Food & Commercial Workers Local 88 (Dierberg'S Markets)

FOOD & COMMERCIAL WORKERS LOCAL 88 (DIERBERG'S MARKETS) 455 United Food and Commercial Workers, Local Union No. 88 and Dierberg's Markets, Inc. and The Kroger Company and National Super Markets, Inc. Cases 14-CB-6306, 14-CB-6316, and 14- CB-6318 31 January 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON'd On 16 May 1985 Administrative Law Judge Lowell Goerlich issued the attached decision. Charging Party Dierberg's Markets and the Gener- al Counsel each filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. copy was served by certified mail on the Respondent on the same day. The first amended charge in Case 14-CB- 6318 was filed on 25 February 1985 and a copy was served by certified mail on the Respondent on the same day. An order consolidating cases, consolidated complaint, and notice of hearing was issued on 28 February 1985. In the consolidated complaint it was charged that the Re- spondent had violated Section 8(b)(1)(A) and (3) and Section 8(d) of the National Labor Relations Act. The Respondent filed a timely answer denying that it had engaged in the unfair labor practices alleged. This case came on for hearing in St. Louis, Missouri, on 21 March 1985. Each party was afforded a full oppor- tunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit pro- posed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. On the entire record in this case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE EMPLOYING ENTERPRISES ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed, subject to the retention of jurisdiction as set forth in the recommended Order. ' We find it unnecessary to pass on the judge's statement in part III of his decision that if the collective-bargammg agreement between the Re- spondent and the Charging Parties is construed in the manner urged by the Respondent, the General Counsel's entire case collapses. Terry L. Potter, Esq., for the General Counsel. Earl Wilburn, Esq., of St. Louis, Missouri, for the Re- spondent. Michael E. Keammerer, Esq., and Diana Wieland, Esq., of St. Louis, Missouri, for Dierberg's Markets, Inc. Anne E. Hamilton, Esq., of St. Louis, Missouri, for Na- tional Super Markets, Inc. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. Charges were filed against United Food and Commercial Workers, Local Union No. 88 (the Respondent), by Dierberg's Markets, Inc. (Dierberg) in Case 14-CB-6316; by the Kroger Company, (Kroger) in Case 14-CB-6316; and by National Super Markets, Inc. (National) in Case 14-CB-6318. The original charge in Case 14-CB-6306 was filed on 17 January 1985 and copy was served by certified mail on the Respondent on the same day. The original charge in Case 14-CB--6316 was filed on 29 Jan- uary 1985 and a copy was served by certified mail on Respondent on the same day. The original charge in Case 14-C]B-6318 was filed on 1 February 1985 and a Dierberg, Kroger, and National each is, and has been at all material times, a corporation authorized to do busi- ness under the laws of the State of Missouri. At all times material, Dierberg, Kroger, and National corporations with offices and places of business in St. Louis, Missouri, each has been engaged in the retail sale of grocery and meat goods and related products. During the 12-month period ending 28 February 1985, Dierberg, Kroger, and National, each in the course and conduct of its respective business operations described above, derived gross reve- nues in excess of $500,000 and purchased and received at its respective St. Louis, Missouri facilities products, goods, and materials valued in excess of $50,000 directly from points outside the State of Missouri. Dierberg, Kroger, and National each is now, and has been at all times material, an employer 'engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES First: Dierberg, Kroger, and National each has the fol- lowing unit of employees, which units of employees con- stitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All meat, fish, poultry, barbecue, cooked meat and delicatessen department employees and clean-up employees, including head meat cutters, journey- men, apprentices, and wrappers employed in self- 278 NLRB No. 68 