Kansas Milling Co.

In the Matter Of KANSAS MILLING COMPANY and AMERICAN FEDERA- TION OF GRAIN PROCESSORS, A. F. OF L., LOCAL UNION 20991 Case No. 17-CA-4.-Decided October 08,1949 DECISION AND ORDER On September 27, 1948, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety,' as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations, except insofar as they are inconsistent with the findings, conclusions, and order herein set forth. 1. The Trial Examiner found that the Respondent's warnings to its employees both before and during the strike, to the effect that they might or would lose their jobs if they persisted in striking and that ' The Trial Examiner recommended that the complaint be dismissed "without prejudice" insofar as it alleged violations of Section 8 (a) (3) after October 17, 1947. x The Respondent argued before the Trial Examiner that the 6 -month statute of limita- tion in Section 10 (b) precluded consideration of unfair labor practices occurring before October 8, 1947, and moved to strike all supporting evidence , on the ground that the charge, upon which the complaint stated that it was based , was not filed until April 8, 1948 ; and that the earlier charges should be viewed as "superseded " or "abandoned" or "withdrawn," becoming "functus officio." However, the record shows that the original charge in this .case was timely served on the Respondent ; that it included an 8 (a ) ( 1) allegation; and that it was never withdrawn . The April 8, 1948, charge sets forth matters arising out of .conduct set forth in the original charge and the first amended charge, and therefore relates back to the dates of those charges . Matter of Erving Paper Mills, 82 N. L. R. B. 434; Matter of Shawnee Milling Company, 82 N. L . R. B. 1266; cf . Rule 15 ( c) of the -Rules of Civil Procedure of the District Courts of the United States; cf . also Matter of .Cathey Lumber compan y, 86 N . L. R. B. 157. In his Intermediate Report, the Trial Examiner found no merit in the Respondent 's argument , and denied the motion to strike. No exceptions were filed in this respect. Without adopting the Trial Examiner 's reasoning and conclusions except insofar as consistent with the foregoing cases, his ruling is hereby affirmed. 86 N. L. R. B., No. 136. 925 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would be considered as having vacated their jobs if they did not return to work by August 23, 1947, and the Respondent's urging of individual strikers to return to work, could not be deemed to consti- tute interference, restraint, or coercion within the meaning of the Act. We do not agree. Particularly in view of the Union's undis- puted status as the certified bargaining representative, we find that the Respondent's conduct was clearly in violation of the Act.3 2. The Trial Examiner found that the strike was not converted into an unfair labor practice strike, but remained throughout an economic strike. We do not agree. Before and during the strike, the Respond- ent engaged in conduct violative of the Act, as we have found. In addition, the Respondent after August 23, advised the Union that the strikers who had not obeyed its warnings and returned to work were no longer employees, and that any of them who wished to be reem- ployed would be considered only as new job applicants if there were any vacancies. The record is clear, and the parties agree, that this, position of the Respondent became the "paramount issue" in negotia- tions to settle the strike. The effect of such unlawful conduct was to prolong the strike, and we therefore find that by August 23, if not before, the strike was transformed by the Respondent's unfair labor practices into an unfair labor practice strike.4 3. The Trial Examiner concluded that the Respondent did not un- lawfully refuse to reinstate any of the strikers. We do not agree. On about October 18, 1947, the Union submitted to the Respondent a list of 107 names of strikers desiring reinstatement.' The record shows and we find that they were employees entitled to reinstatement." 3 See Matter of Sam'l Bingham's Son Mfg. Co., 80 N. L. R. B. 1612; Matter of Rockwood Stove Works, 63 N. L . R. B. 1297 . The Bingham case and this case are both clearly distinguishable from such a case as Matter of United Welding Company , 72 N. L. R. B.. 954, where the Respondent urged striking employees to continue to bargain through the Union as their representative ; or from Matter of Times Publishing Company, 72 N. L. R. B. 676, where the union itself invited the Respondent to address the. strikers at a union meeting. Board Member Gray, having given full consideration to an Employer 's lawful right to replace economic strikers and to the protection afforded by Section 8 ( c) of the Act, is persuaded to join in this finding because of the Union's representative status and the funda- mental policy of the Act of "encouraging the practice and procedure of collective bargaining" in the circumstances of this case. * Matter of Dalton Telephone Company, 82 N. L. R. B . 1001 ; Matter of Vogue-Wright Studios, Inc., 76 N. L. It. B. 773 ; Matter of Rockwood Stove Works , supra. " These names, variously spelled in the record , are listed in paragraphs "2" and "3" of Appendix A attached hereto. The Union also included the names of 13 additional indi- viduals who were not then employees within the meaning of the Act: 6 ( Griffith, Klntzel' Sr., Seago, Zackula , Briscoe, J. 0., and Olmstead, J.) because they were second millers who the record shows were supervisors; 5 (Gossman, Hawthorne , Symonds, Jefferson. White; and Wiltshire ) because they had been hired for the term of the current harvest season, which had expired; 1 (Vandry ) because he had quit before the strike ; and another (Crebs) because the record contains neither allegation nor competent evidence as to him. 9 Although Carl Pyle , one of the 109 on the list , advised his foreman at the. start of the strike that he was quitting , the record does not clearly rebut the presumption that his work ceased as a consequence of, or in connection with, the strike . Accordingly;, w.e'fin&that Pyle remained an "employee." within the meaning of Section 2 (3) of the Act:. KANSAS MILLING COMPANY 927 Having found that the Respondent's unfair labor practices had converted the strike into an unfair labor practice strike by August 23, 1947, if not before, it follows that the Respondent's duty was immedi- ately to dismiss all replacements hired after August 23 if necessary to make places for the 107 applicants .7 Although the record shows that the Respondent had hired 6 replacements by August 23, the record does not show that the Respondent had insufficient positions for the 107 applicants on October 18, 2 months later, particularly as the Re- spondent had hired more than 230 replacements in the same 2-month period. We therefore find that by refusing to reinstate the 107 ap- plicants on October 18, 1947, the Respondent violated Section 8 (a) ( 1) and (3) of the Act. The effect of the unfair labor practices upon commerce The activities of the Respondent, set forth above, occurring in con- nection with the operations of the Respondent described in Section II of the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The remedy Having found that the Respondent engaged in unfair labor prac- tices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act .8 The Respondent, in its arguments to the Trial Examiner, listed the names of many strikers whom, for one reason or another, it claims it should not be ordered to reinstate. We turn now to a consideration of each of these contentions. The Respondent contends that six employees (Harris, Twyman, Cain, Flake, Stockwell, and Coplin) so conducted themselves during the strike as to be disqualified for further employment. Harris was 7 The Respondent contended before the Trial Examiner that It was not obligated to rein. state any of the 109 applicants because of an agreement with the Union, which it allegedly Carried out as written , providing in part that, if the Union submitted a list of strikers desiring reinstatement, the Respondent would furnish the Union with a list of "those union members whom it will immediately put back to work" and those whom it would reinstate "as soon as possible and not to exceed a period of thirty (30) days." The Trial Examiner did not find that this agreement constituted a settlement of the reinstatement rights of the strikers. No exceptions were filed in this connection, and we are therefore not called upon to pass on the contention. However, the agreement "was an almost complete negation of the rights to which Respondent's employees were entitled under the Act," as the Court held in N. L. R. B. v. Poultrymen's Service Corp., 138 P. (2d) 204 (C. A. 3), enforcing 41 N. L. R. B. 444, and therefore could not waive the strikers' reinstatement rights. 8 We shall order the Respondent in part to cease and desist from in any manner infringing on the rights guaranteed in Section 7. Matter of Cathey Lumber Co., 86 N. L. R. B. 157. