Kroger Grocery & Baking Co.

National Labor Relations Board - Board Decisions

Dec 10, 1941

37 N.L.R.B. 450 (N.L.R.B. 1941)

In the Matter of KROGER GROCERY & BAKING Co. and RETAIL CLERKS
INTL. PROTECTIVE ASSOCIATION, LOCAL #725 (A. F. OF L.)
Case No. R-3237.-Decided December 10, 1941
Jurisdiction : food products canning, warehousing, manufacturing, and retail
distributing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to any union without certification by the Board;
election necessary.
Unit Appropriate for Collective Bargaining : grocery clerks in Indianapolis who
work at least thirty hours a week.
Frost c Jacobs, by Mr. Cornelius I. Petzhold, of Cincinnati, Ohio,
and Mr. Paul Mooney, of Indianapolis, Ind., for the Company.
. Faust, Faust.&'Faust, by Mr. William H. Faust, Sr., and Mr. Wil-
liam H. Faust, Jr., of Indianapolis, Ind., for the Union.
Miss Grace MeEldowney, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 25, 1941, Retail Clerks Int'l Protective Association,
Local $725 (A. F. of L.), herein called the Union, filed with the Re-
gional Director for the Eleventh Region (Indianapolis, Indiana) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Kroger Grocery & Baking
Co., Indianapolis, Indiana, herein called the Company, and requesting
an investigation and certification of representatives,' pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On October 8, 1941, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, ordered an in-
vestigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On October 13, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
37 N I, R. B., No. 72.
450
KROGER GROCERY- & BAKING CO. 451
Union. Pursuant to notice, a hearing was held on November 3, 1941, at
Indianapolis, Indiana, before Arthur R. Donovan, the Trial Examiner
duly designated by the Chief Trial Examiner. The Company and the
Union were represented and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing on the issues was afforded all parties. Dur-
ing the hearing the Union moved to amend its petition in so far as
the description'of the appropriate unit was concerned. The Trial
Examiner granted the motion, and his ruling is hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Kroger Grocery & Baking Co. is an Ohio corporation engaged in
-the -'manufacture, canning, warehousing, and retail distribution of
food products. In Indianapolis, Indiana, it has 53 stores, with which
-we are-here concerned.
The sales of the Company in the Indianapolis stores amount to
'between $4,000,000 and $5,000,000 annually. Between 30 and 40 per
,cent of'the merchandise sold in these stores is shipped to Indianapolis
-from points outside the State of. Indiana. The Company admits that
its operations in Indianapolis affect commerce within the meaning
,of the Act. - -
II. THE ORGANIZATION INVOLVED
Retail' Clerks Int'l Protective Association, Local #725, is a labor
,organization affiliated with the American Federation of Labor. It
admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The position of the Company, as expressed at the hearing, is that
it desires certification by the Board before granting recognition to
Any union. A statement of the R.,gional Director, introduced in
,evidence, shows that the Union represents a substantial number of
,employees in the unit hereinafter found to be appropriate.'
We find that a question has arisen concerning the representation
,of employees of the Company. - -
1 The Regional Director reported that the Union had presented 111 authorization cards,
of which 17 were undated and 94 were dated in July and August 1941 All the cards
bore appaiently genuine original signatures, of which 26 were the names of managers and
'85 were the navies of clerks Of the latter, 35 w ere names appearing on the Company's
pay roll of October 25, 1941, on which there were fisted 77 clerks, constituting the unit
,hereinafter fpurid appropriate.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I, above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States 'and
tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing the parties agreed that the appropriate unit should
consist of "all grocery clerks in Indianapolis working thirty hours
,a week or more who have been in the employ of the Company for
at least one month prior to the date of the election." Managers of
grocery stores, included in the unit,originally claimed by the Union,
were specifically excluded by amendment of the petition.
In accordance with the desires of the parties, as expressed in the
above stipulation, we shall restrict the unit to grocery clerks work-
ing at least 30 hours a week. As to the provision of the agreement
relating to length of service, we see no reason for excluding from
the unit clerks who have been employed for less than 1 month, as it
does not appear from the record that their interests differ in any
respect from those of other clerks of the Company. Since this pro-
vision may have been intended as a restriction on eligibility to vote
rather than as a limitation on the unit, it will be further considered
in Section VI, below. -
We find that all grocery clerks employed by the Company in
Indianapolis who work at least 30 hours a week constitute a unit
appropriate for the purposes of collective bargaining and that such
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by, and Nye shall direct, an election by secret
ballot.
In accordance with our usual practice and with the desires of the
parties as expressed at the hearing, we shall further direct that the
pay roll for the period immediately preceding the date of the Direction
herein be used to determine eligibility to vote. Although the wording
of the stipulation as to the unit, quoted above, suggests that the parties
may also have intended to restrict eligibility to clerks in the employ
KROGER GROCERY & BAKING CO. 453
of the Company for 1 month prior to the date of the election, we
believe that the length of time that will necessarily elapse between
the date , of the pay roll to be used and the date of the election makes
such a restriction unnecessary . We shall accordingly direct that the
employees of the Company eligible to vote shall be those in the
appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction herein, subject to the
limitations and additions set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of 'employees of Kroger Grocery & Baking Co., Indianapolis;
Indiana, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All grocery clerks employed by the Company in Indianapolis who
work at least 30 hours a week constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9 (b)
of the National Labor Relations Act.
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,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby '
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Kroger Grocery & Baking Co., Indianapolis, Indiana, 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 supervision of the Regional Director for the Eleventh
Region, acting in this natter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regula-
tions, among all grocery clerks employed by the Company in
Indianapolis Who Work at least 30 hours a week, who Were employed
by the Company during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during such pay-roll period because they were ill or on
vacation or in the active military service or training of the United
States, or temporarily laid off, but excluding employees who have since
quit or been discharged for cause, to determine whether or not they
,desire to be represented by Retail Clerks Int'l Protective Association,,
Local #725 (A. F. of L.), for the purposes of collective bargaining.
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