Mrs. Natt's Bakery

National Labor Relations Board - Board Decisions

Oct 13, 1942

44 N.L.R.B. 1099 (N.L.R.B. 1942)

In the Matter of Louis NATT D/E/A MRS. NATT'S BAKERY and BAKERY
AND CONFECTIONERY WORKERS INTERNATIONAL UNION, LOCAL No.
219
Case No. C-22,68.-Decided October 13, 1942
Jurisdiction : bakery products industry.
Unfair Labor Practices.
Intcitei ence, Restraint, "and Coercion • charges of, dismissed.
Discrimination: charges of, dismissed.
Collective Bargaining: refusal to bargain justified by loss of majority not attrib-
utable to any unfair labor practice.
Practice and Procedure : complaint dismissed.
Mr. William M. Pate and Mr. John C. McCree, for the Board.
Mr. Emmett Clay Choate,'of Miami, Fla., for the respondent.
Mr. Curtis R. Sims, of Chattanooga , Tenn., for;the Union.
Mr. Eugene R. T horrens, 'of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on March 26, 1942, by
Bakery and Confectionery Workers International Union, Local No.
219, affiliated with the American Federation of Labor , herein called
the Union; the National --Labor Relations, Board, herein called the
Board, by the Acting Regional Director for the Tenth Region
(Atlanta, Georgia ) issued against Louis Natt and Mrs. Louis Natt,
doing business as Mrs . Natt's Bakery, Miami, Florida, its complaint,
dated May 12, 1942, which , as amended at the hearing , alleged that
Louis Natt, herein called the respondent , had engaged in and was
engaging in unfair labor practices affecting commerce , 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 called the
Act. Copies of the complaint and notice of hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices the complaint, as
amended, alleged in substance ( 1) that during the period from Janu-
aay 1, 1942 , to the date of the complaint , by various acts the respond-
44. N. L R. B., No. 215. 1099
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent discouraged his employees in their affiliation with and activities
on behalf of the Union; (2) that on or about January 8, 1942, the
respondent discharged. William F. Juriet and Edward T. Foehner
because they joined and assisted the Union and engaged in concerted
activities with other employees for their mutual aid and protection;
(3) that on or about January 9, 1942, and thereafter, the respondent
refused to bargain collectively with the Union although it represented
a majority of the respondent's employees in a unit, appropriate for
the purposes of collective bargaining; (4) that, because of the respond-
ent's unfair labor practices set forth above, on or about January 9,
1942, the respondent's employees went on strike and remained on strike
until on or about February 23, 1942, when the Union terminated the
strike; (5) that on or about February 23, 1942, and thereafter, the
respondent refused to reinstate 11 named strikers 1 because they joined
and assisted the Union and engaged in concerted activities with other
employees for their mutual aid and protection; and"(6) that by the
aforesaid acts the, respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
On or about May 21, 1942, the respondent filed his answer in which,
among other things, he denied the commission of the alleged unfair
labor-practices and asserted that the Board has no jurisdiction since
the respondent's business is not interstate in character.
Pursuant to notice, a hearing was held at Miami, Florida, on June
1 and 2, 1942, before Peter F. Ward, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board, the respondent, and
the Union were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and'to introduce evidence bearing upon the issues was
afforded all parties. At the close of the hearing the Trial*Examiner
granted without objection a motion by counsel for the Board to con-
form the complaint to the proof with respect to formal matters. Dur=
ing the course of the hearing the Trial Examiner made rulings on
other motions and on objections to the admission of evidence. The'
Board has reviewed all rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The Trial Examiner's rulings
are hereby affirmed.
Thereafter, the Trial Examiner issued his Intermediate Report,
dated July 22, 1942, copies of which were duly served upon all the
parties, finding that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 `(1), (3), and (5) and Section 2 (6) and (7) of the Act.