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fined $50 in a local court for deliberately ramming and damaging the car of a nonstriker; Twyman threw a rock at a company truck; Cain indulged in violent language; Flake took part in a peaceful attempt to induce trainmen not to take trains into the Respondent's property; Stockwell hung an "unfair" sign on his car and drove about the busi- ness district of Wichita, a considerable distance from the Respondent's mill; and Coplin engaged in fisticuffs with a nonstriker. Although we have not in the past condoned, and do not now condone, the use of abusive and intemperate language or any other act of violence on the picket line or elsewhere in the course of a strike, we think that the acts the Respondent complains of are clearly not of such a character as to render these employees unsuitable for reemployment.9 Accord- ingly, we reject the Respondent's contention that it should not be required to reinstate them. The Respondent also contends that certain other strikers were in- efficient or otherwise undesirable employees, and that it should not be ordered to reinstate them. However, the Respondent admitted that before the strike and, indeed, until August 23 it was willing to continue these men on its pay roll. Moreover, the Respondent thereafter con- tinued to operate its plant, but there is no evidence that the employees remaining were any less inefficient or undesirable. We have repeatedly held that where antiunion considerations precipitate a discharge, such discharge is discriminatory and prohibited by the Act, even though valid reasons exist which would have warranted this action 10 In this respect a discharge is not different from a refusal to reinstate after an unfair labor practice strike. Such a refusal equally serves to penalize employees for their concerted or union activity and is clearly a violation of the rights guaranteed in the Act. We there- fore find no merit in the Respondent's position with respect to these employees. The record further shows that some of the employees listed in para- graph "2" were told their former jobs were filled and were offered other jobs. An offer of a different job to an unfair labor practice striker is not sufficient to remedy the unfair labor practice and to bar an order of reinstatement 11 The Respondent also argues that it should not be ordered to rein- state Schweer and L. Stockwell, on the ground that their jobs have been discontinued. The right of an unfair labor practice striker to rein- 9 Cf. Matter of Republic Steel Corporation, 9 N. L. R. B. 219, 392 ; Matter of Berkshire Knitting Mills, 17 N. L. R. B. 239, 292 ; Matter of Dalton Telephone Company, 82 N. L. R. B. 1001 ; Matter of Horn Mfg. Co., Inc., 83 N. L. R. B. 1177. 10Matter of Spencer Auto Electric, Inc., 73 N. L. R. B. 1416; Matter of Thomas Brothers Wholesale Produce, 79 N. L. R. B. 982; Matter of Shawnee Milling Company d/b/a Paul's Valley Milling Company, 82 N. L. R. B. 1266. 11 See Matter of Chase National Bank, 65 N. L. R. B. 827. KANSAS MILLING COMPANY 929 statement to his former job is not absolute; but we have always held that if his former job has been discontinued, he should be reinstated to a substantially equivalent job. Absent any showing in the record in this case that no such alternative jobs exist, we reject the Respondent's contention as to Schweer and Stockwell. There remain for consideration the 19 strikers listed in the com- plaint and also in Appendix B of the Intermediate Report '12 who have not requested reinstatement. Three of them (Glen Plank, Moyer, and Walsh) have been reinstated; 6 (Chuculate, Martin, Parette, Porter, Rhoden, and Slawson) had been hired only for the harvest season, which had expired; and 1 (Cocks) was no shown to be a regular employee. The other 9 are listed in paragraph "4" of Appendix A. Because of the Respondent's unfair labor practices, and in order to effectuate the policies of the Act, we shall order that, if any of these 9 request reinstatement, the Respondent reinstate them if suitable vacan- cies exist or, if not, place them on a preferential hiring list for employ- ment as vacancies arise and before hiring new employees, and make them whole for any period in which it may fail to do so 13 We shall order the Respondent to offer each of the employees named in paragraph "2" of Appendix A immediate and full reinstatement to his former or substantially equivalent position,14 without prejudice to his seniority or other rights and privileges, dismissing, if necessary, employees hired after August 23, 1947. We shall further order the Respondent to make whole each of the employees named in paragraphs "2" and "3" 15 of Appendix A for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount that he normally would have earned as wages from October 18, 1947, the date of the Respondent's discrimination, to the date of the Re- spondent's offer of reinstatement,16 less his net earnings 17 during such period.'8 12 The Intermediate Report omits the name of James Cocks or Cooks , listed in the complaint. 18 Matter of E. A. Laboratories, Inc., SO N. L. R. B . 625, as amended. In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent positions" is Intended to mean "former positions wher- ever possible, but if such positions are no longer in existence , then to substantially equivalent positions." See Matter of Chase National Bank, supra. '" The employees in paragraph "3" received belated but otherwise sufficient offers of reinstatement. 18 The respective dates of reinstatement, If not settled amicably, will be determined by the Board. 17 See Matter of Crossett Lumber Company, 8 N. L. R . B. 440. 18 In accordance with our practice, the period from the date of the Intermediate Report to the date of the Order herein is to be excluded in computing the amount of back pay to which these employees are entitled as the Trial Examiner recommended dismissal of the complaint. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that 6 of the individuals named in the complaint (Griffith, Kintzel, Sr., Seago, Zackula, Briscoe, J. 0., and Olmstead, John) were second millers and thus supervisors at the time of the alleged discrimination, 11 (Chuculate, Gossinan, Hawthorne, Martin, Parette, Porter, Rhoden, Slawson, Symonds, White, and Wiltshire) were temporary harvest-season workers whose term of employment had expired; 3 (G. Plank, Moyer, and Walsh) never applied for rein- statement but have nevertheless been reinstated; 1 (Vandry) quit before the strike; and 1 (J. Cocks or Cooks) was not shown to be an employee, we shall dismiss the complaint as to them. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: SUPPLEMENTAL CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Re- spondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. 2. By discriminating in regard to the hire and tenure and the terms and conditions of employment of the employees listed in paragraphs "2" and "3" of Appendix A attached hereto, thereby discouraging membership in American Federation of Grain Processors, A. F. of L., Local Union 20991, the Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Amended Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Kansas Milling Company, Wichita, Kansas, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in American. Federation of Grain Processors, A. F. of L., Local Union 20991, or in any other labor organization, by refusing to reinstate any of its employees, or by in any other manner discriminating in regard to their hire or tenure of employment or any terms or condition of their employment; KANSAS MILLING COMPANY 931 (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist American Federation of Grain Processors, A. F. of L., Local Union 20991, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to each of the employees named in paragraph "2" of Appendix A, attached hereto, immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his .seniority or other rights and privileges in the manner set forth in the section entitled "The remedy" hereinabove; (b) Make whole each of the employees named in paragraphs "2" .and "3" of Appendix A for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of .a sum of money equal to the amount that he normally would have earned as wages from October 18, 1947, to the date of his reinstatement, in the manner set forth above; (c) Upon application, offer reinstatement to or place upon a pref- erential hiring list, and make whole, the employees named in para- graph "4" of Appendix A in the manner set forth above; (d) Post at its plant at Wichita, Kansas, copies of the notice at- tached hereto, marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the. Seventeenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Seventeenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 19 In the event that this Order is enforced by a United States Court of Appeals, there shall be inserted before the words : "A DECISION AND ORDER." the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of em- ployment of J. Chuculate, J. Cocks, C. Gossman, H. A. Griffith, E. Hawthorne, J. Kintzel, R. Martin, H. Moyer, J. Parette, G. Plank, E. Porter, L. Rhoden, G. H. Seago, T. Slawson, H. Symonds, E. Vandry, J. Walsh, J. White, L. Wiltshire, M. L. Zackula, J. O. Bris- coe, J. Olmstead, in violation of Section 8 (a) (3) of the Act be, and it hereby is, dismissed. MEMBER HOUSTON took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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: 1. