Fitzgerald Mills Corp.

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer, and the Employer has no authority over any employee of the joint board. However, the Employer argues that joint board man- agers, who are its employees, must be excluded from the unit as su- pervisors because it appears that they may exercise over joint board clerical employees, on behalf of and subject to authorization from the joint board, some of the authority specified in Section 2(11) 5 of the Act, and because they also may adjust grievance of employees repre- sented by the joint board. There is clearly no merit in this contention. For, as the Board has previously indicated 6 the individual in question must be "em- ployed as a supervisor" ° with authority "in the interest of the em- ployer" to hire, etc., "other employees" of "the employer," to be a su- pervisor within the meaning of the Act, and thereby be deprived of the privileges and protection of an employee under the Act. As the joint board managers do not have supervisory authority over any employee of this Employer, we find that in their employment relationship with the Employer, which is the only relationship relevant here, they are not supervisors within the meaning of the Act. [The Board denied the motion, insofar as it seeks reconsideration of the aforesaid Decision and Direction of Election, on the ground that nothing has been presented in support thereof which would war- rant a reversal of the Board's finding therein, and directed that the Regional Director shall forthwith open and count the ballots im- pounded at the direction of the Board, and serve upon the parties a revised tally of ballots, including therein the count of said challenged ballots, upon the basis of which he shall issue the appropriate certification.] CHAIRMAN MCCULLOCH and MEMBER RODGERS took no part in the consideration of the above Supplemental Decision, Order, and Direction. s Section 2(11) : "The term `supervisor' means any individual having authority, in the interest of the employer, to hire . . . other employees, . . . or to adjust their griev- ances. . .. [Emphasis supplied.) 0 Buffalo Courier-Express, Inc., 129 NLRB 932, 936-937 ; Lindsay Newspapers, Inc., 130 NLRB 680, 683, 699-700. Also see Great Lakes Sugar Company, 92 NLRB 1408. 7 Section 2 (3) : "The term `employee' . . . shall not include . . . any individual em- ployed as a supervisor...." [Emphasis supplied.] Fitzgerald Mills Corporation and Textile Workers Union of America, AFL-CIO. Cases Nos. 10-CA-4681 and 10-CA-4719. November 7, 1962 DECISION AND ORDER On May 17, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that 139 NLRB No. 63. FITZGERALD MILLS CORPORATION 803 the Respondent had not engaged in and was not engaging in the un- fair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel and the Charg- ing Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent with our decision herein. 1. We agree with the Trial Examiner that the allegations that the Respondent has violated Section S(a) (3) and (4) should be dis- missed. Based on the preponderance of the evidence, we find that the Respondent did not discriminatorily deny reemployment to the strikers named in the complaint. 2. We do not agree with the Trial Examiner that the Board's find- ing in an earlier proceeding that the Respondent did not bargain with the Union in good faith 1 is res judicata of the refusal to bargain matter involved in the present proceeding. However, since there is an outstanding Board Order to bargain against the Respondent, we find it unnecessary to determine the 8(a) (5) issue here. Accordingly, in view of the foregoing we shall dismiss the com- plaint herein. [The Board dismissed the complaint.] i Fitzgerald Mills Corporation, 133 NLRB 877. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. On March 14, 1961, Textile Workers Union of America, AFL-CIO, herein some- times called the Union, filed a charge against Fitzgerald Mills Corporation, the Re- spondent herein, alleging that the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) of the Act, the basis of the charge being stated as follows: Since on or about October 15, 1960, the above-named employer discriminated against the employees listed on the attached Exhibit A in regard to the hire and tenure of employment and to the terms and conditions of employment. The Employer discriminated against the employees listed on the attached Exhibit B because they gave testimony under the Act. Since on or about December 29, 1960, and thereafter, the above-named em- ployer failed and refused to bargain with the undersigned, a labor oragnization certified as a collective-bargaining representative of the production and main- tenance employees of the above-named employer. 