Kroger Grocery and Baking Co.

National Labor Relations Board - Board Decisions

May 11, 1945

61 N.L.R.B. 1125 (N.L.R.B. 1945)

In the Matter of KROGER GROCERY AND BAKING COMPANY and UNITED
RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES, CIO
Case No. 10-R-141415.-Decided May 11, 1945
Messrs. F. A. Williams and W. S. Kearns, of Atlanta, Ga., for the
Company.
111rs. Frances Sc/tulter and Mr. C. H. Gilbnan, of Atlanta, Ga., for
the CIO.
Mr. W. 7'. Arcleer, Jr., of Atlanta, Ga., for the AFL.
Mr. Harold M. Hu phreys, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Retail, Wholesale and De-
partment Store Employees, CIO, herein called the CIO, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Kroger Grocery and Baking Company; Atlanta,
Georgia, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Albert D. Maynard, Trial Examiner. Said hearing was held at At-
lanta, Georgia, on April 20, 1945. The Company and the CIO, ap-
peared and participated.' All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are herby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPAN Y
Kroger Grocery and Baking Company is an Ohio corporation hav-
ing its principal offices in Cincinnati, Ohio. It operates within 18
' Although it was duly served with Notice of Hearing, no authorized representative of
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local
728 AFL, herein called the AFL, appealed at the heal mg However, the AFL filed it
written Motion for Intervention and Objections to Granting Petition which have been
considered by the Board
61 N. L. R. B, No. 187.
1125
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States approximately 3,000 retail stores engaged in the purchase, dis-
tribution, and sale of food, food products, and allied items. We are
concerned herein with certain employees of the Company's Atlanta,
Georgia, branch, consisting of a general office, a warehouse , a trans-
portation department, and 37 retail stores located in and about At-'
lanta. During the past 12 months the Company's Atlanta, Georgia,
branch purchased food and allied items amounting in value to more
than $5,000,000, of which approximately 60 percent was received from'
points outside the State of Georgia. During the same period, the
Atlanta branch sold and distributed within the State of Georgia food
and allied items valued in excess of $6,000,000.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Retail, Wholesale and Department Store Employees, affili-
ated with the Congress of Industrial Organizations, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 728, affiliated with the American Federation of Labor, are labor
organizations admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 1, 1945, the CIO requested recognition from the Company
as the collective bargaining representative of certain of its Atlanta
branch employees. The Company refused to accord such recognition.
A contract with the Company covering substantially the same
employees here sought by the CIO is raised by the AFL as a bar to
the instant proceeding. On April 1, 1943, this contract was executed
by the Company and the AFL for a term of 1 year, automatically
renewable for yearly periods thereafter, " unless either party serves
notice in writing, 30 days prior to the expiration date, of a desire
for termination of or for changes in the agreement ." In 1944 the
contract was automatically renewed. Inasmuch as the CIO apprised
the Company of its claim to representation prior to the time the
automatic renewal clause was to take effect in 1945, it is evident that
no bar exists as'to a current determination of representatives 2
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the CIO represents a substantial number of
employees in the unit hereinafter found appropriate 3
2 See Matter of Craddock - Terry Shoe Corp., 55 N. L R. B 1406.
3 The Field Examiner reported that the CIO submitted 25 application for membership
cards ; that the names of 24 persons appearing on the cards were listed on the Company's
pay roll of April 12, 1945, which contained the names of 35 employees in the alleged appro-
priate unit ; and that 25 of the cards were dated during March 1943 , and 1 was undated.
At the hearing the CIO submitted 10 additional cards , 6 dated April 1 945, and 4 undated.
Apparently the AFL relies upon its contract as evidence of its interest In this proceeding
KROGER GROCERY AND BAKING COMPANY 1127 .
We find that a question affecting commerce has arisen concerning
the representation of employees of.the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company and the CIO are agreed that the appropriate unit
should consist of all warehouse employees and truck drivers of the
Atlanta branch, excluding watchmen, the night shipping clerk, and all
other supervisory employees.' They are in disagreement, however,
concerning the day shipping clerk, day receiving clerk, and porters.
The Company would exclude these employees, while the CIO would
include them.
Day shipping clerk.-This employee is in direct charge of the truck
drivers, and four employees, known as "order runners," who fill mer-
chandise orders received from the Company's retail stores. It is the
day shipping clerk's responsibility to see that such orders are cor-
rectly filled, that the trucks are properly loaded, and that the truck
drivers give prompt delivery. In fulfilling his duties he can hire addi-
tional truck drivers when necessary, and effectively recommend the
discharge of employees. The night shipping clerk has powers which
are similar to those of the day shipping clerk, and the Company and
the CIO agree to the former's exclusion as a supervisory employee.
We are of the opinion that the day shipping clerk possesses super-
visory authority, and we shall, accordingly, exclude him from the unit.
Day receiving clerk.-He is responsible for the receiving of mer-
chandise from railroad cars and trucks, and is in charge of a crew of
employees, known as the "car gang," which unloads merchandise from
cars. If any of these employees fail to report for duty, they are re-
quired to notify the day receiving clerk. The day receiving clerk also
possesses authority to hire and to make effective recommendations con-
cerning discharge. We shall exclude him as a supervisory employee.
Porters.-The Company employs two women porters whose primary
duty is to clean the general office. In addition, they assist in the ware-
house by sorting merchandise and sacking food. We shall include
them.
We find that all warehouse employees, truck drivers, and porters of
the Company's Atlanta, Georgia, branch, excluding watchmen, the
day and night shipping clerks, the day receiving clerk, and all other
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
* In the document it filed with the Board, the AFL took no position with respect to the
appropriate unit.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
ahd pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Kroger Grocery
and Baking Company, Atlanta, Georgia, an election by secret ballot
shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction , under the direction and super-
vision of the Regional Director for the Tenth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
the election, to determine whether they desire to be represented by
United Retail, Wholesale and Department Store Employees, CIO, or
by International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local 728, AFL, for the purposes of collective bar-
gaining, or by neither.
MR. JOHN M. HOUSTON took no part in the consideration of the above
Decision and Direction of Election.