Kroger Company

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 202 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 20
202
The Kroger Company and United Food and Com-
mercial Workers Union Local 1059, AFL–CIO.
Cases 9–CA–39712 and 9–RC–17712
June 30, 2004
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On May 14, 2003, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief.
The Union filed an answering brief.
The National Labor Relations Board has delegated 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,1 and conclusions,
and to adopt the recommended Order only to the extent
consistent with this Decision.
I. INTRODUCTION
On September 27, 2002,2 the Union filed a petition to
represent all regular full-time and part-time employees at
the Respondent’s refill center in Groveport, Ohio. The
Regional Director approved a Stipulated Election
Agreement on October 7 that excluded from the bargain-
ing unit, inter alia, “all office clerical employees.” The
Union filed unfair labor practice charges on October 28,
pursuant to which a complaint and notice of hearing is-
sued.3 The representation election was held on October

1 The Respondent excepts only with respect to the administrative law
judge’s finding that employee Erin Spetnagel is an office clerical em-
ployee. The General Counsel has not filed exceptions. In the absence
of exceptions, the Board adopts the other findings of the administrative
law judge, including the findings regarding the other challenged ballots
and the 8(a)(1) violations and identical objections.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
In adopting the judge’s credibility findings, we note that, although
the judge stated that he discredited the testimony of Respondent’s facil-
ity manager Michael Griffin, with respect to Spetnagel’s duties, he
appears to have implicitly credited Griffin’s testimony on cross-
examination concerning the number of telephone calls the facility re-
ceives in a day and that answering telephone calls is Spetnagel’s pri-
mary responsibility. In making our findings, we do not rely on Grif-
fin’s discredited testimony regarding Spetnagel’s duties.
2 Unless otherwise stated, all dates are in 2002.
3 The complaint alleged that Griffin coercively interrogated an em-
ployee and threatened employees with a stricter administration of disci-
pline if employees elected a Union, in violation of Sec. 8(a)(1) of the
Act.
31. The tally of ballots shows 14 for and 10 against the
Union, with 5 challenged ballots. The Union filed objec-
tions to the election that tracked its unfair labor practice
charges, as well as challenges to the ballots of five indi-
viduals. On February 18, 2003, the unfair labor practice
case was consolidated for hearing with the Union’s chal-
lenges to the five ballots and objections to the election.
The judge’s recommended decision found that the Re-
spondent violated Section 8(a)(1) of the Act as alleged,
sustained the Union’s challenges to two of the ballots,
and overruled the Union’s challenges to three of the bal-
lots. He further recommended that the election be set
aside based on the Union’s objections if the Union does
not prevail on the final vote tally. For the reasons dis-
cussed below, we agree with the Respondent that the
judge erred in sustaining the Union’s challenge to em-
ployee Erin Spetnagel’s ballot because he found her to be
an excluded office clerical employee.
II. RELEVANT FACTS
The Respondent maintains a facility at which it refills
patient prescriptions for Kroger pharmacies throughout
Ohio. Located within the facility are a production area,
an office for Respondent’s facility manager, Griffin, an
office for the pharmacists, and a failed claims office.
The failed claims office is walled off from the production
floor, but the door to the office always remains open.
The door is only a few feet from the production line. All
facility employees, except Griffin and the pharmacists,
have the title of pharmacy technician. Griffin supervises
all employees, although there is also a supervisory shift
coordinator who supervises the production line during
the second shift. Employees within the failed claims
office resolve problems with refill requests resulting
from potential problems with drug interactions, incorrect
insurance information, or premature refill requests. The
employees within the failed claims office work at desks,
and employees on the production floor stand at various
stations of the production line ensuring that refills are
properly filled.
The employee whose eligibility is at issue in this case,
Spetnagel, works in the failed claims office with em-
ployees Estella Clary, Kimberly Harris, and Michelle
Spencer.4 Spetnagel is primarily responsible for answer-
ing the Respondent’s five telephones so that the other
employees can work more on failed claims. However,
the other employees within the failed claims office also
answer the telephones if Spetnagel is busy. All of the
facility’s telephone calls come into the failed claims of-

4 Clary and Spencer work on the first shift with Spetnagel. Harris
works on the second shift. Clary and Harris process failed claims.
Spencer acts as an inventory clerk.

KROGER CO. 203
fice. The record reveals that at least some (and perhaps
most) of the telephone calls are from the Respondent’s
area pharmacies calling with questions about or problems
concerning prescriptions. The record does not reflect
who, other than pharmacies, calls the facility or what
percentage of the calls come in from others.5 The Re-
spondent receives hundreds of calls a day, but there is no
evidence regarding how much time is involved in han-
dling each call or how much time other employees within
the failed claims office spend answering the telephones if
Spetnagel is unable. Further, there is no credited testi-
mony regarding what is done with the calls once they are
answered.
In addition to answering the telephones, Spetnagel
spends 20–30 minutes on the production floor each day
delivering pink slips (notices that a prescription cannot
be refilled). Spetnagel puts the pink slips in delivery
bags before the noon shipment to the Respondent’s area
pharmacies. Spetnagel is in the failed claims office the
rest of the day. With respect to the other failed claims
employees, the judge found that Clary’s primary respon-
sibility is processing failed claims but that, in addition,
she spends at least 45 minutes on the production floor
assisting production employees before the noon shipment
and also performs such tasks as replenishing the bottling
machine and fixing the machine that prints prescription
labels. The judge found that Harris performs Clary’s job
on the second shift and also performs Spetnagel’s duty of
delivering pink slips during the second shift. Finally,
with respect to Spencer, the judge found that she acts as a
supply clerk by ordering drugs from suppliers and mak-
ing sure that drugs are on supply shelves. She also as-
sists production employees by bringing in shipments of
supplies to the production area. The judge made no find-
ings about the amount of time spent by Harris or Spencer
on the production floor.
III. THE JUDGE’S FINDINGS CONCERNING
SPETNAGEL’S CHALLENGED BALLOT
The judge found that, unlike the other employees in
the failed claims office, Spetnagel is an office clerical
employee and thus excluded from the bargaining unit. In
concluding that Spetnagel is an office clerical, the judge
found that Spetnagel’s duties are only tangentially re-
lated to production because she spends virtually all her
time answering the telephone and goes out to the produc-
tion floor only to deliver pink slips. The judge also noted

5 Levitt, a pharmacy technician on the first shift, testified that she
thinks Spetnagel’s duties include answering personal calls for Griffin,
but she later admitted that she does not know which calls are from
Kroger pharmacies and which are from other people.
that no employee performs Spetnagel’s duties during the
second shift even though there is full production.6
The judge found that unlike Spetnagel, Clary, Harris,
and Spencer are plant clericals, and thus part of the bar-
gaining unit, because the tasks they perform are allied to
the production process. Specifically, they resolve prob-
lems so that failed claims can proceed to the production
line. Further, the judge found that they perform produc-
tion work daily, particularly before the noon and mid-
night shipments to the area pharmacies.
IV. CONTENTIONS OF THE EXCEPTING PARTY
The Respondent excepts only with respect to the
judge’s finding that Spetnagel, in contrast to the other
employees working in the failed claims office, is an of-
fice clerical. The Respondent contends that, contrary to
the judge’s finding, the record evidence shows that Spet-
nagel’s duties are materially the same as the duties of the
other failed claims employees who were found, without
exception, to be part of the bargaining unit. Further, the
Respondent contends that even if Spetnagel does spend
most of her time answering the telephones, unlike the
other employees in the failed claims office, answering
the telephones is integral to production. Therefore, the
Respondent asserts that Spetnagel should be included in
the bargaining unit as a plant clerical like Clary, Harris,
and Spencer.
V. THE EVIDENCE DOES NOT ESTABLISH THAT
SPETNAGEL SHOULD BE EXCLUDED FROM THE
BARGAINING UNIT
The Union bears the burden of establishing that Spet-
nagel should be excluded from the bargaining unit as an
office clerical. See, e.g., Queen Kapiolani Hotel, 316
NLRB 655, 664–665 (1995) (party seeking to exclude an
individual from voting for a collective-bargaining repre-
sentative has burden of establishing that individual is
ineligible to vote).7 On balance, we conclude, contrary
to the judge and our dissenting colleague, that the Union
did not meet its burden of establishing that Spetnagel’s
principal duties are so removed from the production
process that she should be excluded from the bargaining
unit because she is not a plant clerical.8

