Colour IV Corp.

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Colour IV Corporation and Graphic Arts Internation- al Union, AFL-CIO, CLC, Local 267.1 Case 16-CA-4547 March 1, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 20, 1972, Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. The principal issue in this case is whether Colour IV Corporation (hereafter, Respondent) refused to reinstate Gary Groves, an economic striker, as a color screener in November 19713 for a legitimate and substantial business reason. The Laidlaw Corpo- ration, 171 NLRB 1366. For the reasons below, we find in agreement with the Administrative Law Judge that Respondent's refusal to reinstate Groves did not constitute a violation of Section 8(a)(1) and (3) of the Act. The facts, which are more fully set forth in the Administrative Law Judge's Decision, are as follows. Since 1963 Respondent, a photoengraving and printing firm in Dallas, Texas, has recognized Local 267 (hereafter the Union) as the representative of its employees within the Union's jurisdiction. The latest bargaining agreement between the parties expired in May 1971, when the parties were unable to reach i On September 4, 1972, Lithographers and Photoengravers Internation- al Union and International Brotherhood of Bookbinders merged to form Graphic Arts International Union 2 The General Counsel's motion to correct the record to show that the name of Respondent 's vice president at the time of the strike was Weldon Hutson and not Weldon Hudson is hereby granted 3 All dates are in 1971 unless otherwise indicated 4 That Respondent expected Groves to be able to produce at approxi- mately the journeymen's rate is indicated by two facts First , it started him at $4 25 an hour, only $ 43 an hour below the starting journeyman 's rate, and agreed to raise him to $4 50 an hour if he successfully completed a 6- week probationary period Second , under Respondent's contract with the Union, Groves was at most 2 years from journeyman status , and thus his experience alone indicated that his productive abilities would be more like those of a journeyman than an apprentice 5 Both Wilson and Johnson testified that Groves never produced more than one properly exposed and developed color positive a day Groves asserted that the normal journeyman rate was five a day , and that he agreement on a new contract. In order to bring economic pressure on Respondent, the Union banned its members from working overtime. During this period Respondent had the greatest volume of work in its history, much of it color printing work. An integral part of the color printing process could only be done by Respondent's two color screeners, Herschel Johnson and Lloyd Wilson, both journey- men, who were, however, unable to complete all of their work within normal working hours. Respondent did have the option of hiring more journeymen color screeners, but it had been unsuccessfully seeking them for more than a year both from the Union and through newspaper advertisements. It was under these circumstances that Respondent learned of the availability of a 3-year apprentice color screener, Gary Groves. Although he was not a journeyman, Respondent immediately hired him, expecting that, in view of his substantial experience and good recommendations from his previous employer, Groves would quickly familiarize himself with the unique equipment and processes of Respon- dent's plant and thereafter produce at virtually the same rate as a journeyman.4 Its expectations, however, were unrealized. Groves was able to do color screening, which involves photographing color materials to be printed and then developing the exposed film, but at a rate only one-fifth that of the journeymen.5 Groves worked for Respondent only 17 days, after which he and the other unit employees, including Johnson, Wilson, and Melvin Taylor, the color screening superintendent, went on strike. The strike, which began on August 9, ended on August 16 with the inception of Phase I of the Economic Stabiliza- tion Program. On August 17 Respondent met with the Union, offered immediate reinstatement to certain strikers for whom positions were available, and agreed to give preference to the remaining strikers according to seniority in filling future vacancies in positions they previously held.6 Of the three color screeners, two, Groves and Johnson, were produced that many at least on one occasion We need not resolve this conflict in testimony, since it is clear that except on one occasion Groves' production rate was substantially below that of thejourneymen 6 It is undisputed that in making this agreement with the Union Respondent did not explicitly waive its right to refuse to reinstate strikers for subsequent legitimate and substantial business reasons We conclude, for the following reasons, that it also did not impliedly waive that right First, when Respondent at subsequent negotiating sessions with the Union raised the subject of limitations on its duty to reinstate strikers , the Union did not once assert that on August 17 it had understood Respondent to agree that it would reinstate all strikers unconditionally when positions became available Second, since Respondent's