The Kroger Co.

KROGER CO. 363 The Kroger Co., Houston Division and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO District Local Union 408. Case 23-CA-4570 June 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 23, 1974, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, the General Counsel, Amal- gamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Local Union 408, hereafter referred to as Meat Cutters, and Retail Clerks International Association, AFL-CIO, Local No. 455,1 hereafter referred to as Retail Clerks, filed exceptions and supporting briefs. 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 record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. We agree with the Administrative Law Judge's conclusion that Respondent did not violate Section 8(a)(5) by refusing to recognize Meat Cutters as representative of the disputed department employees. The Administrative Law Judge also concluded that Respondent violated Section 8(a)(2) by recognizing Retail Clerks as representative of those employees, a conclusion to which Retail Clerks excepted. We find merit in Retail Clerks exception as to all the disputed department employees but those in stores 22 and 71. As regards stores 22 and 71, the record establishes that when Respondent recognized Meat Cutters as representative of the disputed department employees at those stores, and when it subsequently revoked that recognition and extended it to Retail Clerks, a majority of the employees at each location had not designated either union as their representative. Since, as the Administrative Law Judge correctly found, the disputed departments in none of the stores named in the complaint accreted to either the Meat Cutters or Retail Clerks unit, Respondent was warranted in revoking recognition of Meat Cutters.2 Likewise, Respondent was not warranted in granting recogni- tion to Retail Clerks when it was a minority union even if it subsequently obtained majority status.3 Since it did grant recognition to Retail Clerks at stores 22 and 71 when Retail Clerks did not possess majority status, Respondent violated Section 8(a)(2) with respect to the disputed department employees in those stores. As regards the remaining stores named in the complaint, the General Counsel's position simply was that Respondent violated Section 8(a)(2) by recognizing Retail Clerks as representative of the disputed department employees in those stores because those departments were accretions to the Meat Cutters unit. As noted above, the Administra- tive Law Judge properly rejected the General Counsel's position on the accretion issue. The General Counsel never attempted to establish that Respondent had otherwise unlawfully assisted Retail Clerks in obtaining representative status with respect to the disputed department employees in those stores. On the contrary, the General Counsel togeth- er with the other parties, stipulated that except as to stores 22 and 71, Retail Clerks obtained "valid and authentic" authorization cards from a majority of the disputed department employees on or about the time those departments opened. The necessary implica- tion of the stipulation was that the cards had been obtained prior to recognition, which was extended when the departments opened, since otherwise the cards would have been invalid. The Administrative Law Judge found, contrary to the stipulation of the parties which he accepted at the hearing, that the cards were invalid because he felt they were obtained after recognition, that the Retail Clerks therefore must have been a minority union when Respondent recognized it as representative of the disputed department employees in question, and that consequently Respondent violated Section 8(a)(2) by granting such recognition. The Adminis- trative Law Judge rejected the parties' stipulation after the trial was over essentially based on his speculation that the cards could not have been obtained until the departments had been opened and recognition had already been granted. The record does not support that view. While we can conceive how Retail Clerks could have obtained valid and authentic cards from a majority of the employees,4 we need not engage in such speculation where all the Retail Clerks was permitted to intervene at the hearing disputed departments other than those in stores 22 and 71 might have 2 International Ladies' Garment Workers' Union, AFL-CIO v N L.R.B, signed authorizations after being notified of Respondent's intent to hire 366 U S. 731 (1961) them or transfer them to the department but before the departments 3 Id actually opened 4 It is quite possible that, as Retail Clerks suggests, employees in the 211 NLRB No. 44 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties have stipulated to that fact. Suffice it to say that while the Administrative Law Judge's concern might have led him to reject the proposed stipulation when it was offered at the hearing, it is hardly a basis for rejecting the stipulation after the parties here acted in reliance on its acceptance, have foregone their right to offer evidence on the subject, and the Administrative Law Judge has closed the hearing. Moreover, it is generally accepted that a stipulation is conclusive on the party making it and prohibits any further dispute of the stipulated fact by that party or use of any evidence to disprove or contradict it.5 For these reasons, it would be fundamentally unfair for the Board to base an unfair labor practice finding on facts contrary to those to which the General Counsel and the other parties have stipulated, in the absence of compelling reasons for doing so. We perceive no basis for rejecting the parties' stipulation here. We therefore shall disnuss the complaint allegations of 8(a)(2) violations as to all disputed departments but those in stores 22 and 71. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, The Kroger Co., Houston Division, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete from paragraphs 1(b) and (c), and 2(b) and (c), store numbers 106, 36, 107, 84, 950, 984, 986, and 988. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. S 9 Wigmore, Evidence § 2590 (3d ed 1940) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence it has been decided that we, The Kroger Co., Houston Division, have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights including the right to self- organization, to form, join, or help unions and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT contribute support to Retail Clerks International Association, AFL-CIO, Local No. 455, or to any other labor organization of our employees. WE WILL NOT recognize Retail Clerks Interna- tional Association, AFL-CIO, Local No. 455, as the exclusive bargaining representative of our employees in those departments known as prepar- ed foods departments at our stores 22 and 71 unless and until the said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among the employees of said departments. WE WILL NOT give effect to the present collective-bargaining agreement effective Septem- ber 9, 1971, to September 7, 1974, or any extension, renewal , or modification thereof, be- tween Retail Clerks International Association, AFL-CIO, Local No. 455, and ourselves, insofar as such agreement or any extension, renewal, or modification thereof might be applied to our employees in the above-named prepared foods departments : provided, however, that nothing in the Board's Decision and Order requires us to -vary or abandon those wage, hour, seniority, or other substantive features of our relations with our employees in said prepared foods depart- ments established in performance of any such agreement, or to prejudice the assertion by such employees of any rights they have thereunder. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. THE KROGER CO., HOUSTON DIVISION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226-4296. KROGER CO. 365 DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on March 29 and 30, July 31 through August 3, September 24 through 28, and October 1 through 3, 1973, at Houston, Texas, pursuant to a charge filed by Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Local Union 408 (hereinafter sometimes referred to as the Meat Cutters) on November 2, 1972, which was duly served the following day and on an amended charge filed by the Meat Cutters on November 8, 1972, which was duly served upon Respondent on November 9, 1972, and pursuant to a complaint and notice of hearing issued by the Acting Regional Director for Region 23 of the National Labor Relations Board, which was likewise duly served. The complaint, as amended at the hearing, alleges primarily that Respondent violated Section 8(a)(1), (2), and (5) of the Act by applying the wage provision of its collective-bargaining agreement with the Retail Clerks International Association, AFL-CIO, Local No. 455 (which intervened at the hearing and is hereinafter sometimes referred to as the Retail Clerks) to Respondent's delicatessen employees at a number of Respondent's stores in its Houston Division rather than applying the provisions of the collective-bargaining agreement between the Res- pondent and the Meat Cutters to these delicatessen employees, whereas, the complaint avers, the Meat Cutters has been, and is, the exclusive representative of all these delicatessen employees by virtue of Section 9(a) of the Act. For a proper understanding of the case and of my findings and conclusions, infra, three matters should be understood at the outset. First, the term "delicatessen," as alleged in the complaint, refers to certain disputed departments of Respondent which Respondent now denominates as "prepared foods departments" and "snack bars." Indeed an issue in the case is whether these departments placed in issue by the complaint are delicates- sens at all.' Secondly, the positions of the parties are as follows. The General Counsel and the Charging Party (Meat Cutters) urge that the disputed departments are an accretion to the multistore unit of Respondent's meat department employees represented by the Meat Cutters. The Respondent and the Intervenor (Retail Clerks), on the other hand, contend that these disputed departments are an accretion to the multistore unit of Respondent's grocery and nonfood employees represented by the Retail Clerks. If, in fact, the disputed departments have become a part of the Meat Cutters unit, but the Retail Clerks' contract has been applied to these employees, the alleged violations of Section 8(a)(1), (2), and (5) of the Act have been established, as will be discussed. Conversely, if the employees in the disputed departments have accreted to the Retail Clerks unit, then the Retail Clerks' contract has been properly applied to them and the foregoing unfair I At some of its stores Respondent operates departments similar to those in dispute and calls them "delicatessens " The latter "delicatessens" were opened by Respondent earlier than the so-called "snack bars" and "prepared foods departments " "Delicatessens" are not placed in issue by the complaint . My use of the expressions "delicatessen," "prepared foods department" or "snack bar" hereinafter is for the purpose of identification labor practice allegations fall. Finally, no party takes the position that this matter should be deferred to arbitration2 under the provisions of the Respondent's contract with the Retail Clerks or under the provisions of Respondent's contract with the Meat Cutters. An arbitration under the provisions of either union's agreement would not be binding upon the other union. For reasons which will appear hereinafter I find and conclude that the disputed departments have not accreted to either the Meat Cutters unit or the Retail Clerks unit, hence no violation of Section 8(a)(5) has occurred as alleged. However, I further find that Respondent applied the Retail Clerks' contract to the employees in the disputed departments even though said departments were not included in the Retail Clerks unit and the Retail Clerks were not yet the exclusive representative of such employ- ees. In these circumstances I further find that by applying the Retail Clerks' contract to such employees the Respon- dent has violated, and is violating, Section 8(a)(2) and (1) of the Act. At the hearing all parties (including the Retail Clerks, which, as noted, intervened) were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to file briefs. All parties waived oral argument at the conclusion of the hearing. Briefs have subsequently been filed by the General Counsel, the Charging Party, Respondent, and the Intervenor and have been considered. Upon the entire record3 in the case including the briefs and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent is, and has been at all times material herein, a corporation duly organized under the laws of the State of Ohio. At all times material herein, Respondent has maintained its principal office and place of business in Cincinnati, Ohio, and operates a chain of retail grocery stores in various States including the State of Texas. Retail stores 22, 36, 71, 84, 106, 107, 950, 984, 986, and 988, all in Respondent's Houston Division are the only facilities involved in this proceeding. During the 12 months preceding the issuance of the complaint, a representative period, Respondent in the course and conduct of its business operations in the State of Texas sold and distributed products and merchandise, the gross value of which exceeded $500,000. During the same period Respondent purchased products and mer- chandise of a value in excess of $50,000 from suppliers located outside of the State of Texas, which products and merchandise were delivered to its retail store facilities within the State of Texas. The complaint alleges, the answer admits, and I find that only consistent with Respondent's denominations of these departments The use, in and of itself, of any such expression , infra, is therefore not to be considered a finding as to the nature of the department mentioned 2 Pursuant to the Board's policy as announced in Collyer Insulated Wire, 192 NLRB 837 3 Errors in the record are hereby noted and corrected 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits and I find that Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, District Local Union 408 is, and has been at all material times herein, a labor organization within the meaning of Section 2(5) of the Act and that Retail Clerks International Association, AFL-CIO, Local No. 455 is, and has been at all material times herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events 1. The name of the Respondent ; its corporate transition The Houston Division of the Kroger Company was preceded in the Houston, Texas, area by a retail food chain known as Henke and Pillot, Inc. Henke and Pillot was in operation in Houston in the middle of World War II when it purchased the ABC stores.4 Sometime after July 6, 1956, but before September 15, 1956, Henke and Pillot, Inc., was dissolved and its operations were continued as the Henke and Pillot Division of the Kroger Co .5 Sometime between 1960 and 1963 the name Henke and Pillot Division of the Kroger Co., was changed to the Houston Division of the Kroger Co., and Respondent has continued under the latter style to the present.6 2. Early bargaining history of the Meat Cutters; changing nature of earlier delicatessen operations The Meat Cutters represented the meat department employees of Henke and Pillot, Inc., at least as early as 1948. Prior to 1948 there were at least two free-standing service delicatessens selling lunch meats and cheeses, which delicatessens were operated separate and apart from the meat department. Delicatessen operations at smaller stores were handled as a part of the meat department and were operated by meat department employees. Beginning about 1949 all meat department and delicatessen opera- tions were changed from service to self-service activities. 