1They are: Fred Schroeder, Fred Brown, Floyd Geyer, Russell Spratt, Otto Bernhardt,
Ben Kreuger, Richard Solt, Ola May Solt, Mary Mays, Elizabeth Mays, and Frank L. Cox.
MRS. NATT ' S ' BAK AY 1101
The Trial, Examiner recommended that the respondent cease -and
desist from his unfair labor practices and, in order to effectuate the
policies of the Act, take certain affirmative action, including rein-
statement of the strikers and the two discharged employees with back
pay and, upon request, bargain with the Union., Thereafter, on
August 15, 1942, the respondent filed exceptions to the Intermediate
Report'and submitted a brief in support of the exceptions. None of
the parties requested oral argument before the Board.
The Board has considered the exceptions to the Intermediate Report
and the brief filed by the respondent and sustains the exceptions, save
as they are inconsistent with the findings of fact, conclusions of law,
and order set forth below. -
Upon the entire record in the case, the Board' makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Louis Natt, has since sometime in 1937 owned and
operated in Miami, Florida, an establishment where bakery products
are made and sold at retail.
II. THE ORGANIZATION INVOLVED
Bakery and Confectionary Workers International Union, Local No.
219, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The sequence of events
The Union began organizing the respondent's employees in Septem-
ber 1941. It enrolled no members among them, however, until the
following December. On January 8, 1942, the respondent' discharged
two bakers, William F. Juriet and Edward T. Foehnei, who had signed
applications for membership in the Union on January 6. The Union
first approached the respondent about noon on Friday, January 9,
1942, when it presented a proposed written contract providing, among
other things, fora closed shop and concessions as to wages and work-
ing conditions, and notified the respondent that,the employees would
strike unless the respondent entered into a contract on the same day by
3: 30 p. in., the end of the day shift and beginning of the night shift.
The respondent requested until the following Monday in which to con-
sider=-the proposed contract. and the union representative agreed to.
refer the request to the employees. The employees, however, ;insisted
1102 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
upon the 3: 30 p. m. deadline and the union representative notified the
respondent prior to 3: 30 p. in. of the employees' decision. According
to Board witnesses, the employees were disturbed because of the dis-
charges"of Juriet and Foehner and feared further reprisals.
About 3:30 p. in. that day the employees assembled outside the
bakery where they were addressed by Louis Natt, the owner. He asked
the employees to wait until Monday for his answer to the proposed
contract and warned them that they would be replaced if they went
on strike without granting his request. According to Fred Brown, a
union member and one of the strikers who seeks reinstatement in the
present proceeding, Natt also told the employees ". . . [the Union]
take[s] your money and you don't know what you are going to get .
I will close the plant . :." Brown's testimony, however, is not in
accord with Natt's version of what lie told the 'employees 2 and is not
corroborated by any other witness, although there were at least 15
employees among the assembled group at the time Natt addressed the
employees. Under these circumstances, we credit Natt's testimony
and find that Natt did not make the statements attributed to him by
Brown. About 14, employees promptly went on strike. Thereafter,
the respondent hired iiew employees as replacements, and three stiikers
abandoned the strike within a short period after its commencement
and returned to work.
During the period beginning about January 15, 1942, and extending
to the latter part of February, an international representative of the
'Union conferred a number of times with the respondent and his counsel
but without success. In the course of the negotiations, the respondent
referred'the Union to his counsel and the respondent's counsel advised
the Union that the respondent would grant no concession, although
the Union offered to embody in a contract the respondent's established
terms andr conditions of employment. The respondent claims, how-
ever, that the Union never represented a majority of the employees and,
if it dia,'that it lost its majority after January 9.3 About Februa"ry
23, 1942, the Union notified the respondent by letter that it had termi-
nated the strike and requested reinstatement of the remaining strikers.