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD service and service markets, EXCLUDING all em- ployees presently under contract with other union locals and employees excluded by the National Labor Relations Act. At all times material, the Respondent has been the lawfully designated exclusive collective-bargaining repre- sentative of each of the respective units described above and, since about 30 July 1981 , the Respondent has been recognized as such representative by each of Dierberg, Kroger, and National . Such recognition has been em- bodied in successive collective-bargaining agreements, the most recent of which are effective by their terms for the period 30 July 1981 through 16 July 1986. At all times material , Respondent, by virtue of Section 9(a) of the Act, has been, and is, the exclusive represent- ative of each respective unit described above for the, pur- poses of collective bargaining with the respect to rates of pay, wages, hours of employment; and other terms and conditions of employment. About 30 July 1981, the Respondent entered into a collective-bargaining agreement with each of Dierberg, Kroger, and National relating to the wages, hours, and other terms and conditions of employment of the em- ployees of Dierberg, Kroger, and National in the respec- tive units described above, which agreements were to remain in effect until 16 July 1986, and thereafter year to year, unless either party served a written notice on the other party of its desires to terminate or modify the agreements 60 days prior to the date. The parties stipulated that the "chain contract [above referred to] . . . was negotiated not by an association or anything, or individually but in, a group. With Kroger, National, Schnucks, Thor's perhaps and the contract was negotiated and only signed separately . . . the contract was presented to Dierberg's, the same contract, and they signed it. But they did not participate in the negotiation." Second: The question of deferral to arbitration. The Re- spondent in its answer alleges : "That for its further answer to the Complaint issued herein and for its affirm- ative defense Local 88 states that there is a dispute be- tween the parties as to the ability of employers to sched- ule work after 6 p.m. on Sunday and that there is a dis- pute as to the rate of pay for work performed after 6 p.m., if so Local 88 stands ready to submit such disputes to arbitration and has so advised the Charging Party in this regard." According to Victor Horn, Kroger 's director of labor relations, Kroger learned that one of its major competi- tors in the area, Shop n' Save, intended to extend its store hours on Sunday, 23 December 1983. The Charg- ing Parties, who each operated a meat department, de- cided to likewise extend their hours on 23 December 1983, which meant that meatcutters would be working past 6 p.m. on that day. Presumedly the following contractual provisions cov- ered this situation:" i Each of the Charging Parties' contracts with the Union contained the same provisions. Article 10: Section II. A journeyman will be on duty from the time the store is open for business, Monday through Saturday, when products considered under the ju- risdiction of this Local Union within this Agree- ment are offered for sale, except for lunch hours and breaks in markets where three (3) of less regu- lar employees are employed. On Sundays and holidays when products under the jurisdiction of this Local Union are offered for sale, a journeyman will be scheduled for eight (8) hours, provided the store is open for business at least eight (8) hours. The journeyman meat cutter will work the eight (8) hours prior to 6:00 p.m. Ad- ditional journeyman may be scheduled to work a minimum of four (4) hours. Article 12: Section 5. Payment for work performed on Sunday shall be compensated for at the rate of one and one half (1 1/2) times the employee's regular straight time hourly rate of pay. Payment for work performed on Holidays listed in Section 1 of this Article shall be compensated for at the rate of one and one-half (1-1/2) times the em- ployees regular straight time hourly rate of pay, in addition to any earned Holiday Pay. Section 6. Any work which is required on