672010-63-vol. 139-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By these and other acts and conduct the Employer interferred with, restrained and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act. [Case No. 10-CA-4681.] On May 16, 1961, the Union filed a charge against the Respondent and on May 19, 1961, filed an amended charge against the Respondent alleging that the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. As a basis of the charge it was stated: Since on or about January 1, 1961, and thereafter, the above-named employer discriminated against the foll owing named employees in regard to the hire and tenure of employment and to the terms and conditions of employment and have subjected the named employees, ex-strikers, to a discriminatory hiring procedure: [listing 12 names]. By these and other acts and conduct the employer interfered with, restrained and coerced its employees in the exercise of their rights as guaranteed in Sec- tion 7 of the Act. [Case No. 10-CA-4719.] Thereafter, on February 6, 1962, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Tenth Region, on behalf of the Board, issued a complaint against the Respondent, based on the charges above described, in which it was alleged that the Respondent had engaged in and is engaging in unfair labor practices in violation of Section 8(a) (1), (3), and (4) of the Act.' The Re- spondent filed timely answer to the consolidated complaint, effectively denying viola- tions of the Act as alleged therein. Upon the issues framed by the consolidated complaint and the answer; this case came on to be heard before Trial Examiner Arthur E. Reyman at Fitzgerald, Georgia, on March 27, 1962, and was concluded and closed on the following day. All parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to present oral argument on the record. Briefs have been submitted on behalf of the General Counsel and the Respondent and have been carefully considered. The Respondent has renewed in writing its motion made at hearing to dismiss the consoli- dated complaint. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Fitzgerald Mills Corporation, the Respondent herein, is, and has been at all times material herein, a Georgia corporation, maintaining its principal office and place of business at Fitzgerald, Georgia, where it is engaged in the manufacture and sale of textiles. The Respondent during the 12 months immediately preceding the issuance of the complaint herein, which period is representative of all material times, sold and shipped products valued in excess of $250,000 from its mill at Fitzgerald, Georgia, directly to customers located outside the State of Georgia. The Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background and Summary Almost the entire background of this instant case is contained in the record in Fitzgerald Mills Corporation, 133 NLRB 877. The Decision and Order of the Board in that case was issued on October 31, 1961.2 The Union was certified by the Board on March 10, 1952, Case No. 10-RC-1339 [95 NLRB 948], as the majority representative for the Respondent's production and maintenance employees. Thereafter, a series of collective-bargaining agreements 1 On the same day the consolidated complaint was issued , an order was entered con- solidating the cases for hearing and a notice of hearing Issued. 2 This case presently Is pending on review in the Court of Appeals for the Second Circuit [313 F. 2d 260]. FITZGERALD MILLS CORPORATION 805 were entered into between the Respondent and the Union, the latest expiring in March 1959. In 1959, negotiations for a new agreement reached a deadlock and the Union went on strike on May 11 of that year. On July 7, 1959, the strike terminated and thereafter the striking employees sought reinstatement. Thereafter, a complaint was issued against the Respondent in Case No. 10-CA-4176, that complaint alleging violations of Section 8(a) (1), (3), and (5) of the Act and set forth that, during the negotiations, the Respondent had engaged in numerous acts of interference, restraint, and coercion, discriminatorily refused to reinstate striking employees at the termina- tion of the strike, caused and prolonged by the Respondent's unfair labor practices. In his Intermediate Report in that case, issued on June 29, 1960, the Trial Examiner recommended that the complaint be dismissed in its entirety. Thereafter, the Board, on October 11, 1961, issued its Decision and Order in Fitzgerald Mills Corporation, 133 NLRB 877, finding that the strike was an unfair labor practice strike caused by the Respondent's refusal to bargain and ordering the Respondent to bargain with the Union and reinstate 159 employees found to have been discriminated against, including all of those named in the complaint in the instant case. The Board also found an 8 (a) (1) violation because the Respondent required the strikers to make application for reemployment as new employees. Because the Trial Examiner had recommended dismissal of the complaint, the Board, in accordance with its established policy, did not order backpay for the period between the issuance of the Intermediate Report