The respondent replied, under date of March 13, 1942, that no employ-
ment was available, but that it would consider the strikers for reem-
ployment as vacancies occurred. Up to the time of the hearing, June 1,
1942, none of the 11 strikers had secured reinstatement. However,
during the period from February 23 to June 1, 1942, the respondent
hired no new bakers or helpers for work in the pie department, the job
classification in which all the strikers, except one, had been employed
by the respondent prior to the strike.
2 Natt testified that he asked the employees to wait until Monday and that he told them
that they would be replaced if they refused to wait and went on srike
We discuss the Union's status as majority representative below in Section III, C. 2.
- ' MRS. NATT ' S'•BAKERY 1103
B.- The alleged discrimination with respect to the hire and tenure of
Juriet and Foehner
The complaint alleges that the respondent discharged William F.
Juriet and Edward T. Foehner on or about January, 8, 1942, because of
their union membership and activities. The respondent contends that
Juriet and Foehner were discharged as a result of. the discontinuance
of -production of a bakery item and that the respondent selected Juriet
and Foehner for discharge .because they had the least seniority among
the employees in the production. division affected by the change in
operation.
Juriet was first employed by the respondent on December 10, 1941,
and.was assigned to cake decoration work. Shortly thereafter during
the month of December, Juriet accepted a temporary position as a
bread baker,4 when-the respondent had no more cake decoration work
for him to do; and he worked as a bread baker until his discharge.
Juriet signed an application for membership in,the Union on January
6,=1942. On January 7 Juriet was called to the bakery office where he
had a conversation with Louis Natt and Mrs. Natt who was associated
in her husband's business in a managerial capacity. In response to an
inquiry as to whether he liked his work, Juriet expressed the opinion
that he was wasting valuable experience in the work in which he was
engaged for the respondent. During the course of the conversation,
they discussed a projected plan according to which the, respondent
might open a branch bakery in.another city. and employ Juriet' as
branch manager.5 Natt also asked Juriet whether in the light of his
past experience with unions,(' he would bargain with a labor organiza-
tion if he were again in business foi• himself. Juriet replied in the
affirmative. , January 8 was an off day for Juriet. Returning home
after an absence he found a message to telephone Vance 7 at the bakery.
Because of the late hour Juriet did not return the call. The next morn-
ing, about 9 o'clock, the respondent's bookkeeper telephoned Juriet and
notified him that his services were no longer needed at the bakery inas-
much as the respondent was discontinuing production of rolls for a
large customer.
Edward T. Foehner was first employed by the respondent on Janu-
ary 1, 1941; aiid worked, with the exception of leave to make a trip,
4 In this capacity Jui let made bread , rolls , and Danish pastries
6 So far as appears , at the time the respondent had no branch bakery and did not there-
after open a branch bakery or discuss the possibility of expansion
9 Sometime after 1938 and prior to employment with the respondent , Juriet had operated
a bakery of his own in Miami and had had a dispute with a labor organization that called
a strike of his employees
'Vance' s first name does not appear in the record An employee of Boston - Strauss
Company, a New York firm engaged in production and sales counseling , Vance was fur-
nished for a few weeks to assist the respondent as an efficiency expert.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through the Easter season of that- year when he voluntarily quit. He
returned to work with the respondent on December 10, 1941, and
worked as a bread baker 8 until the date of his discharge. Foehner
signed an. application for membership in the Union on January 6, 1942.
He discussed the Union- with fellow employees and distributed mem-
bership application blanks both inside and outside the plant but not
during workinghours. When Foehner_reported for work on,;January
8, he was handed his pay envelope by Vance in the presence of Mrs.
Natt and notified that he'was discharged for the same reason given to
Juriet.