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMERICAN FED- ERATION OF GRAIN PROCESSORS, A. F. OF L., LOCAL UNION 20991, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. WE WILL OFFER to the following named individuals imme- diate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination as set forth in the Decision and Order : Bardwell, Fred Barrett, Orville Beltz, Clyde Brown, Gabriel Brown, Lise Cain, Paul Carter, G. W. Cocks, Howard Coplin, Reymond Covey, Howard Crow, James Crowell, Harry KANSAS MILLING COMPANY Debacker, Lloyd Dougherty, Wm. L. Dowell, Elmer Edwards, Harold K. Elders, Silas Emo, Arthur Evans, John Evans, M. M. Flake, Harold Griffin, H. P. Grunwald, A. A. Guice, T. J. Harris, Jack Hillman, Wm. Hilyard, Arthur Hobelman, Wilmore Jansen, Fred Kahler, Franklin Kintzel, Jerome, Jr. Kintzel, Joe Laughrey, Adren Luster, Andy Loney, Wayne Louis, Albert Lunderman, Clay Maguire, Melvin Martin, Arlington Mathenia, Ed McDaniels, S. P. McElhinney, Harold McElhinney, W. H. McIntire; C: R. McLoud', W. B. Peavey, S-. H. Pyle, Carr Scholl, Jesse Schweer:; George Shepherd, Charles Shepherd, Earl Shepherd, Lester Smith, Frank Snyder, J. W. Stanley, Charles Stockwell, H. E. Stockwell, Lester Stockwell, Wm. Terry,. John Thomas, George Tunnell, Lewis Twyman, Ralph VanAllen; Ralph Voorhees; Virgil Walden,. Wade Wallace; Clinton Warren, Louis Weber; V. K. White, D: R. Wildman,. Ralph Winters, Roy Zirkel, Henry Zirkel; Oscar 933--- 3. WE WILL MAKE WHOLE the following, named. individuals for- the loss of pay, if any, suffered as a result of the discrimination,.. as set forth in the Decision and Order : Aubert, D. F. Denton;. William Bafus, Henry Doornbos,.Ralph Bafus, P. A. Drown,. Elmer Baker, Virgil V. Dutton,. Allen Barnet, W. J. Fitzmaurice, A. T. Bidwell, John H. Haley, W. H. Buckner, Joe Harris,. Sam Campbell, Floyd Headley, G. M. 867351-50-vol, 86-60 -934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hornsby, Joe Lewis, J. B. Louie, Glen Morrow, Gilbert Nixon, Alfred Overstreet, J. W. Schick, Arthur Scholl, Albert (or Elmer) Scholl, Arville See, A. H: Spruell, Harry Stoss, Frank Weber, Andrew White, Jesse Wilcutt, Charles Woods, Jr. W. Wright, Recy Young, E. P. 4. WE WILL OFFER reinstatement to each of the following named individuals if he applies for reinstatement, and will take the further action set forth in the Decision and Order. Beene, Oscar Plank, Ned Bradfield, Aubrey Tilley, Jess O. Dobson, P. R. Waggoner, J. A. Majors, Melvin Young, Thomas E. Mason, Paul L. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not unlawfully discriminate in regard to hire or tenure of employment, or any term or condition of employment, because of membership in or .activity on behalf of any such labor organization. KANSAS MILLING COMPANY, Employer. 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. INTERMEDIATE REPORT Mr. Harry L. Browne and Mr. James K. Sullivan, for the General Counsel. Foulston, Siefkin, Schoeppel, Bartlett & Powers, by Mr. George Siefkin and Mr. Carl 1'. Smith, of Wichita, Kans., for the Respondent. Mr. J. A. Leveridge, of Kansas City, Mo., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on April 8, 1948, by American Federation of Grain Processors , A. F. of L., Local Union 20991, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director 1 This designation also will be used to refer to the attorneys who represented the General Counsel at the hearing. The National Labor Relations Board will be referred to herein as the Board. KANSAS MILLING COMPANY 935 of the Seventeenth Region (Kansas City, Missouri), issued a complaint dated April 14, 1948, against Kansas Milling Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) .and Section 2 (6) and (7) of the National Labor Relations Act, as amended by the Labor Management Relations Act (Public Law 101, 80th Congress, Chapter 120, 1st Session), herein called the Act. Copies of the complaint, the amended charge and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in sub- stance : (1) That on or about August 11, 1947, the Respondent's employees ceased work concertedly and went on strike against the Respondent until on or about .October 17, 1947; (2) that from on or about August 9, 1947, to on or about October .17, 1947, the Respondent induced and persuaded its employees not to engage in a strike; threatened its employees that if they engaged or participated in a strike, they would lose their seniority and would be discharged ; threatened that unless employees abandoned the strike their jobs would be terminated, and that such strikers as returned to work would be hired only as new employees; and prom- ised that if the employees would abandon the strike and return to work they would be given an increase in wages; (3) that the Respondent, on or about August 23, 1947, discharged certain of its employees for the reason that they joined and assisted the Union, had participated in the strike, had refused to abandon said strike and return to work, and had engaged in other concerted action ; 2 (4) that the strike was prolonged by the unfair labor practices of the Respondent; (5) that on or about October 18, 1947, certain employees applied for reinstatement to their former or substantially equivalent positions; 3 (6) that the Respondent refused to reinstate certain of said employees until specified times, for the reason that they had assisted and had become members of the Union, had partici- pated in the strike, had refused to abandon the strike and return to work, and had engaged in other concerted action; 3 and (7) that the Respondent refused and continues to refuse to reinstate certain other employees to their former or substantially equivalent positions from and after the time of their discharge, and in the case of some of them, from and after their application for reinstate- ,ment,° for the reason that they had assisted and had become members of the Union, had participated in the strike, had refused to abandon said strike and return to work, and had engaged in other concerted activities.6 The complaint further alleged that by the foregoing conduct 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 April 27, 1948, Respondent filed an answer wherein, in substance, it admitted the jurisdictional allegations of the complaint, but denied the coal- mission of any unfair labor practices. In further answer, the Respondent alleges : (1) That the complaint is "erroneous, improper, and unlawful" in that it is based upon alleged unfair labor practices which occurred more than 6 months 2 The names of the employees are set forth in Appendices A, B, and C attached hereto. 'At the hearing, the General Counsel moved to amend the complaint with respect to the names of certain employees and the date of reinstatement of one employee . The motions .were granted without objection. The attached appendices conform to these motions. ° The names of the employees are set forth in Appendices A and C. The names of these employees are shown on Appendix C. The dates of their reinstate- ment are set forth alongside their respective names. ° The names of these employees are shown in Appendix A. ° The names of these employees are set forth in' Appendices A and B. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior to the filing of the amended charge , and that the alleged unfair labor practices are barred by the provisions of the Act ; and (2 ) that the Union is estopped and barred from asserting the claims alleged in the said amended charge, by reason of the fact that the Respondent and the Union entered into a contract whereby it was agreed "to amicably settle, adjust, and compromise and end all matters in issue between the parties." Pursuant to notice, a hearing was held at Wichita, Kansas, from May 5 to 12, 1948, inclusive , b^ i ore the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were repre- sented by counsel and the Union by its representative . All parties participated. in the hearing and were afforded full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence bearing on the issues. At. the close of the General Counsel's case, the Respondent moved to strike all testimony and evidence concerning events occurring prior to October 8, 1947, upon the ground that said testimony if relied upon as evidence of unfair labor practices, is barred by the limitations of Section 10 (b) of the Act. Ruling on the motion was reserved . Respondent also moved the Examiner to require the General Counsel "to make definite and certain and to elect and state in the record the employees as to whom the [General Counsel] alleges any unfair labor practices are applicable, and to make their case definite and certain and to elect as to which,. if any, of the employees named in any of the charges at any time filed are to be the basis of the claimed unfair labor practices in this case ." The motion was denied. The Respondent made a further motion at the close of the General Counsel's case to dismiss portions of the complaint for lack of proof. Ruling on the motion was reserved . The Respondent renewed all of its motions at the conclusion of the evidence . The motion to make - definite and certain, was again denied and ruling on the other two motions was reserved . The motions upon which ruling was reserved . are disposed of as hereinafter indicated.. Also at. the conclusion of the evidence the General Counsel moved ' to: conform the com- plaint to the proof as to formal matters such as names and dates. The motion was granted without objection. The General Counsel and the Respondent presented oral argument before the undersigned at the close of the hearing. All parties were - afforded an op- portunity to file briefs and proposed findings of fact and conclusions of law. At the request of the Respondent the time for filing briefs was extended to July 15, 1948. Briefs have been duly received from the, General Counsel and the Respondent. Upon the entire record, and from his observation of the witnesses , the under- signed makes the following : FINDINGS OF FACT 1. THE RESPONDENT'S SPECIAL DEFENSE AND MOTION TO STRIKE UNDER SECTION 10 (b) OF THE ACT On about September 23, 1947, G. H. Seago, Harry A. Griffith, J. A. Olmstead, H. Kentzel, and M. L. Zackula, individuals, filed a charge against the Respondent. This charge alleged that since June 14, 1947, the Respondent engaged in unfair labor practices as follows : 1. Has interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7. 2. Has discriminated in regard to hire or tenure of employment or tenure or condition of employment. KANSAS MILLING COMPANY 937 . Has refused to bargain in good faith with the bargaining representative of all production and maintenance employees, including second millers of the Company, excluding executives, supervisory employees, office workers and chemists. The Union filed an amended charge against the Respondent on or about No- 'vember 7, 1947, alleging the following:' It, [Respondent] by its officers,, agents, and supervisory employees, has, since June 14, 1947, refused to bargain in good faith with the undersigned labor organization as the bargaining representative of all production and maintenance employees (including second millers) of the Company, excluding executives and supervisory employees, office workers, and chemists, and refused to reinstate upon application the employees named in Appendix A attached hereto because of their activities in behalf of the undersigned labor organization.' On April 8, 1948, the Union filed another amended charge in which the alleged violation of Section 8 (a) (5) was dropped. This charge alleged as follows: It, [Respondent] by its officers and agents, has, since on or about August 11, 1947, threatened employees with the loss of their seniority and their jobs if they engaged in a strike; told employees, during the course of the strike which commenced on or about August 11, 1947, that unless they re- turned to work they would lose their seniority and their jobs; told em- ployees to repudiate the Union, and that unless they did so they would be discharged ; that on or about August 23, 1947, the Company, through its officers and representatives, discharged the employees listed on Appendix A,° attached hereto and made a part hereof, because of having engaged in .a strike against the Company, because of their membership in the Union, ,and because of engaging in other concerted activities for the purposes of collective bargaining and other mutual aid and protection, and thereafter refused to reinstate them for the same reasons as above. The Respondent contends, in substance, that the last amended charge super- sedes all former charges ; that the former charges were abandoned or withdrawn, becoming functus officio from the date of the filing of the last amended charge ; and that the alleged unfair labor practices listed in the charge of April 8, upon which Respondent contends the General Counsel's complaint was based, are ,barred by Section 10 (b) of the Act. In its brief the Respondent treats the charge as a pleading and cites authorities holding in effect that an amended pleading supersedes and voids the original. .Section 10 (b) of the Act, so far as relevant here, provides that: . . . No complaint shall issue based upon an unfair labor practice occurring more than six (6) months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six month period shall be computed from the day of his discharge. ° It appears that the Union also filed a charge on August 21, 1947, alleging violation of section 8 (a) (5). However, this charge was not offered in evidence. s This charge listed the names of 59 employees. ° Appendix A, referred to above, contains the names of 152 employees, including the 59 employees named In the charge filed on November 7, 1947. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both from the wording of Section 10 (b) and from the legislative history it is clear that the purpose was to eliminate "stale" charges. Thus the section should be construed as a statute in the nature cf a limitation. Contrary to the Respondent's contentions, I do not believe that the Act speaks with finality without the necessity of interpretation as to the procedural issues raised. The legislative history does not indicate that these questions were given specific consideration and the Act itself is silent in this respect. Although the restric- tion imposed by Section 10 (b) is phrased in the terms of the issuance of com- plaints, the actual time limitation relates not to the issuance of complaints,. but solely to the filing and service of charges. A charge is not a pleading.1° It is more in the nature of a summons in a civil action. A summons containing a- simple identification of the cause of action stops the running of a statute of limitations. The issue here presented is analogous. The filing and service of a charge stops the running of the statute.as to the unfair labor practices al- leged or identified therein. The question remains as to whether or not the alleged unfair labor practices in the instant case have been so identified. All of the above changes contain the same ease number (17-CA-4). The record indicates that none of the above three charges was withdrawn in accordance with the Board's Rules and Regulations. The charge of September 23 alleges inter-. ference, restraint, and coercion without setting forth a "clear and concise state- ment of the facts" constituting this alleged unfair labor practice, other than the date, and also alleges a conclusionary violation of Section 8 (a) (3) without naming any employees. In my opinion the former allegation has been sufficiently identified to meet the requirements of Section 10 (b), but not the latter. From the -wording of Section 10 (b) it is clear that Congress intended with respect to Section 8 (a) (3) that the case of each individual should be considered in the nature of a separate and distinct cause of action. The question of the insuffi- ciency of the September 23 charge, however, in connection with the alleged viola- tion of Section 8 (a) (1), is purely an administrative matter for the General Counsel's office under the Board's Rules and Regulations. The charge of April 8. merely amplifies or particularizes the alleged violation of Section 8 (a) (1y contained in the °pternber 23 charge. Therefore, I believe that the Respondent's special defense i der Section 10 (b), insofar as it pertains to the allegation frr the complaint of specific acts of interference, restraint, and coercion on and after August 9, 1947, does not have merit. The charge of November 7 alleges violations of Section 8 (a) (3) in that the Respondent since June 14, 1947, discriminatorily refused to reinstate upon application 59 named employees. Here the alleged unfair labor practices have been identified and, insofar as these 59 individuals are concerned, the running of the statute has been stopped. Although the dates of the alleged refusals to reinstate are not set forth in the charge, as stated above such insufficiency is not determinative. The charge of April 8, 1948, adds the names of 93 employees ; alleges that all named employees, including the 59 referred to above, were discharged on August 23, 1947; and further alleged that Respondent thereafter discriminatorily refused to reinstate said employees. With respect to the 59 employees, the allegation of discharge on August 23 is not barred by Section 10 (b), since it has been shown above that the running of the statute was stopped by the charge of November 7, or well within the 6-month per; o_l. Li the cs c of the other 93 employees, however, it is my opinion that the section clearly constitutes a bar as to any alleged ?