The Kroger Co.

National Labor Relations Board - Board Decisions

Aug 22, 1946

70 N.L.R.B. 263 (N.L.R.B. 1946)

In the Matter of THE KROGER COMPANY, EMPLOYER' and RETAIL
CLERKS INTERNATIONAL PROTECTIVE ASSOCIATION, AFL, LOCAL 219,
PETITIONER
Case No. 14-B-1,043.-Decided August 02, 1946
Frost and Jacobs, by Mr. C. J. Petzhold, of Cincinnati, Ohio, for the
Employer.
Messrs. Paul H. Jones and Fred W. Lotz, of Belleville, Ill., for the
Petitioner.
Mr. Seymour M. Alpert, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at'Belleville,
Illinois, on June 13, 1946, before Elmer L. Hunt, Trial Examiner.
The Trial ' Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Kroger Company, an Ohio corporation with its principal office
in Cincinnati, Ohio, is engaged in the purchase and distribution of
food, food products, and allied items, and operates in this connection
approximately 2,700 retail outlets in 18 States of the United States.
We are here concerned solely with the Employer's 3 stores in the city
of Belleville, Illinois, located at 309 East Main Street, 335 West Main
Street, and 24 North High Street, respectively. During the past year,
the Employer's purchases of food, food products, and allied items for
these 3 stores exceeded $500,000 in value, of which approximately 75
percent represented shipments to it from points outside the State of
Illinois. In addition, the Employer purchases annually, through its
I The name of the Employer appears a s amended at the hearing.
70 N. L It. B., No 25.
263
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Belleville stores, substantial quantities of eggs for shipment to its
warehouse in-St. Louis, Missouri.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of the store managers at its three Belleville
stores until the Petitioner has been certified by the Board in an appro-
priate unit.
In its brief, the Employer moved to dismiss the petition on- the
ground that its store managers are management representatives and
not employees within the meaning of the Act inasmuch as they are
vested with authority to hire, discharge, and change the status of all
employees under their supervision. For the reasons stated by us in the
L. A. Young case 2 and following cases, we find, contrary to the Em-
ployers contention, that its store managers are employees within the
meaning of Section 2 (3) of the Act, and we shall, accordingly, deny
its motion to dismiss.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within 'the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks to represent the store managers of the Em-
ployer's three Belleville, Illinois, stores and, in effect, requests that
if the Board directs an election and the Petitioner wins, these em-
ployees be merged into the existing unit of grocery department
employees at these three stores which it presently represents 4 With-
out waiving its primary position that the store managers cannot form
any appropriate unit, the Employer impliedly contends that the unit
is inappropriate because its geographical scope is too limited, and that,
2 Matter of L A. Young Sprinq d Wire Corporation , 65 N L R B 298
3 Matter of The Great Atlantic d Pacific Tea Company, 69 N L R B. , No 55; Matter
of Jones d Laughlin Steel Corporation , Vesta-Shannopin Coal Division , 66 N L. R. B. 386;
' Matter of The B. F Goodrich Company , 65 N. L. R. B.-294.
4 The most recent contract between the Employer and the Petitioner is dated March 15,
1946 , and recognizes the Petitioner as collective bargaining representative for "all persons
employed ( in the three Belleville stores ), except meat department employees , and those
persons employed in a bona fide executive capacity ." The meat department employees are
organized in a similar unit represented by another union.
THE KROGER COMPANY 265
in any event, the same union which represents its rank and file em-
ployees may not represent the store managers in a separate unit or as
part of the existing unit.
The stores maintained by the employer are divided into 25 branches,
which are subdivided into districts. In the Employer's district 406,
which comprises 19 stores in the State of Illinois, are located the 3
Belleville stores, together with 10 stores located in East St. Louis, and
1 each in the following communities : Millstadt, Dupo, Waterloo, Free-
burg, Red Bud, and New Athens. There are approximately 7, 10, and
20 employees, respectively, in the 3 Belleville stores, each with a man-
ager in charge. These managers spend virtually all their time super-
vising and training their subordinates. In the course of their duties,
they hire employees subject to the approval of the district manager,
discharge employees for flagrant breaches of discipline, such as drunk-
enness and insubordination, and transfer employees from one job to
another within the store. They may also recommend promotions, pay,
increases, transfer to another store, or discharges, and, in most instances
their recommendations are followed implicitly. In addition, the store
managers may purchase certain types of merchandise such as produce
and eggs and establish prices on some foods.
It is clear from the foregoing that the store managers are super-
visory employees within our usual definition of that term, and, as
such, may not be included in the same unit with rank and file employees
in the absence of a custom of inclusion in the industry. Although the
Petitioner points in the latter connection-to certain agreements in
the East St. Louis, Illinois, area wherein the Employer's store man-
agers are included in the same, unit with the store clerks for the pur-
poses of collective bargaining, and although the agreements are
pertinent on the issue, we are of the opinion that the evidence is not of
sufficient probative value to establish such a custom. Accordingly, for
the reasons stated above, we shall reject the Petitioner's request that
the store managers be permitted to merge with the rank and file em-
ployees and shall consider, instead, the establishment of a separate
unit for these employees.
As noted above, the Employer contends that a unit of managers of
the Belleville stores is inappropriate because of its limited scope. We
have considered the question of the appropriate grouping of super-
visory employees in several recent cases, and have concluded that the
best results are achieved by following generally the pattern established
for the rank and file employees in the absence of a collective bargaining
history for the employees in the industry involved. The record re-
veals that the employees in both the grocery departments and the meat
departments of the Belleville stores are organized into units coexten-
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive with the one sought herein. It further shows that the Petitioner
has not extended its organizational activity to any of the stores out-
side Belleville due to its limited jurisdiction. Indeed, although the
rank and file group may appropriately comprise part of a larger unit,
organization among them has proceeded on a narrower basis, -and the
feasibility of functioning as -an appropriate unit on this narrower
basis has been amply demonstrated. Accordingly, we are persuaded
that the Employer's store managers at its three Belleville stores consti-
tute a homogeneous, identifiable group of employees who may presently
function together for collective bargaining purposes.
With respect to the Employer's further contention that the same
union which represents the rank and file employees is incompetent to
represent its supervisory personnel, we have frequently held, as we
do now, that the Board has no power to place limitations on the right
of supervisory employees to select for the purposes of collective bar-
gaining representatives of their own choice.b
Accordingly, we find that all store managers in stores of the Em-
ployer in the City of Belleville, Illinois, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section
9 _(b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with The Kroger Company, Cin-
cinnati, Ohio, 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 Direc-
tor for the Fourteenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of National Labor Relations Board Rules and Regulations-
Series 3, as amended, among the employees in the unit found appro-
priate 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 or not they de-
b See Matter of American Locomotive Company, 67 N L R. B , 1123; Matter of The
Curtis Bay Towing Company of Pennsylvania, et at ., 66 N. L. R. B, 1152 ; Matter of
Jones & Laughlin Steel Corporation, supra
THE KROGER COMPANY 267
sire to be represented by Retail Clerks International' Protective Asso-
ciation, AFL, Local 219, for the purposes of collective bargaining.
MR. GERARD D: REILLY, dissenting :
For the reasons stated in my dissenting opinions in Matter of
Jones do Laughlin Steel Corporation, Vesta-Shannopin Coal Divisions
and Matter of Packard Motor Car Company ,7 I am constrained to
dissent from this decision.
6 66 N L R B. 386.
7 64 N.L.R B 1212and61N L. R.B.4.