and the issuance of the Board decision.3 The General Counsel states his theory of this instant case to be: The alleged un- lawful acts of the Respondent consisting of 8(a)(3), (4), and (5) violations all occurred between the issuance of the Intermediate Report and the Board's Decision and Order in 133 NLRB 877. The Board's Order provided for reinstatement with backpay for all of the alleged discriminatees herein. Also, the Respondent has been ordered to bargain with the Union. Regardless, however, of the Board's Order in the prior case, it is contended here that the Respondent committed separate and distinct Section 8(2), (3), (4), and (5) violations which warrant a separate remedy. The alleged separate 8 (a) (3) violations, herein, it is said, entail the Respondent's hiring practice of requiring striking employees to make weekly application for employ- ment while simultaneously hiring nonstrikers and new employees on a very informal basis. This aspect of discrimination was never before the Board in the prior case. Thus, the General Counsel says, there is no attempt to circumvent the Board's policy of abating backpay between the unfavorable Intermediate Report and the Board's decision; this case simply presents for consideration whether or not Respondent com- mitted independent discriminatory acts on the dates alleged, and the fact that the alleged violations occurred between the Intermediate Report and the Board's decision is of little consequence in determining whether the Act has been violated. Further- more, if the Board's decision in the prior case should be reversed by the circuit court, this case, it is contended, would stand on its own merits. For the reason stated below, I consider this theory fallacious and specious. A. The alleged refusal to bargain On December 29, 1960, and again on January 24, 1961, the Union presented in writing a request to bargain, which has not been agreed to by the Respondent. On February 1, 1961, Respondent replied to the two letters of the Union, stating that it did not believe the Union was designated by a majority of its employees or had been at any time since August 1959. On February 28 the Union again claimed that it represented a majority of the employees and offered to meet and discuss any arrangements for having a card check made by an impartial third party. On March 7 the Respondent declined, saying that it did not believe the Union represented a majority and would enter into no discussions or dealings with it. Other than evidence concerning this offer to show cards, there is no proof in this record or showing made that the Union actually could prove a majority. The au- thorization cards, if in existence, were not offered at the hearing. The General Counsel and the Charging Party rely upon the 1952 certification as giving the Union bargaining rights. In the circumstances of the instant case, the certification is stale, and in itself cannot support a claim that the 1952 proven majority existed in the year 1962. The background herein shows that after the Union lost the 1959 strike, the strikers, some 165 out of some 350 employees, applied 3 I am cognizant of the decision of the Board in A.P.W. Products Co , Inc., 137 NLRB 25 In view of my Recommended Order here to dismiss the case as res Judicata and for failure of proof of new violations of Section 8(a) (3), I do not believe A.P.W. Products Co., Inc., to be applicable. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for reinstatement to their jobs, but that only the first 20 of them were reinstated, the rest of the strikers having been replaced by new employees. The mere fact that only a minority number of employees went on strike might be an indication that the Union at that time did not represent a majority of the employees within the bargaining unit, even though it had negotiated several prior effective collective-bargaining agreements, or that the Board subsequently decided that the strike was not an economic, but an unfair labor practice strike. Be that as it may, the question of good- or bad-faith bargaining by the Company has been adjudicated by the Board in the prior case, 133 NLRB 877, and the Board has found that the Respondent has violated Section 8(a)(5) of the Act, and has entered its Order on that finding. The demand to bargain made by the Union in 1961 does not in itself constitute a force sufficient to require the Respondent to forthwith accede and to enter into immediate negotiations. There is no order which could be entered herein any different from the one entered by the Board in the prior case. The issue raised is res judicata. The motion of the Respondent to dismiss the complaint in this respect should be granted. Should the Board disagree with me that this issue is res judicata, then I find a failure of proof of a union majority on December 29, 1960, or on January 24, 1961. A mere exchange of correspondence in which the Union on the one side asserted a