4 Mr. Brewer, Respondent's merchandising representative in charge of delicatessens, prepared foods, snackbars and Village Bakeries, who will be mentioned later in this decision, credibly so testified. s 1 make this finding based on the addendum of Joint Exhibit 8 (the Meat Cutters 1955-58 contract) and Joint Exhibit 1(b) (the Stipulation for Certification Upon Consent Election in Case 39-RC-1075). 6 This finding is based on Joint Exhibits 3 and 4 and upon the stipulation appearing at 1194 and 1195 of the transcript. r These findings in respect to the handling of delicatessen products from about 1948 until the late 1950's are based on the credible testimony of Brewer in this regard. s Counsel for the Respondent so conceded at the hearing in his opening statement in which Retail Clerks joined. This concession is consistent with the findings in the decision and opinion by Arbitrator Raymond L. Britton on April 6, 1971, an opinion about which more will be said hereinafter. I do not credit the answer of Lucille Knox, a witness for the Retail Clerks, in The delicatessen items were sold at self-service delicates- sens until the late 1950's-that is, until several years after Respondent's takeover of Henke and Pillot-when self- service delicatessens were phased out and the lunch meat and weiner items were transferred to the meat department and the cheese items to the grocery department.? The Meat Cutters represented the employees who stocked the self-service delicatessen cases from the late 1940's until the late 1950's.8 The Meat Cutters continued to represent Respondent's meat department employees from the time the lunch meats were turned over to the meat department in the late 1950's until the present time. 3. N.L.R.B. certification of the Retail Clerks to represent Respondent's grocery employees; operations included within the collective-bargaining unit at that time and for some years thereafter In October 1956, Retail Clerks International Association, AFL-CIO, was certified by the Board to represent a unit which included: All employees employed in the stores of Henke & Pillot, Inc., division of the Kroger Co., presently operated in Texas. and excluded: ... persons employed in meat departments, man- agement trainees, guards, watchmen, professional employees, store managers, co-managers, all depart- ment heads, including grocery department heads, produce department heads, hardware and drug depart- ment heads, dry goods department heads, lunch and soda department heads, head cashiers and all supervi- sors as defined in the Act; further excluding all part- time employees who appear on the eligibility payroll who have not worked the week of the eligibility payroll nor any part of the three preceding payroll weeks .9 Following this certification, Retail Clerks International Association, Local Union No. 455, has had collective- bargaining agreements with the Henke and Pillot Division of the Kroger Co., or with the Houston Division of the Kroger Co. (as the former eventually became known) until the present time. Included within this collective-bargaining unit of Res- pondent's employees at the time of the certification and thereafter were lunch and soda departments, cafeterias, and in-store service bakery departments.10 Lunch and soda departments operated with counters and stools and were equipped with steamtables, griddles, hot response to a leading question from Intervenor's counsel, that the delicatessen operated on a service basis at that time-an answer which is contrary to the weight of evidence and the testimony of Brewer. Knox further testified, and I credit her, that a delicatessen clerk in her store at that time was then represented by the Meat Cutters. 9 These findings are based on the certification and an excerpt from the stipulation for certification in Case 39-RC-1075. Department heads have subsequently been included in the unit by agreement of the Respondent and the Retail Clerks. 10 These findings are based on the credible testimony of Lucille Knox, as essentially corroborated by Bun. Knox, a Respondent employee, previously mentioned herein and Burr, the food manager of a Respondent store, were witnesses for the Intervenor. These findings are based also on the credible testimony in this regard of Bedell, Respondent's vice president of labor relations. KROGER CO plates, ovens, stoves, and dishwashing equipment. Other equipment included malt machines, cash registers, refriger- ated cases, soft drink dispensers, sinks, cutting boards with knives and cleavers, and coffee machines. Some also had doughnut machines and barbecue machines. The lunch and soda departments served soft drinks, ice cream, malts, cooked steak, chicken, ribs, meat loaf, hot vegetables, pies, salads, and sandwiches. Food was also prepared to be taken out. Cafeterias were operated in much the same fashion with the same equipment and serving essentially the same type foods. The cafeterias offered a greater variety of items, however, and customers served themselves by carrying their trays along a line and then seating themselves at tables. The service bakeries offered cakes, pies, doughnuts, and cookies. These were operated at locations in the stores separate from the cafeterias and lunch and soda depart- ments. i i Sometime in the period 1959-61 service bakeries, lunch and soda departments, and cafeterias were entirely phased out of Respondent's operations.12 4. Later bargaining history; renewed claims of the Meat Cutters for delicatessen employees In the fall of 1968 prior to the expiration of the Meat Cutters 1965 to 1968 contract with Respondent, represent- atives of the Respondent met with representatives of the Meat Cutters to negotiate a new agreement. Meat Cutters presented to the Respondent at this time a proposal to include delicatessen operations within the unit for which Meat Cutters was recognized and the Respondent count- ered with its own proposal on the same subject. A provision was in fact agreed to and included within the Meat Cutters subsequent 1968-70 agreement with Respon- dent. In pertinent part that contract states as follows: Article I Recognition and Jurisdiction A. The Employer recognizes Meat Cutters Local No. 408 as the exclusive and collective bargaining agent for all employees in the meat department in all of Employer's retail stores located in the state of Texas operated by the Houston Division of the Kroger Co. C. For the purpose of this contract the meat department includes all employees who are engaged in the handling, processing and offering for sale of fresh and frozen meats, poultry, fish, rabbits, sausage, smoked meats and meat products, which has customarily been performed by bargaining unit employees in the store shall continue [sic] to be within the work and collective bargaining jurisdiction of the Union, regardless of the place of performance, (1) to the extent that such work continues to be performed by the Employer, (2) to the extent such work is performed by the Employer within the Union's geographical area of representation as set 11 These findings are based on the credible testimony in this regard of Knox and Burr 12 This finding is based on the full and credible testimony of Brewer The 367 forth above, and (3) to the extent such work is not currently representated by another umon. Specifically, although only the Employer's store meat departments in the aforementioned geographical area are covered by this Agreement, the Employer recognizes that the Union has work and collective bargaining jurisdiction over the Employer's store delicatessen operations, meat warehouses, and central cutting plants, when any such operations are located within the Union's aforemen- tioned geographical area and are not currently repre- sented by another Union ....... [ Emphasis added.] At the time this contract was negotiated in the fall of 1968 the Respondent did not operate any delicatessen departments in its Houston Division here involved. By its terms the 1968 contract expired November 1, 1970, and was succeeded by another agreement which by its terms was effective from November 1, 1970, until April 15, 1973. The 1970-73 agreement and the subsequent 1973-75 agreement have repeated the "Recognition and Jurisdic- tion" provisions of the 1968-70 agreement set forth, supra. 5. Respondent's resumption of delicatessen operations; the arbitration; recent bargaining history in so-called delicatessens On September 13, 1970, Respondent opened a delicates- sen department at its store 15. Also at sometime on or about the month of September 1970 Respondent opened a delicatessen department at store 23. The instant depart- ments at both of these stores which are in Houston were then, and now continue to be, denominated by Respondent as delicatessens. Shortly prior to the commencement of these operations, that is, in August 1970, Arthur Johnson, then Respondent's director of personnel, telephoned Dale Hoagland, presi- dent of the Meat Cutters, to ask that Meat Cutters supply him with some applicants for the expected delicatessen positions. Hoagland did this, as requested, and the employees were hired under Meat Cutters contract pay rates. Meat Cutters then "signed up" these employees and represented them under the Meat Cutters' contract. In October 1970, Johnson again telephoned Hoagland and advised Hoagland that the Retail Clerks were claiming jurisdiction over these two delicatessens and that the Respondent had decided to adopt a "hands off" attitude until the union representation question was "worked out" between the Meat Cutters and the Retail Clerks. Recogni- tion of the Meat Cutters in the delicatessens was thereafter suspended by Respondent and delicatessen employees reported to Hoagland that later new hires into the two departments were taken on at Retail Clerks' rates. In early January 1971 Respondent, Meat Cutters, and the Retail Clerks agreed to submit the question concerning the representation of the employees in the delicatessen departments in stores 15 and 23 to a neutral arbitrator and to be bound by that arbitrator's decision. The question presented was framed as follows: The issue to be decided by the arbitrator is whether the employees in question are to be covered by the last collective-bargaining agreement in this period, which reflects a salary rate for cooks and lunch and soda clerks, is the 1960-63 contract between Respondent and the Retail Clerks. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's contract with the Clerks, or its contract with the Meat Cutters. 13 The arbitrator selected was Raymond L. Britton. A hearing was held on January 22, 1971, but only the two unions participated . In his decision issued on March 6, 1971, Mr. Britton made the following: AWARD For the reasons given, the assignment of the bargaining rights for that group of employees compos- ing the Employer delicatessen operations should be made to the Meat Cutters union. In making this award the arbitrator stated that he deemed controlling the express language of the Meat Cutters agreement with Respondent relative to delicatessen operations, i.e., article I, section C which stated ". . . the Employer recognizes that the Union has work and collective bargaining jurisdiction over the Employer's store delicatessen operations . . ." The arbitrator also noted that at the time the Retail Clerks were certified by the NLRB in 1956 the Employer was conducting delicatessen operations which were included in its meat department, and that these delicatessen operations were "staffed by Meat Cutters" 14 and continued under the auspices of the meat department for 2 years after the certification of the Retail Clerks, that is until such delicatessen operations were phased out.15 Following the award in its favor, Meat Cutters has been recognized as the representative of the delicatessen employees at stores 15 and 23 and also of employees of the delicatessens at stores 12, 27, 28, 60, and 95, which were opened thereafter.16 Meat Cutters continued to be recog- nized as the bargaining representative of the employees of all seven of these delicatessens at the time of the hearing. Notwithstanding Meat Cutters' recognition as the representative of the delicatessen employees at stores 15 and 23 on the basis of the arbitrator's award and Meat Cutters' subsequent recognition at the other five stores, Respondent's counsel took the position at the hearing that the arbitrator's award was "unfortunate" and that the recognition of Meat Cutters as the representative of the delicatessen employees of these stores, even though by contract or agreement, was "just an unfortunate circum- stance." Indeed counsel for Respondent urged that the unit placement of the employees of these delicatessens was still in issue and that this was one of the questions to be decided in this proceeding. Ray B. Wooster, executive officer of the Retail Clerks, also stated at the hearing that he did not agree with the arbitrator's award and had consulted with his attorney 13 These findings are made on the basis of the credible testimony of Hoagland in this regard and on the arbitration agreement. 