The Kroger Co.

THE KROGER CO. 397 The Kroger Company and Truck Drivers , Chauffeurs and Helpers Local Union No. 100 and Central Conference of Teamsters , affiliated with the Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Petitioner.' Case 9-RC-7631 October 28, 1968 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Mark M. Reynolds, Hearing Officer of the National Labor Relations Board. The Petitioner and Employer have filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has dele- gated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The Intervenor2 contends that no question con- cerning representation exists, alleging both an existing contract and the pendency of an 8(a)(5) proceeding3 as barring an election. With regard to the Intervenor's latter contention, it is sufficient to say that although the Regional Director initially dismissed the petition herein due to the outstanding 8(a)(5) order, the Board, on April 13, 1968, reversed the Regional Di- rector's administrative dismissal of the petition and directed him to issue a prompt notice of hearing, stat- mg "the pending 8(a)(5) finding in 9-CA-3826 in- volving certain unit employees is in the circumstances of this case not an impediment to an election." Hav- ing previously ruled on this issue, we turn to the ques- tion of contract bar. The Intervenor and Employer were parties to a col- lective-bargaining agreement extending from February 22, 1965, to April 6, 1968. On January 23, 1968, Pe- titioner filed a petition in Case 9-RC-7580, which was administratively dismissed on February 7, 1968, by the Regional Director on the ground, inter alia, that the petition was untimely filed in view of the aforementioned contract. The Petitioner appealed the dismissal and on March 25, 1968, the Board denied review on the ground that the petition was untimely filed during the 60-day insulated period preceding the end of the third anniversary of the contract. On February 23, 1968, the Petitioner filed the peti- tion in the instant case. Although this petition was filed after the third anniversary of the earlier agree- ment and before the Intervenor and the Employer ex- ecuted a new contract, the Intervenor relying on the doctrine set forth in the Electric Boat4 case, contends that no question concerning representation exists. It argues that from the date of the dismissal of the peti- tion in Case 9-RC-7580, on February 7, 1968, the Intervenor and the Employer were entitled to an addi- tional insulated period of at least 60 days to negotiate a new contract and that this 60-day insulated period would extend to and include the execution and effec- tive date of the new contract between the Intervenor and the Employer, which runs from April 7, 1968, to April 3, 1971. We find that the petition herein, filed after the ex- piration of 3 years from the inception date of the 1965 agreement and before the execution of the 1968 agreement, was timely and that the Electric Boat doc- trine is inapplicable in the circumstances of this case. The policy enunciated in the Electric Boat case ap- plies, excepting unusual circumstances, only where an untimely petition is processed under conditions deny- ing the parties to an existing bargaining relationship an opportunity to execute a new contract within the 60-day period. Accordingly, as the Regional Director dismissed the untimely petition administratively about 15 days before expiration of that period, and since there is no showing that an additional insulated period may be justified on any other grounds, we find that the April 7, 1968, agreement between the Em- ployer and the Intervenor is no bar to an election herein. 4. We find that the following employees of the Employer, constitute a unit appropriate for the t Name appears as corrected at the hearing . in the employees sought. 2 Milk and Ice Cream Drivers and Dairy Employees of Greater Cin- 3 165 NLRB No. 131 , Case 9-CA-3826. cinnati and Vicinity, Local 98, AFL-CIO, herein called Intervenor , was 4 Electric Boat Division , General Dynamics Corp., 158 NLRB 956. permitted to intervene at the hearing on the basis of its contract interest 173 NLRB No. 60 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes of collective bargaining within the meaning of clerical employees, professional employees, guards Section 9(c) of the Act• and supervisors as defined in the Act, and all other All production employees employed by the Em- employees. ployer at 11801 Chesterdale, Cincinnati, Ohio, in- cluding laboratory technicians5 but excluding [Text Direction of Election omitted from publica- truck drivers, dairy maintenance employees, office tion.] 5 Petitioner and Employer would exclude , and Intervenor would include , five laboratory employees. The record indicates that the labora- tory employees do routine testing which requires their presence almost constantly in the dairy production area in order to obtain samples and that their function is generally supportive of the employer 's manufac- turing operation It also appears that both the laboratory and produc- lion employees are hourly paid employees , punch a time clock and have common bulletin boards . The record further indicates that production employees routinely do testing , including some of the same tests as lab- oratory employees , and that they are occasionally subject to common supervision with laboratory technicians. On the basis of the foregoing, and without passing on whether the laboratory assistants are technical employees we conclude that they have a sufficient community of inter- est with production workers to warrant their inclusion in the appropri- ate bargaining unit. 6 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Di- rector for Region 9 within 7 days after the date of this Decision and Di- rection of Election 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 circum- stances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed . Excelsior Underwear Inc , 156 NLRB 1236.