The respondent contends, as Natt testified without contradiction,
that shortly before January 8 he,decided to discontinue production of
rolls for a large customer, the Royal Castle chain of restaurants, be-
cause he found the account unprofitable in view of an -increase in the
cost of materials and the customer's unwillingness to 'pay a higher
price for the respondent's product; and that he reduced the pay roll
when Foreman Fred Schroeder, a member of the Union and one of
the strikers who now seeks reinstatement, suggested, when asked by
Natt as to what economy could be effected, that his shift could func-
tion without the services of two employees in the event that the re-
spondent discontinued production of the rolls. The. respondent fur-
ther contends,,as Nlitt testified, that he selected Juriet and "Foehner
for discharge since they were'the last two employees hired in Schroe-
der's shift."
We agree with the respondent's contention that the discharges of
Juriet and Foehner were not discriminatory. Moreover, the record
does not sustain the allegation of the complaint that the respondent
interfered 'with, restrained, and 'coerced his employees in the exercise
of the rights guaranteed in Section 7 of the Act. Witnesses for the
Board testified without contradiction, and we find, as did the. Trial
Examiner, that in September 1941, Natt told a union representative
whom he saw in the rear of the bakery not to engage in organizational
work upon bakery premises and, about' January 7 or 8, 1942, Vance
8 In this capacity Foehner made bread , rolls, doughnuts, and Danish pastries.
U In dismissing , as without basis in fact , the respondent's contention that the two
bakers last hired were selected for discharge , the Trial Examiner in his Intermediate
Report stresses the fact that the respondent 's pay roll shows that another employee,
William Jones , who signed an application for union membership on January 9, began work
16 days after Juliet and Foehner , who both,started on December 10, 1941. However,
Natt testified without contradiction that the respondent hired Jones , who had worked for
the respondent during prior seasons , through the nails in the latter part of November
1941 , while Jones was in the northern part of the country, and that he had reported for
work about - 1 week late because of illness . On the basis of the pay-roll record 'showing
December 26, 1941 , as the date when Jones actually began work and- Natt 's testimony re-
ferred to above , the Trial Examiner concluded that Jones was hired for the current season
after December 10, 1941, and thus had less seniority than Juriet or Foehner. Otto Bern-
hardt, a member of the Union and one of the strikers seeking reinstatement , and Foreman
Schroeder; a witness for the Board , testified , however , that Jones was hired before Juriet
or Foehner . Moreover , Jones was a pie baker rather than a bread baker and did not work
under Schroeder. -
MRS. NATT ' S BAKERY 1105 1'
told Foreman Schroeder,' under circumstances not disclosed in the
.record, that the -respondent had - access to a plentiful labor ' market
for replacements in case of necessity.*, In view of all the circumstances
as disclosed by the record, we attach no material significance to either
,of these two isolated incidents. In addition, it is clear, as the Trial
Examiner found, 'that the respondent decided to discontinue produc-
tion of-' Royal Castle rolls -because such business --had become unprofit-
able.10 Furthermore, Natt based his decision to reduce the pay roll
upon Foreman Schroeder's advice that his shift could function with-
out the service of 2 employees in the event that the respondent dis-
continued production of the rolls. Thus, the suggestion to reduce
the staff originated with a member of the Union. Nor does it appear
that the respondent discriminated against union members in selecting
Juriet and Foehner for discharge. Of the 39 production and main-
tenance employees on the respondent's pay roll,, by January 8, the date
of the discharges, 22 had applied ,for membership in the Union, in-
cluding 100 percent of the bread bakers." Thus the respondent could
not have discharged a bread baker without selecting a union adherent.
So far,as appears, moreover, both Juriet and Foehner were ordinary
.rank and file unionists.12 Along with 8 other employees, they had
10 In view of the number of employees on the respondent ' s pay roll after January 8, 1942,
the Trial Examiner concluded , however, that no necessity existed for the discharge of
Juriet and Foehner , admittedly "all-around" bakers, since a place could have been found
for them in other divisions of the bakery . The relevant data with 'respect to,the respond-
ent's pay roll during the period from the date of the discharge to the date of the hearing
is as follows ,
Jan. 8, 1942 Feb. 1, 1942 Feb. 23, 1942 June 1, 1942
Total No of em- 39---------------- 40--------------- 41---------------- 23.
ployees
Number of bread 7 and 1 baker- 6 and 1 baker- 5 and 1 baker - 4 and 1 baker-
bakers porter porter. porter porter.