14 Apparently referring to the work of stocking and rotating products in the self-service delicatessen cases in operation at that time. 15 In finding for the Meat Cutters arbitrator Britton noted the Retail Clerks' argument that the delicatessens were like the Kroger lunch and soda departments previously represented by the Retail Clerks and also the Retail Clerks' claim that snack bar operations in the local area came within its work jurisdiction. 16 The opening dates of the delicatessen departments at these stores are as follows: Store 12 on May 24, 1971; store 60 on July 17, 1971; store 27 on August 23, 1971 ; store 95 on January 10, 1972; and store 28 on September 15, 1971. unsuccessfully in an effort to get around it. Wooster also complained to Respondent's personnel director, Washtock, each time after the arbitration, when a delicatessen was opened and placed under the Meat Cutters' collective- bargaining agreement. Wooster raised these same com- plaints during the course of bargaining negotiations between Respondent and Retail Clerks with respect to a new contract in the fall of 1971. At no time, however, as he admitted at the hearing, did Wooster demand that the Respondent recognize Retail Clerks as the representative of these delicatessen employees. Further, the Retail Clerks' contract with Respondent, which was in effect from February 2, 1969, to September 8, 1971, did not state that the Retail Clerks represent delicatessen employees nor did that agreement contain a wage rate for delicatessen employees although it did contain specific rates for the various classifications encompassed by the Retail Clerks unit. 6. The opening of the disputed departments at Respondent's stores 22 and 71; Respondent's recognition of the Retail Clerks as the representative of these employees after first recognizing the Meat Cutters; the filing of unfair labor practice charges by the Meat Cutters On April 4, 1972, Respondent opened what is now known as a prepared foods department at store 22 and on April 17, 1972, it opened what is presently denominated a prepared foods department at store 71. In his opening statement in which Retail Clerks essentially joined, counsel for Respondent conceded and I find that the instant departments, upon their opening, were included within the coverage of the Meat Cutters' contract. It was the opening of these departments at these two stores and the initial placement of their employees under the Meat Cutters' contract which gave rise to the present controversy. The disputed department at store 22 had a complement of 4 full-time and 2 part-time employees at that time. One of the original employees hired was Yvonne Pipkin, now the head clerk of this department. Pipkin was told at the time she was hired (on March 27, 1972, prior to the opening of the department) that the department would be under the Meat Cutters' contract and she was hired at $3.61 per hour. She was also given a meat department booklet to take home and study. Pipkin applied for membership in the Meat Cutters and signed a checkoff authorization on or about April 1, 1972.17 When this department opened at store 22, there was a sign on the outside wall of the store with the word 17 I make this finding on the basis of G. C. Exh. 7, a computer printout from the Respondent's payroll system wherein Respondent sets out, inter alia, the record of those employees who have authorized checkoff of dues to the Meat Cutters. I further find that Pipkin executed another membership card and checkoff authorization consistent with the date of her card and authorization received in evidence, her credible testimony that she executed one at about that time and the credible testimony of Hoagland that he has on occasion signed up employees as many as two or three times. Based on this same record and Hoagland's credible testimony including his credible explanation of any discrepancies between the computer record and authorization cards received in evidence (here the relevant ones are that of Wood and, as noted, Pipkin's), I further find that, of the six full- and part- time employees in this department at store 22 at that time, five had signed KROGER CO. "delicatessen" printed on it and another sign with the same designation over the department inside the store. Items sold in the department were labeled "delicatessen" and the original department leader, Marie Robb, was known as the "deli head clerk." About the second week of May 1972, Mane Robb, Pipkin and another delicatessen employee at the store met with Store Manager Watson, District Manager Forsythe, Assistant District Manager Robertson, and possibly another individual. Forsythe told the employees that henceforth they would be known as a "snack bar," that their salaries would be cut (Pipkin's from $3.61 to $2.82 per hour), and that they would be represented by the Retail Clerks. The same evening representatives of the Retail Clerks began soliciting employees to sign authorization cards for that union and Pipkin signed a card for the Retail Clerks the following day.is Employees of the instant department at store 22 continued to receive salaries under the Meat Cutters' contract for about a week but subsequently their rates and other benefits were based on the Retail Clerks' contract. The "delicatessen" signs were thereafter removed from inside and outside the store and a "snack bar" sign has been placed outside. "Prepared Foods" labels are now used on the products instead of "delicatessen" labels. There was no change in the operations of the department except that a meat slicing machine was installed.19 In store 71, where the disputed department also opened in April 1972, the story unfolded in much the same manner. Sybil Blalock was hired into the disputed department on April 17, 1972, by store manager Buckley who told her that she would be "under the meat union." Thereafter she executed a union membership application and checkoff authorization for the Meat Cutters at the request of Dale Hoagland, Meat Cutters' president. Store 71 at this time had a "delicatessen" sign on the outside store wall and the department used "delicatessen" labels. There were three full-time and two part-time employees in store 71 at this time.20 membership cards and checkoff authorizations for the Meat Cutters prior to May 1, 1972 See those employees whose names are preceded by a star or asterisk on G. C Exh 7 18 1 find, based on the authorization cards of Pipkin and Watson, that they joined the Retail Clerks on May 10, 1972 19 These findings as to the change in representation of these employees at store 22 are based upon the credible testimony of Pipkin in this regard, as substantially corroborated by the testimony of Holland and the concession in this same regard in the opening statement of counsel for Respondent, previously mentioned, which opening statement was essentially joined in by counsel for the Retail Clerks Forsythe, Robinson, and Watson did not testify 20 1 so find on the basis of the credible testimony of Blalock in this regard, rejecting the stipulation on p. 2637 of the record, which, contrary to Blalock's testimony, was to the effect that six employees were employed in the disputed department before May 15, 1972 Holland, one of the six employees named in this stipulation, was, according to Holland's credible testimony in this regard, not transferred to store 71 until June 1972 I further find on the basis of the aforementioned computer record and the credible testimony of Hoagland that at least three of these employees, Blalock, Huery, and Harris had signed membership cards and checkoff authoriza- tions for the Meat Cutters before May 2, 1972 Any discrepancies in dates between the Meat Cutters' cards of Blalock and Huery received in evidence and the computer printout are explained, I find, by Hoagland's credibly statement that some employees executed cards two or three times Hams originally signed her card for the Meat Cutters at an earlier date when she was employed as a delicatessen employee at store 23 369 About 3 weeks later, or in early May 1972, Blalock and then delicatessen department head, Mary Jane Martz, met with Store Manager Buckley, another gentleman from Respondent's personnel office and a third individual named Johnson. These gentlemen told the employees that the department had been set up wrong and that instead of being under the Meat Cutters union, the employees would in the future be under the Retail Clerks. The employees were also told that henceforth the department would be known as a "prepared foods department." Subsequently the "delicatessen" sign was removed from the outside of the store, "prepared foods" labels were substituted for the "delicatessen" labels previously in use, and Blalock's salary dropped about $1 per hour. Repre- sentatives of the Retail Clerks came around and persuaded some of the department employees to sign up for that union. The duties of the employees in the department did not change after the department name was changed. The employees of the disputed department were, however, thereafter placed under the Retail Clerks' contract.21 On or about May 8 or 9, 1972, Meat Cutters' President Hoagland received telephone calls from employees in the disputed departments at stores 22 and 71 and was informed by them that they had heard they would no longer be in the meat union but were rather going to be represented by the Retail Clerks. Between May 9 and 19, 1972, Hoagland telephoned Robert Washtock, personnel director of Respondent, to inquire about the status of the disputed departments at stores 22 and 71. Washtock told Hoagland that the Retail Clerks had objected to meat personnel handling bakery products [the disputed depart- ments at both 22 and 71 had bakery cases with a line of bakery products]; that these departments would no longer be called delicatessens but would be called prepared foods departments and the Retail Clerks would have jurisdiction over these operations. This was the first occasion in which the change was announced to the Meat Cutters.22 On May 19, 1972, Hoagland filed a grievance with Respondent amended a week later, complaining of the 21 These findings as to the change in representation of these employees at store 71 are based upon the credible testimony of Blalock in this regard and the related concession in the opening statement of counsel for Respondent, previously referred to-a statement in which counsel for the Retail Clerks essentially joined Buckley and Johnson did not testify I further find, specifically, that employee Huery signed an authorization card for the Retail Clerks on or before May 10, 1972, and that employee Bowling had previously signed an authorization card as a "lunch" employee at store 974, where, as will be explained, the Retail Clerks already represented snack bar employees I attach no significance to the earlier cards of Martz (dated 1969) who was a grocery clerk or checker when she signed her card nor to that of Holland who was a clerk at store 107 when she signed her card The findings in this paragraph are based on the authorization cards received in evidence for these employees 22 These findings are based on the credible testimony of Hoagland in this regard Washtock did not testify For his part, Wooster, executive officer of the Retail Clerks, admitted at the hearing that he spoke to Washtock by telephone and demanded that Respondent recognize the Retail Clerks as the representative of the employees in the disputed departments at stores 22 and 71 and that such recognition was subsequently granted Wooster stated that his demand was based on his position that the bakery operations of these departments placed the departments within the Retail Clerks' jurisdiction Wooster also stated he was aware that the employees of the departments at both stores were already represented under the Meat Cutters' contract when he made his demand upon Washtock. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changeover. The grievance was subsequently denied by Respondent in a telephone conversation. In June 1972 Hoagland filed a charge with the National Labor Relations Board alleging that Respondent's recogni- tion of the Retail Clerks as the representative of the employees of the disputed departments at stores 22 and 71 violated Section 8(a)(1), (2), and (5) of the Act. During the summer of 1972 Hoagland met with Washtock and selected an arbitrator to resolve the issue. Also during this period Hoagland withdrew his unfair labor practice charge against Respondent pending the outcome of the expected arbitration. The charge was withdrawn at the request of the Board. The date set for arbitration was September 25, 1972. Just before the arbitration proceeding was to begin, however, a conflict arose in the schedule of counsel for Respondent. The arbitration proceeding did not take place. Also sometime in early September 1972, Hoagland spoke to Washtock and Retail Clerks representative Wooster at a hearing on another matter in Nacogdoches, Texas. Hoag- land made the proposal that the matter be resolved by an election in which the employees would decide on their representative. Wooster refused. Later efforts by Hoagland to set a mutually agreeable date for arbitration were unsuccessful. He filed the charges which give rise to the present proceeding in November 1972, as previously mentioned.23 7. The different prior treatment of store 974 Store 974 is in Baytown and is a part of the Houston division . On October 17, 1971, at a time when all delicatessen-type departments were being included under the Meat Cutters' contract, as has been shown, a so-called snackbar was opened at this store. This snackbar had previously been operated by a licensee of Kroger. When this department was opened as a Kroger operation a representative of the Retail Clerks was told by Wooster to sign up the employees in the department. When Wooster was informed by the representative that a majority of department employees had joined the Retail Clerks, he, Wooster, telephoned Washtock, told Washtock that this department was a "snack bar . . . different from other, 23 These findings as to events on and subsequent to May 19, 1972, are based on the credible testimony of Hoagland in this regard. 