Kroger Grocery & Baking Co.

National Labor Relations Board - Board Decisions

Sep 16, 1940

27 N.L.R.B. 250 (N.L.R.B. 1940)

In the Matter of KROGER GROCERY & BAKING COMPANY and BAKERY &
CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, FAC-
TORY LOCAL No. 326 (A. F. L.)
Cases Nos. C-1584, R-1840.-September 16, 1940
Jurisdiction : baking industry.
Unfair Labor Practices.
Discrimination : charges of refusal to reinstate striking employees , dismissed;
respondent privileged to replace employees on strike not caused or prolonged
by any unfair labor practices and to refuse to oust such employees in favor
of the strikers.
Collective Bargaining : charges of refusal to bargain collectively , dismissed,
where impasse reached over the closed-shop issue
Definitions
Strikers no longer employees where strike which was not caused nor
prolonged by any unfair labor practices of the respondent has terminated.
Practice and Procedure : complaint dismissed ; petition for investigation and
certification of representatives dismissed in the absence of a question con-
cerning representation.
Mr. Charles F. MeErlean, for the Board.
Stanley & Smoyer, by Mr. Welles K. Stanley and Mr. Harry if.
Smoyer, of Cleveland, Ohio, for the respondent.
Mr. Patrick J. Taft, of Washington, D. C., for the Bakery Local.
Mr. Stanley D. Metzger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed 1 by Bakery & Con-
fectionery Workers International Union of America, Factory Local
No. 326 (A. F. L.), herein called the Bakery Local, the National-
Labor Relations Board, herein called the Board, by the Regional
Director for the Seventh Region (Detroit, Michigan), issued its com-
plaint, dated June 13, 1939, and its amended complaint, dated June
1 Charges and amended charges were filed on August 18, 1938, April 13, 1939, and June
13, 1939.
27 N. L. R. B., No. 55.
250
KROGER GROCERY & BAKING COMPANY 251
20, 1939,' against Kroger Grocery & Baking Company, Cincinnati,
Ohio, herein called the respondent. The complaint as amended al-
leged that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce at its Detroit, Michigan, bakery,
within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
the Act.
On April 25, 1939, the Bakery Local filed with the Regional Di-
rector a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent
at its bakery in Detroit, Michigan, and requesting an investigation
and certification of representatives, pursuant to Section 9 (c) of the
Act. On June 2, 1939, the Board, acting pursuant to Section 9 (c)
of the Act and Article III, Section 3, of National Labor Relations
Board Rules, and Regulations-Series 1, as amended, ordered an
investigation and directed the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice. On the same
day, the Board, acting pursuant to Article III, Section 10 (c) (2),
and Article II, Section 37,(b) of said Rules and Regulations, ordered
that the proceeding involving unfair labor practices and the proceed-
ing involving investigation and certification of representatives be con-
solidated for. the purposes of hearing and for all other purposes.
The complaint, amended complaint, and the petition for investi-
gation and certification of representatives, with notices of hearing
thereon, were duly served upon the respondent and the Bakery Local.
On June 28, 1939, the respondent filed a motion requesting that a,
bill of particulars regarding various allegations in the complaint,
as amended, be furnished to it by the Board. On July 3, 1939, Robert
N. Denham, the Trial Examiner duly designated by the Board,
granted the motion, and, on July 5, 1939, the Board supplied the bill
of particulars. The Bakery Local excepts to the ruling of the Trial
Examiner granting the motion for a bill of particulars. The Board
hereby affirms his ruling.
With respect to the unfair labor practices the complaint, as
amended, alleged in substance (1) that the respondent on or about
November 4, 1937, and at various times thereafter until June' 13,
1938, refused to bargain collectively with-the Bakery Local as the
exclusive representative of its Detroit, Michigan, bakery employees
in an appropriate unit, although the Union represented a majority
of such employees; (2) that the respondent's refusal to bargain
caused a strike 6f its Detroit, Michigan, bakery employees beginning
on or about June 14, 1938; (3) that the respondent refused to bargain
collectively with the Bakery Local on or about July 6, 1938, and at
various times thereafter until September 6, 1938, thereby prolonging
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike; (4) that the respondent on or about June 16, 1938, and at
various times thereafter, refused to reinstate upon application 61
named employees who had participated in the strike, and has con-
tinued to refuse them reinstatement because they,joined and assisted
the Bakery Local and engaged in concerted activities for the purpose
of collective bargaining and other mutual aid or protection; and (5)
that the respondent, by disparaging the Bakery Local in various
ways, interfered with, restrained, and coerced its employees, in the
exercise of the rights guaranteed in Section 7 of the Act.