Number of cake 3 and 1 baker - 4------------------ 3------------------ 2
bakers helper
Number of pie 3 and 1 baker's 3 and 1 baker' s 2 and 1 baker's 2 and 1 baker's
bakers helper-porter. helper-porter ' helper-porter. helper-porter.
We interpret these figures in the light of testimony that while the normal resort season
in Miami extends from about December 15 to March 15, the upturn in business during
the 1941-42 season started late, sometime early in February , and business began a steady
decline shortly after February 23. Besides , because of their long experience as bakers,
it is reasonable to believe , as the respondent contends , that Juriet and Foehner would not
have accepted assignments to more menial positions with less pay. In particular, as set
forth above , Juriet had expressed dissatisfaction with the job he then had when he talked
to the Natts on January 7 in the bakery office.
11 In addition , 100 percent of the cake bakers had signed union membership applica-
tions. The respondent ' s three pie bakers and one other employee who served both as a
pie baker ' s helper and as a porter were not union adherents on January 8. So far as
appears , however , the four employees in the pie division referred to, with the exception-
of.Jones, had substantial seniority over both Juriet and Foehner.
12 The record does , not disclose the identity of the union leaders among the employees,
if any , except that , on January 9, Natt mentioned the names of Foehner and others as
occupying such status when the employees assembled outside the bakery between shifts.
487498-42-vol. 44-70
1106 DECISIONS OF NATIONAL - LABOR '. RELATIONS, BOARD
signed union membership applications oil January 6. About that
time, Foehner distributed approximately a half dozen membership
applications to employees who signed them, but there is no evidence
that the distribution was known to the respondent or that Foehner
engaged in any union activity under circumstances which make it
likely that the activity came to the respondent's attention.
- In his Intermediate Report, the Trial Examiner, in concluding
'that the respondent had discharged Juriet because of his union activi-
ties, laid stress upon the incident which occurred- on January 7.
While in his conversation with the Natts that day, Juriet had mani-
fested sympathy with the principle of collective bargaining, in view of
the absence of any expression of union hostility by-the respondent, the
fact that the respondent did not interrogate Juriet concerning his
union status during the interview, and our belief that the respondent
'had considered'Juriet's dismissal in connection with the proposed cur-
tailment in operations and reduction in staff before calling him to the
office, we are of the opinion that the incident shows no more than that
the respondent desired to obtain the benefit of Juriet's previous ex-
perience' as an entrepreneur as an aid,in formulating a policy with
regard to the existing organizational movement among the employees.
Under the circumstances, we find that the respondent reduced the
bakery staff as an economic measure and-selected Juliet and Foehner
for discharge' because of their seniority standing at the bottom of the
employment list. The evidence does not sustain, and accordingly we
shall dismiss, the allegation of the complaint that the respondent dis-
criminated with respect to the hire or tenure of employment of Juriet
and Foehner, within the meaning of Section 8 (3), of the Act.
C. The alleged refusal to bargain
1. The appropriate unit
The complaint alleges that all production and maintenance em-
ployees of the respondent constitute a unit appropriate for the pur-
poses of collective bargaining. Although the respondent denied the
allegation in his answer,' lie does not claim that any other unit is
appropriate and, except as noted below," no evidence was introduced
at the hearing with respect to the issue of appropriate unit.