Sundays and Holidays shall be voluntary and rotated within the appropriate classifications, except that employ- ees hired after July 30, 1981, may be assigned on the basis of inverse seniority if there are not enough qualified volunteers. If the Employer is unable to obtain the necessary employees, including referrals, to staff the operation on Sundays and holidays, the Employer may obtain qualified help from whatever sources are available. Section 7. There shall be no work on Easter Sunday, Thanksgiving Day and Christmas Day. No meat or meat products covered by this Agreement shall be offered for sale on these days. Section 8. There shall be no work after six o'clock (6:00) p.m., on Christmas Eve. No meat or meat products covered by this Agreement shall be of- fered for sale after six o'clock (6:00) p.m. on that day. Work after six o'clock (6:00) p.m. on New Year's Eve, for meat department employees, shall be on a voluntary basis. No employee shall suffer a reduction in their regular weekly pay due to this provision. When it was learned that the Charging Parties intend- ed to employ meatcutters after 6 p.m. on Sunday, 23 De- cember 1984, discussions occurred in which the Union took the position that there was a contractual bar against assigning work to the meatcutters after 6 p.m. on Sunday; however, the Union, nevertheless, offered to allow work after 6 p.m. if the employees were paid double time for such work. The Employers asserted that the contract permitted work after 6 p.m. on Sunday and FOOD & COMMERCIAL WORKERS LOCAL 88 (DIERBERG'S MARKETS) that the contractual rate was time and one half. There- upon the Union dispatched a mailgram dated 14 Decem- ber 1984 as follows: TO ALL MEMBERS OF UNITED FOOD AND COMMER- CIAL WORKERS, LOCAL 88. DEAR BROTHERS AND SISTERS: AS YOU KNOW, OUR CURRENT LABOR AGREEMENT ALLOWS FOR SUNDAY WORK ON A VOLUNTEER BASIS. AS YOU ALSO KNOW, OUR LABOR AGREEMENT PROVIDES THAT, IF THE STORE IS OPEN FOR BUSI- NESS FOR AT LEAST 8 HOURS ON SUNDAY A JOUR- NEYMAN MEAT CUTTER WILL WORK 8 HOURS PRIOR TO 6:00 PM AND THAT ADDITIONAL JOURNEYMEN MAY BE SCHEDULED TO `YORK A MINIMUM OF 4 HOURS. IN THE PAST NO MEAT CUTTERS WORKED PAST 6:00 PM ON SUNDAY AND RECENTLY THE EMPLOY- ERS HAVE ADVISED THE UNION THAT THEY WISH TO EMPLOY MEAT CUTTERS BEYOUND 6:00 PM AND PAY THE SAME WAGE RATE AS IS PAID PRIOR TO 6:00 PM. I.E. TIME AND ONE HALF. THE UNION RESPONSE HAS BEEN THAT A HIGHER WAGE RATE SHOULD BE NE- GOTIATED IF JOURNEYMEN MEAT CUTTERS ARE TO WORK PAST 6:00 PM ON SUNDAY. YOUR OFFICERS HAVE DISCUSSED THIS WITH THE STEWARDS AND THE STEWARDS ARE IN AGREEMENT WITH THE UNION POSITION WITH REGARD TO THIS MATTER. THE EMPLOYERS HAVE NOW ADVISED THE UNION THAT IT IS THEIR INTENTION TO REQUEST JOURNEY- MEN MEAT CUTTERS TO WORK LATER THAN 6:00 PM ON SUNDAY FOR THE RATE OF TIME AND ONE HALF, WITHOUT HAVING COME TO ANY AGREEMENT WITH THE UNION CONCERNING A HIGHER WAGE RATE FOR SUCH HOURS. IN VIEW OF THE EMPLOYERS' POSI- TION, WE URGE ALL JOURNEYMEN MEAT CUTTERS NOT TO VOLUNTEER FOR SUNDAY WORK BEYOND 6:00 PM UNTIL THIS MATTER IS RESOLVED BETWEEN THE EMPLOYERS AND THE UNION. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 88, ROBERT GEIGLE. FINANCIAL SECRE- TARY-TREASURER Thereafter a substantial number of meatcutters with- drew their offers to work past 6 p.m. on Sunday, 23 De- cember 1984. About 70 meatcutters worked. These were issued a letter dated 22 January 1985 by the Union advis- ing them to appear before the executive board on 29 Jan- uary 1985. All were disciplined for working past 6 p.m. on Sunday, 23 December 1984. In the meantime on 21 December 1984 Kroger sent a mailgram to the'Union as follows: THE KROGER COMPANY IS HEREBY FILING A GRIEVANCE AGAINST LOCAL 88, ITS OFFICERS AND AGENTS FOR THEIR INSTRUCTING THE KROGER COM- PANY JOURNEYMEN NOT TO WORK PAST 6:00 PM ON DECEMBER 23, 1984 AND BY THREATENING SAID JOURNEYMEN WITH BOARD CHARGES. KROGER WILL FURTHER SEEK DAMAGES FOR ALL LOST PROFITS 457 AND CUSTOMER GOOD WILL RESULTING FROM THESE INSTRUCTIONS. IT IS KROGER'S POSITION THAT WE HAVE THE RIGHT TO ASK FOR VOLUNTEERS AND FURTHER TO SCHEDULE IF NO VOLUNTEERS AS OUTLINED IN AR- TICLE 10 SECTION 11 AND FURTHER SUBSTANTIATED IN ARTICLE 12 SECTION 