24 These findings are based primarily on the credible testimony of Wooster in this regard . Hoagland, Meat Cutters' president, testified that the first time he learned that the Retail Clerks represented the snackbar employees at store 974 was at the hearing in the present case. Hoagland further testified, however, and I find, that a Meat Cutters' representative, Crowder, made visits to store 974 at various times relevant hereto , because Meat Cutters represents meat department employees in that store. Hence, though Hoagland stated he was not aware of the Retail Clerks ' organization of that snackbar, the fact remains that the Retail Clerks obtained recognition in that department without protest from the Meat Cutters, whose representative also serviced the store. 22 This finding is based upon admissions in the testimony of store managers Adams (# 107), Day (# 106), Sanchez (# 84), Dillinger (#984), and Townes (#950) each of whom, along with all other store managers, I find to be a supervisor within the meaning of the Act based upon his undisputed authority to hire and discharge employees . It was stipulated that the testimony of Store Managers Odegaard (#986), Morrison (#988), and Saleme (#36), none of whom testified , would be the same as that of the aforementioned manager who did testify. The substance of the testimony of the five who testified was that the disputed department opened under the Retail Clerks' contract or that the department employees were hired and stores," that the Retail Clerks represented these employees and that they should be put under the Retail Clerks' contract. Washtock agreed24 and the department is now represented by the Retail Clerks. Store 974 does not have a bakery operation in its "snack bar" department. 8. Opening by Respondent of other disputed departments at various stores following the events above described at stores 22 and 71; recognition of the Retail Clerks to represent the employees at these later opened disputed departments In addition to the departments at stores 22 and 71, disputed departments at eight other stores of Respondent have been opened subsequent to May 1972 and are involved in this proceeding. The disputed departments at these eight stores are denominated by Respondent as either prepared foods departments or snackbars. The so-called prepared foods departments in dispute (in addition to those at 22 and 71) are located at stores 107, 36, 106, and 84. The disputed departments at these stores were opened on the following dates: Store 107, on July 25, 1972; store 36, on August 15, 1972; store 106, on December 5, 1972; and store 84, on December 12, 1972. The so-called snackbars in dispute are located at stores 950, 984, 986, and 988. The disputed departments at these stores were opened on the following dates: Store 950, on July 25, 1972; store 984, on September 19, 1972; store 986, on November 26, 1972; and store 988, on November 12, 1972. The disputed departments located at stores 107, 36, 106, 84, 950, 984, 986, and 988 were, I find, immediately placed under the coverage of the Retail Clerks' contract when the disputed department at each such store was opened25 and that Respondent recognized the Retail Clerks in each such department prior to the time that the union obtained a majority of authorization cards from the employees serving therein.26 The employees in the disputed department at all these eight stores as well as stores 22 and 71 are currently represented under the collective-bargaining agreement between the Retail Clerks and Respondent. This contract which is effective from September 9, 1971, to September 7, 1974, contains rates for "lunch" employees, booth and paid at Retail Clerks' rates, when the store opened. This testimony is consistent with the opening statement of counsel for Respondent which statement was essentially joined in by the Retail Clerks and is consistent with Respondent's prior determination to place the disputed departments at stores 22 and 71 under the Retail Clerks' contract pursuant to the claim by the Retail Clerks that bakery service operations within any such department placed the department in the jurisdiction of the Retail Clerks. 28 While there was a stipulation that, on or about the time the Respondent opened the disputed departments in stores 84, 106, 107, 36, 950, 984, 986, and 988, the Retail Clerks obtained valid and authentic authorizations for representation from a majority of the employees working in each of these departments, I find it incredible that such card majorities could have preceded recognition in each store . For the employee complement of each department consisted of new hires or in some cases transfers from the grocery departments. And it is clear that a newly hired employee could not be identified and solicited until after he or she was hired. Further I attach no significance to the cards of transferred employees whose authorizations would relate to representation in the grocery department rather than in the disputed department. Cf. The Crossett Company, 140 NLRB 667. Moreover, the aforementioned store managers made no mention in their testimony of receiving a majority of authoriza- tions from the Retail Clerks before placing the disputed departments under the Retail Clerks' contract. KROGER CO. bakery employees, lunch managers; and a so-called "over rate" for delicatessen employees. The prior contract between Respondent and Retail Clerks, effective February 2, 1969, through September 8, 1971, contains no rates specifically attributable to bakery, lunch and delicatessen employees 27 B. A Description of the Layout and Operations of the Delicatessens Represented Under the Meat Cutters' Contract and Description of the So-Called Prepared Foods Departments and Snackbars in Dispute An important aspect of the contentions of the Respon- dent and the Retail Clerks that the disputed departments did not accrete to the Meat Cutters unit but rather accreted to the unit of the Retail Clerks, is the argument that the disputed departments are essentially different from the delicatessens represented under the Meat Cutters' contract. Analysis of this argument necessarily requires an under- standing of the operations and layouts of delicatessens on the one hand, and prepared foods departments and snackbars on the other, so that delicatessens can be compared or contrasted, as the case may be, with the disputed departments. 1. Delicatessens The delicatessens are, as previously noted, all included under the coverage of the Meat Cutters' collective-bargain- ing agreement with Respondent. They are located, as also noted, at stores 12, 15, 23, 27, 28, 60, and 95. Each of these delicatessens offers for sale lunch meats, cheese, salads, hot and cold sandwiches, hot meats and vegetables, desserts, and prewrapped bread and store- baked pies. Each is equipped with a salad case, steamtable, barbecue oven, scale, slicing machine, fryer, and hot plate or stove. The configuration of the department may consist of one line of cases or 2 lines of cases at right angles (one is "U" shaped). Five of the departments are located in the back of the store and, in at least four of them (at stores 12, 27, 28, and 95), they are next to or very close to the meat department. Two (at stores 15 and 23) are located in the store lobby whereas (at least in # 15) the meat department is in back of the store. At least six of the departments have signs inside the store or outside the store (or both) whereon the legend "delicatessen" appears. Two of the delicatessens (at stores 15 and 23) have stand up eating facilities fbr customers. Department employees, variously, cut and face rolls of luncheon meats and cheeses, cook or barbecue meats, cook vegetables, prepare salads and sandwiches, price items, clean their departments, and wait on customers. The head of the department usually orders goods to be sold. In at least two stores (# 15 and # 12) departmental employees may interchange with checkers from the grocery depart- 21 I note that it was during the period of this 1969-71 agreement that some five of the seven delicatessens represented by the Meat Cutters were opened, the other two being opened later. 28 These findings are based on the credible testimony in this regard of Reagan, Brooks, and Reyna , and photographs of the departments and Resp. 371 ment and in at least three stores (12, 23, and 27) departmental employees interchange with meat depart- ment employees. In three stores (15, 23 and 27) chickens are cut up or meat ground in the meat department for use in the delicatessen. None of the delicatessens has an ice cream machine, milk machine, malt machine, sandwich grill, or popcorn machine. Only two (15 and 23) have soft drinks and a hotdog machine. Three (28, 15, and 23) have coffee machines and cash registers. Only one (95) has a doughnut frying machine. None of the "delicatessens" has what is known as a full- line bakery, although the department at store 15 was opened with at least one bakery case, shortly thereafter removed, and the department at store 95 has a small bakery case-now with a much reduced line of bakery products although it was more extensive at an earlier time. All of the "delicatessens" offer breads of various types and pies for sale. The breads are displayed, occasionally with prewrapped rolls, on shelves or ledges in front of the department's hot food and salad cases.28 2. So-called prepared foods departments As previously noted, Respondent denominates as prepar- ed foods departments those departments in dispute at stores 22 and 71 (where Respondent initially recognized the Meat Cutters, but later Retail Clerks); also 36, 84, 106, and 107. Each of these disputed departments are, as also mentioned, now included under the coverage of the Retail Clerks' agreement with Respondent. Each of these so-called prepared foods departments offers for sale the same type of fare available at the delicatessens previously described, that is, lunch meat, cheese,29 salads, hot and cold sandwiches, hot meats and vegetables, and prewrapped bread and store baked pies. In addition, all carry soft drinks and serve coffee, whereas only some of the delicatessens so provide. As with some delicatessens, some so-called prepared foods departments serve hotdogs. Unlike all delicatessens some so-called prepared foods departments serve milk, malts, ice cream, popcorn, and soft drinks, for which the appropriate machinery has been installed. Unlike all delicatessens, all so-called prepared foods departments have a full-line bakery (sometimes called the Village Bakery). Each of the so-called prepared foods departments, like delicatessens, is equipped with a salad case, steamtable, barbecue oven, scale, fryer, and hot plate or stove, and (except for the department at store 71) a meat slicing machine. Unlike some delicatessens all prepared foods departments have cash registers. Neither the delicatessens nor the prepared foods departments have sandwich grills. The configuration of the prepared foods departments are-from the customer's side---a straight line of cases or two straight lines of cases meeting at right angles at a corner. One has no sign over the department (71); two (106 and 107) have signs saying both "Village Bakery" and Exh. 31. 29 Except that store 22 has no lunch meat or cheese, as Brewer and Holland credibly testified. I credit Brewer's testimony that an advertisement to the contrary was an error. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Prepared Foods"; one has a sign saying "Food to Go,"along with a "Village Bakery" sign (84); another has signs saying "Bakery" and "Prepared Foods" and, at store 22, there was, at least at one time after its changeover to representation by the Retail Clerks, a sign saying "Snack Bar." At stores 106, 107, 36, and 22, the disputed department is located in the front of the store or lobby, whereas the meat department is located in the back of the store at each. And at stores 71 and 84, the disputed department is located in the back of the store next to the meat department. At stores 22 and 36 there are standup eating tables for customers. Each of the prepared foods departments unlike delicatessens has two or three bakery cases for the displaying of a full line of bakery products such as cakes, buns, rolls, etc. Some also have shelves in front of the department cases where wrapped bread is displayed and offered for sale. As with delicatessen employees, prepared foods depart- ment employees variously slice meat and cheese, cook or barbecue meat, cook vegetables, prepare salads and sandwiches, price items, clean their departments, and wait on customers. The head of the department usually orders goods to be sold. Unlike delicatessen employees the staffs of the prepared foods departments spend significant portions of their time setting up the full-service bakery cases and selling goods therefrom to customers. Prepared foods department employees may be interchanged with grocery department employees but have not been inter- changed with meat department employees. This inter- change, at the stores with these departments , ranges from very little (store 106) to frequent (stores 71 and 107). Most of the interchange of prepared foods department employ- ees is "interchange out," at which they perform checking or sacking at the checkout counters in the grocery depart- ment. There is only limited interchange of grocery employees "into" the prepared foods departments, except at store 107 where several employees regularly checked and also worked in the disputed department during the summer of 1973. In the department at store 22 some meat items are obtained from the meat department for sale in the prepared foods department and at stores 71 and 107, meats for the disputed departments are stored in the meat department 30 3. The so-called snackbars Respondent has denominated as "snack bars" those disputed departments at stores 950, 984, 986, and 