6 The judge apparently was referring to Spetnagel’s telephone an-
swering duties because he found, as discussed above, that Harris per-
forms Spetnagel’s duty of delivering pink slips during the second shift.
7 Our colleague adopts the Union’s argument that it is reasonable
that at a facility such as the one in question, an office clerical employee
would be responsible for handling the Respondent’s five or six phones.
However, the party asserting the ineligibility of a voter bears the burden
of proving ineligible status and what may be reasonable is not a substi-
tute for proof.
8 We note that the Union did not call Spetnagel to testify.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 204
The Board has recently reiterated that the distinction
between “plant clericals” and “office clericals” is “rooted
in community-of-interest concepts, . . . albeit it is occa-
sionally difficult to discern.” Caesar’s Tahoe, 337
NLRB 1096, 1098 (2002). With respect to plant cleri-
cals, the “test generally is whether the employees’ prin-
cipal functions and duties relate to the production proc-
ess, as distinguished from general office operations.” Id.
“[T]he fact that clerical employees exercise some secre-
tarial skills is no obstacle to finding them to be plant
clericals, if other factors link them to the production
process and other production employees.” Id. at 1099.
The evidence presented does not establish that Spetna-
gel’s duties while in the failed claims office are so dis-
similar from the duties of the other failed claims employ-
ees that she, unlike them, should be excluded from the
bargaining unit. The judge found that the Respondent
receives hundreds of calls a day and that Spetnagel
spends most of her time answering the telephones. How-
ever, the record reveals that although Spetnagel answers
the telephones more frequently, the other failed claims
employees answer the telephones when Spetnagel is oc-
cupied. The Union presented no evidence demonstrating
how much time Spetnagel spends answering the tele-
phones relative to the other failed claims employees.
Further, the Union failed to prove that Spetnagel’s
duty of answering the telephones is not integral to the
production process. On the contrary, the record evidence
reflects that at least some (and perhaps most) of the calls
the Respondent receives are from area pharmacies calling
the Respondent’s refill center with questions about or
problems concerning prescriptions. These calls either
relate to failed claims work or to the refill process and
are therefore integral to production. See Avon Products,
Inc., 250 NLRB 1479, 1483–1484 (1980) (finding cleri-
cals who answer telephones to be plant clericals).9

9 Our dissenting colleague notes that the Respondent’s witness Grif-
fin did not testify that answering phones is integral to production.
However, it was not incumbent upon Griffin to provide this testimony;
rather it was incumbent upon the Union, the party bearing the burden of
proof, to establish that answering phones was not integral to produc-
tion. The Union failed to do so, and, in fact, failed to adduce any evi-
dence regarding the substance of the calls or how they were unrelated
to the processing of failed claims. The Union concedes that Spetnagel
answers phones and delivers pink slips. The Union failed to establish
that these functions are not integral to the production process. The
Union also failed to establish that Spetnagel performs other duties that
are unrelated to the production process.
Our dissenting colleague cites Palagonia Bakery Co., 339 NLRB
515, 336 (2003), for the proposition that “clericals whose principal
functions and duties relate to the general office operations and are
performed within the office itself are office clericals who do not have a
close community-of-interest with a production unit.” In Palagonia,
however, the Board noted that taking orders over the phone and distrib-
uting orders to the production department could be part of the produc-
The Union also failed to prove that Spetnagel’s duties
on the production floor are less integral to production
than the duties of the other failed claims employees.
Specifically, the Union did not prove that delivering pink
slips is less integral to production than refilling the bot-
tling machine. In fact, Harris, who was found to be a
plant clerical by the judge, performs the same duty of
delivering pink slips during the second shift that Spetna-
gel performs during the first shift. Our dissenting col-
league attempts to distinguish Spetnagel’s duties while
on the production floor from “actual” production or
“production support tasks.” However, the pink slips re-
late directly to the prescriptions, are placed into bags on
the production floor, and are delivered to pharmacies
along with the refills. We discern no basis for distin-
guishing these activities from “actual” production.
Finally, the Union did not prove that Spetnagel spends
significantly less time on the production floor than the
other failed claims employees, all of whom the Union
agrees are plant clericals. See Dunham’s Athleisure
Corp., 311 NLRB 175, 176 (1993) (distinguishing be-
tween office and plant clericals by the amount of interac-
tion the employees had with production employees). The
judge found that Spetnagel spends approximately 20–30
minutes on the production floor compared to about 45
minutes spent by employee Clary. We find this differ-
ence to be insignificant, particularly in light of the other
similarities between Spetnagel’s duties and those of the
other employees found to be plant clericals.
The party seeking to exclude an employee from the
bargaining unit and participation in a Board election
bears the burden of establishing ineligibility. In this
case, the record as a whole does not support the judge’s
conclusion that Spetnagel should be excluded from the
bargaining unit as an office clerical. In deciding the eli-
gibility of Spetnagel, we note particularly that she works
in the failed claims office, and all of the other employees
in that office are in the unit. Although Spetnagel’s time
on the production floor is limited (20-30 minutes per
day) by the time she spends in the failed claims office,
the same can be said of the others. Concededly, Spetna-
gel’s work in the failed claims office consists primarily
of answering phones, and the others primarily perform

tion process. The employee in Palagonia was found to be an office
clerical rather than a plant clerical because, although she took orders by
phone, she had no contact with production employees. Id. Here, by
contrast, Spetnagel works directly with other undisputed plant clericals
who also answer telephones, takes calls from pharmacies relating to
production refill requests, and interacts with production employees
while delivering pink slips to the production floor where she inserts
them into bags on the production line. Cf. Hamilton Halter Co., 270
NLRB 331 (1984) (processing customer orders is a task closely related
to tasks performed by plant clericals).

KROGER CO. 205
other functions in that office. However, the answering of
phones is itself tied to the production process. Further,
Spetnagel works closely with the others in that office, all
of whom are in the unit. Thus, the fact that Spetnagel’s
duties consist largely of phone answering is not sufficient
to exclude her while including the other three. We there-
fore reverse the judge on this issue and find that Spetna-
gel is a plant clerical, part of the bargaining unit, and
eligible to vote in the representation election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below.
IT IS ORDERED that the Respondent, The Kroger Com-
pany, Groveport, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the Union’s objections to
conduct affecting the results of the election conducted in
Case 9–RC–17712 are sustained.
IT IS FURTHER ORDERED that the challenges to the bal-
lots of Estella Clary, Michelle Spencer, Kimberly Harris,
and Erin Spetnagel in Case 9–RC–17712 are overruled.
IT IS FURTHER ORDERED that the challenge to the ballot
of Theresa Streich is sustained.
IT IS FURTHER ORDERED that Case 9–RC–17712 is sev-
ered from Case 9–CA–39712 and remanded to the Re-
gional Director for Region 9 for action consistent with
the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 9
shall, within 14 days of this Decision, Order, and Direc-
tion, open and count the ballots of Estella Clary, Mi-
chelle Spencer, Kimberly Harris, and Erin Spetnagel and
thereafter prepare and serve on the parties a revised tally
of ballots. If the revised tally shows the Union has re-
ceived a majority of the votes cast, the Regional Director
shall issue a certification of representative. If the revised
tally shows that the Union has not received a majority of
the votes cast, the election shall be set aside and a rerun
election shall be conducted.