August 17 agreement exactly paralleled the requirements of the Act as set forth in The Laidlaw Corporation, supra, and since the parties in their subsequent meetings negotiated with explicit reference towards Respondent's obligations under the Act as regards the reinstatement of strikers, we find that the only reasonable interpretation of the August 17 agreement was that Respondent offered to comply with the Act in reinstating strikers , and no more We 202 NLRB No. 22 COLOUR IV CORPORATION not offered immediate reinstatement. Lloyd Wilson had been reinstated before the strike ended and Johnson's position had been filled by Estelle Weiss, a journeyman color screener hired as a permanent replacement during the strike. Respondent had no need for Groves at the time because there had been a sharp reduction in its business after the strike, and it had found that its two color screeners, Wilson and Weiss, could satisfactorily accomplish the work.? Around mid-November Respondent decided to transfer Estelle Weiss to another position and in accordance with the August 17 agreement notified the Union of an opening for a color screener. Respondent requested it to send Herschel Johnson. Johnson refused to return to work at the time, and the Union sent Groves. On November 17 Groves reported to James Webb, Respondent's chief execu- tive officer, but Webb refused to reinstate him because Respondent was in need of someone with a journeyman's qualifications and Groves did not have them. At Groves' request, Webb then consulted with Melvin Taylor, the color screening superintendent, and Harold Bishop, the plant superintendent. Both men agreed that Groves did not have the necessary qualifications. In exclusive reliance on their opinion, Webb then reaffirmed to Groves the decision not to reinstate him. Taylor later explained that, when he told Webb that Groves was unqualified, he meant that Groves could not do the work required of a journeyman. In the context of Taylor's other testimo- ny, it is apparent that he was referring to Groves' inability to do color screening at the rate expected of a journeyman color screener.8 Herschel Johnson subsequently accepted the color screener position; only then did Respondent effectuate the transfer of Estelle Weiss. We agree with the Administrative Law Judge that the sole reason Respondent refused to reinstate Groves on November 17 was that he did not have the qualifications Respondent then required of its color screeners.9 We also agree with the Administrative Law Judge's finding that Groves in fact did not have therefore reject the General Counsel's contention that Respondent agreed on August 17 to reinstate all strikers unconditionally when positions became available ' Since Respondent did not reinstate Groves on August 17 because at that time it had a full complement of color screeners, we agree with the Administrative Law Judge that it had a legitimate and substantial business reason for refusing to reinstate him then However, we do not agree with the Administrative Law Judge's finding that Groves' position of "apprentice color screener" was abolished after the strike Groves' position was simply that of color screener Although he was an apprentice , the functions he performed were identical to those of the other color screeners who were journeymen Moreover, there were no changes made after the strike in the normal functions of the color screeners which would have differentiated their positions from the one Groves held before the strike 8 Taylor's comments make it plain that the reason Respondent refused to reinstate Groves was not that he lacked journeyman status, but that he lacked a journeyman's productive abilities, or, as Webb and Taylor termed 45 those qualifications. Whether he even had the qualifications Respondent required of a color screen- er before the strike is open to question, since, as we noted above, his average production rate was only one-fifth that of the journeymen color screeners. Before the strike there were business reasons war- ranting Respondent's tolerance of Groves' low level of production. It had the greatest amount of work in its history, most of which had to pass through the hands of color screeners, the Union had banned overtime work, and Wilson and Johnson were unable to complete all the work without working overtime. Therefore, anything Groves could contribute to- wards increasing the rate of production was of some value. However, when Respondent's volume of business declined sharply after the strike, the business reasons for which Respondent had formerly overlooked Groves' marginal productivity ceased to exist . Having determined to operate with only two color screeners after the strike, Respondent justifi- ably wanted both workers to have the productive capacities of journeymen. Groves did not have those capacities, since his normal production rate was only one-fifth that of a journeyman. We therefore find that Respondent had legitimate and substantial business reasons for refusing to reinstate him in November. Accordingly, we shall dismiss the com- plaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. it, a journeyman's qualifications Had Groves had the productive