The Kroger Co.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 363 (N.L.R.B. 1974)

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