We find, as did the Trial Examiner, that all production aud,mainte-
nance employees of •. the respondent, 'excluding. management and
However, Natt did not include Juriet in that classification, and Foehner's first overt union
activity to the respondent ' s knowledge occurred subsequent to his discharge when Foehner
accompanied the union representative eailier that day and conferred with the respondent
13 The Union's proposed contract, referred to above, covered all inside employees,
except clcucal and management " The Union admits to membership the respondent's
production and mamlenance employees, including working foremen, but excluding-the plant
superintendent
-AIRS. _,'KATVS`, BAKERY 1107
clerical employees,'"I at all times material herein constituted and now
constitute a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other
conditions of employment. We further find, as did the Trial
Examiner, that said unit insures to employees of the respondent the
full benefit of their right to self-organization and collective bargaining
aiid otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority-iii the appropriate unit
As of January 9, 1942, the respondent had 39 production and mainte-
nance workers on the bakery pay roll. Of these, 25 signed applications
for membership in the Union, on or before January 9, 1942. However,
as indicated above and hereinafter more fully set forth, on that day
the employees went on strike; thereafter, the respondent hired substi-
tutes and, by January 15, 1942, had replaced at least 11 strikers who
had signed union membership applications. Since we hereinafter
find that the strike was not caused or prolonged by any unfair labor
practice on the part of the.respondent, the persons who replaced the 11
strikers as well as the strikers, must be regarded as constituents of the
appropriate unit entitled to participate in the selection of a bargaining
representative. There is no showing that any of the persons who
replaced the strikers became union adherents.
Accordingly, we find that on January 9, 1942, and thereafter until
about,January 11, 1942, the Union was the duly designated bargaining.
representative of a majority of the employees in the aforesaid appro-
priate unit, and that pursuant to Section 9 (a) of the Act, the Union
was at all such times the exclusive representative of all employees in
the aforesaid unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment. We•further find that on and after January 15,
1942; tile` Unionn d;d not re1t ent a iniiijority of, the employees in
said unit. -
3. The alleged refusal to bargain
As hereinabove indicated, about noon on Friday, January 9, 1942, the
Union first approached the respondent; presented a proposed contract,
and notified the respondent, when Natt requested "a few days time"
to consider the proposed contract, that the employees desired to learn
the respbndent's attitude by the end,;Qf the day shift at 3: 30• p. in.
Natt thereupon agreed to telephone Robert Cook, the Union's organ-
1¢ Such unit contemplates the inclusion of working foremen and the exclusion of the
plant superintendent - - - _
15 See, for example , Matter of The Rudolph TPurhtzer Company and Piano , Organ and
MiisicalInctraiicot Woihei e' Union, focal to 1190, 12'N L R B 163
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izer, about 4 o'clock that afternoon. About 2 p. m., Cook received,a
telephone call from Emmett Clay Choate, the respondent's counsel in
this proceeding, in which Choate stated in substance that the matter
had been entrusted to him and that he could not meet with the Union
,until the following Monday morning, since he desired to study the pro-
posed contract over the intervening week-end. Cook agreed to refer
Choate's request to the employees. The..employees; however, insisted
upon the 3: 30 p. in. deadline, and instructed Cook to make an effort
to induce Natt to reconsider the respondent's decision to delay nego-
tiations until Monday. Prior to 3:30 p. in. that day, Cook advised
Natt that the employees had decided to strike unless the respondent
entered upon further bargaining negotiations that day.- Thereupon
Natt stated that the employees would lose their jobs if they went on
strike, and Cook undertook "to talk to the boys again."
As set forth above, about 3: 30 p. in. that day, the employees as-
sembled outside the bakery; Natt asked them to wait until Monday for
his answer to the proposed contract and warned them that they would
be replaced if they went on strike without granting his request.
Approximately 14 employees promptly went on strike.