° N. L. R, B. v. Indiana & Michigan Electric Co., 318 U. S. 9. KANSAS MILLING COMPANY 939k discriminations occurring prior to October 8, 1947, but not as to any alleged unfair labor practices within the meaning of Section 8 (a) (3) after that date. In this. connection it is noteworthy that the charge of April 8 alleges that the Respondent discriminatorily refused to reinstate the employees. Accordingly, I find that the Respondent's special defense has merit only to the extent above indicated. The findings hereinafter made will be consistent with this ruling. Accordingly, the motion to strike the testimony concerning events occurring prior to October 8, 1947, is denied. II. THE BUSINESS OF THE RESPONDENT The Respondent is a Kansas corporation, having its principal office and place of business in Wichita, Kansas, where it is engaged in the business of processing and milling grain. The Respondent, in the course and conduct of its business operations, causes and has continuously caused in excess of 33 percent of its raw materials, said raw materials having a total value in excess of $500,000, to be purchased, delivered, and transported from and through States of the United States other than the State of Kansas, to its Wichita plant; and causes and has continuously caused in excess of 50 percent of its finished products, having a total value in excess of $500,000, to be sold, delivered, and transported to and through States of the United States other than the State of Kansas, from its Wichita plant. On the foregoing facts alleged in the complaint and admitted in the answer,, the undersigned finds that the Respondent is engaged in commerce within the- meaning of the Act. III. THE LABOR ORGANIZATION INVOLVED American Federation of Grain Processors , A. F. of L., Local Union 20991, is a. labor organization which admits to membership employees of the Respondent. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background; events preceding the strike The Union was certified on September 2, 1939, by the Board as collective bar- gaining representative for Respondent's production and maintenance employees, including "second millers." Since that time the parties executed yearly collective bargaining contracts. In May 1947, pursuant to the renewal clause of the then existing contract which was due to expire on July 7, the Union gave notice of intention to modify. Negotiations were entered into between the parties and con- tinued from June 8 until the early part of August 1947. By that time an impasse had been reached on provisions relating to maintenance of membership, overtime pay, and the status of second millers. As to the latter, the Union claimed they should be included in the appropriate unit, and the Respondent wanted them excluded, contending that they were supervisory employees. On August 8, the employees voted to strike commencing on August 11; and the Union notified the Respondent on August 9 to this effect. While the negotiations mentioned above were in progress, and several weeks before August 11, H. D. Palmer, Respondent's labor relations director," was present during a discussion between some 15 employees. Although no strike action was contemplated at the time, the subject was mentioned. Palmer there- "Palmer was at one time , some 5 or 6 years before the hearing, the business representa- tive of the Union. "940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -upon told the employees in substance that there were "too many grievances" ; that "for God's sake, not to go out here and pull another strike, . .. the Com- pany was mad about it, mad about the one . . . in December," " that the Re- •-spondent would "fight (the Union) from here to hell"; and that many em- 13 ployees would "lose their jobs and get hurt." On about August 9, Palmer had a telephone conversation with employee R. H. McClain. After McClain advised him that the Union was going to. strike, Palmer stated in. substance that the Respondent would try to operate the plant during the strike ; that a good many employees were going to lose their jobs ; that the last strike had cost the Respondent $200,000; and that "we are not going to have the Union running our business." On the same day and in the presence of Dee McQuillen, Respondent's general superintendent, and Britton Finley, foreman in -charge of power and maintenance, Palmer spoke to a group of about 22 employees. .As to this conversation, Palmer testified credibly as follows : I told them I understood a strike had been called for 8 o'clock Monday morning and that they were all twenty-one and could make up their own minds, but that I just wanted to tell them what I thought would happen; that I knew they were in for trouble on it ; and that, if they wanted to work for the company, the company had a job for them and would give them every bit of protection that was possible ; that the company had told us that they wouldn't sign any kind of an agreement that would hurt the people that would stay on the job and work; and that I thought, if they went out on a strike, the company was going to fight it and fight it hard and I thought there were going to be a lot of people hurt and out of a job. And one former employee at Cardwell's wanted to know what kind of protection would be given. I believe he said some monkey threw rocks through his window lights during the Cardwell strike and I told him we would do everything possible; that personally I had taken care of myself a long time and I didn't intend to let anybody throw rocks through my windows. -Either at this time or during conversations with individual employees on the same day, Palmer also stated in substance that the employees had better look for other jobs if they went out on strike; that the Respondent was getting "damned tired" of the Union running its business; and that if the employees --struck, they would "lose out" and not have jobs. B. The events during the strike The strike began on August 11, 1947, as scheduled, and continued until October 17. The Respondent had in its employ at the start of the strike about 170 pro- duction and maintenance employees, of whom approximately 148 were members of the Union. The strike did not result in a complete shut-down, as the Respond- ent at the beginning operated the plant with between 25 and 30 employees, about 10 of whom were members of the Union. From August 11 to August 23, the Respondent hired 6 new employees ; and between August 24 and October 17, the Respondent hired 235 other employees 14 1° A strike of about 10 days' duration occurred at the plant in December 1940. 13 The above remarks of Palmer, and those hereinafter found and related, no doubt were misinterpreted by the employees, as is shown by conflicts in their testimony. Under the .circumstances the undersigned does not believe that Palmer made some of the statements ;attributed to him. However, there is no substantial conflict between the testimony of ;Palmer and most of the witnesses for the General Counsel regarding these conversations. 14 It appears that many of the new employees hired during the strike were for identical jobs, due to a rapid turn-over of the new and inexperienced help. KANSAS MILLING COMPANY 941 The strikers picketed the plant for the duration of the strike. There was no^ mass picketing. With a few exceptions, picketing was peacefully conducted, and no property damage resulted. For some few days after the beginning of the Strike, the pickets crossed the railroad tracks adjoining Respondent's plant and. effectively blocked railroad cars from entering the plant. The pickets were re- moved from the tracks by the Union when an action was threatened for violation. of State law. On August 11, 1947, the Respondent mailed a copy of the following letter to. all employees : The Union called a strike on us this morning at eight o'clock. According to. the story given the local newspapers by the Union, this was called because of our not agreeing with the Union on our second millers being in the union;. second, because of our failure to agree to maintenance of membership; third,. failure of us to agree with the Union that paid holidays would be used in. computing overtime. At the time of forming the union, the Union claimed second millers which, the company opposed because second millers are supervisors and operate the mill about sixteen hours every day without any other supervision. The second millers being in the Union has been a source of trouble ever since because of their divided loyalty between the Union and the Company as from a practical operation it developed that their loyalty to the Union came first. The new millers that the Union claimed were qualified last December are not even yet qualified, but the Company is still trying to make millers out of them. The Company was not in favor of maintenance membership but went along on this after a directive order during war days and continued this even after that period until the Union took advantage of our employees and because some of them told the truth in meetings between the Company and the Union, the Union fined them and removed them from certain union committees on which, they were serving. The-company feels that their employees, whether or not: members of the union, are entitled to fair treatment and fair play. As regards paid holidays, the company does not feel that they should pay for time not worked ; but, to try to avoid a strike the Company was willing to