07/28/2025: Kroger Dinged for Discriminatorily Forbidding Union Talk
Supervisory status standard applied to ski patrol supervisors.
Kroger Fulfilment Network, LLC, JD-64-25, 07-CA-344196 (ALJ Decision)
ALJ Renée D. McKinney ruled on July 25, 2025, that Kroger violated Section 8(a)(1) of the National Labor Relations Act by prohibiting employees from discussing union matters during work time while allowing other non-work conversations.
The case involved a Kroger facility in Romulus, Michigan, where a power outage had caused operations to halt. Seven delivery drivers remained on standby in the transportation office. After waiting an hour with no updates, Ceresa (a team lead with pending union status) approached the drivers to inform them there was no new information. The drivers began asking Ceresa union-related questions, which he answered for 5-10 minutes.
Supervisor James Banks approached and, according to credible testimony, told them they could not talk about the union while on the clock. He suggested they should be doing other tasks like training or cleaning vans. The ALJ found that employees regularly engaged in non-work discussions during working hours without reprimand.
The ALJ distinguished this case from C. Factotum, Inc., noting that here the employees were idle due to the system shutdown, no supervisor had assigned other work, and evidence showed that employees were permitted to discuss other non-work subjects during working time.
The judge ordered Kroger to cease this discriminatory practice and post appropriate notices.
Significant Cases Cited
Emergency One, Inc., 306 NLRB 800 (1992): Established that prohibiting union discussions while permitting other non-work discussions violates Section 8(a)(1).
C. Factotum, Inc., 334 NLRB 189 (2001): Distinguished case where blanket no-talking rule was lawful when employees stopped working for extended periods.
Magnolia Manor Nursing Home, 284 NLRB 825 (1987): Supported finding that discriminatory application of no-talking rules violates the Act.
Flexsteel Industries, 316 NLRB 745 (1995): Established that testimony of current employees contradicting supervisors is particularly reliable.
F. Mullins Construction, 273 NLRB 1016 (1984): Affirmed that prohibiting union discussions while permitting other non-work discussions is unlawful.
TSG Ski and Golf, LLC, 27-RC-362455 (Regional Election Decision)
The NLRB Regional Director issued a decision and direction of election regarding a petition filed by Communications Workers of America, Local 7781, AFL-CIO to add Ski Patrol Supervisors and Assistant Snow Safety Supervisors at TSG Ski & Golf's Telluride, Colorado facility to its existing bargaining unit. The decision addresses three key issues: whether Ski Patrol Supervisors are statutory supervisors under Section 2(11) of the National Labor Relations Act (NLRA), whether the Assistant Snow Safety Supervisor is a statutory supervisor, and whether a self-determination election is appropriate.
Background
The Union currently represents a unit of ski patrollers, dispatchers, snowmobilers, and international exchange patrollers at the Telluride facility. The Employer contended that both the Ski Patrol Supervisors and the Assistant Snow Safety Supervisor are statutory supervisors and that the Assistant Snow Safety Supervisor is also a managerial employee. The Employer further argued that the petitioned-for unit does not share a sufficient community of interest with the existing bargaining unit to warrant a self-determination election.
Analysis of Ski Patrol Supervisors' Status
The Regional Director analyzed each supervisory function under Section 2(11) and found insufficient evidence to establish supervisory status for Ski Patrol Supervisors:
Hire: Their participation in evaluating applicants' technical skills was insufficient to establish authority to hire or effectively recommend hiring, particularly since they constituted a minority of evaluators.
Discipline, Suspend, and Discharge: The record contained no evidence beyond conclusory testimony that Ski Patrol Supervisors could effectively recommend discharge. The sole example of "suspension" involved allowing an apparently intoxicated employee to go home, which the Regional Director deemed insufficient to establish supervisory authority.
Recall: No evidence was presented that Ski Patrol Supervisors have authority to recall employees.
Promote: The Ski Patrol Director solicits opinions from multiple sources, including Ski Patrol Supervisors, but makes promotion decisions independently, so Ski Patrol Supervisors cannot effectively recommend promotions.
Evaluate/Reward: The Ski Patrol Supervisors provide input into evaluations completed by the Director and Assistant Director, but there was insufficient evidence this input was substantial enough to establish supervisory authority.
Assign: Adjusting daily work plans based on staffing guidelines does not require independent judgment. Additionally, only three of the seven Ski Patrol Supervisors regularly finalized work plans, and the others did so too sporadically to establish supervisory status.
Responsibly Direct: The sole example of discipline issued to a Ski Patrol Supervisor was for unprofessional communication, not for the performance errors of subordinates.
Secondary Indicia: Without establishing primary indicia, secondary indicia (title, attendance at supervisor meetings) are insufficient to establish supervisory status.
Analysis of Assistant Snow Safety Supervisor's Status
The Regional Director found that the Assistant Snow Safety Supervisor possesses statutory supervisory authority:
Assign and Responsibly Direct: The incumbent has nearly unfettered authority to authorize helicopter use for avalanche mitigation tasks, including transporting ski patrollers to higher elevations and deploying explosives. This authority requires independent judgment with potentially catastrophic consequences if errors occur. The ability to assign employees to helicopter transport constitutes the type of assignment differentiation that satisfies the statutory requirement.
Other Indicia: The Regional Director found insufficient evidence regarding other primary indicia (hire, discipline, etc.) but concluded that the Assistant Snow Safety Supervisor's attendance at supervisor meetings and supervisory title supported the finding of supervisory status.
Given the finding of supervisory status, the Regional Director did not reach the issue of whether the Assistant Snow Safety Supervisor is also a managerial employee.
Self-Determination Election Analysis
The Regional Director found that the Ski Patrol Supervisors constitute an identifiable, distinct segment of employees and share a sufficient community of interest with the existing bargaining unit:
Ski Patrol Supervisors perform the same work as unit employees at least 80% of the time.
They have similar skills, with some variations in experience levels.
Their terms and conditions of employment are largely identical (seasonal employment, similar wage rates, no health insurance or retirement benefits).
They work in the same department under the same supervision.
Direction of Election
Based on these findings, the Regional Director directed an election among Ski Patrol Supervisors to determine whether they wish to be represented by the Union and included in the existing bargaining unit. The Assistant Snow Safety Supervisor was excluded from the voting group as a statutory supervisor.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified the Board's interpretation of "assign" and "responsibly direct" as indicia of supervisory status.
Croft Metals, Inc., 348 NLRB 717 (2006): Established that the party seeking to prove supervisory status must do so by a preponderance of the evidence.
G4S Regulated Security Solutions, 362 NLRB 1072 (2015): Held that record evidence that is inconclusive or in conflict is insufficient to demonstrate supervisory status.
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Defined managerial employees as those who formulate and effectuate high-level employer policies or have discretion in job performance independent of established policy.
Warner-Lambert Co., 298 NLRB 993 (1990): Established that a self-determination election is the proper method to add unrepresented employees to an existing unit.