The Kroger Co.

National Labor Relations Board - Board Decisions

Jul 24, 1952

100 N.L.R.B. 352 (N.L.R.B. 1952)

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (a)
(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT engage in any acts in any manner interfering with the efforts
of LOCAL No. 105, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP
BUILDERS & HELPERS OF AMERICA, A. F. L., to negotiate for or represent the
employees in the bargaining unit described below.
WE WILL bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed below with respect to wages, rates of pay, hours of employment and
other conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All employees of the undersigned at his Ashland, Kentucky, operation,
excluding all office and clerical employees, and all guards, professional
employees, and supervisors as defined in the National Labor Relations
Act.
GEORGE SEXTON d/b/a SEXTON WELDING COMPANY.
Dated ----------------------------------- By -----------------------------
(Representative ), ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
THE KROGER Co. and LILLY MAY PARRETT . Case No. 13-CA-741.
July 24,1952
Decision and Order
STATEMENT OF THE CASE
Upon a charge duly filed on December 18, 1950, by Lilly May Par-
rett, herein called Parrett, the General Counsel of the National Labor
Relations Board, herein called the General Counsel and the Board,
respectively, by the Regional Director for the Thirteenth Region
(Chicago, Illinois), issued his complaint on July 21, 1951, alleging
that The Kroger Co., Wabash, Indiana, had engaged in and was en-
100 NLRB No. 55.
THE KROGER CO. 353
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint, charge, and notice of hearing were duly
served upon the Respondent and the charging party.
With respect to the unfair labor practices, the complaint alleged,
in substance, that the Respondent, in violation of Section 8 (a) (1)
of the Act, discharged Parrett on November 21, 1950, and has since
failed and refused to employ her because shy engaged in concerted
activities. The complaint also alleged that Parrett's discharge dis-
couraged, and is continuing to discourage, the Respondent's employees
in the exercise of the rights guaranteed them in Section 7 of the Act,
and that the Respondent did thereby further engage in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
In its answer, duly filed, the Respondent admitted the allegations
of the complaint concerning its corporate existence and the nature!.
of the business it transacts. However, the Respondent denied the
commission of any of the unfair labor practices alleged in the
complaint.
Pursuant to notice, a hearing was held at Wabash, Indiana, on
August 28 to 31, 1951, inclusive, before Sidney Asher, Jr., the Trial
Examiner duly designated by the Chief Trial Examiner. The Re-
spondent and the-General Counsel were represented by counsel. Par-
rett appeared in her own behalf. All the participating parties were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduces evidence pertinent to the issues. At the
close of the hearing the Trial Examiner granted without objection
the General Counsel's motion to conform the pleadings to the proof
with respect to minor variations such as the spelling of names and
dates.
Various rulings were made by the Trial Examiner during the course
of the hearing on other motions and on objections to the admission of
evidence. The Trial Examiner reserved ruling upon the Respond-
ent's motion to dismiss, which was made at the close of the hearing.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. These
rulings are hereby affirmed. All parties were afforded an opportunity
to file briefs and proposed findings of fact and conclusions of law.
The Respondent filed a brief with the Trial Examiner.
On December 12, 1951, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the Respondent had not engaged in the unfair labor
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices alleged, and recommended complete dismissal of the com-
plaint. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief. The Respondent filed a brief
in support of the Trial Examiner's recommendations.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and makes the following
findings, conclusions, and order :
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation engaged in the retail grocery
business as a multistate enterprise. It maintains its principal office in
Cincinnati, Ohio, and sales and distributing offices, warehouses, and
about 2,000 retail stores in approximately 20 States. During the
calendar year 1950, Respondent transported products valued at more
than $50,000,000 from its various installations to and through States
other than Ohio and Indiana.
As an integral part of 'its operations, the Respondent maintains
an egg exchange at Wabash, Indiana, which is the only plant involved
herein. During the calendar year 1950, the Respondent transported
from its Wabash egg exchange eggs valued in excess of $1,000,000, of
which more than 50 percent was shipped to points outside the State of
Indiana.
The Respondent admits, and we find, that it is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The principal function of the Respondent's Wabash exchange is the
candling and grading of eggs. The egg candlers in the main candling
room work in semidarkness in 29 small booths, which run in a north-
south direction along the east wall of the exchange building. -A bench
runs along the east wall for the full length of the building and is used
by the candlers for the storage of empty cardboard egg cartons. In
front of the bench there is a 6-foot aisle allowing access to the candling
booths, which are about 4 feet wide and 11/2 feet deep.
When the candlers are at work they stand in their booths facing
west, and candle eggs with special light which penetrates the egg shells.
At shoulder height a continuous belt passes through all of the booths
for the removal of eggs which had been candled, graded, and placed in
cardboard cartons. Below the belt each booth contains a candling
table and light. The partition which separates the booths from the
THE, KROGER CO. 355
rest of the exchange building runs from the ceiling down to about 3
feet above the floor, allowing space, normally closed by canvas strips,
for large cases of uncandled eggs to be passed into each booth from
the exchange floor. In addition to the candling lights, each booth
contains a switch for that booth's red call light which is located on the
exchange side of the partition. The call lights are used by the candlers
to attract the attention of linemen, who supply eggs and cartons to the
candlers when necessary. The lighting of the candling room is com-