988, as already noted. Each of the disputed departments at these stores are now included under the coverage of the Retail Clerks' agreement with Respondent. These stores (950, 984, 986, and 988) are larger than the other stores involved herein, are designated "Family Centers" by Respondent, and carry extensive lines of nonfood merchandise such as clothing, hardware, drugs, etc. 30 These findings are based on the credible testimony in the regard Pipkin, Holland, Blalock, Lette, Day, Adams, Walker, Brewer, and Sanchez; Reap. Exh. 31 , and various exhibits which are blueprints, pictures, or diagrams of the stores or the disputed departments 3i The separate "Village Bakery" at store 950 is serviced by snackbar personnel. The so-called snackbars at these stores offer for sale the same type of foods available at delicatessens such as salads, hot and cold sandwiches, hot meats, vegetables, prewrapped bread, and store-baked pies. Unlike delicates- sens and most prepared foods departments snackbars do not carry sliced lunch meat or cheese. Each of these snackbars has soft drinks and coffee whereas only some delicatessens carry these items. As with some delicatessens, all these snackbars offer hotdogs. Unlike all delicatessens all these snackbars serve ice cream, milk and malts, popcorn, and soft drinks, for which machinery has been installed. Unlike all delicatessens each of these snackbars has a full-line bakery. Unlike delicatessens and most prepared foods departments these snackbars do not have doughnut frying machines. Each of these snackbars, like delicatessens, is equipped with a salad case, steamtable, barbecue oven, scale, fryer, hot plate, or stove. Unlike delicatessens none has a meat slicing machine. Unlike some delicatessens, all snackbars have cash registers. Unlike both delicatessens and prepared foods departments, snackbars are all equipped with sandwich grills. The configuration of the instant snackbars are-from the customer's side-a straight line of cases with in-set standup customer eating facilities or a line of cases to a corner at which the other side of the corner is also an area for customer service. At stores 984, 986, and 988, the snackbars have above them signs or large block letters indicating the names "Village Bakery" and "Snack Bar." At store 950, the snackbar has on its awning top the designation "prepared foods." All four of the instant snackbars have lobby locations which, at least in stores 984 and 986, are widely separated from the meat department. At store 950 the snackbar area is separated from the "Village Bakery" area. The snackbars at stores 984, 986, and 988 each have three bakery cases wherein cakes, buns, rolls, etc., are offered for sale. All four of these snackbars have standup eating facilities for customers. At stores 984 and 988 there are facilities for displaying wrapped loaves of bread in front of the food cases of the department. As with delicatessen employees, snackbar employees variously cut meat, cook meats and vegetables, prepare sandwiches, set out salads, price items, clean their department, and wait on customers. Unlike delicatessen employees, snackbar employees do not slice lunch meats or cheeses. The head of the snackbar department usually orders goods to be sold. Unlike delicatessen employees, snackbar employees spend a significant portion of their time setting up the full-service bakery and selling goods therefrom to customers 31 Sitackbar employees have worked as sackers and checkers in the grocery department. At store 984 the butchers have cut chickens for the snackbar and at store 988 the meat department has supplied meat for snackbar sandwiches.32 32 These findings are based on the credible testimony in this regard of Dillinger, Tallman, Ovalie, Reyna, Crowder, Townes, and Brewer; the stipulation that other store managers would testify as did Dellinger and Townes; various photographs and drawings of these "snack bars" and Resp. Exh. 31. KROGER CO. 4. The snackbar at store 974 While not directly involved in this proceeding the snack bar at store 974 is nonetheless relevant to the proceeding because it is not in dispute and has been represented under Retail Clerks' contract with Respondent almost from the time this snackbar opened in 1971, as previously found. This snackbar is equipped with a salad case, steamtable, barbecue oven, scale, fryer and hot plate or stove and a sandwich grill. It offers for sale ice cream, milk, malts, soft ice drinks, and popcorn, for which appropriate machines have been installed. It serves soft drinks and coffee and has a hotdog machine and cash register. It is located in the store lobby and has standup eating tables for customers. It does not serve lunch meats or cheeses. It does offer prewrapped bread and store baked pies for sale 33 Based primarily on the equipment installed and on Respondent's Exhibit 31, I conclude that employees of this snackbar cook meats and vegetables, barbecue meats, make or sell sandwiches, salads and desserts, and wait on customers. 5. The prepared foods department at store 141 Another operation not directly involved in this proceed- ing is the prepared foods department at store 141. This department, which was opened on August 29, 1972, is represented by the Retail Clerks and is one of the departments for which Brewer, merchandising representa- tive in charge of "delicatessens, prepared foods, snackbars and Village Bakeries," is responsible. It is located in Baton Rouge, Louisiana.34 The instant department at store 141 offers for sale cheese, salad, fried chicken, barbecued meat, sandwiches containing sliced ham and salami, bread, cooked vegeta- bles, pastries, pies, cakes, and doughnuts, that is, items similar to both delicatessens and other prepared foods departments, although a fairly complete bakery line unlike delicatessens.35 In view of the items offered for sale I further conclude this department has a salad case, fryer, barbecue oven, bakery case, and a hot plate or stove. C. Respondent's Supervisory Hierarchy Under Respondent's vice president, Robert G. Evering- ham, Respondent's operations are organized for purposes of administration under Andy Anderson, director of retail merchandising, Chuck Buckley, director of retail opera- tions, and Garry Tull, director of family centers. Reporting to Anderson are a grocery merchandiser, produce merchandiser, meat merchandiser, H & D merchandiser, and a softgoods merchandiser (five separate individuals). The meat merchandiser is Ray Ecabert to whom four buyers or merchandising representative report. One of these four is (Carey) Lee Brewer, merchandising representative in charge of "delicatessen, prepared foods, snack bars and Village Bakeries." 33 These findings are based on Resp . Exh. 31. 34 While this location is outside the geographical jurisdiction of Meat Cutters, it is, according to the credible testimony of Hoagland , located in a State where Meat Cutters' sister local, No. 327, headquartered in New Orleans, has geographical jurisdiction. 373 Brewer is in charge of sales planning and selling in those areas of which he is in charge. He developes sales plans from which advertising circulars (flyers) are prepared and passed out to customers. As a general proposition he is not in charge of the personnel serving in the area under his merchandising jurisdiction. However, he has, as he admitted, recommend- ed the transfers of employees to their departments. Consistent with this admission and with the credible testimony of Pipkin in this regard I conclude that Store Manager Watson, after speaking to Brewer, promoted Pipkin to department manager at store 22 in May 1972. Brewer also played a part, as Brooks testified, in obtaining Brooks' rehire at store 71 in April 1972. Brewer has also established a training program about which more will be said hereinafter. Under Buckley, director of retail operations, and Tull, director of family centers, are zone managers who each supervise 6 to 12 of Respondent's stores. At each store there is a manager and comanager who hire, discharge, and direct employees, and approve the scheduling of their work. Store managers and comanagers supervise employ- ees in all departments of the store including the meat department, delicatessen, prepared foods department, or snackbar, grocery department, and nonfoods department. Zone managers have also hired meat department employ- ees.36 D. Background Characteristics, and Training of Employees of Delicatessens, Prepared Foods Departments and Snackbars-How they Compare with Grocery Employees, on the One Hand and Meat Department Employees on the Other Employees of delicatessens, prepared foods departments, and snackbars are hired on the basis of a neat appearance and pleasant personality among other qualifications. Their training, as of the time of the hearing, consisted of a written program established by Brewer, the merchandis- ing representative, who oversees the business operations of these departments. The program required 6 weeks training for a department head, 3 weeks for a full-time employee, and 2 weeks for a part-time employee. Some of the functions of these employees require training not normally possessed by a grocery department employee or meat department employee, e.g., training in the operation of a doughnut machine which requires about a week's practice before efficiency is achieved. Consequently much of the interchange shown of grocery employees temporarily working in delicatessens, snackbars, and prepared foods departments was for the purpose of waiting on customers rather than the operation of the equipment in the instant departments. In the meat department, on the other hand, there is a training program normally consisting of 2 years before an apprentice meatcutter can obtain journeyman status. While a meat weigher and wrapper does not have a 35 These findings are based on stipulations of the parties, the credible testimony of Brewer, and on G. C. Exh. 20. 36 These findings are based on the credible testimony in this regard of various employees, e.g., Pipkin, Holland, Blalock, Tallman, the store managers, and also Resp. Exh. 27. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD training program as such, personnel in these classifications do not reach their highest pay until after 2 years' service and witnessess for Respondent and the Meat Cutters37 agreed that it takes 2 years for an employee to become a fully qualified weigher and wrapper. The only position in the grocery department for which significant evidence was offered in connection with training requirements was that of checker. It takes a period of 2 or 3 days before a checker becomes proficient. The turnover of employees in the delicatessens, prepared foods departments, and snackbars is much higher than that of meat department employees but lower than that of grocery department employees. Thus, for the first 6 months of 1973 the turnover rate for employees of delicatessens, snackbars, and prepared foods departments was 34.8 percent; for employees of the meat department during the same period it was 18.2 percent, and for grocery employees within this time frame it was 43.3 percent. The number of full-time employees in each of these employee groupings also varied during the first 6 months of 1973 at least at the stores in dispute in this proceeding (22, 71, 107, 36, 106, 87, 950, 984, 986, and 988). Thus, in that period, 40 percent of the prepared foods department and snackbar employees were full time whereas 81 percent of the meat department employees were full time. While prior employment in similar work was not shown to be a mandatory prerequisite for employment by Respondent as a delicatessen, prepared foods department, or snackbar employee, some 32 employees of the prepared foods department and snackbars in dispute showed prior experience on their employment applications in such related jobs as delicatessen employee; cook; fountain, counter, snackbar, kitchen, or bakery sales or service employee; or waitress. These 32 applications represented a little less than half of the 68 employment applications introduced by Respondent for the approximate 71 employ- ees of these disputed departments at the time of hearing.38 E. Area Pattern of Collective Bargaining for Employees Engaged in Similar Operations Meat Cutters represents the delicatessen employees of Jamail's, an independent store in the Houston area. Meat Cutters previously represented delicatessen employees of Sacco's No. 1, since sold out to Rice Food Markets. Although part of the former Sacco (now Rice) delicatessen operation has been discontinued, Meat Cutters still represents employees handling the remaining delicatessen items. Meat Cutters also represent the delicatessen employees of Safeway, a chain store, at those 10 to 12 Safeway stores in the area which have delicatessens. In these Safeway stores the delicatessens offer prepared cooked foods, breads, and normal delicatessen items. The delicatessen 37 Reyna and Barker. 3H The foregoing findings are based on the credible testimony of Brewer and the store managers and several exhibits offered by Respondent into evidence. 39 These findings are based on the credible testimony of Hoagland in this regard which is not essentially disputed by Wooster. 