The Kroger Co.

National Labor Relations Board - Board Decisions

Aug 8, 1946

69 N.L.R.B. 1311 (N.L.R.B. 1946)

In the Matter of THE KROGER COMPANY, EMPLOYER and RETAIL STORE
MANAGERS UNION , LOCAL 1555, A. F. OF L., PETITIONER
Case No. 13-R-3238.Decided August 8, 1946
Frost and Jacobs, by Messrs. Cornelius J. Petzh„old and Howard
Harris, of Cincinnati, Ohio, for the Employer.
Messrs. S. G. Lippman and Vernon Housewright, of Chicago, Ill.,
for the Petitioner.
Mr. Melvin J. Welles, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Chicago,
Illinois, on June 3, 4, and 5, 1946, before Gustaf B. Erickson, Trial
Examiner. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. The Employer's
request for oral argument is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Kroger Company is an Ohio corporation with its principal
office and place of business in Cincinnati, Ohio. It operates approxi-
mately 2,700 grocery and meat stores, employing approximately
20,000 persons, in 18 different States. During the past 12 months
its purchases and sales were in excess of $200,000,000. Organiza-
tionally, the stores are grouped in 25 branches. The Chicago branch,
which is involved in this proceeding, contains 182 stores, located in
the northern part of Illinois, the northwest part of Indiana, and
the southeastern part of Wisconsin. In the past year, the Chicago
branch stores purchased material and supplies valued in excess of
$1,000,000, of which 75 percent was shipped to branch stores from
points outside the State of Illinois.
69 N. L. R. B., No. 164.
1311
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the
Employer.,
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the bargaining
representative of the store managers on the ground that (1) the Board
lacks jurisdiction because the store managers are not employees within
the meaning of the Act, and (2) the unit sought by the Petitioner is
inappropriate.
The Chicago Branch supervisory hierarchy, in descending order of
importance, consists of 1 branch manager, 1 general district manager,
11 district managers, and 182 store managers. Each store manager
is in charge of a single store, supervising from 5 to 25 employees. The
store manager is responsible for the operation, the maintenance, and
the general success of his store. He admittedly exercises functions of
a supervisor as defined by the Board. He has the power to fix sales
prices on some items and has some discretion in the purchase of prod-
ucts for resale in the store. Generally, however, the Employer fur-
nishes the products to be sold and determines the sales price.
We have recently held that store managers are employees within the
meaning of the Act in relation to their employer.2 Accordingly, we
find no merit in the Employer's contrary contention.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all store managers in the retail stores
of the Employer in the City of Chicago and in certain cities and towns
in Metropolitan Chicago, including two stores in Harvard and Wood-
stock, Illinois. The Employer contends first, that no unit of store
managers is appropriate because they are supervisory employees; and
secondly that, if its initial contention is overruled, an appropriate
unit should embrace store managers in all retail stores in its Chicago
branch, and no others. The Employer specifically urges the exclu-
i The Petitioner admits only retail store managers to membership.
2 Matter of The Great Atlantic & Pacific Tea Company, 69 N. L. R. B. 463, and cases
cited therein.
THE KROGER COMPANY 1313
sion of the Harvard and Woodstock store managers as not being within
the Chicago branch.
The Board has previously considered the contention that no unit
of supervisory employees is appropriate, and a majority of the Board
has concluded,3 as it does here, that supervisors are employees within
the meaning of Section 2 (3) of the Act, and are, as employees, en-
titled to be represented in some unit for the purposes of collective
bargaining. Accordingly, we find no merit in the Employer's conten-
tion in this respect.
The Chicago branch includes 182 stores spread over an area which
includes the northern part of Illinois, the northwest part of Indiana,
and the southeastern part of Wisconsin. The Petitioner desires a
unit limited to the managers of the store located within its jurisdic-
tional limits. This proposed unit would include the managers of 133
stores in the Chicago branch, and 2 in the Madison, Wisconsin, branch.
In determining the appropriateness of any given unit of supervisors,
the Board will look for guidance firstly, to the bargaining history, if
any, in the plant or industry involved covering supervisory employees,
and secondly, where the first factor is not decisive, to the unit patterns
