Kroger Grocery & Baking Co.

In the Matter of KROGER GROCERY & BAKING Co. and RETAIL CLERKS INTL. PROTECTIVE ASSOCIATION, LOCAL #725 (A. F. OF L.) Case No. R-3237.-Decided December 10, 1941 Jurisdiction : food products canning, warehousing, manufacturing, and retail distributing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to any union without certification by the Board; election necessary. Unit Appropriate for Collective Bargaining : grocery clerks in Indianapolis who work at least thirty hours a week. Frost c Jacobs, by Mr. Cornelius I. Petzhold, of Cincinnati, Ohio, and Mr. Paul Mooney, of Indianapolis, Ind., for the Company. . Faust, Faust.&'Faust, by Mr. William H. Faust, Sr., and Mr. Wil- liam H. Faust, Jr., of Indianapolis, Ind., for the Union. Miss Grace MeEldowney, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 25, 1941, Retail Clerks Int'l Protective Association, Local $725 (A. F. of L.), herein called the Union, filed with the Re- gional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Kroger Grocery & Baking Co., Indianapolis, Indiana, herein called the Company, and requesting an investigation and certification of representatives,' pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 8, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an in- vestigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 13, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the 37 N I, R. B., No. 72. 450 KROGER GROCERY- & BAKING CO. 451 Union. Pursuant to notice, a hearing was held on November 3, 1941, at Indianapolis, Indiana, before Arthur R. Donovan, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were represented and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing on the issues was afforded all parties. Dur- ing the hearing the Union moved to amend its petition in so far as the description'of the appropriate unit was concerned. The Trial Examiner granted the motion, and his ruling is hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kroger Grocery & Baking Co. is an Ohio corporation engaged in -the -'manufacture, canning, warehousing, and retail distribution of food products. In Indianapolis, Indiana, it has 53 stores, with which -we are-here concerned. The sales of the Company in the Indianapolis stores amount to 'between $4,000,000 and $5,000,000 annually. Between 30 and 40 per ,cent of'the merchandise sold in these stores is shipped to Indianapolis -from points outside the State of. Indiana. The Company admits that its operations in Indianapolis affect commerce within the meaning ,of the Act. - - II. THE ORGANIZATION INVOLVED Retail' Clerks Int'l Protective Association, Local #725, is a labor ,organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The position of the Company, as expressed at the hearing, is that it desires certification by the Board before granting recognition to Any union. A statement of the R.,gional Director, introduced in ,evidence, shows that the Union represents a substantial number of ,employees in the unit hereinafter found to be appropriate.' We find that a question has arisen concerning the representation ,of employees of the Company. - - 1 The Regional Director reported that the Union had presented 111 authorization cards, of which 17 were undated and 94 were dated in July and August 1941 All the cards bore appaiently genuine original signatures, of which 26 were the names of managers and '85 were the navies of clerks Of the latter, 35 w ere names appearing on the Company's pay roll of October 25, 1941, on which there were fisted 77 clerks, constituting the unit ,hereinafter fpurid appropriate. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States 'and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing the parties agreed that the appropriate unit should consist of "all grocery clerks in Indianapolis working thirty hours ,a week or more who have been in the employ of the Company for at least one month prior to the date of the election." Managers of grocery stores, included in the unit,originally claimed by the Union, were specifically excluded by amendment of the petition. In accordance with the desires of the parties, as expressed in the above stipulation, we shall restrict the unit to grocery clerks work- ing at least 30 hours a week. As to the provision of the agreement relating to length of service, we see no reason for excluding from the unit clerks who have been employed for less than 1 month, as it does not appear from the record that their interests differ in any respect from those of other clerks of the Company. Since this pro- vision may have been intended as a restriction on eligibility to vote rather than as a limitation on the unit, it will be further considered in Section VI, below. - We find that all grocery clerks employed by the Company in Indianapolis who work at least 30 hours a week constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by, and Nye shall direct, an election by secret ballot. In accordance with our usual practice and with the desires of the parties as expressed at the hearing, we shall further direct that the pay roll for the period immediately preceding the date of the Direction herein be used to determine eligibility to vote. Although the wording of the stipulation as to the unit, quoted above, suggests that the parties may also have intended to restrict eligibility to clerks in the employ KROGER GROCERY & BAKING CO. 453 of the Company for 1 month prior to the date of the election, we believe that the length of time that will necessarily elapse between the date , of the pay roll to be used and the date of the election makes such a restriction unnecessary . We shall accordingly direct that the employees of the Company eligible to vote shall be those in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction herein, subject to the limitations and additions set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case , the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of 'employees of Kroger Grocery & Baking Co., Indianapolis; Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All grocery clerks employed by the Company in Indianapolis who work at least 30 hours a week constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby ' DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Kroger Grocery & Baking Co., Indianapolis, Indiana, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eleventh Region, acting in this natter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regula- tions, among all grocery clerks employed by the Company in Indianapolis Who Work at least 30 hours a week, who Were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding employees who have since quit or been discharged for cause, to determine whether or not they ,desire to be represented by Retail Clerks Int'l Protective Association,, Local #725 (A. F. of L.), for the purposes of collective bargaining. 433257-42-voL 37-30