the absence of a specific agreement to determine majority status by an acceptable and legally permissible alternative method, is an essen- tial duty of this Board in administering this Act. [Emphasis supplied.]28 For the foregoing reasons, I do not agree with the reversal of the Board's original decision, I would not accept the remand from the court of appeals, and I would instead seek certiorari. 25 Houston Division of The Kroger Co., 208 NLRB 927. 26 Super Valu Stores, Inc and K's Super Valu of Peoria, Inc, 177 NLRB 899, 900 (1969). 27 Kroger Co, supra, In 8. 28 Kroger Co., supra APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks Local No. 455 as the exclusive rep- resentative of our employees in the appropriate unit noted below with respect to wages , hours, or any other terms or conditions of employment, to wit: All employees employed by the Houston Division of Kroger Food Stores operating in the State of Texas including Retail Store No. 990 in Nacogdoches, Texas, and Retail Store No. 110 in Lufkin, Texas, but excluding all persons employed in meat departments, store managers, co-managers , management train- ees, professional employees , guards and su- pervisors as defined in the National Labor Relations Act. WE WILL NOT refuse to bargain collectively with Meat Cutters Local 408 , as the exclusive representative of our employees in the appropri- ate unit noted below with respect to wages, hours, or any other terms or conditions of em- ployment to wit: All employees in the meat department in all of Respondent's stores located in the State of Texas operated by the Houston Division of the Kroger Co., including Retail Store No. 990 in Nacogdoches , Texas, but exclusive of all other employees, guards, watchmen and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE WILL, upon request , recognize and bargain with the aforesaid Retail Clerks Local No. 455 as the exclusive bargaining representative of all the employees in the appropriate multistore unit as set forth in the first paragraph hereof above. WE WILL, upon request, apply our existing contract with Retail Clerks Local No. 455 to the employees in our Retail Store No . 990 at Nacog- doches, Texas, and Retail Store No. 110 at Luf- kin, Texas, as part of the multistore appropriate unit described above, with retroactive effect from the date of Local 455's demand for recog- nition. WE WILL, upon request, recognize and bargain with the aforesaid Meat Cutters Local 408 as the exclusive bargaining representative of all the employees in the appropriate multistore unit as set forth in the second paragraph hereof above. WE WILL, upon request, apply our existing contract with Meat Cutters Local 408 to the meat department employees in our Retail Store No. 990 at Nacogdoches, Texas, as part of the multistore appropriate unit described above, with retroactive effect from the date of Local 408's demand for recognition. HOUSTON DIVISION OF THE KROGER CO.