The Trial Examiner, in concluding that the respondent had refused
to bargain collectively-with the Union on January 9, 1942, based such
conclusion upon a finding that Natt in effect stated that the employees
would lose their jobs unless they abandoned the Union and by such
statement "revoked" recognition of the Union. We do not agree with
the Trial Examiner that Natt's remarks are to be so interpreted. The
record discloses, as indicated above, that Natt requested the employees
that he be allowed time in which to consider the proposed contract
and that they would be replaced if they went on strike. An ,em-
ployer is entitled to a reasonable time, varying according to the cir-
cumstances of the case, in which to consider the terms of a contract
proposed by a labor organization. Moreover, he may replace employees
participating in a purely economic strike.ls Since an employer may
in such a setting replace striking employees with impunity, it is`not
unlawful for him to state such intention.` In our view, Natt's request
for time over the week-end to consider proposals involving substantial
concessions with respect to terms and conditions of employment was
not unreasonable, and his warning to the employees of replacement
under the circumstances 'was within the legal province of the respond-
ent. Accordingly, we find that the respondent did not refuse to bargain
collectively with the Union on January 9, 1942.
Thereafter, the Union did not resume negotiations with the re-
spondent until on or about January 15, 1942. By that time, however,
16 See , foc example , National Labor Relations Board v. Mackay Radio & Telegraph Co , t
304 U 8 333.
' MRS. NATT'S'.BAKERY ' 1109
as we have found above, the respondent had replaced the strikers and
the Union had lost its majority for reasons not attributable to any un-
fair labor practice on the part of the respondent. In view of our
finding that the Union did not represent a majority of the employees in
the appropriate unit on and after January 15, 1942, we deem it un-
necessary, to set forth in detail, the course of bargaining n-egotiations
beginning January 15, 1942,' and thereafter, and shall dismiss the
allegation of the complaint that the respondent refused to bargain with
the Union within the meaning of Section 8 (5) of the Act.
D. The strike and the alleged'refusal to reinstate the strikers
As set forth above, 14 employees went on strike on January 9, 1942:
We find that the strike was caused principally by the employees' in-
sistence upon a reply to the Union's proposed contract on January 9
and secondarily because of the respondent's action in discharging
Juriet and Foehner. We have found (1) that the respondent did not
refuse to bargain collectively with the Union; (2) that the respondent
did not discriminate '%irith respect to the hire or tenure of employment
of Juriet or Foehner; and (3) that the respondent did not engage in
conduct proscribed by Section 8 (1) of the Act. We therefore find that
the strike was not caused by any unfair labor practice. -
Within a week thereafter, 3 strikers abandoned the strike and re-
turned to work. About February 23, 1942, as set forth above, the
Union notified the respondent by letter that it had terminated the
strike and requested reinstatement of the 11 remaining strikers; and-
the respondent replied, under date of March 13, 1942, that the strikers
would be considered for reemployment as vacancies, not then existent,
occurred. Up to the time of the hearing, June 1, 1942, none of the 11
strikers had obtained reinstatement. However, during the period
from February 23 to June 1, 1942, by' reason of declining business, the
respondent hired no new employees, with 1 exception, for work in any
of the job classifications of the'strikers. During the'period the re-
spondent hired 3 porters and 2 shipping department workers to fill
vacancies. Of the 11 strikers, only Cox, a shipping department em-
ployee, might have filled 1 of the vacancies which existed during that
period. There is no testimony in the record, however, with respect
to the relative ability of Cox and the persons hired in preference to
him, or any other data concerning them. Under the circumstances we
find that the respondent did not discriminate with respect to hire or
tenure of employment by refusing to reinstate the 11 strikers after the
termination of the strike.
We find that the strike was not 'prolonged by any 'unfair labor prac-
tice, and shall dismiss the complaint in its entirety.
1110 ' DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
.Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
Bakery and Confectionery Workers International Union, Local No.
219, affiliated with the American Federation of Labor, is a labor or-
ganization, within the.meaning of Section 2 (5) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusion of law,
and pursuant to Section 10 (c) of the-National-Labor Relations Act,
the National Labor Relations Board hereby orders that the complaint
against Louis Natt, d/b/a Mrs. Natt's Bakery, be, and it hereby is,
dismissed. .
MR. WM. M.,LEISERSON, tookaio-part in the,consideration of the above
Decision and Order.