On July 11, 1939, the respondent filed its answer to the complaint
as amended, in which it admitted certain allegations therein as to
the nature of the respondent's business, denied the commission of
unfair labor practices, and alleged in substance that -it had bargained
in good faith with the Bakery Local as the representative of its
Detroit, Michigan, bakery employees in an appropriate unit, and that
the strike was caused and prolonged solely by its refusal to grant
a closed-shop agreement demanded by the Bakery Local.
Pursuant to notice, a hearing was held at Detroit, Michigan, from
July 12 through 27, 1939, before Howard Myers, the Trial Examiner
duly designated by the Board. The Board, the respondent, and the
Bakery Local were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was af-
forded all parties. During the course of the hearing the Trial Ex-
aminer made a number of rulings on motions and on objections to
the admission of evidence. The Board has reviewed these rulings and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. -
On December 20, 1939, the Trial Examiner, having reserved ruling
thereon at the hearing, granted the respondent's motion for the is-
suance of a subpena directed to Robert Pilkington, a United States
Department of Labor Conciliator, in order that Pilkington might
be examined as to the occurrences at a meeting between representa-
tives of the respondent and the Bakery Local on' or about July 8,
1938, at which he was present.
Pursuant to notice to all parties, a hearing was held at Detroit,
Michigan, on January 4, 1940, before Joseph L. Maguire, the Trial
Examiner duly designated by the Board, for the purpose of such
examination. Pilkington appeared, but refused to answer questions
concerning the meeting he had attended, although directed to do so
by the Trial Examiner, claiming that his refusal was in accordance
with a regulation of the Department of Labor. The hearing was then
adjourned pending determination of further action regarding Pilk-
ington's refusal to testify.
2
KROGER GROCERY & BAKING COMPANY 253
On May 17, 1940, the Trial Examiner notified the parties that the
hearing was closed. On May 22, 1940, the Board, acting pursuant
to Article II, Section 36, of National Labor Relations Board Rules
and Regulations-Series 2, as amended, ordered the proceeding trans-
ferred to and continued before itself, and further ordered that, pur-
suant to Article II, Section 37, of said Rules and Regulations,
proposed findings of fact, proposed conclusions of law, and proposed
order should be issued and that the parties should have the right,
within twenty (20) days from the date of said proposed findings of
fact, proposed conclusions of law, and proposed order, to file ex-
ceptions, and to request oral argument before the Board, and that
the parties should have the right, within thirty (30) days from
,the date of said proposed findings of fact, proposed conclusions of
law, and proposed order, to file a brief with the Board.
On May 25 and May 27, 1940, the respondent filed various motions
with the Board requesting the Board to rescind its order directing
the issuance of proposed findings of fact, proposed conclusions of
law, and proposed order, to reopen the hearing, and to proceed fur-
ther, by enforcing its subpena, in an attempt to secure the testimony
of Pilkington. The respondent also made certain other motions re-
lating to its efforts to secure the testimony of Pilkington.2 In view
of the subsequent findings herein, it is unnecessary to rule upon all
of the various motions made by the respondent. The Board affirms
the ruling of the Trial Examiner ordering the hearing closed.