majority, is not sufficient to prove that an actual majority existed on either of those two dates. B. The alleged Section 8(a) (4) violations The complaint alleges that eight named employees who applied for reinstatement have been refused reemployment because they gave testimony under the Act in the prior case. No evidence was offered to support these allegations. I cannot find on surmise only that the reason these named employees were not reinstated was be- cause they gave testimony under the Act. In the absence of any proof to that effect, I shall recommend that the complaint in this respect be dismissed. C. The alleged 8(a) (3) and (5) unfair labor practices There is no question concerning the fact that all the employees named in the consolidated complaint 4 on and about September 14, 1960, applied for work. The General Counsel contends that the Respondent violated Section 8(a)(3) of the Act by requiring former strikers to make weekly applications as new employees while simultaneously considering individuals who were not engaged in the strike for employment on the basis of its former hiring policy and by refusing to reemploy these alleged discriminatees upon their application for work. As noted above, the Respondent reemployed 20 strikers, the first ones who applied for reinstatement upon the termination of the strike in July 1959. Under date of July 10, 1959, the Respondent wrote all strikers who had applied for work, as follows: If you wish to be considered for future vacancies, it will be necessary that you keep in touch with Mr. Cooper (plant superintendent) or our Personnel Office. This should be done no less frequently than once a week if you wish to be regarded as a current applicant for work. It is our policy to fill vacancies from those persons who are current applicants and not on the basis of written applications. Prior to May 9, 1961, a number of letters were received from strikers by the Company, registered mail, return receipt requested. These letters were addressed to Ernest O. Clark, plant manager, and read as follows: This is to advise you that I am available for employment at the Fitzgerald Mills, Fitzgerald, Ga., within 24 hours notice on any shift and in any depart- ment in the mill. These employees by name are: Evelyn Bishop Sewell Gunter Shelley Reeves Lonnie E. Baughan Harrell Jowers Ola Rogers Louise L. Baughan James W McCall Wardell Sutherland Charlie Bond Ruby W. McCall Reese B. Swailes Haywood Clark, Jr. Esther McDonald Edmond L. Treadwell Bernard C. Grimsley James F. McDonald Harry Turner Nathaniel Gunter Jessie H. McDowell Earline Walsh Ruby Gunter Tessie H. Peacock Lula Walsh FITZGERALD MILLS CORPORATION 807 Prior to my layoff, I was employed at Fitzgerald Mills for years and my jobs in the plant were as follows: To make my recall to work less complicated for the Company, I am desig- nating Mr. Bernard Grimsley as my contact with the Company should the Company see fit to recall me to work . Mr. Bernard Grimsley can be reached at route 1, box 99X, Fitzgerald, Ga., Telephone 7236. Looking forward to my recall to work, I remain, Very truly yours, Name --------------------- Address-------------------- Phone --------------------- These letters were answered under date of May 9, 1961 , by the Company, signed by Ernest Clark, general manager. The answering letter read as follows: This will acknowledge your recent registered letter . As you are aware, we have had for sometime a hiring practice under which we hire people who are available at the gate at the time the vacancy occurs. Since this method of hiring has proven satisfactory to us, we see no basis of varying it at this time. If you wish to be considered for employment in the future, it would be neces- sary that you conform with our practices. The suggestion made in your recent letter is not in keeping with our practice. After the Company's letter of July 10 , 1959, many employees adopted the method of applying for work from time to time by mailing postcards to the Respondent noting the employee's availability for work and requesting employment or reinstate- ment. Some employees sent postcards from time to time while at least two em- ployees and perhaps others mailed such a card to the Respondent each week. The card method was adopted first, apparently, to comply with the requirement that an application must be filed at least once a week in order to be regarded as a cur- rent application and, second , that an employee might be either out of town and in a town or city or place other than Fitzgerald, or it might happen that an em- ployee living in Fitzgerald found it inconvenient or too expensive to call and file a written application each week. On May 23, 1961 , Bernard C. Grimsley (who at the time of the hearing had been back to work for about 51 months ) and an employee, one Swailes , presented a list of strikers who wanted to return to work to Superintendent Cooper, who refused to accept the list