pleted by overhead ceiling lights in the aisle. These lights are con-
trolled by switches at the north and south end of the candling room.
When the overhead lights are on, it is impossible to candle eggs.
On the morning of November 21, 1950, the egg candlers found the
candling room cold when they arrived for work at 7: 00 a. m. At the
starting hour they entered the booths and began candling eggs as usual.
However, a few of the candlers at least felt that the room was too cold
to work in, and occasionally stepped into the aisle behind their booths
to discuss the matter with their neighbors. From time to time some of
the candlers left the candling room and gathered in groups in the rest
room. There was considerable discussion about the cold and the diffi-
culty of candling eggs under such conditions. Some of the conversa-
tion was loud enough to be characterized as shouting; the resultant
disturbance affected production in the'north end of the candling room.
During the morning, although the exact hour was not fixed by the
testimony, Complainant Parrett suggested to the candlers in the ad-
joining booths that they plug in their red call lights and get the linemen
to request more heat. It appears that about 15 of the lights were turned
on, whereupon lineman Snell called into the booths to find out what
was required. Parrett and other candlers replied that it was cold and
asked Snell to locate Manager Otto Pagel and ask for more heat.
Snell failed to deliver the message.
Sometime between 9 and 9 : 30 a. m. the candlers had their regular
morning rest period. It is not clear from the record whether the turn-
ing on of the red lights occurred before or after the rest period. When
considerable time had elapsed and Manager Pagel did not appear in
response to the candlers' request, candler Essie Kozee suggested that
Parrett turn on the overhead ceiling lights to attract Pagel's attention.
Parrett called to candler Jo Ann Woodward, in the booth next to the
light switch at the north end of the building, and asked that the lights
be turned on. Woodward told Parrett that she would not do so because
she might get in trouble. Thereafter, Parrett told several of the can-
dlers that she was going to turn on the ceiling lights, and did so.
When the ceiling lights went on, all of the of the candlers stepped
back into the aisle to see what was happening. Almost immediately
227200-53-vol 100-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the lights were turned off by Oren Hays, the Government inspector,
whose booth is located at the south end of the main candling room.
Thereafter, in the next few minutes the lights went on once or twice
-more,and each time Hays turned them off. He then left his booth and
found Pagel in another part of the building, and suggested that Pagel
go to the candling room because the lights were going on and off.
Hays left his booth for this purpose at about 10: 30 a. in., at least an
hour after the morning rest period.
As soon as Pagel got Hays' report, he went to the candling room and
walked through the aisle asking who had turned on the lights. There
was no answer, so Pagel left. When he returned in a few minutes he
overheard Parrett say, "I turned on the lights, and I will do it again."
Pagel thereupon decided to discharge Parrett for attempting to cause
"a work stoppage or production stoppage"; he went to his office and
had the necessary separation papers prepared. At the time of Par-
rett's discharge, Pagel was unaware of her reason for turning on the
ceiling lights. Further, the record establishes that when grievances
arose in the exchange, the candlers customarily communicated with
Pagel by asking a lineman to call him, or by going directly to his office
either during working hours or during a regular recess period.
Based upon the foregoing, and upon the entire record, we find that
the General Counsel has failed to prove that the discharge of Parrett
constituted interference, restraint, or coercion within the meaning of
Section 8 (a) (1) of the Act. We need not decide whether Parrett
acted in concert with other employees in turning on the lights in the
candling room. Under the special circumstances of this case, we find
that her unexplained conduct, which she indicated would be repeated,
was not protected employee activity within the meaning of Section 7
of the Act. We shall therefore dismiss the complaint in its entirety.
Upon the foregoing findings of fact, and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of
the Act. -
' 2. The Respondent, by discharging Lilly May Parrett on November
21, 1950, and thereafter failing and refusing to reinstate her, did not
violate Section 8 (a) (1) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
SYLVANIA ELECTRIC PRODUCTS INC., 357
Relations Board hereby orders that the complaint issued herein
against the Respondent, The Kroger Co., Wabash, Indiana, be, and it
hereby is, dismissed.
CHAIRMAN HERzoo and MED IIER STYLES took no part in the consid-
eration of the above Decision and Order.
SYLVANIA ELECTRIC PRODUCTS INC. and INTERNATIONAL UNION OF
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO,
PETITIONER. Case No. 1-RC-9 53°S. July 24, 1962
Decision and Order
Upon a petition duly piled under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Leo J. Halloran,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner and the Intervenor, Local 1502 International
Brotherhood of Electrical Workers, AFL, are labor organizations
claiming to represent employees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks a unit of production and maintenance em-
ployees at the Employer's plant at Ipswich, Massachusetts. The
Intervenor and the Employer contend that their current contract
operates as a bar to the present petition. The Petitioner alleges that
the contract is not a bar (1) because it contains an illegal union
security clause, and (2) because of a schism within theInterveuor's
local organization.,
The Petitioner indicated at the hearing that there may be a third ground for holding
the current contract invalid, namely, the contention that the contract is invalid unless the
Intervenor was in compliance on the date of the execution of the contract and for an
entire year prior thereto. There is no merit in this contention. The compliance record
of the Intervenor shows that it was in compliance on June 18, 1951 , the date of execution
of the contract, and that it had been notified of its achievement of compliance by the
Regional Office of the Board on September 21, 1950, which was within 1 year of such date.
The Mellin-Quincy Manufacturing Co., case, 98 NLRB 457, therefore does not apply.
100 NLRB No. 50.