Kroger Co. v. Industrial Commission of Mo., Division of Employment Sec. of Dept. of Labor and Indus. Relations of Mo.

• Decision Date: 14 June 1958
• Docket Number: No. 29970,29970
• Citation: 314 S.W.2d 250
• Parties: The KROGER COMPANY, a corporation (Plaintiff), Appellant, v. INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY OF The DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS OF MISSOURI, et al. (Defendants), Respondents.
• Court: Missouri Court of Appeals

Page 250

314 S.W.2d 250

The KROGER COMPANY, a corporation (Plaintiff), Appellant, v. INDUSTRIAL COMMISSION OF MISSOURI, DIVISION OF EMPLOYMENT

SECURITY OF The DEPARTMENT OF LABOR AND INDUSTRIAL

RELATIONS OF MISSOURI, et al.

(Defendants), Respondents.

No. 29970.

St. Louis Court of Appeals, Missouri.

June 14, 1958.

Motion for Rehearing or to Transfer Cause to Supreme Court

Denied July 10, 1958.

Robert W. Herr, St. Louis, Richard V. Runyan, Cincinnati, Ohio, for appellant.

Lloyd G. Poole, Jefferson City, for respondent Industrial Commission of Missouri.

George Schwartz, Jefferson City, for respondent Division of Employment Security.

Bartley & Martin, John H. Martin, St. Louis, for certain respondents.

Wiley, Craig, Armbruster, Schmidt & Wilburn, Charles M. Schmidt, Earl B. Wilburn, St. Louis, for certain respondents.

SAMUEL A. DEW, Special Commissioner.

The appellant filed its petition in this cause in the Circuit Court of St. Louis, Missouri, for a judicial review of the findings, decision and awards made by the respondent Industrial Commission of Missouri in favor of the 190 individual respondents herein (sometimes referred to as the 'claimants'), on their respective claims for unemployment compensation benefits. The benefits awarded were for unemployment compensation for one or more weeks during a strike against the appellant by certain of its employees in the St. Louis area. Included as a defendant and a respondent is the Division of Employment Security of the Department of Labor and Industrial Relations of Missouri. All questions of venue and of jurisdiction of the persons of the parties in this joint review and appeal have been waived. By their respective answers, respondents deny the charges of illegality of the findings, decision and awards and seek to have the same affirmed.

The facts developed by the evidence adduced at the hearing before the Appeals Tribunal were summarized and stipulated by the parties in the Circuit Court on the review as follows:

'The appellant operates a large number of retail food stores in various sections of the United States, including the St. Louis area, and also operates a number of warehouses and bakeries as an adjunct to and source of supply for its various retail stores. In September, 1955, appellant operated 140 retail stores in St. Louis and surrounding areas, 52 of these being located in the St. Louis metropolitan area, while the balance, numbering 88, were located in outstate Missouri and Illinois. The farthest distant of these outstate stores was 130 miles from St. Louis and the stores in the St. Louis area were all within a radius of 15 miles of the branch office. The operation of all these retail stores and their supervision were directed from the branch office located at 1311 South 39th Street, St. Louis, Missouri. At this same address was located the appellant's warehouse from which merchandise was furnished to such retail stores. The bakery operated by the appellant was located a few blocks away.

'Appellant employs about 300 workers in its bakery, these being represented either by Bakers' Union Local #4, AFL, the Bakers' Union Local #4--Auxiliary, AFL, or Biscuit and Cracker Workers' Union Local #254, AFL; about 800 workers in its retail stores in the St. Louis metropolitan area who were represented either by Retail Store Employees' Union Local #655 or Meatcutters' Union Loca #88, AFL; over 100 drivers and truck mechanics who are represented by Teamsters' Union Local #610, AFL, and International Association of Machinists District #9, AFL; and 28 maintenance mechanics, about 22 of whom work at the bakery and about 6 in the warehouse, who were represented by Fireman and Oilers' Union Local #6, AFL. (Through oversight the agreed statement omitted the fact that appellant employs about 210 workers in its warehouse, and these are members of Retail Store Employees' Union Local #655.)

'The evidence shows that 70% of all merchandise sold by the retail stores came from the warehouse and the bakery, the remainder coming from other sources. The store managers were supervised by a number of district managers whose offices were in a portion of the building used as a warehouse. Store personnel were hired, on the recommendation of store managers, by the branch office Personnel Department. In cases of insubordination, dishonesty, fighting and disturbances, store managers had the right to discharge employees. The manager had authority to lay off an employee in cases of inefficiency, with approval of the Personal Department or the district manager. With respect to the merchandise that came from sources other than the warehouse, the store manager was required, in most cases, to send orders for such merchandise to the warehouse and such orders were then placed by branch office personnel. All advertising of merchandise sold in the stores was placed by branch office personnel. Sales plans were given to the store managers in outline. It was the responsibility of the individual store manager to promote or merchandise the items in his store. Schedules of working hours of store employees were set by the store managers.

'As the result of a breakdown in negotiations over a new contract, a strike was called against the appellant by Firemen and Oilers' Union Local #6 at appellant's bakery and warehouse in St. Louis, and directly involved about 20 members of such union. Members of Local #6 were employed exclusively at the company's bakery and warehouse, and none in the retail stores. This was the only union which declared a strike against the appellant. Pickers were placed by Local #6 at the bakery and warehouse on September 14, 1955, and this action caused an immediate cessation of operations at both the bakery and the warehouse, since appellant's employees at both those places, except district managers and office personnel, refused to cross the picket lines set up by Local #6. Local #6 also set up picket lines at a number of appellant's retail stores in St. Louis and St. Louis County on September 15 and September 16, 1955. Many of the store employees refused to cross such picket lines. They were subsequently held to be ineligible for benefits and are not now parties to this proceeding. On September 15, 1955, appellant announced, through newspaper ads run in place of its regular merchandise ads, that the retail stores would close out all perishable merchandise and afterward close 'due to a work stoppage in one section of our business.' On September 17, 1955, appellant closed all of its retail stores in St. Louis and St. Louis County, including fourteen of such stores at which no pickets had appeared up to that time. All of the St. Louis area stores and the stores in Wentzville, Belleville, East St. Louis and St. Charles were eventually picketed during the course of the strike, which ended November 15, 1955. Outstate stores in Missouri, except St. Charles, and all Illinois stores, except Belleville and East St. Louis, remained open for business throughout this period, receiving merchandise from sources other than the St. Louis warehouse.

'Subsequently about 377 of the store employees in this area, all of whom are members either of Retail Store Employees' Union Local #655, or Meatcutters' Union Local #88, filed claims for unemployment compensation benefits with the Division of Employment Security.

'The Appeals Tribunal of the Division held approximately 187 of these store employees to be ineligible for benefits and approximately 190 of them to be eligible for benefits. Those held ineligible were so disqualified either because, as the evidence established, they were participating in the aforesaid labor dispute by refusing to cross picket lines at the stores where they were employed, or because, as the evidence further established, they were members of a grade or class of workers, of which there were members employed at their store, some of whom refused to cross picket lines. Those held eligible, who are the individual respondents in this case, were held to be qualified because, as the evidence established, they were not participating, financing, or directly interested in the labor dispute, did not refuse to cross picket lines (there having been no picket lines at the stores where they were employed prior to the closing thereof), and they worked as long as work was available for them; also, because, as the evidence established, they were not members of a grade or class of workers, of which there were members employed at their store, some of whom refused to cross picket lines or were otherwise participating, financing or directly interested in the dispute.

'In holding the individual respondents here to be eligible, the Appeals Tribunal stated that each of the retail...