40 Wooster credibly so testified. departments at Safeway are next to or in the vicinity of the meat department at those stores 39 These departments do not have a place to eat nor do they have a bakery. The Retail Clerks' NLRB certification covering Safeway specifically excludes delicatessen employees 40 Employees of delicatessen-type operations at Weingar- ten's a large retail food chain also in the Houston area, are represented by the Retail Clerks, except for one employee who services a delicatessen case next to a meat department in one Weingarten's store. This employee is represented by the Meat Cutters. The delicatessen-type operations at all other Weingarten's stores, whose employees are represent- ed by the Retail Clerks, work in departments variously known as "lobby," "lunch," or "smokehouse." These departments are physically separated from the meat departments at these stores. These departments variously serve or handle hot foods, cheeses, salads, sandwiches, and other lunch items and delicatessen delicacies, and, in the "smokehouses," bakery items as well. A number of these departments have sitdown eating facilities. Retail Clerks also represents a similar department at a Lewis & Coker store in Freeport, Texas.41 F. Pattern of Collective Bargaining for Similar Operations of the Kroger Company Outside of the Houston Division The Kroger Company operates, or has operated, grocery stores in a number of areas outside of the States of Texas and Louisiana. These areas include, or have included, Cleveland, Ohio, Chicago, Illinois, and areas in the States of Michigan, Indiana, Virginia, North Carolina, and Tennessee. In some of these locations the Company, following what it understood to be the Meany compro- mise,42 has accorded recognition to Meat Cutters' sister locals for delicatessen operations physically contiguous to meat departments but granted such recognition to sister locals of Retail Clerks where the delicatessens departments are physically separated from the meat departments. In other locations, Kroger has, in effect, divided the delicates- sen jurisdiction of locals of the Retail Clerks, on the one hand, and locals of the Meat Cutters on the other by splitting its recognition of these labor organizations in delicatessens down the middle, that is, having members of both Retail Clerks and Meat Cutters operating its delicatessen department on a "one for one" basis, viz, one Meat Cutters member for one Retail Clerks member in each department. The instant delicatessens offer baked products, sliced ham, luncheon meats, salads, and barbe- cued meats.43 Concluding Findings As I have found, the Meat Cutters continued to be recognized as the bargaining representative of the delica- tessens at stores 15, 23, 12, 27, 28, 60, and 95 at the time of 41 These findings as to Weingarten's and Lewis & Coker are based on the credible testimony of Wooster and various pictorial exhibits and drawings placed into evidence by the Retail Clerks. 42 Apparently referring to some arrangement developed by George Meany, the president of AFL-CIO. 43 These findings are based on the credible testimony of Bedell in this regard. KROGER CO. 375 the hearing. While conceding this fact at the hearing on September 24, 1973-after the Meat Cutters latest (1973-75) agreement had gone into effect-Respondent's counsel, as previously mentioned, stated that Re- spondent does not concede that these delicatessens are appropriately a part of the Meat Cutters unit. Respondent's counsel stated that, while Respondent agreed to be bound by the original award by arbitrator Britton of the instant departments at stores 15 and 23 to the Meat Cutters and although Respondent thereafter recognized the Meat Cutters in the delicatessens at the remaining five stores above, Respondent did not agree with the arbitrator's decision, which had concluded that these delicatessens were an accretion to the Meat Cutters unit. Respondent's counsel asserted that this award did not deprive the Board of jurisdiction to determine the unit placement of employ- ees at all seven of these delicatessens and that I should determine their unit placement in this Decision. As also already noted, Retail Clerks official, Wooster, likewise expressed his disagreement with the arbitrator's award later in the proceeding. I conclude that the instant delicatessens are properly a part of the Meat Cutters unit. For the Board is unwilling to disturb an established bargaining relationship unless it is repugnant to the Act.44 There is no showing that inclusion of delicatessens, which, as here, offer for sale hot and cold meats, vegetables, and salads in a meat department unit is repugnant to the Act. Indeed such an inclusion accords with Board precedent.45 Moreover, Bedell, Respondent's vice president of Labor Relations, admitted that Meat Cutters has not only claimed but has jurisdiction over the instant delicatessens .46 And Wooster, for Retail Clerks admitted in his full testimony that he has not demanded recognition for these employees although he disagrees that they should be represented by the Meat Cutters 47 Moving on from the delicatessens to the prepared foods departments and the snackbars, the General Counsel would have proved that Respondent's recognition of the Retail Clerks in the prepared foods departments at stores 22, 71, 107, 36, 106, and 84, and the snackbars at stores 950, 984, and 986 and 988, violated Section 8(a)(1), (2), and (5) of the Act, if these disputed departments were an accretion to the Meat Cutters' multistore meat department unit. Under this theory, if the accretion to the Meat Cutters unit had occurred, Respondent's recognition of the Retail Clerks to represent the instant employees is an unlawful refusal to bargain with the Meat Cutters and also unlawful assistance to the Clerks48 If, on the other hand, the 44 Fraser & Johnston Company 189 NLRB 142, 151, and cases cited therein, enfd. as modified 469 F.2d 1259 (C.A. 9, 1972). 45 Primrose Super Market of Maiden, Inc., 178 NLRB 566, 569. 48 Bedell's testimony in transcript. 47 It is, of course, true that the Board does not defer to arbitrators on matters involving questions of accretion . Beacon Photo Service Inc., 163 NLRB 706. Here, however, the arbitrator's decision has been overtaken by subsequent events, specifically the voluntary acceptance of all parties of his decision and Respondent's voluntary recognition of the Meat Cutters for all seven of these delicatessens without said recognition being disputed by the Retail Clerks. Thus, even if the arbitrator's accretion finding was incorrect, the subsequent voluntary recognition-with the acquiescence of the Retail Clerks-of of the Meat Cutters as the representative of these employees as a part of the Meat Cutters ' multistore meat department unit moots the question . For the resulting unit, i.e., a multistore meat department unit disputed departments have rather accreted to the Retail Clerks' multistore unit, Respondent's recognition of the Retail Clerks is lawful, does not constitute an unlawful refusal to bargain with the Meat Cutters and is not unlawful assistance to the Clerks. As will appear, I find that the instant departments are not an accretion to the Meat Cutters' unit. I further find that these departments are not an accretion to the Retail Clerks' unit. Based on these findings and certain other findings to be made, infra, the allegations of the complaint that Respondent has refused to bargain with the Meat Cutters in violation of Section 8(a)(1) and (5) will fail; but the further allegations of unlawful assistance to the Retail Clerks will require a separate discussion. Having determined that the delicatessens at stores 15, 23, 12, 27, 28, 60, and 95 are properly a part of the existing multistore meat department unit represented by the Meat Cutters, it becomes necessary, in analyzing the accretion contentions of the General Counsel and the Charging Party, to determine whether the delicatessens, which the Meat Cutters already represent, are essentially the same as, or different from, the prepared foods departments and snackbars for which the Meat Cutters seek a bargaining order in this proceeding. Certain differences between delicatessens, on the one hand, and prepared foods departments and snackbars on the other-as well as variations among all three-have previously been outlined in this Decision. These differ- ences relate to some distinctions in the goods offered for sale and details as to the service provided or the physical layout of these departments. However, in my judgment the only significant distinction between the disputed prepared foods departments and the disputed snackbars as a group, on the one hand, and delicatessens, on the other, lies in the fact that the disputed departments, unlike the delicatessens, have full service bakeries. Otherwise as should be evident from my findings, supra, delicatessens, prepared foods departments, and snackbars are store outlets which provide hot or cold vegetables, meats, salads, and sandwiches to be eaten on the premises, to be carried out, or both, and all of these departments have, as their basic equipment, stoves, not plates, barbecue ovens, cold cases, hot cases, etc., on which these foods are prepared or offered for sale. This means that, except for the full-service bakery, the disputed departments are substantially similar to the delicatessens.49 To the extent that the disputed departments have full-line bakeries they are also substantially similar to the setup of including delicatessen employees of the type involved herein, is an appropriate unit, as I have found, and, in view of bargaining history in an appropriate unit, the Board's normal policy is not to disturb such a bargaining relationship, as I have also noted. Cf. International Telephone & Telegraph Corporation, 159 NLRB 1757, enfd. as modified 382 F.2d 366 (C.A. 3, 1967), cert. denied 389 U.S. 1039 (1968), in which the Board refused to upset a collective-bargaining unit where the Board's certification was invalid but the unit was otherwise appropriate and there had been a history of bargaining in that unit subsequent to the Board's certification. 48 See, e.g., R. L. Sweet Lumber Company, 207 NLRB No. 98. 49 The separate denominations of the departments have no significance in my opinion. Thus, the heads of some of the disputed departments have been known as "head deli clerks"; the prepared foods departments at stores 22 and 71 were formerly called "delicatessens"; the prepared foods departments at store 22 has also been called a "snack bar"; "prepared foods" flyers are used in the delicatessens and the disputed departments, and Brewer's secretary refers to him as the director of "Deli" operations. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the "Country Cupboard" which is a self-service operation in each store where a similar line of bakery products is stocked by employees represented by the Retail Clerks.50 Thus, the disputed departments bear an essential similarity to delicatessens with a significant difference ; i.e., the full- line bakeries, which makes the disputed departments, in part, much like the self-service bakeries which are serviced by employees of the grocery department represented by the Retail Clerks. In reaching the conclusion that-except for ithe full-line bakeries-there -' is no substantial +difference between "delicatessens" and the disputed departments, I am not unmindful of the credible testimony of Brewer that when he took over as merchandising representative of Respondent's "delicatessens, prepared foods departments, snack bars and Village Bakeries," about January 1, 1972, he was charged by his superiors, Tull and Ecabert, with the responsibility to study market trends in this type of operation and develope a "new concept" for Respondent, that he has made such a study and that he has assiduously implemented this "new concept." Thus, although the "Village Bakery" (full-line bakery) addition had already been decided upon by his superiors, Brewer, on his own, has seen to it that ice cream machines, milk machines, malt machines, ice machines, soft drink machines, sandwich grills, doughnut machines, popcorn machines, hotdog machines, and coffee machines have been installed in various prepared foods departments or snackbars during his tenure. However, the "new concept" has, in my judgment, not changed the essential food service activity of these departments but has merely supplemented the various food or drink items offered for sale.51 Moreover, some of the aforementioned machines have been added to the delica- tessens and Brewer frankly conceded that the size of the store, location of the department in the store, and public demand have been limiting factors in his implementation of the "new concept." For example, lunch meat and cheese have been removed from store 22's delicatessen. Otherwise some items, such as sandwiches, have been added to delicatessen operations as well as the others.52 From the foregoing, I conclude that the "new concept" applies equally to delicatessens , prepared foods departments, and snackbars to the extent the department's fare may successfully be augmented or its size and location permit further improvements. In evaluating the accretion contentions of the General Counsel and the Charging Party, I have also considered, as will appear, infra, the past history of bargaining and the language of recent collective-bargaining agreements be- tween the Meat Cutters and Respondent. Respondent's history of operations during the 1950's indicates, as arbitrator Britton found, that before and after the certification of the Retail Clerks in the grocery department unit, such delicatessens were handled and stocked by meat department employees represented by the Meat Cutters. As to Respondent's collective-bargaining agreements with Meat Cutters, all such agreements from 1968 to the present have stated that the Meat Cutters have "work and collective bargaining jurisdiction over the Employer's delicatessen operations." In evaluating the position of the General Counsel and the Meat Cutters, I have also considered the duties of the employees in the disputed departments in comparison to the functions of meat department employees. In the delicatessens and the disputed departments, the employees, like meat department employees, cut and handle meats. And employees of delicatessens and prepared foods departments cut and wrap luncheon meats. In evaluating the accretion contentions of the Respon- dent and the Retail Clerks, I have likewise given considera- tion to the nature of the work of, and the goods handled by, the employees in the disputed department, present and past bargaining history, and current contract coverage. With respect to the nature of the employees in the disputed departments and the goods which they handle, it is clear that the employees of prepared foods departments and snackbars provide face-to-face service to customers much in the same fashion as do checkers, drugclerks, and courtesy booth employees all of whom are represented by the Retail Clerks in the grocery department unit for which it has been certified by the Board. The full-line bakery goods which are offered for sale in the disputed depart- ments are very similar to the bakery goods offered for sale in the "Country Cupboard" bakery which is a self-service