The Kroger Co.

National Labor Relations Board - Board DecisionsNov 3, 1965

155 N.L.R.B. 546 (N.L.R.B. 1965)

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any manner interfere with, restrain, or corece our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. PEPSI COLA BOTTLERS OF MIAMI, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida, Telephone No. 228-7711. The Kroger Company and Oil, Chemical and Atomic Workers In- ternational Union, AFL-CIO, Petitioner . Case No. 9-RC-655. November 3, 1965 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the . National Labor Relations Act, as amended, a hearing was held before Hearing Officer Donald G. Logsdon . The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Briefs have been filed by the Employer and by Milk and Ice Cream Drivers and Dairy Employees Union of Greater Cincinnati and Vicinity, Local 98, AFL-CIO. Upon the entire record in this case , including the briefs filed by the parties , the Board finds: 1. The Employer is engaged i n commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer.1 r Milk and Ice Cream Drivers and Dairy Employees Union of Greater Cincinnati and Vicinity, Local 98, AFL-CIO, herein called Milk and Ice Creani Drivers, and District 34, International Association of Machinists, AFL-CTO, herein called Machinists, were per- mitted to intervene at the hearing on the basis of current contracts with the Employer. International Brotherhood of Firemen and Oilers, Local 49, AFL-CIO, and Warehouse Production & Maintenance Employees, Local 661, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Wnrehousemen and Helpers of America, herein called Local 661, were also permitted to intervene at the hearing in order to protect their in- terests in the units of employees which they currently represent. 155 NLRB No. 54. THE KROGER COMPANY 547 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. The Petitioner seeks a unit of product ion and maintenance employ- ees at the Employer's Springdale, Ohio, plant. The Employer, Milk and Ice Cream Drivers, and Machinists contend that the petition is barred by their respective contracts and that the unit sought is inap- propriate. The Employer over a period of years had operated a dairy and ice cream plant on State Avenue in Cincinnati, Ohio. This facility also contained a meat and frozen food processing division. Approximately 55 production employees and 2 or 3 permanent maintenance employees were employed at the dairy and ice cream operation. Five other main- tenance employees were assigned as needed to the plant from a pool of maintenance employees servicing this plant and various other plants of the Employer. The production employees at the State Avenue loca- tion have been represented since 1926 by the Milk and Ice Cream Driv- ers, which was certified by the Board on January 4, 1962, as represent- ative of a unit of all employees at the Employer's dairy and ice cream plant in Cincinnati, Ohio, including, but not limited to, employees engaged in receiving, processing, handling, shipping (loading and unloading of trucks), and warehousing of dairy and ice cream and allied products. The most recent contract covering these employees was effective from April 15, 1962, to April 17, 1965. Maintenance employees at the State Avenue plant have been represented for a num- ber of years by Machinists as part of a multiplant unit of maintenance employees. Machinists was certified by the Board on November 6, 1953, as representative of all maintenance employees at a number of the Employer's plants in Kentucky, Ohio, and Indiana, including the State Avenue plant involved in this proceeding. The most recent con- tract covering these employees was effective from August 12, 1962, to August 14, 1965. The Employer, until the last week of February 1965, also operated a dairy plant in Dayton, Ohio, which employed approximately 50 employees, and which, unlike the State Avenue plant, contained no ice cream operation. The Petitioner has represented the production and maintenance employees at the Dayton plant since early 1950, having been certified as representative of a unit of production and mainte- nance employees at the Dayton plant on January 28, 1954. The most recent contract covering these employees was effective from May 26, 1964, to May 27, 1965. On October 12, 1964, the Employer notified employees of both the State Avenue and Dayton plants that these operations would be closed down and that a new plant would be opened at Springdale, Ohio, 13 212-809-66-vol. 15 5- 3 0 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miles from Cincinnati and 47 miles from Dayton. Dayton employees with 10 years or more of seniority with the company were offered em- ployment at Springdale and those over 50 years of age were offered employment at Springdale or at some other location of the Employer. On or about February 8, 1062, two or three State Avenue mainte- nance employees were transferred to the new plant at Springdale to ready it for production. Beginning in February and continuing through March and April, additional numbers of production and main- tenance employees were transferred from the State Avenue and Day- ton plants to the Springdale plant