MEMBER WALSH, dissenting.
My colleagues find, contrary to the judge, that the
challenge to the ballot of Erin Spetnagel should be over-
ruled because she is a plant clerical. I find, in agreement
with the judge’s analysis and conclusion, that the chal-
lenge to Spetnagel’s ballot should be sustained because
she is an office clerical, expressly excluded from the bar-
gaining unit.
I. BACKGROUND
The Union challenged the ballots of Estella Clary,
Kimberly Harris, Michelle Spencer, and Erin Spetnagel
on the grounds that they are office clericals, expressly
excluded from the stipulated bargaining unit. The judge
found that Clary, Harris, and Spencer are plant clericals,
and there are no exceptions to those findings. The judge
found, on the other hand, that Spetnagel is an office
clerical. He found that her duties are only tangentially
related to those of the production employees, are quite
different from those of plant clericals Clary and Harris,
and are completely dissimilar to those of plant clerical
Spencer.
In finding, contrary to the judge, that Spetnagel is a
plant clerical, my colleagues find that the evidence does
not establish that her duties are so dissimilar from those
of Clary, Harris, and Spencer, and that Spetnagel should
be excluded from the bargaining unit as an office clerical
while they are included as plant clericals. I disagree.
II. FACTS
Clary, Harris, Spencer, and Spetnagel all work at desks
in the failed claims office. Prescriptions that cannot be
filled automatically because of informational, administra-
tive, medical, or insurance problems are routed as part of
the production process to the failed claims office for
resolution and processing. Clary, Spencer, and Spetnagel
work on the first shift, Harris on the second.
Clary’s primary duty is to resolve and process the
failed claims on the first shift. Harris does the same
thing on the second shift. Spencer’s primary duty is to
manage the Respondent’s inventory of drugs and sup-
plies.1
The judge correctly found, on the other hand, that
Spetnagel’s duties are “quite different” from those of
Clary and Harris, and that there is no similarity at all
between the duties of Spetnagel and Spencer. Spetna-
gel’s primary duty is to answer the Respondent’s five
telephones. The Respondent receives hundreds of phone
calls each day, and Spetnagel answers most of them. She
does nothing but answer the phones for virtually her en-
tire workshift. The only time that anyone else answers a
phone is when Spetnagel is unable to, usually because
she is already on another call. In testimony implicitly
credited by the judge, Plant Manager Mike Griffin testi-
fied that he made Spetnagel primarily responsible for
answering the phones so that Clary could work all of the
time on resolving and processing failed claims as a step

1 Spencer orders drugs and office and production supplies from sup-
pliers, retrieves drugs from inventory, updates inventory records, re-
plenishes inventory, and carries arriving shipments of drugs on skids
from the warehouse to the production area.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206
in the production process. According to Griffin, “I want
[a] person to be working on failed claims all the time as a
[p]roduction station. I want to keep that rolling. Keeps
it most efficient if [failed claim processors] are uninter-
rupted by the phone.” The only time that Spetnagel
leaves her phones and emerges from the failed claims
office is for a 20-30 minute period each day, solely to
include unresolved failed claim notification-explanation
slips (pink slips) with shipments of filled drug orders
being sent to individual retail stores.
Clary, Harris, and Spencer also perform a variety of
production and production support tasks that Spetnagel
does not. Indeed, Spetnagel spends virtually all of her
time answering the phones so that Clary can spend al-
most all of her time either actually processing the failed
claims or working in the production area. Clary spends
about 20 percent of each workday working on the pro-
duction floor, interacting with the pharmacy technicians
and helping them with problems. Thus, in addition to
actually resolving and processing failed claims in the
failed claims office, Clary sets up the production line at
the start of the shift, replenishes the bottling, label print-
ing, and the pill counting machines, and clears jams on
the production line. Spencer also performs these produc-
tion support tasks. And Clary and Spencer also perform
actual production work for about 45 minutes each day,
packing products for shipment just prior to the dispatch
of the Respondent’s noon shipments to individual retail
stores. Harris performs the same failed claims process-
ing tasks and similar production support tasks on the
second shift that Clary performs on the first shift.
Employees Tina Levitt and Sandra Moore, on the other
hand, credibly testified that the only time that Spetnagel
comes out of the failed claims office onto the production
floor is to put pink slips into outgoing shipments during
the 20-30 minute period prior to the noon shipment each
day.
III. APPLICABLE PRINCIPLES
Recently, in Palagonia Bakery Co., 339 NLRB 515
(2003), the Board reiterated that the distinction between
office clericals and plant clericals is rooted in commu-
nity-of-interest principles. The Board stated that cleri-
cals whose principal functions and duties relate to the
general office operations and are performed within the
office itself are office clericals who do not have a close
community of interest with a production unit. Id. at 536.
A key element in determining whether a community of
interest exists is whether the asserted plant clericals per-
form functions closely allied to the production process or
to the daily operations of the production facilities at
which they work.2 The crucial element in finding such
an alliance with the production process is significant con-
tact with production employees. In cases where employ-
ees are found to be plant clericals, the Board consistently
relies upon the presence of significant direct contact with
production employees in finding functional integration
with the production process and a sufficient community
of interest. Id. On the other hand, where the Board finds
employees not to be plant clericals, it consistently relies
heavily on the absence of evidence of substantial contact
with production employees to conclude that the asserted
plant clericals do not share a community of interest with
production employees and are office clerical employees.
Id.
IV. APPLICATION OF PRINCIPLES
In agreement with the judge’s analysis and result, I
find that Spetnagel is an office clerical. Her principal
function and duty—answering the phones virtually all
day—relates to the Respondent’s general office opera-
tions and is performed within the office itself. She has
no significant direct contact with the production employ-
ees, coming into contact with them for only about 20–30
minutes each day solely to place pink slips in the outgo-
ing drug shipments. Neither her answering of the phones
nor her pink slip task is closely allied to the production
process. And beyond the lack of substantial connection
between Spetnagel’s duties and the production process,
Spetnagel’s telephone answering and pink slip placement
tasks are substantially or totally dissimilar to the failed
claims processing tasks performed by plant clericals
Clary and Harris, the inventory control tasks performed
by plant clerical Spencer, and the production support
tasks performed by all three of them. Accordingly, I find
that Spetnagel does not share a community of interest
with either the production employees or the plant clerical
employees, and that she is an office clerical.
In reversing the judge’s analysis and conclusion that
Spetnagel is an office clerical, and instead finding that
she is a plant clerical, my colleagues find that the Union
failed to prove that Spetnagel’s answering the phones is
not integral to production. Plant Manager Griffin testi-
fied extensively about the production process as well as
the processing of failed claims, and he did not testify that
answering the phones played any part in the production

2 I will be applying this “production process” framework in this case
with caution, however, because I believe in general that it can be ex-
tended too far, as my colleagues have extended it in this case, to en-
compass employees like Spetnagel whose duties are only tangentially
related to a “production process.” Thus, I agree with the judge’s cau-
tionary remark here that “[o]f course, the work of any clerical employee
in any production facility assists production employees in some re-
gard.”