and referred Grimsley and Swailes to the company letter to employees setting forth hiring policy. All postcard applications were disregarded by Cooper. As noted, the General Counsel asserts that the discrimination lies here in the hiring policy for former strikers (the alleged discriminatees ) and its hiring prac- tices for nonstrikers and new employees. The following stipulation was entered into between counsel at the hearing: Mr. PROWELL [for the Respondent] : If it will save time, we are willing to do this. I think he has got some 15 or 20 mentioned in the complaint and we will stipulate with him [the General Counsel ] that we have hired approxi- mately 50 people since the strike was called off who had either worked for us before or were not working at the time of the strike , I'll say that, but whether somebody is a new employee or not, it's going to be impossible , I think, to de- termine. Mr. STANFORD [for the Charging Party ] : I said new employees. It's used in the sense that he was not working at the time of the strike. Mr. STANFORD : All right. 1 propose to stipulate with Mr . Powell, at his suggestion, I will here accept his stipulation that since September 14, 1960, up to the present time, that Fitzgerald Mills Corporation has hired approximately 50 persons to work in the production and maintenance unit. Mr. PROWELL : That is all right. We will agree to that. Mr. STANFORD : And these persons were new employees in the sense that they were not working at the time the strike occurred on May 11, 1959. TRIAL EXAMINER : That seems to cover it. Mr. McLuiE [for the General Counsel] : I will stipulate to that also. Before considering individual cases, it seems convenient to review company hiring practices which, I find, on a basis of the testimony of General Manager Clark and Plant Superintendent Cooper , generally were in effect at all times and are and were definitive of company hiring policy. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of the strike in May 1959, the Respondent employed approximately 3510 persons in the appropriate production and maintenance unit established by the Board in 1952. For a number of years before the strike and thereafter, the oper- ation of the plant had been under the supervision of the General Manager, Ernest Clark; during this period, most of the employment of personnel was the respon- sibility of and was handled by General Superintendent Joe Cooper. Both the gen- eral manager and the superintendent testified that there has not been any change in hiring policy from that in effect prior to the strike, and that for many years it was necessary for any applicant to apply in person at the mill for work and, if a job was available and the applicant was qualified, he was put to work. It is said that there were and are always a number of people applying at the gate so that as a practical matter the Respondent has had no difficulty in filling vacancies by the method of hire "at the gate." Superintendent Cooper said that very frequently em- ployees know that a job is going to be vacant or know that someone is going to ask for leave of absence before he, himself, is aware of it; he related a number of occurrences where employees have told him they knew there was going to be a vacancy on the job and that they had a son or daughter who would like to apply for it; that even when there were no vacancies some parents or other relatives em- ployed in the plant had asked him about putting relatives to work as soon as possible and that he has followed a general policy of giving preference, if possible, to the employment of relatives of current employees. The plant does not employ a personnel manager or conduct a personnel depart- ment as such. A receptionist in ordinary course takes the names of applicants. However, there never has been great difficulty experienced in filling available vacancies and, according to both the general manager and the general superintendent, there is generally an oversupply to the point where Cooper said that he has had to discourage the practice by some applicants of coming to his home to inquire about employment. As to the applicants whose names are left with the receptionist at the mill office, these applications are not retained for longer than the current week, after which they are discarded. When a vacancy opens at the plant, Cooper is required to fill it immediately in order to keep production going and on occasions which have been very few, if there is no applicant available he checks the names kept for that week by the receptionist in the search for an applicant for a specific type or job so that if one of the names left at the office is that of someone qualified for the vacancy which has become or may become available during that week and there is no other applicant, Cooper will communicate with the qualified applicant if he lives in the vicinity. The Respondent's witnesses maintain without contradiction that