The Kroger Co.

National Labor Relations Board - Board Decisions

Feb 20, 1973

201 N.L.R.B. 920 (N.L.R.B. 1973)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kroger Co. and Retail Clerks Union, Local
1557-Retail Clerks International Association,
AFL-CIO , Petitioner. Case 10-RC-9250
February 20, 1973
DECISION ON REVIEW
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 7, 1972, the Regional Director for
Region 10 issued his Decision and Direction of
Election wherein he directed an election among a
voting group comprised of Employer's Nashville
division delicatessen employees in order to determine
if they desired to be represented by the Petitioner as
a part of its existing unit. Thereafter, in accordance
with the National Labor Relations Board Rules and
Regulations, Series, 8, as amended, the Intervenor'
filed a timely request for review on the ground that
the Regional Director departed from reported
precedent in concluding the delicatessen employees
did not have sufficient interests with the employees
in the meat department unit, represented by the
Intervenor, to warrant their inclusion therein by way
of the self-determination election directed herein.
The National Labor Relations Board, by telegraph-
ic order dated September 28, 1972, granted the
request for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review including
the request for review and the Petitioner's brief and
makes the following findings:
The Employer's Nashville division operates 64
retail food stores in the States of Tennessee,
Kentucky, and Alabama. Only the recently opened
delicatessen departments at four of these stores are
involved in this case. The Petitioner which represents
a divisionwide unit of all the Employer's food store
employees, except the meat department employees,
seeks to add the delicatessen employees to its existing
unit. The Intervenor which represents a divisionwide
unit of meat department employees contends the
delicatessen employees should have the opportunity
of choosing to be represented by the Intervenor, as
t The Intervenor is Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union No. 405, AFL-CIO.
2 In so holding the Regional Director relied on: Unishops of Clarkin,
Inc., 171 NLRB 1435; Seaway Food Town, Inc., 171 NLRB 729; Ideal
Supermarkets, A Division of Allied Super Markets, Inc., A Delaware
Corporation of Detroit, Michigan, 171 NLRB 1; Priced-Less Discount Foods,
Inc., d/b/a Payless, 157 NLRB 1143.
well as by the Petitioner, in the self-determination
election directed by the Regional Director.
In his Decision and Direction of Election, the
Regional Director concluded that the delicatessen
employees constituted an appropriate voting group
for purposes of voting as to whether they desired to
become a part of the Petitioner' s existing unit, or
remain unrepresented, but that they did not have
sufficient community of interest with the meat
department employees to warrant their voting as to
whether they desired to become a part of the
Intervenor's unit . The predicate for the Regional
Director's conclusion was that the duties and rates of
pay of the delicatessen employees are more compara-
ble to those employees represented by the Petitioner.
Although it is true the similarity of duties and rates
of pay were factors considered by the Board in the
cases relied on by the Regional Director,2 numerous
other considerations, including supervision, inter-
change, employee contacts and the location of the
delicatessen departments in the store, were deemed
significant. In this case, such other factors demon-
strate that the delicatessen employees' interests with
the employees in both of the existing units are very
similar. Thus, as indicated by the facts found by the
Regional Director,3 there is common immediate
supervision for all the stores' employees, there is
currently no interchange of employees among any of
the departments, and, in three of the four stores
involved, the delicatessen is located in close proximi-
ty to the meat department. Moreover, with respect to
duties and rates of pay, the Regional Director's
conclusion is correct only insofar as it concerns the
skilled meatcutters in the Intervenor's unit. However,
the meat department here includes other employees
such as clerks and helpers who engage in such
functions as weighing, pricing, packaging, and
stocking meat counters. With respect to these meat
department employees, there is no significant differ-
ence in pay as compared to the grocery employees in
the Petitioner's unit and it is equally true that there
are no significant differences between the duties and
skills of the delicatessen employees and the meat
department clerks .4 Accordingly, we conclude that
the interests the delicatessen employees herein share
with the employees in the Petitioner's unit do not
sufficiently outweigh those they share with the meat
department employees as to foreclose their being
represented by the Intervenor as part of its existing
unit. Under these circumstances, we shall permit the
3 The facts, as found by the Regional Director , are set forth in the
Appendix . As they are supported by the record herein , we rely on them in
reaching our conclusion.
4 We note, for instance , that , under the Employers former delicatessen
operation which was not as extensive as its current operation , the employees
in the delicatessens were represented by the Intervenor and were used