KROGER CO. 207
process. Rather, he testified in effect that answering the
phones was actually separate from the failed claim proc-
ess. Thus, he assigned Spetnagel primarily to answer the
phones in order to keep Clary free to process failed
claims without interruption.3
My colleagues also find that the Union failed to prove
that Spetnagel’s task while on the production floor, plac-
ing unresolved failed claim notification-explanation pink
slips with shipments of filled drug orders, is less integral
to production than the duties of Clary, Harris, and
Spencer. But the record establishes that Clary and
Spencer perform some actual production tasks while on
the production floor, and that they and Harris also engage
in substantial production support tasks while on the pro-
duction floor. Spetnagel, on the other hand, does not
perform any production or production support tasks.
My colleagues also find that the Union failed to prove
that Spetnagel spends significantly less time on the pro-
duction floor than Clary, Harris, and Spencer. But, in
addition to the actual production tasks engaged in by
Clary and Spencer, the two of them and Harris perform
numerous production support tasks on the production
floor during the workday. Clary testified that from 7 to
11:15 a.m. each day she is “up and down all the time
doing other things” like replenishing the bottling ma-
chine, changing labels and ribbons on the labeling ma-
chine, clearing production line jams, and helping produc-
tion employees with problems. Clary further testified
that she is out on the production floor even more in the
afternoon, locating drugs that have been specially re-
quested by particular stores. In sum, Clary testified that
“I help a lot out on the floor and it’s a very busy place”;
“I spend a lot of time on the floor . . . helping them with
different problems.” Spencer testified that she performs
the same type of production support tasks that Clary
does, that she typically works with production employees
in putting inventory away, and that “quite a bit of [her
time] is out on the floor.” Spetnagel, on the other hand,
emerges from the failed claims office for only 20–30

3 Thus, my colleagues are incorrect in stating that the Union failed to
establish that Spetnagel’s phone answering was not integral to produc-
tion and not related to the processing of failed claims. The record
establishes both facts. Specifically, Plant Manager Griffin testified that
he made Spetnagel primarily responsible for answering the phones so
that failed claims plant clerical Clary would be able to spend all of her
time resolving and processing failed claims, as a step in the production
process. In short, Spetnagel answered the phones so that Clary would
not have to and could do failed claims production work instead.
In nevertheless finding that Spetnagel’s phone answering is also,
like Clary’s, integral to production, my colleagues are extending the
“production process” framework for analysis too far and are inadver-
tently showing the wisdom of the judge’s cautionary remark quoted in
fn. 2, supra: “[O]f course, the work of any clerical employee in any
production facility assists production employees in some regard.”
minutes each day, to place pink slips with outgoing ship-
ments.
The Union summarizes its arguments in response to
the Respondent’s exception to the judge’s finding that
Spetnagel is an office clerical this way:

In answering the telephones in the office nearly all day,
and nearly 100% of the time, Erin Spetnagel was per-
forming a function completely different from the plant
clerical employees and the production employees. It is
reasonable that a pharmacy that employs several phar-
macists and two supervisors, in addition to about 30
employees, that serves pharmacies in 164 stores, and
that processes 5500 orders per day, has one office cleri-
cal employee handling 5 or 6 phones in the office as
her primary responsibility.

In light of all of the record evidence discussed above
and by my colleagues, I find that the judge correctly de-
termined based on the preponderance of the relevant evi-
dence that Spetnagel is an office clerical.

Eric J. Gill, Esq., for the General Counsel.
Michael J. Underwood and Franck Wobst, Esqs. (Porter,
Wright, Morris & Arthur), of Columbus, Ohio, for the Re-
spondent.
Leonard S. Sigall and Steven D. Stone, Esqs., of Reynoldsburg,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Columbus, Ohio, on March 6 and 7, 2003. At issue
are an unfair labor practice charge filed by the Union, the
United Food and Commercial Workers (UFCW) Local 1059,
the Union’s objections to a representation election conducted at
the Kroger Refill Center in suburban Columbus, on October 31,
2002, and the Union’s challenges to the ballots of five indi-
viduals who attempted to vote in that election.
The charge was filed October 28, 2002, and the complaint
was issued January 17, 2003. In the unfair labor practice case,
the General Counsel alleges that Respondent, the Kroger Com-
pany, by its facility manager, Michael Griffin, violated Section
8(a)(1) of the Act by threatening and/or interrogating three
employees on separate occasions during an election campaign.
On February 18, 2003, the unfair labor practice case was con-
solidated for hearing with the Union’s challenge to five ballots
and its objections to the October 31, 2002 election. These ob-
jections are identical to the alleged 8(a)(1) violations.
Fourteen of the employees whose ballots were counted voted
in favor of the Union and 10 voted against being represented by
Local 1059. The Union challenged the ballots of Michelle
Spencer, Estella Clary, Kimberly Harris, Erin Spetnagel, and
Theresa Streich. If four of the challenges are rejected, these
ballots could determine the outcome of the election. The Union
contends that Spencer, Clary, Harris, and Spetnagel are “office

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 208
clerical employees” excluded from the bargaining unit by the
stipulated election agreement.1 The Union contends that
Streich is ineligible to vote because she is a supervisor within
the meaning of Section 2(11) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, The Kroger Company, maintains a facility in
Groveport, Ohio, a suburb of Columbus, from which it refills
patient prescriptions for Kroger retail pharmacies throughout
the State of Ohio. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union, UFCW Local
1059, is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE CHALLENGED BALLOTS
On September 27, 2002, the Union filed a petition to repre-
sent all regular full-time and part-time employees at the Kroger
Refill Center in Groveport. The Regional Director approved a
stipulated election agreement on October 7, for the following
bargaining unit:

All regular full-time and part-time employees employed by
the Employer at its Kroger Refill Center, 2250 Spiegel Drive,
Groveport, Ohio facility, but excluding all managers, office
clerical employees, pharmacists, pharmacist-interns, and all
guards and supervisors as defined in the Act.
The Employees in the Failed Claims Office
Respondent’s facility is essentially a large open area in
which employees stand around an 80-foot oval-shaped con-
veyor filling prescriptions. Since June 2002, the facility has
run two shifts; the first from 7:30–3:30 p.m. Monday–Friday
and the second Monday–Thursday, and Sunday from 3:30 p.m.
to midnight. Theresa Streich is the second-shift coordinator
and is responsible for overseeing production work during that
shift. Respondent has three daily shipping times, 9 a.m., noon,
and midnight. The pace of work just prior to the noon and
midnight shipments is “hectic.”
There are several offices on the periphery of the conveyor,
including that of Griffin, the facility manager, and the “failed
claims office.” Spencer, Clary, Harris, and Spetnagel work at
desks inside the failed claims office. The door to this office,
which is only a few feet from the production line, is always
kept open. All five of the employees whose ballots were chal-
lenged park in the same parking lot as production employees
and they use the same breakroom. All the employees working
on the conveyor line and those working in the failed claims