On July 3, 1940, the Board issued and duly served upon the parties
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order. Pursuant to extension of time granted by the Board
for The filing of exceptions, the Bakery Local, on August 30, 1940,
filed its exceptions to the Proposed Findings of Fact, Proposed Con-
clusions of Law, and Proposed Order. On the same day, it requested
oral argument, and moved the Board to advance the case on the
Board's calendar. 'On September 6, 1940, the Board denied the
Bakery Local's request for oral argument. On September 6, 1940,
,the respondent filed a brief in opposition to the Bakery Local's ex-
ceptions. The Board has considered the exceptions to the Proposed
Findings of Fact, Proposed Conclusions of Law, and Proposed Order,
and, except as they are consistent with the findings, conclusions, and
order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
2 The respondent moved the Board to issue subpenas directed to Charles Fahy and
Malcolm F Halliday, General Counsel and Assistant General Counsel, respectively, of
the Board, in order that they might be examined regarding their actions respecting attempts
to secure Pilkington's testimony ; the respondent moved further that certain documents
relating to its attempts to secure Pilkington' s estimony be received in evidence and be
made part of the record in this proceeding
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Kroger Grocery & Baking Company is an Ohio corporation having
its main office in Cincinnati, Ohio. It owns and operates retail
grocery and meat stores in the States of Arkansas, Indiana, Illinois,
Iowa, Kansas, Kentucky, Michigan, Mimiesota, Mississippi, Missouri,
North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Virginia,
West Virginia, and Wisconsin, in which it sells groceries, canned
goods, vegetables, fruits, meats, and bakery goods. In connection
with the operation of these stores, it owns and operates bakeries,
packing houses, coffee-roasting plants, manufacturing plants, and
sundry establishments which produce goods for sale or use in its
retail stores, in Chicago, Illinois; Cincinnati, Ohio; Cleveland, Ohio;
Columbus, Ohio; Dayton, Ohio; Detroit, Michigan; Fort Wayne,
Indiana; Grand Rapids, Michigan; Indianapolis, Indiana; Louisville,
Kentucky; Madison, Wisconsin; Memphis, Tennessee; Pittsburgh,
Pennsylvania; Roanoke, Virginia; St. Louis, Missouri, and Toledo,
Ohio. Branch headquarters, warehouse and transportation units are
maintained in some of the above-named and in other cities.
This proceeding involves the operations of the respondent ,at its
Detroit, Michigan, bakery, which produces bakery goods for the ex-
clusive use of the respondent in its retail stores. Approximately 50
per cent of the raw materials used at the Detroit bakery, valued
at approximately $684,000 a year, are received from sources outside
of the State of Michigan. Approximately 24 per cent of the products
of the Detroit bakery, valued at approximately $1,044,000 a year,
are shipped to points outside of the State of Michigan.
The respondent admitted at the hearing that it is engaged in inter-
state commerce in the operation, of its Detroit, Michigan, bakery.
H. THE ORGANIZATION INVOLVED
Bakery & Confectionery Workers International Union of America,
Factory Local No. 326, is a labor organization 'affiliated with the
American Federation of Labor, admitting to its membership em-
ployees of the respondent at its Detroit, Michigan, bakery.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The first meeting between the representatives of the Bakery Local
and of the respondent for the purposes of negotiating a contract gov-
erning working conditions at the Detroit bakery occurred at Detroit
on September 24, 1937. James Cross, International Representative
of the Bakery & Confectionery Workers International Union of
KROGER GROCERY- & BAKING COMPANY 255
America, herein called the Bakery International, presented a pro-
posed contract, containing a closed-shop provision, to Foster Hoff-
man, superintendent of -the Detroit bakery, and Raymond Perry,
general superintendent of all the bakery operations of the respondent
and Hoffman's superior. Perry suggested that Seb Ollinger, mem-
ber of the general executive board of the Bakery International, be
brought into the negotiations, since Perry and Ollinger had nego-
tiated contracts together in the past. The parties did not discuss
Cross' proposed contract, adjourning until Ollinger could be secured.
- On September 30, 1937, Cross, Ollinger, Perry, and Hoffman met.
Ollinger substituted a new proposed contract, also including a closed-
shop provision, for the contract presented at the September 24 meet-
ing by Cross, stating that he desired uniform conditions to prevail
throughout the respondent's bakeries.' Wage and hour provisions
were discussed and agreed to, subject to the approval of William
Campbell, vice president and general manager of the respondent's
manufacturing operations stationed in Cincinnati, who was Perry's
superior. These provisions included, inter alia, an increase in wages,
a decrease in hours of work, and time and one-half for overtime.
Perry informed the union representatives. that he did not believe
that Campbell would be willing to agree to a closed shop at that
time, but that he would submit the closed-shop proposal along with
the wage and hour provisions to Campbell for his approval or
rejection.
On November 4, 1937, the same representatives met again. Perry
told the union representatives that Campbell had agreed to the wage
and hour provisions' upon which there had been agreement between
Perry and the union representatives on September 30, and that those
provisions would be put into effect the following week; 5 the union
representatives agreed to this proposed action. Perry also informed
the union representatives that Campbell had refused to agree to a
closed shop; he agreed, however, after further requests therefor by
Cross, to submit again the closed-shop contract proposed by Ollinger
to Campbell, along with the wage and hour agreement, for Camp-
bell's approval or rejection. Perry died suddenly on November 16,
1937, before he could see Campbell. The proposed contract pre-
sented by Ollinger, however, was in Perry's effects, and was sent
to Campbell.