operation stocked by employees represented by the Retail Clerks, a fact already noted. The grocery department, like the disputed departments, also offers for sale pies, dinners, salads, vegetables, cheeses, spreads, canned drinks, pud- dings, and tacos, although many of the items (pies, dinners, puddings, and vegetables) are sold as packaged or frozen items in the grocery department, whereas they are sold cooked and ready to eat in the disputed departments. All of the employees who stock the shelves in the grocery department, where these items are offered for sale, are represented by the Retail Clerks. With regard to the current bargaining history, the employees of the snackbar at store 974 and the prepared foods department at store 141, both of which are in the Houston division, are now, and have been, represented by the Retail Clerks and are not in issue in these proceedings. I find that there is no essential difference (except for the lack of a full-service bakery in the department at store 974) between the instant departments at these two stores and the delicatessens, prepared foods departments, and snack- bars generally. All are departments in which hot and cold food is offered for sale to be eaten on the premises or to be taken out and some bakery items are likewise offered for sale. As to the collective-bargaining agreement now in effect 50 While it is true that delicatessens and the disputed departments also findings based on the credible testimony of Brewer in this regard and Resp. sell prewrapped breads and store baked pies, these sales are de minimis since Exhibit 36. they represent only 2 percent of the sales volume of delicatessens, prepared 51 Even Wooster, the executive officer of Retail Clerks , referred to cokes, foods departments, and snackbars . Bakery products, on the other hand, coffee, and popcorn as "like junk items." account for 34 percent of the sales volume of all three groups . I make these 52 Brewer testified that delicatessens have sandwiches "now." KROGER CO. (1971-74) between Respondent and the Retail Clerks, this contract clearly specifies pay rates for "lunch" employees, booth and bakery employees, lunch manager and an "over rate" for delicatessen employees. Insofar as the past history of bargaining is concerned, the cafeterias, lunch and soda departments, and bakery departments, which were operated by Respondent in the 1950's up to the very early 1960's and whose employees were represented by the Retail Clerks, were highly similar to the disputed departments in that they offered hot and cold prepared food or drinks for sale to be eaten on or off the premises and offered bakery products for sale. The pattern of bargaining for Respondent's competitors in the Houston area and for Respondent's stores in the East and North is a mixed one as heretofore described. Administrative control of the employees in the disputed departments is likewise mixed. General merchandising policy for the disputed departments is established by Respondent's meat merchandising heirarchy, through Brewer, whereas day-to-day supervision of these employees and control over their hours, hiring, and firing is vested in store managers who also have the same control over employees of both the meat and grocery departments. In sum, in evaluating the accretion contentions for both sides, I have considered Respondent's recent history of collective bargaining for employees of Respondent's delicatessens, prepared foods departments, and snackbars; the duties of the employees engaged in these operations; Respondent's administrative structure; the language of Respondent's collective-bargaining agreements; Respon- dent's history of bargaining in the 1950's; Respondent's pattern of bargaining elsewhere in the United States and its competitors' local pattern of bargaining. I have also considered the nature of the disputed departments them- 53 A factor underlying the Board's refusal to find accretion in Sunset House, 167 NLRB 870, enfd 415 F.2d 545 (C.A. 9); Melbet Jewelry Co. Inc., et al., 180 NLRB 107; Pix Manufacturing Company, 181 NLRB 88. 54 For inclusion of such employees in a meat department unit, see, e.g., Primrose Super Market of Malden, Inc., 178 NLRB 566. For inclusion of such employees in a unit of grocery department employees see, e.g, Seaway 377 1selves and I have concluded that-except for the full line ,bakeries in the disputed departments-the latter depart- ments are essentially like the delicatessens. Insofar as the full line bakeries are concerned, that aspect of the disputed departments is essentially like the "Country Cupboard" serviced by employees represented by the Retail Clerks in the grocery unit, and like the bakeries operated by Respondent in the 1950's. Delicatessens and the disputed departments are also similar to the Respondent's earlier cafeterias and lunch and soda departments. From all the foregoing it appears that the disputed departments could be accreted to either the unit represent- ed by the Retail Clerks or the unit represented by the Meat Cutters. But a finding that a group of employees is an accretion to any existing collective-bargaining unit is a finding which must be approached with a considerable measure of caution. For such a finding necessarily forecloses the rights of the employees in the "would be" accreted group to freely select their own collective-bargaining represetita- tive 53 And, indeed, in cases such as the present one, the application of the accretion doctrine to the Meat Cutters unit would preclude the choice of an equally appropriate unit and vice versa. That is, a unit of meat department employees including the employees of the disputed departments is equally as appropriate as a unit of grocery employees including the employees in the disputed departments.54 In view of the foregoing and in all the circumstances of this case it seems to me proper that the disputed departments should not be found to be an accretion to either the multistore unit of grocery employees represented by the Retail Clerks or the multistore unit of meat department employees represented by the Meat Cutters.55 Food Town, Inc., 171 NLRB 729. For the possible inclusion of such employees in either unit (based on a self-determination election) see Kroger Company, Atlanta Division, 202 NLRB 835. Compare Food Employers Council, Inc., 163 NLRB 426, enfd 399 F.2d 501 (C.A. 9, 1968). 55 See Spartans Industries, Inc, 169 NLRB 309, enfd, 406 F.2d 1002 (C.A. 5, 1969); Spartans Industries, Inc, 173 NLRB 1219. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I so hold 56 here.57 In concluding that the disputed departments are not an accretion to the Retail Clerks unit, I have rejected the contentions of the Respondent and the Retail Clerks that the interchange between the grocery department employ- ees and the employees in the disputed departments requires a contrary conclusion and I have done so far for several reasons. Such interchange was minimal in some stores (e.g., 106) or frequently occurred in emergency situations. The determination to interchange employees was a matter within the discretion of store management,58 was based on "union lines" as the managers understood them59 or was limited to employees in the grocery department because of the higher cost of interchanging meat department employ- ees with employees of the disputed departments 60 Further the degree of this interchange increased after the advent of the present proceeding.6' Also, as I have found, so-called delicatessen employees who perform essentially the same duties as the employees of the disputed departments, have interchanged with both meat department employees and grocery department employees, thus demonstrating that interchange involving either the meat department or the grocery department with employees of a department like the disputed departments is practicable. Finally, it was shown that the great bulk of interchange into the disputed departments was to perform simple selling tasks (rather than any of the work for which training is required in the disputed departments) and the interchange of employees from the disputed departments into the grocery depart- ment was for sacker work and only included checking if the employee had previously been trained in that func- tion 82 My finding that no accretion has occurred does not, of course, dispose of the majority card showing, already found, of the Meat Cutters in the prepared foods departments at stores 22 and 71. If these card showings were valid, then the disputed departments at these two stores became a part of the Meat Cutters unit by lawful recognition, albeit not by accretion. I will consider the validity of these card showings later in this decision. Suffice it to say, however, at this point that I shall find such showings invalid and, having found no accretion of the disputed departments to the Meat Cutters unit, I shall recommend that the 8(a)(5) allegations of the complaint be dismissed. There remains for consideration the 8(a)(2) allegations of the complaint wherein the General Counsel has alleged that Respondent has unlawfully assisted the Retail Clerks in granting that union recognition for the employees of the disputed prepared foods departments and snackbars. For reasons which will appear, infra, I shall uphold these allegations of the complaint. Had the Respondent and Retail Clerks established that the disputed departments were an accretion to the multistore unit represented by the Retail Clerks, such would have been a defense to the 8(a)(2) allegation of the 56 International Paper Company, 143 NLRB 1192. In not finding an accretion to either unit, I have disregarded certain petitions of employees in the disputed departments that they would prefer representation by the Meat Cutters . For such statements in my judgment have no relevance to an accretion issue which is really a question, resolved by operation of law, as to whether a certain unit includes or does not include employees performing certain work , as the cases cited, supra, demonstrate. Further, in finding that the disputed departments have not accreted to the Retail Clerks unit, I have considered but rejected the contentions advanced in the briefs of the Respondent and the Retail Clerks that a finding of accretion to that unit is required by the fact that the unit in which the Board certified the Retail Clerks in 1956 included employees working in restaurants and lunch and soda departments (which, as I have found, were highly similar to the departments here in dispute ) as well as employees working in bakeries which are similar to one aspect of the disputed departments. To begin with, since the Meat Cutters were recognized by Respon- dent-before and after the Retail Clerks' certification-to operate self- service delicatessens, in Respondent's stores (which delicatessens also bear some resemblance to the departments disputed herein) the certification could not dispose of the question . But even if this fact did not exist in this case, I would reach the same conclusion. For the instant certification , like the arbitrator's decision, discussed, supra, has been overtaken by subsequent events. That is, the restaurants, lunch and soda departments , and bakeries which were operated by Respondent in 1956 were phased out by Respondent by the early 1960's. And, since 1971 , Respondent and the Meat Cutters have a bargaining history in which the Meat Cutters have been voluntarily recognized to represent employees of all the delicatessens-with the acquiescence of the Retail Clerks-even even though these delicatessens are similar to the old lunch and soda departments formerly operated by Respondent. Stated another way, the bargaining history since 1971 may be viewed as being in derogation of the certification. But the fact that a bargaining history has been in derogation of a certification has not given cause to the Board to reject that bargaining history . Thus, where a petition has been filed to decertify a union in the same unit in which that union was originally certified, the Board has dismissed the petition on the ground that the unit in which the union was recognized at the time the decertification petition was filed had been changed from the unit in which the union was originally certified-the the change having resulted from a voluntary bargaining history after the certification during which the certification was essentially abandoned. See, e.g., General Motors Corporation, 151 NLRB 156; Gould- National Batteries, Inc., 150 NLRB 418. Here, if the bargaining history for the delicatessens may be viewed as being in derogation of the Retail Clerks' certification, it has been a voluntary history in which the Retail Clerks have acquiesced by not disputing recognition of the Meat Cutters in the last five delicatessens when they were opened-a failure admitted by Wooster-as well as by the Retail Clerks' failure to dispute, in a Board proceeding, the arbitrator's award of the first two delicatessens to the Meat Cutters and the Respondent's later granting of recognition based on that award. Further indicating that the bargaining here has been in derogation of the certification is the fact that the certified unit of the Retail Clerks excluded department heads whereas the latter are now included under the current agreement between Respondent and the Retail Clerks. See Joint Exh. 7. The uncertain relevance of the certification to the question and the subsequent bargaining history for the delicatessens, acquiesced in by the Retail Clerks, distinguish this case from cases cited by Respondent and the Retail Clerks in their briefs. 57 Even, if I were persuaded-which I am not-by the argument of the Charging Party in its brief that the arbitration award of Arbitrator Britton requires a finding of accretion to the Meat Cutters unit, I note that such award dealt only with the delicatessens at stores 15 and 23. Beacon Photo Service, Inc., 163 NLRB 706. Moreover, the limitation of this prior award to these two stores was impliedly conceded by Meat Cutters in its attempt, previously recounted, to seek a separate arbitration over the question of representation in stores 22 and 71. 58 See, e.g., the credible testimony of Store Manager Sanchez in this regard. 59 See, e.g., the credible testimony of Store Managers Adams and Day in this matter. 