8 WHICH HAS REFERENCE TO 2 DAYS ONLY TO JOURNEYMEN NOT WORKING PAST 6 PM' AND IN ADDITION TO THESE YOU ARE ALSO IN VIOLATION OF ARTICLE 7 OF NO STRIKE, NO LOCKOUT. WE WILL DEFEND OUR EMPLOYEES RIGHT AND OBLIGATION TO WORK. ANY EMPLOYEE WITH QUES- TIONS, PLEASE CALL JOHN DOUGHERTY, OFFICE 344- 1750, HOME 227-0964. According to Fred H. Martels, Dierberg's personnel director, he advised the Union to file a grievance over the matter. Third: The issue before me has been accurately defined in this dialogue appearing in the record: JUDGE GOERLICH: The Company wanted to work past 6 p.m.? MR. POTTER: (counsel for the General Counsel) Yes, your honor. JUDGE GOERLICH: And the Union didn't want to work past 6 p.m.? MR. POTTER: That's right. Or if they did, they wanted to negotiate a new wage rate. JUDGE GOERLICH: And that's all this case is about? MR. POTTER: In a nut shell, yes. If, as contended by the Respondent, I should construe section 11 (quoted above) of the contract to bar the Em- ployers from working meatcutters after 6 'p.m. on Sunday, the General Counsel's entire case will collapse because it is built on a finding that such section allows the Employers to work meatcutters after 6 p.m. on Sunday. Thus, I am called on to interpret the terms and meaning of the contracts between the Union and the Charging Parties.2 As I understand the law, under the circumstances of this case it is for the arbitrator to make this decision if it cannot be settled prior to arbitration as, provided in the contractual grievance procedure.a The 2 Apparently the General Counsel concedes this eventuality for he writes in his brief, "The contract specifically covers the instant dispute." 8 Among other things, the grievance -arbitration procedure contains the following provision: ARTICLE 6 GRIEVANCE AND ARBITRATION Section I. If any differences, disputes or complaints arise over the in- terpretation or application of the contends of this Agreement, there shall be an earnest effort on the part of the parties to settle such promptly through the following steps- Section 4. The Employer shall have the right to call a conference with officials of the Union for the purpose of discussing his griev- ances, criticisms, or other problems. Although it appears that the grievance-arbitration provisions of the contract adequately cover the instant dispute, if there is any doubt in this respect such resolution is in the primary jurisdiction of the arbitrator. Moreover, the Charging Parties ought not to be held to complain be- cause one of them invoked the grievance procedure and another urged the Union to file a grievance. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute here is essentially one over the terms and mean- ing of the contract between the Respondents and the Charging Parties. The Respondents' defense of deferral to arbitration is well taken and because the matter before me is a proper subject for the grievance-arbitration pro- cedure, I find that it will best effectuate the purposes and policies of the Act to defer this case to arbitral forum. United Food Services, 273 NLRB 164 (1985); Collyer Insu- lated Wire, 192 NLRB 837 (1971); United Technologies Corp., 268 NLRB 557 (1984); Postal Service, 273 NLRB 1746 (1985).4 CONCLUSIONS OF LAW 1. The Charging Parties are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be executed herein. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The issues raised in the complaint should be de- ferred to the grievance-arbitration provisions of the col- lective-bargaining agreements between the Charging Par- ties and the Respondent Local. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The complaint is dismissed, provided that Jurisdiction over this proceeding is retained for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (1) the dispute has not, with reasonable promptness after the issuance of this decision, been re- solved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (2) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the 4 As in Postal Service, supra, at 1746: "The contract and its meaning in Board and all objections to them shall be deemed waived for all put- present circumstances he at the heart of this dispute ." poses