8 Locals of the Bakery International were parties to closed -shop contracts with the
respondent at its bakeries in St Louis , Cincinnati , and Madison, Wisconsin
' Also discussed at the conferences of September 24 and 10, and agreed to by Campbell
theieafter, was a back-pay settlement for the bakers who had been deprived of work involun-
tuily during the first 3 weeks of September 1937 by a stri ke of the bakery ' s truck drivers.
This back pay was given to the bakers on or about November 11, 1937
5 The wage and hour provisions went into effect on November 13, 1937
6 A final order by Campbell was apparently needed before the wage and hour agreement
could got into effect.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 30, 1937, Ollinger called on Campbell in Cincinnati
and requested him to sign the contract which Ollinger had presented
to Perry.7 Campbell refused, stating that "he did not think it
expedient at that time" because it contained a closed-shop provision,
adding' that before he agreed to sign a closed-shop contract for
Detroit he desired to know more fully the character of the union
officials there. Campbell stated also that the Madison, Wisconsin,
bakery, where the Bakery International had obtained a closed-shop
contract on an oral promise to improve conditions, was operating in
an "inefficient" manner, and that before signing another closed-shop
contract he wished to see whether conditions there could be im-
proved. Ollinger then asked Campbell what Campbell "would give
him," and Campbell stated that he would sign a letter addressed to
Ollinger, embodying the 'terms agreed to by Perry and Ollinger on
November 4, 1937, which had been put into effect on November,13.
Ollinger agreed to accept such a letter in satisfaction of the demands
of the Bakery Local, and Campbell thereupon dictated it, gave him
a, copy, and sent a copy to Hoffman in Detroit. The letter reads
in part as follows :
Mr. SEB OLLINGER,
G. E. B. M. [General Executive Board Member] of Bakery
and Confectionery Workers International Union of Amer-
ica, Cincinnati, Ohio.
DEAR Mr. OLLINGER : It is my understanding that Mr. Perry
prior to his death, held several conferences on hours, wages, and
working conditions with you with reference to the men that
you represent in our Detroit Bakery. I am very glad to advise
you that the following points have been approved and have
already been put into effect at the Detroit plant [thereupon
follow the provisions].
Approximately 2 weeks later, on or about December 13, in'Detroit,
Hoffman showed Cross a copy of Campbell's letter, in response to
Cross' inquiry as to the progress of negotiations. Cross, who had
not heard from Ollinger concerning the letter of November 30, in-
formed Hoffman that "we could not accept that letter addressed to
him [Ollinger] as any form of agreement between the union and
the company as it gave no recognition- to our people within the
shop," and that, if necessary; "we would have to resort to further
action to gain an agreement between the company and recognition for
our members." Hoffman replied that "You can suit yourselves but
that is as far as I can go until I hear further from Cincinnati."
7 Ollinger was not called to testify. The conversation of November 30 was testified to by
Campbell , and is uncontradicted.
KROGER GROCERY & BAKING COMPANY . 257
During January and February 1938, Cross twice asked Hoffman
for further information concerning Campbell's intentions regarding
the signing of an agreement. Hoffman replied that he had no
knowledge of Campbell's intentions, but would inquire about the
matter. He did not do so, however."
On March 10, 1938, pursuant to request therefor by Cross, Cross
and Frank O'Flaherty, business agent of the Bakery Local, met with
Campbell, Charles Catt, assistant general superintendent of the re-
spondent's bread and cake department, and George Burgess, assistant
to Campbell, in Cincinnati. Cross requested Campbell to sign the
closed-shop contract, proposed by Ollinger. Campbell refused, on
the same grounds which he had advanced to Ollinger on November
30, 1937. Cross then asked if Campbell would recognize the Union
as the exclusive bargaining agency for the Detroit bakery employees.
We find, as Campbell testified, that he replied to Cross than
in so far as I was concerned, you were recognized as that, [that]
... he [Cross] had . . . never raised any question that he did
or did not represent the employees,9 that I had signed the letter
to Mr. Ollinger, addressing him as the general executive board
member of the -union for the people whom he represented, and
that if he represented a majority, why, automatically he spoke
for all of the employees there [Detroit] as far as bargaining
was concerned.