1 The Union also alleged that Spetnagel should be excluded from the
bargaining unit on the grounds that she is in effect Facility Manager
Griffin’s personal secretary and therefore a confidential employee. The
Union appears to have abandoned this argument in its brief and in any
event has failed to prove this allegation.
office have the title “pharmacy technician.” There are three
levels of pharmacy technicians in the facility and all five of the
individuals whose ballots were challenged are level 3 techni-
cians, the highest level. A few technicians who work exclu-
sively on the conveyor line are also level 3 pharmacy techni-
cians.
1. Estella Clary
Clary works on the first shift and her primary responsibility
is the processing of “failed claims.” These are prescriptions
that cannot be filled initially due to problems such as an incor-
rect patient social security numbers, drug interaction concerns,
insurance problems or being ordered for refill too soon. Clary
spends most of her workday making computer entries at her
desk to resolve these problems so that the prescriptions can be
filled.
However, Clary also spends some of her time on the produc-
tion floor and did so in October 2002. She replenishes a bot-
tling machine with empty prescription bottles and fixes a ma-
chine that prints prescription labels. On a daily basis, between
11:15 and noon, Clary leaves her office and assists production
employees in preparing for the noon shipment. She may also
work on the production floor just prior to leaving work at 3:30
p.m.
2. Kimberly Harris
Harris performs Clary’s job on the second shift. She gener-
ates reports on “failed claims” and makes data entries on the
computer to enable many of flawed prescriptions to be filled.
Harris comes out on the production floor to put slips into the
bags for each retail store for those prescriptions that cannot be
filled. Harris did not testify in this proceeding and there is very
little reliable evidence as to what other tasks Harris performed
during October 2002.
3. Erin Spetnagel
Spetnagel works on the first shift and her primary responsi-
bility is to answer the phones. She does this almost her entire
workshift except for a period of 20–30 minutes just prior to the
noon shipment. At this time, Spetnagel comes out of the office
and assists in putting the “pink slips” into shipments to the
retail stores.2 These slips explain why certain prescriptions
cannot be filled. There is no credible evidence that Spetnagel
did any other production work in October 2002.3

2 I credit the testimony of Tina Levitt and Sandra Moore that Spet-
nagel only comes out on the production floor to put the pink slips with
the shipments to the individual stores.
3 Spetnagel did not testify. I decline to credit Mike Griffin’s testi-
mony as to Spetnagel’s duties, because, for one thing, his testimony
regarding the amount of time Spetnagel spends answering telephone
calls was inconsistent.
On cross-examination by the Union’s counsel, Griffin testified:

Q. All right. Let’s talk some more about Erin. Erin is as-
signed to take all the phone calls, right?
A. Yes, she’s the first person to answer the phone.
Q. You have hundreds of phone calls a day, don’t you?
A. Yes.

KROGER CO. 209
4. Michelle Spencer
Spencer is Respondent’s inventory clerk. She works 8 a.m.
to 4:30 p.m. Monday–Friday and 3:30-midnight on Sunday.4
Spencer orders drugs from Kroger’s supplier and orders sup-
plies, which enable the production employees to perform their
tasks. She regularly leaves the failed claims office to look for
drugs on shelves near the conveyor line. Spencer often assists
production employees in bringing shipments from Kroger’s
drug supplier from the warehouse into Respondent’s production
area. For at least 15 minutes a day, Spencer helps conveyor
line employees pack drugs just before the noon shipment.
5. Theresa Streich
Streich is a level 3 pharmacy technician. In June 2002, when
Respondent instituted a second shift, it created a position titled
“second-shift coordinator.” Streich was given that position and
is paid an extra $1.50 per hour as a result. As second-shift
coordinator, Streich is the person primarily responsible for
production operations on the second shift. Streich works from
3:30 p.m. to midnight and is essentially in charge after Facility
Manager Griffin leaves the facility between 3:30 and 5:30 p.m.
While there is a pharmacist on duty on the second shift, this
pharmacist rarely, if ever, gets involved with the direction of
employees on the conveyor line.
Streich draws up work schedules, moves employees from
one station to another as needed, adjusts timecards, and ap-
proves any variations from a production employees’ normal
breaktime. When scheduling employees at a particular work-
station, Streich considers their relative skill levels (Tr. 159).

Q. Literally, hundreds of phone calls a day and you said she
answers the phone because you wanted the other ones working
full-time on failed claims, isn’t that correct?
A. Which, in turn, is actual production.
Q. . . . But, your testimony was that you wanted Erin han-
dling the phones full-time so that the others in the office could
work full time on failed claims, right? That was your testimony?
A. Yes. [Tr. 179–180.]

When led by Respondent’s counsel on redirect examination, he said
something quite different:

Q. What is Erin Spetnagel’s primary duty, is it Failed
Claims?
A. Yes, that’s her primary duty.
Q. She doesn’t spend more time on the phone than she does
on failed claims, does she?
A. I would say not.
Q. She’s not on the phone all day, is she?
A. No. [Tr. 211–212.]

His testimony generally indicates a desire to lump Spetnagel’s duties
with those of the other employees in the failed claims office when in
fact her duties were quite different. Finally, Griffin’s testimony is
ambiguous at times as to whether he is describing Spetnagel’s duties in
October 2002, which are relevant to this case, or her duties after the
election. All employees in the failed claims office began spending
more time on the production floor after the election. To the extent that
Norma Hickman’s testimony stands for the proposition that Spetnagel
performs tasks other than distributing pink slips on the production
floor, it is unclear if Hickman is testifying about October 2002 or af-
terwards.
4 Spencer is not scheduled to work Fridays, but normally does so.
She submits her work schedules to Griffin for review. Facility
Manager Griffin told second-shift employees that when Streich
tells them to do something, it is as if Griffin himself were
speaking.
When a pharmacy technician seeks to move from level 1 to
level 2, they must pass a practical examination. Streich is the
person who observes the individual and decides whether they
can perform the tasks that entitle them to a promotion. She also
determines whether they are sufficiently “hard working” to
merit such a promotion.
Streich also screens and interviews job applicants for posi-
tions on the second shift. She evaluates the applicant’s work
history and qualifications. Streich determines whether to inter-
view applicants and whether to recommend them to Griffin or
Paula Race in Kroger’s human resources department for a posi-
tion. If Streich determines an applicant should not be inter-
viewed, they are effectively excluded from Respondent’s hiring
process. Employees that are interviewed by Streich and rec-
ommended for hire are not interviewed again by Griffin, Race,
or anyone else.
III. ANALYSIS
A. The “failed claims office” Employees
In Caesar’s Tahoe, 337 NLRB 1096 (2002), the Board
adopted the test enunciated in Associated Milk Producers, Inc.
v. NLRB, 193 F.3d 539 (D.C. Cir. 1999). This a three-prong
analysis for resolving determinative challenged ballots in cases
involving stipulated bargaining units.5 The Board first deter-
mines whether the stipulation is ambiguous. If the objective
intent of the parties is expressed in clear and unambiguous
terms in the stipulation, the Board simply enforces the agree-
ment. If, however, the stipulation is ambiguous, the Board
must seek to determine the parties’ intent through normal
methods of contract interpretation, including the examination of
extrinsic evidence. If the parties’ intent still cannot be dis-
cerned, then the Board determines the bargaining unit by em-
ploying its normal community-of-interest test.
In the instant case, the stipulation is unambiguous insofar as
it excludes “office clerical employees” from the bargaining
unit. It is ambiguous as to whether the “failed claims” employ-
ees fall within that category. The only extrinsic evidence of the
parties’ intent is the fact that if all four “failed claims” employ-
ees fall outside of the “office clerical” category, the stipulation
excludes none of the employees at the Kroger Refill Center as
“office clericals.” One would think that a classification of em-
ployees that does not exist at the refill center would not be ex-
plicitly excluded from the bargaining unit.
Respondent points out that there are not any guards em-
ployed by the refill center, although one works at the Kroger

