The Kroger Grocery & Baking Co.

National Labor Relations Board - Board Decisions

Feb 17, 1945

60 N.L.R.B. 722 (N.L.R.B. 1945)

In the Matter of THE KRoGER GROCERY & BAKING COMPANY and
AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF N. A.,
A. F. OF L.
Case No. 9-R-1614.-Decided February 17, 1946
Frost & Jacobs by Mr. C. J. Petzhold, Messrs. Howard Harris and
Fred L. Kruse, of Cincinnati, Ohio, for the Company.
Mr. Sherwood M. Spencer, of Charleston, W. Va., for the Amal-
gamated Meat Cutters & Butcher Workmen of N. A., A. F. of L.
Miss Virginia A. Miller, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed by Amalgamated Meat Cutters & Butcher
Workmen of N. A., affiliated with the A: F. of L., herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The Kroger Grocery &
Baking Company, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before James A. Shaw, Trial Examiner. Said hearing was held at
Huntington, West Virginia, on January 4, 1945. The Company and
the Union appeared 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
hereby 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
I. THE BUSINESS OF THE COMPANY
The Kroger Grocery & Baking Company, an Ohio corporation with
its principal office located in Cincinnati, Ohio, is engaged in the pur-
60 N L P. B., No 119.
722
THE KROGER GROCERY & BAKING COMPANY 723;
chase and distribution of food, food products, and allied items. The
Company owns and operates approximately 3,000 retail outlets and
conducts its business in 18 States of the United States. The stores
maintained by the Company are divided into 25 branches, one of which
is known as the Charleston, West Virginia, branch, and is composed
of 67 stores located in West Virginia, the southern part of Ohio, and
the eastern part of Kentucky. This branch is divided into districts,
one of which is known as District 3 and is comprised of 15 stores.
Only these 15 stores in District 3 of the Charleston, West Virginia,
branch are involved in this proceeding. During the last 12-month
period, of the Company's purchases of food products and supplies used
in the Charleston branch, valued in excess of $100,000, approximately
75 percent was obtained outside the State of West Virginia. The
major portion of such materials was transported to its warehouses and
retail stores by rail and truck lines.
The Company concedes that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of North America,
affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
During July 1944, the Union notified the Company of its claim too
represent a majority of all of the Company's store managers.l The-
Company refused recognition of the Union as the bargaining
representative.
A statement of a Board agent, introduced into evidence at then
hearing, indicates that the Union represents a substantial number of
employees in the unit sought.'
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 ALLEGED APPROPRIATE UNIT
The only controversy here involved is whether store managers are
employees who could constitute an appropriate unit for purposes of
I The Union herein is the recognized bargaining agent for "all employees except grocery,
managers" ( the term "grocery managers " is alternately referred to in the present recor(D
as store managers ), in the District 3, Charleston , West Virginia , branch stores , and hasi
entered into a bargaining agreement with the Company under date of July 24 , 1944. Thio
contract is effective for 1 year, with an automatic renewal clause
2 The Field Examiner reported that the Union submitted 8 application cards ; that there-
were 16 employees in the alleged appropriate unit ; and that the cards were dated during
the months of June, July , September , and October , 1944.'
724 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining . The Company contends that the managers of
the 15 stores which are located in District 3 of the Charleston, West
Virginia , branch are supervisory employees within the Board's defi-
nition and therefore do not constitute an appropriate bargaining unit.
In each of the Company 's 15 stores , there is an average of 8 em-
ployees. The evidence discloses that the store manager has charge
of an entire store and has the responsibility for the operation of the
unit, the profits, maintenance , and protecti olp thereof , as well as the
instruction, training , and assignment of duties to clerks. The store
managers have authority to hire employees ,3 discharge employees for
flagrant' breaches of discipline such as drunkenness, and transfer em-
ployees from one job to another within the store. They may further
recommend promotions, pay increases , transfers to another store, or
discharges and, in most instances , their recommendations are followed
implicitly . The managers may also purchase certain types of mer-
^ chandise, such as produce and eggs, and establish prices on some foods.
While the record reveals that in one instance a store manager in
another branch of the Company has been included within the coverage
,of a collective bargaining agreement , we are of the opinion that the
store managers concerned in the present proceeding are supervisory
employees within the meaning of our usual definition 4 and as such do
not constitute an appropriate bargaining unit. We shall , therefore,
dismiss this petition.
ORDER
Upon the basis of the above findings and the entire record of the
case, the Board hereby orders that the petition for certification of
representatives of grocery department managers of District 3, Charles-
ton, West Virginia, branch of The Kroger Grocery & Baking Com-
pany, Cincinnati, Ohio, filed by Amalgamated Meat Cutters & Butcher
Workmen of N. A., A. F. of L., be, and it hereby is, dismissed.
3 Limited only by the recent Manpower legislation.
4 See Matter of Safeway Stores , Inc., 59 N. L. R . B. 936; Matter of Piggly Wiggly of
San Diego, Inc., 60 N L. R. B. 47.