Campbell added that in his long experience in the railroad industry
no insistence on formal recognition of the exclusive bargaining
agency of a union was made where there was de facto recognition.10
Cross did not further pursue that matter, but reiterated his earlier
request for a closed-shop agreement, which was again refused by
Campbell. , The meeting adjourned after Campbell, pursuant to a
request by Cross, instructed Catt to prepare a statement to be read
to the Detroit bakery employees requesting them not to talk for or
agains the Bakery Local on the respondent's premises 11 -
No further contact was had between the Bakery Local and the
respondent until June 10, 1938, when O'Flaherty asked Campbell,
8 Cross did not attempt to get in touch with Campbell directly during this period, how-
ever, although he knew that Campbell was the only person with authority to approve a
contract
g The Union represented approximately 89 out of 112 bakery employees at Detroit The
respondent at no time during the events recounted herein questioned the majority status
of the Um on -
11 Cross testified that Campbell refused to sign any kind of a contract, and that Campbell
stated that he would deal with other representatives of the Detroit bakery employees, if
they desi,ed to talk to him Campbell's testimony was corroborated in large part by Catt
and Burgess O'Tlaherty did not testify In the light of the entire record we do not credit
Cross' testimony
11 Catt read the notice to the Detioit bakery employees on or about April 1, 1938
323428-42-vol. 27-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by telegraph, for a joint meeting of the respondent, the Teamsters
Union, and the Clerks Union, "to negotiate contracts collectively." 12
Campbell replied by telegram on June 11 that he had no jurisdiction
over "other crafts mentioned" but would be "glad to discuss wages,
hours, and working conditions of bakers with you at any time."
Following the receipt of Campbell's reply telegram, Cross informed
a union meeting on July 11 that he had not heard from Campbell.
A strike vote, favorable to strike action, was taken by the Bakery
Local. Following the strike vote, O'Flaherty wired Campbell that
it was- -
VERY URGENT THAT WE HAVE A MEETING WITH YOU MONDAY
NOON I-IERE IN DETROIT NECESSARY THAT YOU BE HERE OR
WE MAY HAVE TROUBLE -
Campbell received the above telegram on June 13 and replied
that, although lie understood that the "present arrangement with
bakers [was] satisfactory," he would be "glad [to] discuss new
arrangement on open shop basis." Campbell added, however, that
if this were clone, discussion would "start from scratch," as of a date
prior to the time when, the Bakery Local received the b4iefits
granted by the respondent in the letter of November 30 to Ollinger.
Campbell sent a copy of this telegram to Hoffman, with instructions
that Hoffman attempt to contact Cross and O'Flaherty regarding
negotiations for a contract on the basis of Campbell's telegram to
O'Flaherty.13 -
Canlpbell's reply telegram was read to the Union at a meeting on
,June 14, and they voted to strike that day. The strike occurred at
about 1 p. m.,on June 14; the Bakery Local established a picket line
around the Detroit bakery. Announcements were circulated on
June 14, signed by the "strike committee" of the three striking unions,
the Bakery Local, the Teamsters Union, and the Clerks Union, stat-
ing that they were demanding, ill ter alia, "a closed shop agreement
for all three unions: drivers, bakery workers, 'and store clerks." 14
13 The Teamsters Union, at that time opei ating under an "exclusive bargaining agency"
.contract with the respondent for its Detroit drivers, was deadlocked in negotiations with the
respondent on June 10, 1938 , over the closed -shop issue On June 10 Brennan , a representa-
live of the Teamsters Union, requested Elliott, manager of the retail operations of the
respondent at Detioil, for a joint conference of the three above-named unions, but was
refused The record shoiis clearly that the three unions were working together before the
strike which occurred on June 14, 1938, and throughout the period of the strike
is The testimony is in conflict as to whether or not Hoffman did get in touch with Cross.
Hoffman testifying that lie did and Cioss that lie (lid not In view of subsequent events
and our findings thereon, it is unnecessary to resolve this conflict
"The three unions were also demanding " no reduction in wages and the establishment
of a decent mininnum scale of wages'; "elimination of the vicious practice of unpaid for
overtime for store clerks" ; "propel grievance pi oc",dnre' ; and "strict seniority provisions
First, however, in the list of demands was the cloned shop
KROGER GROCERY & BAKING COMPANY 259
The strike continued until September 24, 193815 During the
strike the Bakery Local conferred with the respondent on July 8 and
September 116 On both these occasions the Bakery Local insisted
on a closed-shop contract, and refused to negotiate on any other basis.
The request of the Bakery Local for reinstatement of 61 strikers on
those occasions was contingent on acceptance by the respondent of
the demand by the Union for a closed shop. The respondent refused
to reinstate the strikers on that basis, and also refused to discharge
any newly hired employees in order to replace the strikers, but
offered to place all strikers on a seniority preferential-rehiring list,
to be given jobs as needed. The Bakery Local refused to accept this
proposal.