5 Scholastic Magazines, 192 NLRB 461 (1971), and Avon Products,
250 NLRB 1479 (1980), relied upon by Respondent at pp. 14–15 of its
brief, have limited relevance to the instant case. Those cases did not
involve stipulated election agreements. In the instant case, the parties
agreed that “office clericals” were to be excluded from the bargaining
unit. Thus, the issue herein, whether any employee at the refill center is
an “office clerical,” is somewhat different than the issues confronted by
Board in Scholastic Magazine and Avon Products.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 210
warehouse next door.6 Guards are also explicitly excluded
from the bargaining unit. The Union, however, distinguishes
the exclusion of guards from the exclusion of office clericals by
the fact that Section 9(b)(3) of the Act prevents the Board from
certifying a bargaining unit which includes guards and
nonguards. Thus, it suggests that while the exclusion of guards
in the description of the bargaining unit is superfluous, the ex-
clusion of office clericals must be accorded some meaning by
the exclusion of some employees at the refill center from the
bargaining unit.
In a somewhat analogous context, the Board in Kalustyans,
332 NLRB 843 (2000), rejected a union’s challenge to the bal-
lots of three employees. In that case, the union argued that the
three were office clerical employees, who were excluded by the
Stipulated Election Agreement rather than shipping clerks, who
were included. In deciding that the parties’ intent was to in-
clude the three in the unit, the Board relied, at least in part, on
the fact that if the three employees were not shipping clerks,
there would be no shipping clerks in the bargaining unit. How-
ever, I do not discern in Kalustyans a holding that the exclusion
of a category of employees in a stipulated election agreement is
evidence of the parties’ intent to exclude at least one employee
from the bargaining unit, as being a member of that category.
With regard to the third prong of the Board’s test, commu-
nity-of-interest concepts, the Board has long drawn a distinc-
tion between “plant clericals” and “office clericals.” “The in-
dispensable and conclusive element is that the asserted plant
clericals ‘perform functions closely allied to the production
process or to the daily operations of the production facilities at
which they work.” Caesar’s Tahoe, supra at 1098, quoting
Fisher Controls Co., 192 NLRB 514 (1971).
Applying this standard to the tasks performed by Clary on
the first shift and Harris on the second, I conclude that these
two employees are clearly “plant clericals.” The clerical tasks
they perform are allied to the production process in that their
efforts enable the “failed claims” to proceed to the production
line. Clary also performs production work on a daily basis—
particularly in the 45 minutes prior to the noon shipment.7
The tasks of Spencer, the inventory clerk, and Spetnagel are
less closely allied to the filling of prescriptions. Yet, Spencer is
the employee who makes certain that the medications and sup-
plies necessary to fill the prescriptions are available in the refill
center. Spetnagel, on the other hand, is the clerical employee
who spends the most time within the walls of the office, acting
essentially as a receptionist, and interacts least with the produc-
tion employees.
In Hamilton Halter Co., 270 NLRB 331 (1984), the Board
recognized that the “distinction drawn between office clericals
and plant clericals is not always clear.” In that case the Board
found two employees to be “plant clericals” because their pri-
mary function, the transcription of sales order forms to facili-

6 This guard patrols a parking lot used by refill center employees.
Additionally, Griffin called this guard when something was stolen from
the refill center.
7 Harris did not testify; however, I assume that she helps out in the
production area just prior to the midnight shipment. I make this as-
sumption because the record indicates that Harris has to complete the
“failed claims report” by 10 p.m.
tate production was a function closely associated with produc-
tion. The Board also found it significant in this regard that the
two maintained inventories, ordered supplies, and assisted shop
employees in loading and unloading trucks. By analogy to the
reasoning in Hamilton Halter, Spencer is a “plant clerical.”
Resolving the status of Spetnagel is more difficult since the
Board precedent appears to be less clear. In Dunham’s Athlei-
sure Corp., 311 NLRB 175, 176 (1993), the Board found that
two employees to be “office clericals” despite the fact that they
“sporadically” performed work in the warehouse. It found that
the limited contact that these two had with bargaining unit em-
ployees distinguished their situation from other cases in which
the Board held that employees were “plant clericals.”
Similarly, the Board in Cook Composites & Polymers Co.,
313 NLRB 1105, 1108 (1994), found that two manufacturing
data entry operators were “office clericals” and thus excluded
them from a production unit.

Clericals, whose principal functions and duties relate to the
general office itself, are office clericals, who do not have a
close community of interest with a production unit. This is
true even if those clericals spend as much as 25 percent of
their time in the production area and have daily contact with
production personnel. [Id. at 1108.]

In Cook Composites, the Board distinguished Hamilton Hal-
ter Co., supra, on the grounds that the clerical employees in
Hamilton performed a significant degree of production work. It
also relied on the fact that Cook Composites ran a full produc-
tion shift at night and had no manufacturing data operators
assigned to that shift. Similarly, in the instant case, there ap-
pears to be no employee whose performs Spetnagel’s tasks on
the second shift.
There are, however, many factors in Cook Composites that
distinguish the manufacturing data entry operators, found to be
“office clericals,” from Spetnagel. They were located in a dif-
ferent building from the production employees, although they
went to the production area several times a day. The Cook
Composite clericals used a different parking lot from other unit
employees, did not frequent the same lunchroom, did not wear
the production employees’ uniform, and did not punch a time-
clock. Finally, Facility Manager Griffin, who also supervises
the production employees on the first shift, supervises Spetna-
gel. The data entry operators in Cook Composites had a differ-
ent supervisor than the employees in the production unit.
In Cook Composites, the Board relied upon Container Re-
search Corp., 188 NLRB 586, 587 (1971), in which the Board
found a cost coordinator and a materials coordinator to be “of-
fice clericals.” In that case, the Board found that the employees
had only “incidental contact” with production and maintenance
employees and appears to draw the distinction between office
clericals and plant clericals on the basis of an employee’s
“principal functions and duties.” In Container Research, the
Board found the cost coordinator to be an office clerical despite
the fact that she spent 25 percent of her time in the production
area and had daily contact with production and maintenance
personnel.
In Brown & Root, 314 NLRB 19 (1994), the Board found
three document control clerks to be “plant clericals” in part

KROGER CO. 211
because they had daily contact with unit employees and be-
cause their primary function is directly related to construction
work and these duties provide daily assistance to unit employ-
ees. Of course, the work of any clerical employee in any pro-
duction facility assists production employees in some regard. It
appears that the issue in these cases is how directly related are a
clerical employee’s tasks to those of bargaining unit employees.
I conclude that Spetnagel’s duties are only tangentially related
and that she is therefore an “office clerical” ineligible to vote.8
Spetnagel spends virtually all her time answering the phone in
the office and goes out on the production floor only to put slips
into the shipments explaining to the retail pharmacies why cer-
tain prescriptions did not go through the production process.9
B. Is Theresa Streich a Supervisor Within the Meaning
of the Act?
Section 2(11) of the Act, defines “supervisor” as “any indi-
vidual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.”
Pursuant to Section 2(3) of the Act, a “supervisor,” as de-
fined in Section 2(11), is not an employee whose rights to en-
gage in union or protected concerted activity are protected by
the Act. A party seeking to exclude an individual from the
category of an “employee” has the burden of establishing su-
pervisory authority. The exercise of independent judgment
with respect to any one of the factors set forth in Section 2(11)
establishes that an individual is a supervisor. However, not all
decisionmaking constitutes the independent judgment necessary
to establish that an individual is a statutory supervisor. The fact
that an individual gives direction to other employees without
first checking with a higher authority, does not necessarily
make one a supervisor. For example, an individual does not
necessarily become a supervisor in situations in which his au-
thority to direct employees emanates solely from his skill or
experience, Southern Bleachery & Print Works, Inc., 115
NLRB 787, 791 (1956), enfd. 257 F.2d 235, 239 (4th Cir.
1958). Moreover, the exercise of supervisory authority on an
irregular and sporadic basis is not sufficient to establish super-
visory status, Browne of Houston, 280 NLRB 1222, 1225
(1986).
Streich’s supervision of the production line on the second
shift does not necessarily make her a statutory supervisor.
There are numerous cases in which an employee in charge of
the employer’s work force at a specific location has not been