and at the time of the hearing on April 27, 1965, the total number of employees at the Springdale plant was 69. Of these approximately five or six were maintenance employ- ees. Several pilot production runs involving approximately 15 pro- duction employees were made at the Springdale plant during February and there was interchange of employees between the Springdale and State Avenue plants during February as production needs demanded. The Dayton plant was completely closed down during the last week in February, at which time 25 production employees and 2 maintenance employees from Dayton accepted transfer to the Springdale plant. Full dairy production at Springdale commenced on February 28, 1965. At the time of the hearing, only 15 ice cream production employees were still working at State Avenue, and according to the Employer's estimate, these employees were scheduled to be transferred to Spring- dale within the following month. On February 22, 1965, the Employer and Milk and Ice Cream Driv- ers signed an agreement, effective from its execution date until April 6, 1968, covering production employees at Springdale and any dairy or ice cream employees remaining at the State Avenue plant after April 17, 1965. They contend that the Springdale plant is a relocation of the State Avenue plant and that this contract is therefore a bar to the petition, filed on March 15, 1965, insofar as it seeks production employees. The Employer and Machinists contend that since the Springdale plant is a relocation of the State Avenue plant, their con- tract covering a multiplant unit of maintenance employees, which expired on August 14, 1965, bars an election among maintenance employees at Springdale. We find no merit in these contentions. In General Extrusion Com- pany, Inc., et al., 121 NLRB 1165, 1167-1168, the Board distinguished between a "relocation of operations" and a consolidation of two or more operations and held that a contract does not bar an election "if changes have occurred in the nature as distinguished from the size of the operations between the execution of the contract and the filing of the petition, involving (1) merger of two or more operations resulting in the creation of an entirely new operation with major personnel changes. . . ." Here, the Employer closed both its Dayton and State THE KROGER COMPANY 549 Avenue plants and transferred their operations to the new Springdale plant; of the 69 employees at the Springdale plant at the time of the hearing, 27 had been transferred from the Dayton plant and 42 had been transferred from the State Avenue plant; and there is no warrant for regarding the Springdale plant as a relocation of the State Avenue plant to the exclusion of the Dayton plant. In view of all these cir- cumstances, we find that the State Avenue and Dayton plants have merged into an entirely new operation with major personnel changes, and therefore that the Springdale plant is not a relocation of the State Avenue plant.2 As the Springdale plant is not a relocation of the State Avenue plant, the February 22 agreement between Milk and Ice Cream Drivers and the Employer would bar an election among production employees only if at least '00 percent of the complement of production employees employed at the time of the hearing was employed at the time the con- tract was executed .3 The record shows only that there were 64 produc- tion employees at the Springdale plant at the time of the hearing; that prior to the execution of the agreement, 15 production employees made pilot runs at the Springdale plant and that there was interchange between the State Avenue and the Springdale plants involving an unspecified number of employees during February. As the record does not in these circumstances establish that the required percentage of production employees was employed at Springdale when the contract was signed, we find that the agreement between Milk and Ice Cream Drivers and the Employer does not bar the petition insofar as it seeks production employees. As the Springdale plant is not a relocation of the State Avenue plant, we further find that the contract between Machinists and the Employer covering maintenance employees at State Avenue does not bar the petition insofar as it seeks maintenance employees at Springdale. 4. As noted, the Petitioner seeks a unit of production and mainte- nance employees at the Employer's new Springdale plant. The Employer, Milk and Ice Cream Drivers, and Machinists contend that the production and maintenance unit sought in the petition is inappro- priate and that only separate units of production employees and main- tenance employees are appropriate. Additionally, the Milk and Ice Cream Drivers contends that in the event the Board directs an election among the production and maintenance employees, employees process- ing frozen foods, and laboratory technicians should be included in the unit. 'Bowman Dairy Company, 123 NLRB 707, relied on by the Employer and Milk and Ice Cream Drivers , is distinguishable. There, the Board found that the merger and consoli- dation of Bowman of Ohio and Fairmont did not result in the creation of an entuely new operation with major personnel changes But there, the Fairmont operation was transferred into the existing Bowman plant ; here, however, tno existing plants merged into the newly constructed plant at Springdale General Extrusion Company, Inc, 121 NLRB 1165. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the overall unit of production and maintenance employees requested by the Petitioner is presumptively appropriate, the Board has held that where, as here, there is no bargaining history in the over- all unit, separate units of maintenance employees may be appropriate if there are factors establishing the separate identity of these employ- ees.4 The record shows that maintenance employees at the Springdale plant work out of a machine shop which is apart from the production area of the plant, are under the separate supervision of the plant engi- neer, do not interchange with production employees, and have their own seniority list. Their separate identity is further established by the separate history of bargaining for maintenance employees at cer- tain of the Employer's other plants, including the former State Ave- nue plant. Accordingly, we find that production employees and main- tenance employees possess interests which are sufficiently separate from one another to warrant their establishment in separate units if they so desire. As a production and maintenance unit is presumptively appro- priate, we likewise find that such unit as sought by the Petitioner may also be appropriate. We shall, therefore, make no final unit determi- nations at this time but shall direct separate elections in the voting groups described below. There remains the question of the placement of the employees proc- essing frozen foods and the laboratory technicians. The record shows that: There are 14 or 15 employees at the Springdale plant engaged in processing frozen foods in the Employer's warehouse ; they work in a separate location and are under separate supervision from the produc- tion and maintenance employees sought by Petitioner; Local 661 and the Employer are parties to a contract covering frozen food employees working at the State Avenue plant, effective from April 5, 1964, to April 1, 1967; and Local 661 claims to represent the frozen food employees working at Springdale. In view of all these circumstances, we shall exclude these frozen food employees from the units herein found appropriate. The record shows that there are approximately three laboratory tech- nicians who test raw milk and other ingredients used in the plant and who also test the finished products. As these technicians perform work which is part of the production process, we find that they have a com- munity of interest with the other production empoyees, and we there- fore shall include them in the production unit. In view of the foregoing, we shall direct elections by secret ballots among the following groups at the Employer's Springdale, Ohio, oper- ation, excluding from each group frozen food employees, guards, and supervisors, as defined in the Act: (a) All maintenance employees. (b) All production employees including laboratory technicians. A American Cyanamid Company, 131 NLRB 909. ARMCO EMPLOYEES INDEPENDENT FEDERATION, ETC. 551 The employees in voting group (a) shall choose between the Peti- tioner, the Machinists, and neither; the employees in voting group (b) shall choose between the Petitioner, Milk and Ice Cream Drivers, and neither. If a majority of the employees in voting group (a) and a majority of the employees in voting group (b) select the Petitioner, the Regional Director is instructed to issue a certification of representative to such labor organization for a unit of production and maintenance employees which the Board in these circumstances finds appropriate. If, on the other hand, a majority of the employees in voting group (a) select the Machinists, these employees will be taken to have indicated their desire to become a part of the multiplant maintenance unit, histori- cally represented by the Machinists; the Regional Director is in such circumstances instructed to issue an appropriate certification to the labor organization which may bargain for them as part of that unit. In such circumstances the Board finds that a separate production unit is appropriate; and in any other circumstance in which the Petitioner is not selected by a majority in both voting groups, the Board finds that separate production and maintenance units are appropriate. The Regional Director is instructed to issue such certification of represent- atives or certifications of results of election as may in the circum- stances be appropriate. [Text of Direction of Elections omitted from publication.] MEMBER FANNING took no part in the consideration of the above Decision and Direction of Elections. Armco Employees Independent Federation , Inc. [Armco Steel Corporation ] and United Steelworkers of America , AFL-CIO. Case No. 9-CB-1g03. November 4, 1965 DECISION AND ORDER On March 18, 1965. Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiners Deci- sion. Thereafter, the Respondent filed a motion for dismissal and a let- ter also seeking dismissal was filed by Armco Steel Corporation. Oppo- sition to dismissal has been filed by the Charging Party. 155 NLRB No. 58.