It is apparent from the foregoing recital that the Bakery Local,
at all times from September 24, 1937, until September 1, 1938, was
demanding a closed-shop contract. After being refused such a con-
tract by the respondent, it agreed to accept the letter of November 30
in satisfaction of its demands, but almost immediately thereafter
renewed its efforts to secure a closed shop. Failing, it called a strike
on June 14 in order to enforce its demand for a closed shop, and
thereafter continued to press such demand throughout the strike.
The strike and its continuance were the result of an impasse over
the closed-shop issue.' It was neither caused nor prolonged by any
unfair labor practices of the respondent. The respondent was privi-
leged, therefore, to hire replacements for the strikers, which it did,
and to refuse to oust them is in favor of the strikers.19
We find that the respondent has not refused to bargain collectively
with the representatives of its Detroit, Michigan, bakery employees.
In view of the foregoing, it is unnecessary to make any determination
as to the appropriate bargaining unit or as to representation by the
Bakery Local of a majority in the appropriate unit.
We find that the.respondent has not refused to reinstate any of the
61 employees named in the complaint because of their membership
or activity in the Bakery Local.
15 The Bakery Local formally called off the strike at a heaiing before the Michigan Unem-
ployment Compensation Commission on September 24, 1938
11 On about June 29 and August 19. 1938,. respectively, representatives of the Bakery Local
met with Fiank Picaid, then a member of the Michigan Unemployment Compensation Coin-
mission , and Joseph Ashmore, official of the Michigan Department of Labor, in an attempt
to settle the strike The evidence discloses that at both of these meetings the Bakery Local
was demanding a closed shop
17 See Matter of American Shoe Macl ine)y it Tool Coinipany and International ,Associa-
tion of Machinists, District No 973, 23 N. L R B 1315, and cases cited therein
1s See National Labor Relations Board v. Mackay Radio and' Telegraph Company, 304
U. S. 333, enf'g Matter of Mackay Radio and Telegraph Company, a corporation and
American Radio Telegiaphers' Association, etc, 1 N L R B 201
ii The strikers, however, nevei made application for reinstatement other than the condi-
tional applications, iefeired to above, made through the Bakery Local
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We further find, on the basis of all the evidence and in view of
our finding that neither the strike, nor its prolongation, were caused
by unfair labor practices, that the respondent has not interfered
with, restrained, or coerced its employees, within the meaning of
the Act.
We shall therefore order that the complaint, as amended , be dis-
missed in its entirety.
IV. THE PETITION FOR INVESTIGATION AND CERTIFICATION OF
REPRESENTATIVES
As we have seen above, the strike, which was not caused by any
unfair labor practice, terminated on September 24, 1938. The
strikers, therefore, are no longer employees of the respondent. The
Bakery Local presently has no members employed by, the respondent
at its Detroit bakery, nor has it attempted to bargain for any of
these employees since September 1, 1938. We find that no question
exists concerning the representation of the respondent's employees
at its Detroit bakery. We shall therefore order that the petition for
investigation and certification of representatives filed by the Bakery
Local, be dismissed.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondent, Kroger Grocery & Baking
Company, at its Detroit, Michigan, bakery, occur in commerce , within
the meaning of Section 2 (6) of the Act.
2. Bakery & Confectionery Workers International Union of
America, Factory Local No. 326, (A. F. L.) is alabor organization,
within the meaning of Section 2 (5) of the Act.
3. The respondent has not refused to bargain collectively with the
representatives of its employees at its Detroit, Michigan, bakery,
within the meaning of Section 8 (5) of the Act.
4. The respondent has not discriminated in regard to hire or tenure
of employment, thereby discouraging membership in a labor organi-
zation, within the meaning of Section 8 (3) of the Act.
5. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, within the meaning of Section 8 (1) of the Act.
6. No question concerning the representation of employees of the
respondent at its Detroit, Michigan, bakery, exists within the meaning
of Section 9 (c) of the Act.
KROGER GROCERY & BAKING COMPANY
ORDER
261
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaint, as amended, against Kroger Grocery & Baking Com-
pany, Cincinnati, Ohio, be, and it hereby is, dismissed, and that the
petition for investigation and certification of representatives filed
by Bakery & Confectionery Workers International Union of America,
Factory Local No. 326, (A. F. L.) be, and it hereby is, dismissed.