8 I conclude that Spetnagel’s physical proximity to Clary and
Spencer does not make her a “plant clerical.” Although, there may
have been some degree of crossover in their duties, the record indicates
that in October 2002, Clary spent almost all her day resolving failed
claims and Spetnagel spent almost all day answering the telephone.
There was no similarity between Spetnagel’s duties and those of
Spencer.
9 At least some of these prescriptions are then filled by Kroger’s re-
tail pharmacies.
deemed to be a supervisor due to the routine nature of the em-
ployee’s oversight functions, e.g., Azusa Ranch Market, 321
NLRB 811 (1996). On the other hand, Streich’s authority to
interview and to recommend whether or not to hire job appli-
cants establishes her supervisory status. There is also a close
question of whether she is a “supervisor” by virtue of her au-
thority to schedule employees at specific workstations. The
issue before me is whether Streich uses “independent judg-
ment” in effectively recommending whether or not to hire job
applicants and/or in effectively recommending the assignment
of employees to their workstations.
Streich testified that in deciding whether to interview an ap-
plicant:

A. . . . I get the most qualified first and then I go back
to the other ones.
Q. Okay. Is there a set of guidelines or is there some-
thing in writing that you follow in writing that you follow
in making these decisions on whether or not you’re going
to interview these people or do you use your judgment
based on your past experience?
A. I use my judgment. [Tr. 282-283.]

The Board defines the power to effectively recommend as
meaning “that the recommended action is taken with no inde-
pendent investigation by superiors,” ITT Corp., 265 NLRB
1480, 1481 (1982), Wesco Electrical Co., 232 NLRB 479
(1982). Applicants interviewed by Streich were hired for sec-
ond shift positions without being interviewed by Michael Grif-
fin or anyone else. Griffin testified at Transcript 161-162,
without giving any specific examples, that he may occasionally
decide not to hire someone who Streich recommends. How-
ever, he never decides to hire someone that Streich does not
recommend hiring.10 Indeed, Streich is a supervisor simply on
the basis of her power to effectively recommend against the
hiring of a job applicant, HS Lordships, 274 NLRB 1167, 173
(1985).11
Finally, due to the inconsistencies between Griffin’s testi-
mony at Transcript 161-162 and Streich’s testimony at Tran-
scripts 278-279 and 282-283, I find Griffin’s testimony regard-
ing Streich’s role in the hiring process to be incredible. I con-
clude that insofar as this record is concerned, Kroger hires any
applicant for a second-shift position who Streich recommends
for hire.
Streich testified that when scheduling employees at a par-
ticular workstation, she:

10 In this respect, Streich differs from Doyle Womack, who was
found not to be a statutory supervisor in Browne of Houston, 280
NLRB 1222, 1225 (1986). Womack’s superior subsequently inter-
viewed applicants interviewed by Womack before they were hired.
11 The cases relied upon by Respondent, for the proposition that
Streich did not effectively recommend the hiring of employees, are
distinguishable from the instant case. In Anamag, 284 NLRB 621, 623
(1987), and Kenosha News Publishing Co., 264 NLRB 270, 271
(1982), as well as a similar case, Tree-Free Fiber Co., 328 NLRB 389,
391 (1999), management screened out applicants it did not want to hire
before seeking the opinion of the nonsupervisory employees. In con-
trast, Streich screened out unsuitable applicants for Griffin and Race.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 212
. . . goes by the seniority and the knowledge of what they
know at the refill center because the ones that have been there
longer know more of what to do there so I base it on their
knowledge of what they know. [Tr. 274.]

Griffin testified that Streich “decides who goes in what sta-
tion based on their abilities to perform those job duties at that
station.” (Tr. 159.) Griffin occasionally changes Streich’s
work schedule.

. . . I see a name of a person that’s in a certain spot that I feel
wouldn’t be appropriate for a busy day, or appropriate for that
position. I will ask her to redo it. That doesn’t happen a lot,
but it happens. [Tr. 160.]

This testimony indicates that Streich uses some degree of in-
dependent judgment in deciding which employees work at
which workstations on the second shift. Thus, she has far more
discretion than Antonio Hernandez, who was found not to be a
supervisor in Valley Mart Supermarkets, 264 NLRB 156, 161
(1983). Even though Griffin has, on occasion, changed
Streich’s schedule, I find that Streich uses independent judg-
ment in effectively recommending the scheduling of employ-
ees.12
IV. ALLEGED UNFAIR LABOR PRACTICES/UNION’S
OBJECTIONS TO THE ELECTION
The allegations of the complaint and the Union’s objections
to the election involve the same incidents. Essentially the issue
before me is whether I believe three bargaining unit employees,
or Facility Manager Griffin’s denial of their testimony.
A. Complaint Paragraph 5/Objection 1
Tammy Wright testified that Mike Griffin called her into his
office on October 8, 2002, and asked her if she would work on
the first shift during the following week. At the time Wright
was working second shift. Wright told Griffin that she would
be willing to work both shifts if Theresa Streich would allow
her to leave early on the second. Griffin then said he would
talk to Streich.
Then, according to Wright, Griffin asked her what she
thought of this “union stuff.” Wright responded that employees
needed someone to talk to. Griffin said they could talk to him.
Wright replied that Griffin always sent her back to Streich, who
was the source of her problems. Griffin said that if Wright
came to him again, he and Wright would discuss Wright’s
problem with Streich together.
Wright then mentioned that she had forgotten to clock out
the previous night. According to Wright, Griffin said, that’s all