60 See the credible testimony of Sanchez in this regard. 81 See, e.g., the credible testimony of Pipkin in this regard. 62 Hence, if a Board election ultimately ensues from these proceedings, the unit placement of employees who regularly work in the disputed departments and the grocery departments may be resolved in accordance with principles enunciated by the Board in Berea Publishing Company, 140 NLRB 516. KROGER CO. 379 complaint. For, if such departments were an accretion to the Retail Clerks unit, it would follow that Respondent's recognition of the Retail Clerks was lawful. However, since I have already found that the disputed departments were not an accretion to the Retail Clerks unit, this defense does not obtain herein. In stores 107, 36, 106, and 84, I find that Respondent's immediate extension of the coverage of the Retail Clerks contract to include the employees of the prepared foods departments at each of these stores when the instant departments were opened was, and is, unlawful assistance to the Retail Clerks in violation of Section 8(a)(2) and (1) of the Act. In stores 950, 984, 986, and 988, I also find that Respondent's immediate extension of the coverage of the Retail Clerks' contract to include the employees of the snackbars at each of these stores when the instant departments were opened also was, and is, unlawful assistance to the Retail Clerks. The vice in the extension of this contract to cover the employees in each of the instant disputed departments lies in the fact that each such extension occurred in circum- stances where, as I have found, no such disputed department was an accretion to the Retail Clerks unit and in the further fact that each such extension, as I have also found, must have occurred at a time before the Retail Clerks had an opportunity to proffer to Respondent a showing of valid executed union authorization cards from a majority of the employees in the disputed department,63 i.e., the extension took place immediately upon the opening of the department. Also in issue here is the Respondent's recognition of the Retail Clerks in the disputed departments in stores 22 and 71 (after first recognizing the Meat Cutters in these same two disputed departments). I likewise find that Respondent's recognition of the Retail Clerks to represent the employees of the disputed departments at these two stores was, and continues to be, violative of Section 8(aX2) and (1) of the Act. The vice in Respondent's recognition of the Retail Clerks at these two stores lies in the fact that recognition occurred when Respondent was faced with the competing claims of both the Meat Cutters and Retail Clerks for the employees of the disputed departments at these two stores64 and had been presented with union authorization cards in favor of the Meat Cutters and other union authorization cards from employees in the same departments in favor of the Retail Clerks 85 In such a situation an employer cannot arrogate to itself the resolution of the representation dispute by determining that dispute against one labor organization but in favor of another.66 Finally, I would reject the authorization cards of Pipkin and Watson (employees of the disputed departments at 63 See Super Valu Stores, Inc., 177 NLRB 899. Since the authorization cards of the Retail Clerks , to be invalid, would have to have been solicited from the employees of the disputed departments after imposition of the Retail Clerks' contract, this fact alone raises a question as to whether the execution of such cards by the employees was an act of free choice. 84 Novak Logging Company, 119 NLRB 1573. 65 Allied Supermarkets, Inc., 169 NLRB 926. 88 Midwest Piping and Supply Co. Inc., 63 NLRB 1060, 1070. 87 E.g., Heck's, Inc., 156 NLRB 760, 767, enfd, as modified 386 F.2d 317 (C.A. 4, 1967). store 22), which were executed in favor of the Retail Clerks on May 10, 1972, because such cards were executed by these employees after they were told by Store Manager Watson, District Manager Forsythe, and Assistant District Manager Robertson, that they would henceforth be represented by the Retail Clerks. Thus, this statement by higher management officials, coupled with the almost immediate solicitation by representatives of the Retail Clerks of these same employees to join that labor organization, is, in my judgment, tantamount to superviso- ry participation in the solicitation of the authorization cards. Cards solicited at the behest of supervisors have traditionally been rejected as invalid by the Board.67 Therefore, I find that the Retail Clerks at no time had valid authorization cards from any of the six employees at store 22 since these were the only two cards offered and I have rejected them. I have already rejected the Retail Clerks authorization cards of two of the five employees in the disputed department at store 71, leaving Retail Clerks with at most two cards in that department. Hence, at no time did the Retail Clerks possess a vaild card majority from the employees at the disputed depart- ment at either store 22 or store 71. For this reason also, Respondent's application of the Retail Clerks' contract and recognition of the Retail Clerks in these two departments violated Section 8(a)(2) and (1) of the Act 66 I further find that the statements of Store Manager Watson, District Manager Forsythe, and Assistant District Manager Robertson to department employees at store 22 in May 1972, and the statements by Store Manager Buckley and other management officials to department employees at store 71 (previously referred to) in May 1972, that said employees would in the future be represented by the Retail Clerks also, in the circumstances, violated Section 8(a)(1) and (2) of the Act 69 Having determined to reject the authorization cards of Pipkin and Watson because of constructive participation by management in their solicitation, parity of reasoning likewise requires me to reject the Meat Cutters' authoriza- tion cards previously executed by what would otherwise be a majority of the employees at the newly opened disputed departments at these same two stores. For, as I have found, Store Manager Watson at 22, and Store Manager Buckley at 71, told employees when they were hired, that they would be "under the Meat Cutter's contract." I conclude that these statements by management unduly influenced the employees' subsequent execution of authorization cards for Meat Cutters, so I likewise reject the authoriza- tions of the Meat Cutters in the disputed departments at these two stores.70 In brief, this is a case in which the determination of the collective-bargaining representative of the disputed depart- 68 International Ladies' Garment Workers' Union, AFL-CIO [Bernhard- Altmann Texas Corp.J v. N.L.RB. 366 U.S. 731 (1961). 69 See Sheraton-Kauai Corporation, 177 NLRB 25, enfd, 429 F.2d 1352 (C.A. 9, 1970). TO At a minimum - this finding results in the rejection of the cards of Pipkin and Holland leaving the Meat Cutters with a card showing of three out of six in the disputed department at store 22 in early May 1972-less than a majority. At a minimum this finding also results in the rejection of the card of Blalock at store 71, leaving the Meat Cutters an authorization card showing of two out of five at the store-again less than a majority. I (Continued) 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments and the unit in which these departments shall be included is a determination best left to the employees themselves in a Board-conducted election . Cf. Spartans Industries, Inc., 169 NLRB 309, 312. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above , occurring in connection with the operations of Respondent described in section I, above, have a close, intimate and substantial relation to trade, traffic and commerce among the several states, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain action designed to effectuate the policies of the Act. Since I have found that Respondent has violated Section 8(a)(2) and (1) of the Act by applying its collective bargaining agreement with the Retail Clerks to the disputed departments to stores 22, 71, 106, 107, 36, 84, 950, 986, and 988 and by recognizing Retail Clerks as the collective-bargaining representative of the employees in the disputed departments at these stores , I shall recommend that Respondent be ordered to withdraw and withhold recognition from Retail Clerks as the representative of the employees in these disputed departments and that Respon- dent be ordered to cease and desist giving effect to its collective-bargaining agreement, effective September 9, 1971, to September 7, 1974, or any addition or supplemen- tal thereto, with Retail Clerks as applied to the employees in these disputed departments , unless and until Retail Clerks shall have been certified as the exclusive representa- tive of the employees in these departments on the basis of a Board-conducted election . It is the intention of this aspect of the order that each disputed department be treated as a separate voting group in which the Retail Clerks must demonstrate its majority status in a Board-conducted election before Respondent may accord recognition to the Retail Clerks in said department. However , nothing in this recommended order is intended to require that Respondent vary or abandon any wages, hours, or other substantive features of the terms and conditions of employment of the employees in these departments as established in the performance of Respondent's contract with the Retail Clerks.71 I shall also recommend that Respondent be required to cease and desist from interfering with, restraining, or coercing its employees, in any like or related manner, in would, in any event, also reject the card of Sharon Hams for purposes of counting the Meat Cutters majority at store 71 , since Hams signed her card at store 23. I further find that, even though the disputed departments at stores 22 and 71 were not an accretion to the Meat Cutters unit , the Meat Cutters' contract was immediately applied to these departments upon opening of the department. I make this finding based on the credited testimony of Pipkin, Holland, and Blalock that they were told, when hired by their respective store managers, that they would be under the "Meat Union" or "Meat Cutters" contract, and their further credible testimony that they were hired said employees' exercise of the rights guaranteed them in Section 7 of the Act. Finally, I shall recommend that Respondent be required to post an appropriate notice to its employees. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Meat Cutters and Retail Clerks are both labor organizations within the meaning of the Act. 3. By the conduct set forth in section III, above, Respondent has rendered unlawful assistance and support to the Retail Clerks and thereby has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 4. By recognizing the Retail Clerks, rather than the Meat Cutters, as the collective-bargaining representative of its employees at the disputed departments in stores 22, 71, 106, 107, 36, 84, 950, 984, 986, and 988 and extending the coverage of its contract with the Retail Clerks to the instant employees, Respondent has not violated Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices (referred to in Conclusion of Law 4, supra) are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER72 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Respondent Kroger Co., Houston Division, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Supporting Retail Clerks International Association, AFL-CIO, Local No. 455, or any other labor organization of its employees. (b) Recognizing Retail Clerks International Association, AFL-CIO, Local No. 455, as the representative of the employees of its so-called prepared foods departments or snackbars at its stores 22, 71, 107, 36, 106, 84, 950, 984, 986, and 988, for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates, or pay or other conditions of employment , unless and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among said employees. (c) Giving effect to the current collective-bargaining agreement between the Respondent and Retail Clerks International Association, AFL-CIO, Local No. 455, effective September 9, 1971, to September 7, 1974, or any at wage rates, which, I find, correspond with the wage rates for weighers and wrappers set forth in the Meat Cutters ' contract in effect in 1972. 41 See Super Valu Stores, Inc., 177 NLRB 899, 890. 72 In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. KROGER CO. 381 extension, renewal or modification thereof , by applying such agreement, extension, renewal or modification to the employees of the so-called prepared foods departments or snackbars at its stores 22, 71, 106, 36, 107, 84, 950, 984, 986, and 988 ; provided however, that nothing in this order shall require the Respondent to vary or abandon any wage, hour, seniority, or other substantive features of its relations with said employees which the Respondent has established in the performance of this agreement , or to prejudice the assertion by said employees of any rights they may have thereunder. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Retail Clerks International Association, AFL-CIO, Local No. 455, as the exclusive bargaining representative of the employees of its so-called prepared foods departments or snack bars at stores 22, 71, 106, 107, 36, 84, 950, 984, 986, and 988, for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment of said employees unless and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among said employees. (b) Post at its instant stores copies of the attached notice marked "Appendix."73 Copies of such notice, on forms provided by the Regional Director for Region 23, after being duly signed by the appropriate representative of Respondent, shall be posted by it at said stores, immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places at said stores, including all places where notices to employees at said stores are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days of the receipt of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. 73 In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board." Order of the National Labor Relations Board" shall be changed to read