compromise and agree to paid holidays but with the understanding that those• paid holidays would not be figured in in computing overtime. Since this com- promise did not serve the purpose and the strike has been called anyway,. this is one condition previously agreed to by the Company that does not stand. The Union's statement to the local newspapers did not mention a number of other points not agreed on, including Union Shop, Adjustment for Maltsters. and Malt Men, Engineers, Traffic Manager, Sewing Machine Men in the feed, mill plus the Union insisting that their committee be consulted before the Company could discharge a man for cause and that their committee be allowed to pass on the qualifications of a man for a job. The last two items are strictly management responsibility and the Com- pany does not and cannot recognize that the Union has any right to insist: on those last two points. As regards Union Shop, we have no objections to any of our employees- belongifig to the Union if they desire, but we do not want to take any step, which would force any employee at any time to join the Union against his will. The above does not apply to foremen and those in a supervisory capacity whose efficiency would be destroyed by such membership. °..942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For those employees now working, all conditions and wages that the Com- pany agreed to, have been put into effect as of July 7, 1947 except paid holi- days, and the same will be done for you if you will report for work not later than Monday morning, August 18, 1947. Now the Company has tried its utmost to be more than fair and we think the vast majority of our employees want to be fair so don't you think in all fairness to yourself and the Company that you can see your way clear to come back to work if you haven't already done so? We are anxious to have you back and we hope you will see it that way, as we are sure that it will be to our mutual benefit. The Respondent mailed another letter to all employees under date of August 15, as follows : The executives of The Kansas Milling Company have an obligation to the owners-the stockholders-to operate our mills. Up to now, we have made no move to re-man our plants by hiring new employees as we have hoped that our old employees would return to their jobs. We think you will agree with us that we should not be compelled to wait indefinitely. After serious consideration of all elements of the problem, we have decided that a more than fair waiting period would be Saturday, August 23rd. We sincerely hope that you will return to your jobs within the time fixed as we would far prefer to work with our old employees and have them receive the benefits now provided for. If you do not return, the company has no other alternative than to hire new employees to take the jobs which you have vacated. We trust this will not be necessary. After August 15, Palmer and a group of Respondent's foremen solicited a number of employees, individually, to return to their jobs on or before August 23. In substance the employees were told that if they did not report back for work by that date, they would lose their jobs and seniority; and that thereafter if they wanted to return to work, they would be treated as new applicants for employment. About four of the strikers returned to work on or before August 23. On September 6, the Respondent sent letters to all employees who were still on strike, informing them that they were "no longer covered" under the terms of a .group insurance policy. Another letter dated September 12, 1947, was sent to the -employees, requesting them to remove their clothes and other belongings from -.the plant for the reason that they had "terminated" their employment.15 During the strike, the Union and the Respondent continued to hold meetings in an attempt to settle the dispute. The first meeting on August 14 was concerned with the issues which precipitated the strike. At meetings held on August 19 ,and August 26, it appears that the status of the strikers with respect to their rights as employees became the paramount issue. In substance, the Respondent contended at these meetings that the strikers had terminated their status as employees since they had not returned to work on August 23, and that they had .thereby lost their seniority rights and would have to be treated in the same manner as new applicants for employment. In this connection the reason advanced by the Respondent in support of its position was that it had hired new employees with the promise that the jobs would be permanent if they proved to be ^ The above two letters were sent to the strikers without regard to whether or not they had been replaced. KANSAS MILLING COMPANY 943 satisfactory." At the next meeting on September 16, the Respondent's position was that it should have the exclusive right to select the strikers who were to return to work and that the seniority of such employees would be "restored." At a meeting on October 7 a tentative settlement of the dispute was reached, and thereafter the strike was ended on October 17. A contract bearing the same date contains the following:17 (A) The Union will submit to the Company as soon as practicable, and within two (2) days after the signing of this contract a list of names of the employees of the Union who wish to immediately resume their employment, .at The Kansas Milling Company. (B) The Company agrees that it will as soon as possible upon receipt of said list, and not more than three (3) days thereafter, furnish the Union a list of those Union members 19 The testimony concerning these negotiations is not specific as to whether or not the Respondent contended the above applied to all strikers or just those whose jobs had been or would be filled before agreement to end the strike was reached. As of August 26, only 23 new employees had been hired, and the evidence conclusively shows that the Respondent considered that the strikers by their own actions had "terminated" their employment. Considerable testimony was elicited by the General Counsel from Respondent's witnesses on the subject of their conclusions as to the status of the strikers. Considering the fact that Respondent was represented by counsel at the negotiations, the undersigned does not consider such testimony as conclusive. With respect to the meeting of August 19, David S. Jackman, Sr., general manager of Respondent, testified as follows : I said the boys, when they walked out, had quit, and that we urged them to come back ; that two of these letters were sent to everyone in the union ; that everyone in the union was invited back twice. We told them it was our responsibility to run the plant and, if they didn't come back, we were going to have to hire someone to do the jobs they had, and, if we did hire somebody to take those jobs, we would leave them in, and there was no other status than that they would come back without seniority, because we couldn't discharge the men we had hired in their places. J. A. Leveridge, general vice president of the Union, testified that a Mr. Foulston, attorney for Respondent, was present at the meeting held on August 26, and that the following took place : Mr. Foulston, after we had discussed the issues for quite some length of time, says, "Art," he says, "I want to let you know that another issue has developed." He says, "I do not agree with my client." He says, "illy relations with this union has always been pleasant. But the position of my client is that your people have lost their seniority and will have to come back to the plant as new people; that they have an obligation to these people that they have hired during the course of the strike and, therefore, your people coming back affects their seniority and would knock them out, and we are not going to allow that, so your people have got to come back as new people." And, of course, we resented that a good deal, and shortly broke up the meeting. I told him, if that was their position, we might as well not negotiate any further. Foulston did not appear at the hearing as a witness, but Jackman testified concerning Foulston's remarks at the meeting of August 26 as follows : He said lie doesn't always see eye to eye with his clients; but, in this case, the employees had quit and he didn't see how we were going to settle this until that question was decided, namely, that once the employees have quit, they naturally lose their seniority, and we couldn't reestablish employees in jobs that had already been :filled under the union contract without giving seniority, and we couldn't give them their seniority and let the ones out we had hired, that that question would have to be discussed and solved before we could proceed further. Other witnesses also testified concerning the conversations at the meetings mentioned above. From all the evidence, the undersigned believes that the Respondent claimed at these meetings that all strikers had lost their seniority because they had "quit," regardless of whether or not their jobs had been filled. "The contract excludes second millers from the bargaining unit and provides for com- pulsory arbitration of grievances and of any "violation" of the contract. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Whom it will immediately put back to work, and (2) Whom it will put back to work as soon as possible and not to exceed a period of thirty (30) days. (C) It is further understood that the Company agrees to give every con- sideration to the re-employment of said persons who wish to resume their employment, in their former jobs, or in jobs as closely related thereto from the standpoint of skill and compensation, as possible, with the employees taken back having a preferential right to their old jobs in cases of vacancy.. For all those reemployed, the Company further agrees to restore full seniority rights, increase their classifications and adjustments retroactive to July 7, 1,947 and pay their back pay on said increases and adjustments for the hours worked from July 7, 1947, up to and including August 11, 1947, and to afford them full protection under the terms of this agreement. C. Events occurring after the strike On about October 18, in accordance with the above contract, the Union sub- mitted to the Respondent a list containing the names of 120 employees who desired reinstatement.i8 At a meeting of the Respondent's supervisory employees and officials held at about this time, the Respondent unilaterally decided upon the employees to whom it would offer reinstatement's On October 21, the Respondent sent the Union the following letter : 20 Complying with Section 12 (B)-(1) of the collective bargaining agreement, signed October 17, 1947, there is submitted below a list of the names of individuals for whom there is an immediate opening for their employment upon their application for work. Virgil Baker John L. Evans W. J. Barnett H. W. Haley J. O. Brisco J. B. Lewis Floyd Campbell Glen Louie Howard Cocks Orville Scholl Harry Spruell Under section 12-(B)-(2), being unable to forecast conditions thirty days hence, the company cannot comply. However, there is listed below the names of the individuals for whom preference will be given as soon as po- sitions may be open for which the respective men may qualify. P. A. Bafus Elmer Drown Orville Barrett Allen Dutton John H. Bidwell A. T. Fitzmaurice Joe N. Buckner Ned Plank Ralph Doornbas Charles Wilcutt 1a The names of these employees are shown on Appendices A and C, attached hereto. In addition, the name "Crebs" also appeared in the above list. 19 With respect to this meeting, Jackman testified, "I told the foremen to re-hire all the men that they felt would make good employees for the Kansas Milling Company or to put them on the call list and any time a job was open to take them back immediately and, If jobs were not open, to take them back as soon as they were." At the meeting a list of strikers to whom reinstatement would not be offered also was decided. Purported reasons for such action, as testified to by the Respondent's witnesses, were, for example, that the employees were "too old," "argumentative," or "inefficient." 20 As of October IT, when the strike ended, the vacancies that existed consisted of labor- ing jobs, and few, if any, skilled jobs were open. KANSAS MILLING COMPANY 945 Sam Harris Frank Stoss Delbert Morrow Andrew Weber W. H. McElkinny Jesse White Alfred J. Nixon Recy Wright S. H. Peavey E. P. Young H. E. Stockwell On November 6, the Respondent advertised in a local newspaper for "laborers," and also placed ads for "laborers and experienced mill hands" for 3 consecutive days in April 1948. After the end of the strike and while there were vacancies, .a number of strikers individually applied for reinstatement, but they were re- fused employment by the Respondent. Between October 17, 1947, and February .23, 1948, the Respondent hired 52 new employees, 40 of whom were hired within a period of 8 weeks after the end of the strike. The Respondent did not notify the Union or any of the strikers when vacancies existed. As of the date of the hearing herein, the Respondent had reinstated 34 of the strikers. Conclusions The General Counsel contends that the strike, originally economic, was turned :into an unfair labor practice strike for the reason that the Respondent warned and threatened the strikers that they would lose their jobs and seniority if they did not abandon the strike, and that the Respondent effectively discharged the .strikers on August 23. The Respondent contends that the strike remained eco- nomic throughout and that it therefore had the right to replace the strikers without being obliged to discharge the replacements at the end of the strike in order to make way for the strikers. The evidence shows that the Respondent determined to operate its plant during the strike, and that this determination was communicated to the employees by the Respondent's officials and supervisory employees immediately before the start of the strike and thereafter, and by the Respondent's letters, dated August 11 and 15. The statements made by the officials and foremen, standing alone, may be deemed coercive to some extent. However, Labor Relations Director Palmer in his statement to employees on August 9 prefaced his remarks concerning the possibility of employees losing their jobs with the statement that the Respondent would operate the plant during the strike. Undoubtedly his statements and those of other officials and supervisory employees were subject to misinterpretation by employees, since it does not appear that the employees specifically were told at the times in question that they would lose their jobs only in the eventuality they were replaced by new employees. Nor is the Respondent's letter of August 15 al- together clear in this respect. However, this letter, while erroneous in stating that the strikers had "vacated" their jobs, did advise them that new employees would be hired to operate the plant after August 23 if the strikers did not return by that date. Taken as a whole, this letter infers that the strikers would lose their jobs by reason of the fact that new employees would be hired to replace them. There is nothing coercive in the Respondent's letters of August 11 and 15, in my opinion, as the Respondent was merely advising the employees of its position on the strike and of its intentions concerning the operation of the plant. If the statements of Respondent's officials and foremen were misinterpreted by the employees, their doubts as to the Respondent's position were cleared by the above letters, and any coercive effect that may have resulted from such state- ments was thereby dispelled. Since the strike was economic at its inception, 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had the right to replace the strikers by hiring new employees, and under the law was not bound to discharge those hired to make way for the strikers upon termination of the strike 21 Accordingly, Respondent's warnings to the strikers of its rights and intended action could not be deemed to constitute inter- ference, restraint, and coercion within the meaning of the Act, and the under- signed so finds. As stated above. the Respondent in its letter of August 15 advised the strikers that they had `' acated" their positions. The Respondent also notified the strikers by letter dated September 6 that they were "no longer covered" under the terms of a "Group Insurance Policy" and by letter dated September 12 to, collect their clothes and personal belongings at the plant as they had "termi- nated" their employment. At the meetings with the Union on August 19 and 2Ev the Respondent claimed that the strikers had terminated their status as em- ployees, that they thereby had lost their seniority rights, and that they would be considered thereafter as new applicants for employment. Clearly, the Re- spondent was wrong in its contention that the strikers had "vacated" or "terminated" their employment. It is well established that strikers retain their status as employees 22 However, the Respondent receded from this position at the meeting on September 16, and it should be noted that there is no evidence that the Union as of that date had withdrawn its economic demands or made an unconditional offer to end the strike. Therefore, it could not be held that the Respondent's wrongful position prolonged the strike as of that time. The Union, as was its right, sought to enforce its economic demands. by the strike- The Respondent sought to counter the Union's efforts by exerting pressure to terminate the strike. Respondent's position that the strikers had vacated their employment and lost their seniority was part of its campaign. in this direction- Under similar circumstances the Board has exonerated the employer upon the ground that such action was primarily intended as a "tactical maneuver" de- signed to induce the strikers to abandon the strike and resume work." The undersigned believes that such a holding is. applicable to the facts in the instant case. Moreover, there is no evidence in the case of any antiunion attitude on Respondent's part. In fact, the evidence discloses that the Respondent bar- gained collectively with the Union for a number of years,, and continued to. recognize the Union as the exclusive bargaining agent upon termination of the strike by entering into the contract of October 17, 1947. Accordingly, I find that the Respondent did not discharge the persons named in Appendices A, B, and C, on August 23, 1947 , and I further find that the strike was . not converted into an unfair labor practice strike by any acts of the Respondent.. As related above, on October 18, 1947 , the Union sent to the Respondent a list containing the names of 120 strikers who desired to return to work. The Respondent by letter dated October 21 advised the Union that it would employ immediately 11 named strikers and that 21 other named strikers would be given "preference" for jobs when they became available. In accordance with its letter and after settlement of the strike on October 17, the Respondent reinstated some 22 or 23 of the strikers in October or the early part of November 1947. There is evidence that some few jobs, mostly unskilled or laboring,. were open upon 21 N. L. R. B. v. Mackay Radio and Telegraph Company , 304 U. S. 333. 