The Kroger Co.

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