established for rank and file employees 4
There is'some, but not very extensive, history of collective bargain-
ing for the Employer's store managers. Thus, from 1937 to about
1941, the Employer negotiated with an independent union as the rep-
resentatives of managers of some of the stores in the Chicago branch.
These negotiations culminated in a collective bargaining agreement
in 1939. It will be noted that this collective bargaining was for a
less than branch-wide unit.
A much more extensive bargaining history on a less than branch-
wide basis exists for the rank and file employees. From 1940 onward
the Employer has entered into collective bargaining contracts with
various locals of the Retail Clerks International Protective Associa-
tion, covering store clerks in less than branch-wide units. Thus, at
the present time the Employer has eight separate contracts covering
separate units of store clerks in the Chicago branch.5 Furthermore,
clerks in some of the stores in the Chicago branch are not included
within the coverage of any collective bargaining agreement.
.
The Chicago branch eltends over a wide area, whichcovers parts
of three States. The Petitioner seeks a unit which conforms gen-
3 Matter of L. A. Young Spring d Wire Corporation, 65 N. L. R. B. 298 ; Matter of
Packard Motor Car Company, 64 N. L. R. B. 1212.
4 See Matter of First National Stores, Inc.,. 68 N. L. R. B. 539 ; Matter of General Cable
Corporation, 67 N. L. it. B. 538: Matter of Columbia Steel Company, 67 N. L. R. B. 529:
Matter of I-T-E Circuit breaker Company, 67 N. L. R. B. 465.
klthough the eight Contracts are cep irate, they are identical in terms and contain
the same termination date.
701592-47-vol. 69-84
e
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erally to its jurisdictional limits, and parallels the two separate rank
and file units in which consent elections were held prior to the hearing
in this case," but conforms in large measure to present bargaining
units of rank and file employees. Significantly, the history of col-
lective bargaining for both the store managers and the rank and file
employees has been on a less than branch-wide basis. This circum-
stance indicates the practicability of such bargaining. Under all the
circumstances, we are of the opinion that the unit proposed by the
Petitioner is generally appropriate.'
There remains for consideration the managers of the stores in Har-
vard and Woodstock, Illinois, which are in the Madison, WW'isconsin,
branch of the Employer. Inasmuch as all the other 133 stores in the
proposed unit are within the Chicago branch, which is a separate
organizational entity and under separate supervision, we shall, in the
interest of effective bargaining, exclude the Harvard and Woodstock
store managers from the present unit.'
We find that all store managers in retail stores of the Employer in
the City of Chicago and in the following cities and towns in Metro-
politan Chicago : Berwyn, Brockfield, Downers Grove, Elmhurst,
Forest Park, Glen Ellyn, Hinsdale, La Grange, Lombard, Maywood,
Naperville, Oak Park, River Forest, Westmont, Wheatolt, Lansing,
Homewood, Chicago Heights, Blue Island, Midlothian, Harvey, River-
dale, Desplaines, Park Ridge, Libertyville, Evanston, Wilmette, High-
land Park, Waukegan, and Zion City, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with The Kroger Company, Chicago,
Illinois, an election by secret ballot shall be conducted as early as pos-
sible, but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Thirteenth Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Sections 10
and 11, of National Labor Relations Board Rules and Regulations-
Series 3, as amended, among the employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
6 Cases Nos. 13-R-2934 and 13-R-3090.
7 This unit generally corresponds , in geographical extent , with a unit of managers of
stores owned by the National Tea Company now represented by the Petitioner.
" Retail clerks in the Harvard and Woodstock stores were not included in the rank and
,file units involved in the consent elections above mentioned.
THE KROGER COMPANY 1315
were ill or on vacation or temporarily laid off, and including employees
in the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether or not they de-
sire to be represented by Retail Store Managers Union, Local 1555,
A. F. of L., for the purposes of collective bargaining.
DIR. GERARD D. REILLY, dissenting :
For the reasons stated in my dissenting opinions in Matter of Pack-
ard Motor Car Company, 61 N. L. R. B. 4, and Matter of Jones d
Laughlin Steel Corporation, Vesta-Sliannopin Coal Division, 66
N. L. R. B. 386, I am constrained to dissent from the majority opinion
in this case.