22 Mackay Radio and Telegraph Company, supra ; Jeffery-Dewitt Insulator Company v. N. L. R. B ., 91 F. (2d ) 134 (C. A. 4). 23 Majestic Manufacturing Co., 64 N. L. R . B. 950. KANSAS MILLING COMPANY 947- termination of the strike or when the strikers made their unconditional request- for reinstatement. There is no conclusive evidence as to the number of such.- jobs or that they approached or exceeded 23. The burden of proving vacancies, rested upon the General Counsel. Accordingly, it appears and I find that the- Respondent reinstated all strikers for whom it had work on or about the time of the settlement of the strike or shortly thereafter. The General Counsel further contends that the evidence discloses that the Respondent discriminatorily refused to employ or reinstate strikers to vacancies- occurring after termination of the strike and after their unconditional offer to return to work.2{ In this connection the evidence discloses that the strikers- made an unconditional application for return to work on October 18; that as of February 23, 1945, 52 new employees were on the Respondent's pay roll, all of whom had been hired after settlement of the strike on October 17 ; that as of the• date of the hearing only 34 strikers had been reinstated ; and that the Respond- ent did not notify either the Union or individual strikers, when there were vacancies. Admittedly, the Respondent refused to rehire employees Harris,. Cain, Twy- man, Stockwell, Flake, Coplin, and Seago, wholly or partly by reason of their alleged misconduct during the strike.25 With respect to other strikers, Re- spondent contends that they were not offered employment for various reasons,- such as old age and inefficiency. Further, the Respondent contends that second millers are not entitled to protection of the Act since they are supervisory em- ployees; that certain of the strikers resigned their positions at the start of or- during the strike; and that certain other strikers were offered but refused- employment. The undersigned finds it unnecessary to resolve the above issues of fact and law, or to determine whether or not the Respondent discriminatorily refused- to employ the strikers. The contract between the Respondent and the Union contains provisions for settlement of the strike. As noted above, the contract- also contains an arbitration clause. If the Union felt that the Respondent. breached the contract by not rehiring the strikers, it should have exhausted its. remedies under the contract before resorting to the Board 26 This the Union. did not do, since it does not appear from the evidence that the Union at any time requested arbitration. The General Counsel contends that the arbitration- clause was not intended by the parties to cover the question of reinstatement. of strikers. This contention is rejected. The undersigned believes that the- Respondent's failure to reinstate strikers could have been taken to arbitration. under the contract. The contract provides for the reinstatement of the strikers, and the arbitration clause specifically states that a "violation" of the agreement- is a matter for arbitration. Accordingly, the undersigned does not pass on the- question of whether the Respondent's conduct in this respect would under other circumstances constitute unfair labor practices. It will be recommended therefore that the complaint be dismissed without prejudice, insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of the persons named in Appendices A, B, and C, attached hereto.. Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177; Container Mfg. Co., 75. N. L. R. B. 1082. 25 In the case of Coplin It appears that the Respondent was mainly concerned with his: activities as an official of the Union before the strike. 20 Consolidated Aircraft Corporation, 47 N. L. It. B. 094. '.948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has not engaged in the commission of any unfair labor practices, as alleged in the complaint, it will be recommended that -the complaint be dismissed in its entirety. Upon the basis of the above findings of fact and upon the entire record in the -case, the undersigned makes the following : CONCLUSIONS OF LAW 1. American Federation of Grain Processors, A. F. of L., Local Union 20991, -is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, as alleged in the complaint :herein. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, it is -recommended that the complaint against the Respondent, Kansas Milling Com- pany, be dismissed in its entirety, excepting that it be dismissed without prej- udice insofar as it alleges that the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3) after October 17, 1947. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including rul- ings upon all motions or objections) as he relies upon, together with the orig- inal and six copies of a brief in support thereof; and any party may, within the -same period, file 'an original and six copies of a brief in support of the Inter- mediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each ,of the other parties. Statements of exceptions and briefs shall designate by -precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as -required by Section 203.85. As further provided in said Section 203.46 should any -party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 27th day of September 1948. JOHN H. EADIE, Trial Examiner. KANSAS MILLING COMPANY APPENDIX A 949 D. F. Aubert Jack Harris Charles Shepherd Fred Bardwell Emery Hawthorne Earl Shepherd Orville Barrett G. M. Headley Lester Shepherd Clyde Beltz Wm. Hillman Frank Smith Gabriel Brown Arthur Hilyard J. W. Synder Lise Brown Wilmore Hobelman Charles Stanley Joe Buckner Fred Janzen H. E. Stockwell Paul Cain Franklin Kahler Lester Stockwell Floyd Campbell Jerome Kintzel, Jr. Wm. Stockwell G. W. Carter Jerome Kintzel, Sr. Hubert Symonds Howard Cocks Joe Kintzel John Terry Reymond Coplin Adren Laughrey George Thomas Howard Covey Andy Luster Lewis Tunnell James Crow Wayne Loney Ralph Twyman Harry Crowell Albert Louie Ralph Van Allen Lloyd Debacker Clay Lunderman Earl Vandry Ralph Doornbos Melvin Maguire Virgil Voorhees Wm. L. Doughterty Arlington Martin Wade Walden Elmer Dowell Ed Mathenia Clinton Wallace Harold K. Edwards S. P. McDaniels Louie Warren Silas Elders Harold McElhinny Andrew Weber Arthur Emo W. H. McElhinny V. E. Weber John Evans C. R. McIntire D. R. White M. M. Evans W. B. McLoud Jefferson White Harold Flake S. H. Peavey Ralph Wildman Cleo Gossman Carl Pyle Luther Wiltshire H. P. Griffin Albert Scholl Roy Winters H. A. Griffith Jesse Scholl M. L. Zackula A. A. Grunwald George Schweer Henry Zirkel T. J. Guice G. H. Seago Oscar Zirkel W. H. Haley A. H. See APPENDIX B Oscar Beene Earl J. Porter Thomas E. Young Glen F. Plank J. E. Parette Lewis Rhoden Jess O. Tilley Melvin Majors Herbert Mayer J. A. Waggoner P. R. Dobson Ned Plank Paul L. Mason R. C. Martin Tracy Dean Slawson Aubrey Bradfield John E. Chuculate John Walsh APPENDIX C Henry Batus_______________ 11/24/47 P. A. Bafus________________ 10/25/47 Virgil V. Baker_____________ 10/20/47 W. J. Barnet_______________ 10/20/47 John H. Bidwell____________ 11/ 6/47 J. O. Brisdoe_______________ 10/21/47 William Denton____________ 12/ 9/47 Elmer Drown______________ 10/25/47 867351-50-vol. 86-61 Allen Dutton--------------- 10/22/47 A. T. Fitzmaurice__________ 10/25/47 Sam Harris________________ 10/25/47 Joe Hornsby________________ 10/21/47 J. B. Lewis----------------- 10/20/47 Glen Louie_________________ 10/27/47 Gilbert Morrow_____________ 10/20/47 Alfred Nixon--------------- 10/29/47 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Olmstead______________ 11/20/47 Jesse White ________________ 10/29/4T J. W. Overstreet____________ 10/29/47 Charles Wilcutt________ ____ 10/22/47 Arthur Schick______________ 10/29/47 J. W. Woods ________________ 11/ 5/47 Arville Scholl _______________ 10/27/47 Recy Wright--------------- 11/ 4/47 Harry Spruell______________ 10/23/47 E. P. Young________________ 10/25/47 Frank Stoss________________ 10/27/47