12 If Streich’s work schedules were not subject to any review, her
exercise of judgment in drawing up these schedules would clearly make
her a supervisor. However, Board precedent is not that clear as to
whether any degree of review of the schedule will negate such status. I
believe that where, as in the instant case, her recommendations are
generally accepted with a cursory review, that her exercise of inde-
pendent judgment makes her a supervisor. In any event, her exercise of
independent judgment regarding hiring decisions establishes her super-
visory status regardless of whether she is a supervisor by virtue of her
authority to schedule employees at different workstations.
right, I can let it go, “but if a union were here, I’d have to give
you a write up.”
Griffin testified as follows: Wright came into his office to
discuss working first shift. She complained about Streich.
When Griffin told Wright he’d like her to try again to resolve
her problems with Streich on her own, she volunteered that this
was why she supported the Union. Griffin concedes he was not
aware of Wright’s support for the Union previously.
Griffin confirms that Wright mentioned failing to clock out.
However, he testified that he merely told her that he had flexi-
bility in dealing with such transgressions. He denied telling
Wright that he’d have to write her up if there was a union at the
refill center.
I credit Wright’s account. On cross-examination, Wright
testified that she told Griffin that she was upset over the fact
that the Union had filed a charge over the incident. Wright
gave the impression of wanting to please everyone and I sense
that she would have hedged her testimony not to make Griffin
look bad if she could have done so. I also credit Wright’s tes-
timony, as opposed to Griffin’s, due to Griffin’s lack of candor
when testifying about Spetnagel’s and Streich’s duties.
Moreover, Wright’s testimony is consistent with the testi-
mony of Corina Culbertson (her sister) and Sandra Moore re-
garding similar incidents. In this record only Moore appears to
have been a vociferous advocate for the Union. I find it
unlikely that all three accounts are fabricated. I find that the
conversation transpired as testified to by Wright.
B. Applicable Legal Principles
Not every inquiry by management regarding union sympathy
is a violation of Section 8(a)(1). The Board applies a “totality-
of-the-circumstances” test, Rossmore House, 269 NLRB 1176
(1984). Among the relevant factors are the presence or absence
of employer hostility to the Union, whether the employer ap-
pears to be seeking information on which to base disciplinary
action, the position of the questioner in the employer’s hierar-
chy, the place and method of interrogation and the truthfulness
of the employee’s reply, Medicare Associates, Inc., 330 NLRB
935, 939 (2000). However, these factors are not to be me-
chanically applied and each factor need not be evaluated. They
are merely useful starting points for assessing the “totality of
the circumstances.”
In the instant case, I start my analysis with the proposition
that an employee is entitled to keep from his or her employer,
his or her views on unionization so that the employee may ex-
ercise a full and free choice as to whether to select the Union or
not, id. at 942. The fact that Griffin, the facility manager, in-
quired as to the union sympathies of Wright, an employee who
had not revealed her views to Kroger previously, in the midst of
election campaign, is enough to convince me that his inquiry
violated the Act in interfering with Wright’s free choice.
I also find that Griffin violated the Act in telling Wright that
if employees selected the Union as their bargaining representa-
tive he would have to “write her up” for failing to clock out.
An employer may accurately describe to employees the results
of unionization, such as the inability to deal directly with the
employee without the involvement of the union, Insight Com-
munications Co., 330 NLRB 431, 458 (2000). An employer

KROGER CO. 213
may also describe the collective-bargaining process to employ-
ees, including the fact that the results of bargaining may result
in changes in the way the employer’s establishment operates.
However, when an employer, categorically states, as did Grif-
fin, that discipline will be enforced more stringently if a union
is selected, without referring to the possibility of gains and
losses through the collective-bargaining process, the statement
violates Section 8(a)(1), Fieldcrest Cannon, Inc., 318 NLRB
470, 495 (1995); United Artists Theatre, 277 NLRB 115, 121
(1985).
Griffin’s statement is a threat of unilateral action and coerced
employees in the exercise of their Section 7 rights. He would
not have violated the Act if he had explained that numerous
working conditions, including the enforcement of Respondent’s
workrules, could change for better, for worse, or not at all,
through the collective-bargaining process. However, without
this or a similar gloss, his statement would reasonably lead an
employee to conclude that Kroger intended to tighten up on
enforcement of its workrules in the event of a union electoral
victory and that the one had better vote against the Union if
they wanted to receive the same sort of leniency that employees
enjoyed without a union, Medicare Associates, Inc., 330 NLRB
935, 943 (2000).
C. Complaint Paragraph 6/Objection 2
Corina Culbertson testified that on October 10, 2002, Griffin
came to her workstation to tell her that she had filled a prescrip-
tion improperly. Later, according to Culbertson, Griffin told
her that if the facility had a union, he would have to write her
up. However, without a union he could be lenient. Griffin
denies making this statement. For the same reasons that I cred-
ited Wright, I credit Culbertson.
D. Complaint Paragraph 7/Objection 3
Moore testified that on October 11, 2002, she clocked in late
after a break. When Griffin walked by she told him that she
had done so. According to Moore, Griffin said that so long as
she didn’t abuse her breaktime, he wouldn’t take any discipli-
nary action. She also testified that Griffin left her location and
then returned a few seconds later. At that time, he told her that
although he could overlook her clocking in late, if the facility
was unionized, he would have to write her up.
Griffin contradicts the account of Moore, who is an active
union supporter and who had demonstrated her support for the
Union openly prior to October 11. He testified that he told
Moore that he didn’t have a problem with her clocking in late
because she did not have a history of doing so. Then Griffin
testified that he told Moore that with the flexibility he had cur-
rently in the facility, he could use his discretion in dealing with
her clocking in late.
I credit Moore, not only due to the consistency of her testi-
mony with that of Culbertson and Wright, but because I see no
reason for Griffin to discuss his “flexibility” unless he was
trying to contrast his discretion with the situation that would
exist if employees chose to be represented by the Union. Grif-
fin did not testify that he explained to Moore how his flexibility
could be lost through the collective-bargaining process. His
comments would thus tend to leave an employee with the im-
pression that Kroger intended to punish employees, if they
chose the Union, by unilaterally tightening up on its enforce-
ment of workrules.
CONCLUSION OF LAW
The Unfair Labor Practices
Based on the credibility determinations above, I conclude
that Respondent, by Griffin, coercively interrogated Wright on
October 8, 2002, and threatened Wright, Culbertson, and
Moore, as alleged, with a stricter administration of discipline if
employees selected the Union as their collective-bargaining
representative. In doing so, Respondent violated Section
8(a)(1) of the Act as alleged.
Challenged Ballots/Objections to the Election
I recommend that the challenges to the ballots of Clary,
Spencer, and Harris be overruled. Additionally, I recommend
that the challenge to the ballot of Spetnagel be sustained on the
grounds that she is an office clerical employee and that the
challenge to the ballot of Streich be sustained on the grounds
that she is a supervisor within the meaning of Section 2(11) of
the Act. Even if the ballots of Clary, Spencer, and Harris are
counted as having voted against representation by the Union,
14 votes will have been cast in favor of such representation and
13 against representation. Therefore, if these recommendations
are adopted by the Board, the Union, United Food and Com-
mercial Workers Union, Local 1059, should be certified as the
exclusive bargaining representative of the following employees
at the Kroger Refill Center in Groveport, Ohio.

All regular full-time and part-time employees employed by
the Employer at its Kroger Refill Center, 2250 Spiegel Drive,
Groveport, Ohio facility, but excluding all managers, office
clerical employees, pharmacists, pharmacist-interns, and all
guards and supervisors as defined in the Act.

In the event that my ruling on the challenged ballots is re-
versed and the Union fails to receive a majority of the valid
ballots cast, I recommend that the Board order a new election.
The Board’s policy is to set aside an election whenever an un-
fair labor practice occurs during the critical period between the
filing of the representation petition and the election. There is a
limited exception to this policy, however, in situations where
the misconduct is de minimis with respect to affecting the re-
sults of an election, Video Tape Co., 288 NLRB 646 fn. 2, 665
(1989). Since several employees were affected by the viola-
tions herein and under the Union’s worst-case scenario, it can
only lose the election by a single vote (if all five challenged
ballots are counted and all five employees vote against union
representation), the violations cannot be deemed de minimis.
Therefore, if the Union does not prevail on the challenges to at
least two of the ballots, I conclude that its objections have suf-
ficient merit to set aside the election of October 31, 2002.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, The Kroger Company, Groveport, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about union sup-
port or union activities.
(b) Threatening employees that the administration of disci-
pline will be stricter if they chose a union as their collective-
bargaining representative.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Groveport, Ohio, copies of the attached notice marked
“Appendix.”14 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14
If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 8, 2002.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS ALSO ORDERED that Case 9–RC–17712 be severed and
remanded to the Regional Director, who shall certify the elec-
tion results.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.

WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT threaten to administer discipline more strictly if
you choose a union as your collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

THE KROGER COMPANY