The Kroger Co.

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 as 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.