never at any time has it been the Respondent's policy to accept mail applications or group applications. The "at the gate" hiring practice, without question, was firmly established prior to the strike, and the policy of the Company, as described by Clark and Cooper, has been substantially if not entirely adhered to, the policy and practice being as described immediately above. There is no evidence in the record at any time in the past either before, during or following the strike when the Respondent kept a cumulative record of applicants, or of any occasion when the Respondent held a job open or offered employment by mail. There is considerable testimony in the record from employees themselves that it was necessary for them in the past to apply several times in person before a vacancy was found and they were employed. Instances on which the General Counsel relies to show a dissimilarity between the hiring of strikers and nonstrikers or new employees include instances such as the following: William E. Lusk secured employment for his daughter by talking to Superintendent Cooper, and at the time she was hired his daughter had made no personal application of any kind to Cooper before she was hired in January 1961. Sam Mathis made an application for employment for his daughter who eventually was hired. Aubrey Nicholson, a witness called by the General Counsel, was not a striker. He had originally been employed by the Respondent in 1955 and at the time of the strike was living in Florida. Before the strike began, he had made application to Cooper about four or five times before he got a job. He was aware, before the strike, that to be considered for a job it was necessary to see Cooper and, according to him , the same policy has been in effect since the strike . Lummus Clemons is currently employed by the Respondent. She testified that she had been employed off and on by the Respondent since the year 1943 and has quit or been laid off many times. She was not a striker ; she did not file any application for employment during her layoff between July and September 1961, applied twice in December , and as a result of applying in January 1961, she was employed; later, in September 1961, she applied several times before she regained employment. FITZGERALD MILLS CORPORATION 809 Dewey Thomas testified that his mother and father, who had been strikers, were hired after the strike was called off; that he personally applied to Cooper but was not able to obtain employment until after his mother had talked to Cooper on his behalf. Robert Smith, who is not a striker, first was employed in June 1960, and, according to his testimony, it was necessary for him to see the superintendent be- fore being hired; that he had returned once a week for some weeks before he was employed. These employees are mentioned by counsel for the General Counsel in support of the proposition that these instances prove that Respondent did not require these employees to keep in touch with Cooper no less frequently than once a week. The record reveals a number of instances where strikers, apparently cognizant of the "at the gate" policy of the Company, applied for work several times after the strike before obtaining employment. The testimony of Shelley Reeves, Raymond Portivent, Haywood Clark, Jr., Daniel J. Cobb, Mardell Sutherland, Allen Ethe- ridge, and others support the contention of the Respondent in regard to its policy and practice regarding hiring. There is no showing of animosity against former employees in connection with the company practice of requiring them to apply in person at the mill for employment. With regard to those few instances of the hiring of daughters and other relatives, without them personally being interviewed by Cooper, strike me as situations which might be called a constructive standing at the gate. The instances related as com- pared to those where employees were hired at the gate, makes this type of hiring simply an occasional exception to the requirement that an employee apply in person fora job. The at-the-gate hiring practice admittedly is loose; however, it differs in no great respect at the Respondent's mill than practices in other southern Mills engaged in the industry. In Commander Mills, Inc., 106 NLRB 513, the Board wrote (p. 514) : We note too, as urged by the Union, that Smith and his wife completed applications indicating their desire to be considered for reemployment and mailed them to the Respondent, by registered mail. It is uncontroverted, how- ever, that neither Smith nor his wife ever applied in person for reemployment from the time of their layoff until the time of the hearing, and that it was the Respondent's policy to hire "at the gate." Despite the outstanding efforts of the Smiths in behalf of the Union in 1952, immediately preceding their layoffs, we find, as did the Trial Examiner, par- ticularly in view of the lack of evidence of hostility by the Respondent against