interchangably as meat and delicatessen clerks.
201 NLRB No. 138
THE KROGER CO. 921
employees in the voting group to select either the
Petitioner or the Intervenor as their representative or
to remain unrepresented. If a majority vote for either
the Petitioner or the Intervenor, they shall be added
to the respective unit represented by the said labor
organization ; otherwise, they shall remain unrepre-
sented.
Accordingly, the case is remanded to the Regional
Director for the purpose of conducting an election
pursuant to his Decision and Direction of Election,
as modified herein, except the payroll period for
determining eligibility shall be that immediately
preceding the date of issuance.5
5 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc., 156 NLRB 1236; N. LR B v. Wyman-Gordon Co , 394 U.S.
759. Accordingly , it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters , must be filed
by the Employer with the Regional Director for Region 10 within 7 days of
the date of this Decision on Review . The Regional Director shall make the
list available to all parties to the election No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed.
APPENDIX
The facts of the case as presented by the Regional
Director for Region 10 in his Decision and Direction
of Election:
"The Employer first opened delicatessens in the
Nashville Division around February, 1962, and
operated them in approximately 12 of its stores. They
closed the last of these delicatessens in July, 1969.
From February, 1962 to July, 1969, the delicatessens
were staffed with meat clerks. They sliced luncheon
meats , and prepared some barbequed foods and
plate lunches. Delicatessen sales were handled on its
own cash register. The products offered were limited
to luncheon meats, cheeses, plate lunches and salad
items. The employees of the delicatessen during this
period were represented by the Intervenor and
covered under the meat department contract. They
were on the same seniority roster as meat department
employees, and were used interchangeably with them
in staffing the respective areas.
"In February, 1972, the Employer re-established its
delicatessen operations at its store in Alcoa, Tennes-
see. It now also has delicatessens in its stores in Oak
Ridge, Knoxville, and Nashville, Tennessee. In all
four stores, all employees of the delicatessens,
classified as deli clerks, are newly hired employees
except for the lead clerk in the Alcoa store who
transferred from the meat department of that store.
The Employer has increased the size and operations
of the delicatessens now open. They now handle
luncheon meats, cheeses, a broader range of salad
items, fried fish , fried chicken , and bakery products.
There are approximately six deli clerks in each store
including the lead clerk . These deli clerks prepare for
sale baked foods which are received frozen , thawed,
allowed to rise, fried in a deep fat fryer , and finished.
They also deep fat fry chicken and potatoes. They
prepare salads, wait on customers , and stock the
counters.
"The Employer's basic store operation is headed by
a store manager, assisted in most stores by a co-
manager . The store is then divided into departments;
meat, produce, grocery , and front end. In the four
stores involved herein, the delicatessen is also treated
as a department . Each department has a department
head who reports to the store manager . The parties
stipulated that the department heads , including the
lead clerks in the delicatessens , are not supervisors as
defined in the Act, and that, except for these
delicatessen lead clerks , all are covered by one of the
two contracts . Each department operates autono-
mously vis-a-vis the other departments . Each is
accountable and responsible for its orders , sales, and
operations. Each has its own key on the cash registers
for ringing purchases.
"The deli clerks work full-time in the delicatessens
and do not interchange with any other department.
They are not presently having applied to them any of
the provisions of either contract . Their wages are
lower than employees covered by the contracts
except for the Alcoa lead clerk . Their wages are more
closely common to the wages under the Petitioner's
contract . They have their own schedule of hours.
Unlike the meat cutters , delicatessen employees have
no apprentice program.
"In the stores in Alcoa and Oak Ridge, the
delicatessens are located just to the right of the meat
case beginning where the meat case ends. In the
Knoxville store, the meat case runs across the back
of the store . The delicatessen runs along the right
side of the store , separated from the meat case by a
10-foot passageway . In Nashville, the meat case is
located to the rear of the store , and the delicatessen is
located at the front of the store in the vicinity of the
check-out counters. The delicatessens ' area consists
of a bakery display case , refrigerated service counter,
two display warmers for hot foods , along with areas
for sales and wrapping material dispensers . It also
contains preparation equipment such as fryers,
glazing tables , proof boxes, mixers, slicers, grinders,
freezers, barbeque rotisseries , work tables, and a
walk-in cooler . The delicatessen handles all its
preparations except for chicken which is cut by the
meat department . The delicatessen and meat depart-
ments share no common work area or equipment."