the Smiths or the Union and the failure of the Smiths to apply in person for reemployment, that the Respondent has not discriminated against Earl Garth Smith or Bernice Smith. The General Counsel and the Charging Party, under the theory of the case as stated by the General Counsel, have, in effect, urged me to recommend an order in this proceeding which would enlarge the Order in the prior case to provide full backpay for the strikers named in the consolidated complaint, from the time in July 1959 when they applied for reinstatement until the date of an offer of rein- statement is made to them by the Respondent. This I will not do. Each striker named in the consolidated complaint has been ordered reinstated, according to the Board's Order. The matter of reinstatement and backpay to me is res judicata; I do not believe I can, in the absence of compelling authority, with propriety, recommend such an order. After hearing this case, I am of the opinion that the consolidated complaint herein was improvidently issued, that issues raised in these consolidated cases have been decided by the Board, and that the General Counsel has failed to prove by the preponderance of the evidence herein the unfair labor practices alleged. Not only has the General Counsel failed by the preponderance of proof to prove the "new violations" alleged in the consolidated complaint, but he was failed to con- vince me that these are, in fact, new violations. D. Limitation of action under the proviso of Section 10(b)5 Counsel for the Respondent points out that counsel for the General Counsel has taken the position that his case is based on an alleged change in company hiring policy and practice. He says, and I agree, that in order to sustain this position the General Counsel is required to prove the change in hiring policy existing at the time "Section 10(b) reads as follows: .. . Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge 11 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike was called off on July 10, 1959, and furthermore, is required to prove that if such a change in policy was made, it was made for the purpose of and did, in fact, result in discrimination against the strikers. If a change in policy or practice did occur, it must have occurred more than a year before the filing of the first charge on March 14, 1961 . Under Section 10(b), therefore, September 16, 1960, must be the latest cutoff date, more than a year after the termination of the strike and the failure to employ all strikers who applied for reinstatement. As recorded in footnote 2, supra, Case No. 10-CA-4176, the prior case, 133 NLRB 877, is now pending before the Circuit Court of Appeals for the Second Circuit. In view of my findings set forth above, I do not find it necessary to determine whether the proviso of Section 10(b) is applicable in the instant case . If it were necessary to decide the question, I would find that the acts complained of here, even if the evidence supported them, cannot be construed as continuing violations of such a nature as would toll the running of the limitation proviso of Section 10(b) of the Act. Upon the basis of the foregoing findings of fact, and on the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Fitzgerald Mills Corporation, the Respondent herein, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the consolidated complaint. 4. The General Counsel has failed by the preponderance of evidence to support the allegations of the consolidated complaint. 5. The motion of the Respondent to dismiss the consolidated complaint herein should be granted. RECOMMENDED ORDER I recommend that the motion of the Respondent to dismiss the consolidated complaint herein be granted, and that an order be entered dismissing the consolidated complaint in its entirety. West Penn Power Company and Utility Workers of America Sys- tem Local 102, CIO. Case No. 6-RC-846. November 7, 1962 DECISION AND ORDER On June 20, 1951, following a consent election, the Board certified the Petitioner as the collective-bargaining representative of the follow- ing employees : "All load dispatchers of the West Penn Power Com- pany who are located in the Springdale, Pennsylvania, power station, and Charleroi, Pennsylvania, dispatching center, excluding all other employees and guards, professional employees, and supervisors as de- fined in the National Labor Relations Act, as amended." There- after, the parties entered into collective-bargaining agreements cover- ing this unit. On February 7 and March 14, 1962, the Employer filed motions with the Board for clarification and/or amendment of the certification, contending that certain employees classified as "transmission and dis- tribution supervisors" were supervisors within the meaning of the Act, and were not, therefore, properly includable in the bargaining unit. On March 15, 1962, the Petitioner filed its statement of position on the Employer's motions. 139 NLRB No. 64.