abilities, the collective-bargaining agreement between Respondent and the Union provided that by agreement between the parties his status could be changed from apprentice to journeyman even though he had not served the 5 years' apprenticeship ordinarily required of journeymen His lack of the requisite status could therefore have been corrected easily, but his lack of the requisite qualifications could not have been 9 The General Counsel contends, contrary to the Administrative Law Judge's finding, that there was an additional reason for Respondent's refusal to reinstate Groves, namely, the fact that he had charges filed against him as a result of certain alleged strike misconduct occurring on August 17 This matter was the subject of conflicting testimony Eli Harris, the president of Groves' union, testified in accord with the General Counsel's contention , while James Webb, Respondent's president, testified in accord with the Administrative Law Judge's findings The Administrative Law Judge therefore necessarily made a credibility resolution in favor of Webb, and the General Counsel's contention amounts to an exception to that credibility resolution It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 N LRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE be placed on a preferential hiring list to be recalled according to seniority as vacancies occurred. At the end of the strike , one of the two journeymen color screeners, Lloyd Wilson, who had been on strike, returned to work, while the other striking journeyman color screener, Herschel Johnson, and Groves were not reinstat- ed. Some 3 months later, Respondent, in accordance with the procedure agreed upon, requested the Union to send Johnson for a color screener opening. When Johnson refused the offer, the Union sent Groves for the position, as the next senior color screener not previously reinstated. Respondent refused to reinstate Groves on the ground that he was not qualified for the position. General Counsel contends that Groves was qualified for the position. Respondent's brief suggests that certain alleged miscon- duct asserted to have been engaged in by Groves was also one of the reasons he was not reinstated , and is a basis for disqualifying Groves from reemployment in any event. The General Counsel asserts that the alleged misconduct is not disqualifying, and was not a basis for Respondent's refusal to take Groves back. General Counsel argues, in effect (1) that Groves' prestrike position was not abolished or filled and therefore Respondent was obligated to reinstate him after the strike; (2) that Groves was qualified for the position offered Johnson and should have been employed in that position; (3) that by agreeing to a preferential hiring list (including Groves) during negotiations concerning reinstatement of strikers, Respondent "waived" its later objection based upon Groves' alleged lack of qualification; and (4) that Respondent, having received notice that a decertification petition had been filed by Respondent's employees, about a month prior to Groves' request to be put back to work, refused to take Groves back in order to weaken the Union in the event of a decertification election. Respondent argues that ( 1) its business had dropped off at the end of the strike and it no longer had need for an apprentice color screener; (2) the position offered Johnson was an opening for a journeyman color screener, for which Groves, an apprentice, was not qualified ; (3) no preferen- tial hiring list for strikers was agreed upon; and (4) it freely took back striking union members, including members of the union negotiating committee and the supervisor of color screeners , for whom it had vacancies at the end of the strike and thereafter, and the record shows no union animus on Respondent's part. B. The Employment of Groves Skilled journeymen in the processes used by Respondent have been in short supply. Respondent had sought a qualified journeyman for its photographic processes for over a year through requests that the Union supply help, and by advertising in foreign and local papers, and by other means, with no success.2 During the last months of the bargaining contract, Respondent had the largest amount of business in its shop that it had had in its history. It was apparently able to keep up with its work by working overtime when necessary. However, when the Respondent 2 The bargaining agreement provided that the Union was to be notified of all vacancies, and employees were to be secured from the Union, if available SIDNEY J. BARBAN, Administrative Law Judge: This matter was heard at Dallas, Texas, on August 31 and September 1 and 2, 1972. The complaint issued on May 30, 1972, based on charges filed by the Charging Party (herein the Union) on November 8 and 30, 1971, alleges that the Respondent I violated Section 8(a)(1) and (3) of the Act by failing and refusing to reemploy Gary Groves in accord- ance with a previously agreed preferential hiring list because Groves engaged in union or other protected concerted activity. Respondent's answer denies the com- mission of any unfair labor practices, but admits allega- tions of the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board (Respon- dent sold and shipped products valued in excess of $50,000 in interstate commerce during a recent 12-month period), and to support a finding that the Union is a labor organization within the meaning of the Act. FINDINGS AND CONCLUSIONS The following findings of fact and conclusions are based upon analysis of the record as a whole, the testimony of the witnesses for all parties, and consideration of the demeanor of the witnesses as they testified. To the extent that the testimony of any witness is inconsistent with these findings of fact and conclusions, that testimony is, not credited. A. Summary of Facts and Issues Respondent, engaged in the business of photoengraving and printing in Dallas, Texas, has recognized the Union as the bargaining representative of Respondent's employees doing work within the Union's jurisdiction since 1963, when Respondent started in business. The most recent bargaining agreement between the two expired May 31, 1971 (all dates hereinafter are in 1971 unless otherwise noted). After the expiration of the contract, at a time when Respondent was operating under great pressure because of the volume of work in its shop and a ban on overtime work imposed by the Union, Respondent employed an appren- tice photographic color screener named Gary Groves. Groves worked for Respondent only 17 or 18 days prior to the beginning of a strike called against Respondent in support of the economic demands of the Union. There is an issue among the parties as to whether Groves performed his work satisfactorily during this period. Groves participated in the strike together with a number of other employees represented by the Union, including the supervisor over the color screening operation. Within a week, because of the imposition of a "wage freeze" as part of the economic policies announced by the President of the United States, the strike was called off. There is an issue as to whether Respondent and the Union agreed that employees who had been replaced during the strike would The charges and complaint name the Respondent as Engravers, Incorporated Respondent has since changed its name as set forth in the caption of this matter COLOUR IV CORPORATION 47 and the Union were unable to agree upon a new contract to succeed the bargaining agreement expiring May 31, the Union imposed an "overtime ban," forbidding its members from working beyond the normal workday. This was adhered to by the employees in the unit involved. Respondent then sought to fulfill its orders by securing the maximum production possible during the normal workday and by contracting out work to other shops. During the period of this overtime ban, Respondent became aware that another firm in the city doing similar work was laying off an apprentice, Gary Groves, who was doing photographic color work.3 He was well recommend- ed to Respondent by his previous employer, and after interviewing him Respondent hired Groves on July 23 as an apprentice color screener. Based on Groves' experience with his prior employer, Respondent understood he was a 3-year apprentice, and agreed to pay him at a rate in excess of that provided for that level in the expired agreement. Groves was advised that he would be a probationary employee for 6 weeks, but at the end of that time his rate would be increased, and eventually he would alternate with the two journeymen screeners on the mght shift. The Respondent did not notify the Union that it was hiring Groves, or that his status was that of apprentice. During the events considered hereinafter, the Union, in fact, was unaware that Groves was employed as an apprentice, and not ajourneyman. As has been noted, at the time Groves was employed, Respondent had two journeymen doing screening work, Herschel Johnson, a man with 13 years' experience in the industry, and Lloyd Wilson, who had just completed his apprenticeship in Respondent's shop. Inasmuch as Re- spondent's equipment was sufficient for only two workers in this process to work on a single shift, about this time Johnson began working a night shift. After a short time (about a week), Johnson returned to the day shift and Wilson went on the night shift. Groves worked only on the day shift from the date he was employed (July 23) until August 9, the date the strike began. It is clear that Respondent's equipment and processes were different from those to which Groves was accustomed at his previous employer, and Respondent expected that he would require a period for adjustment. After the second or third day that Groves was on the job, Wilson and Johnson, who were under some pressure to get the work out, began to complain in informal, casual conversations with Melvin Taylor, the superintendent over these operations, that Groves was not getting the work out as they had expected (and thus was not relieving the pressure on them), and, in addition, they were having to give Groves aid and assistance which they thought should not be required by a 3-year apprentice. In addition, David Mixon, a journey- man dot etcher, through whom all the screeners' work had to pass, complained to Taylor that he was not getting enough work from Groves. These complaints also came to 3 According to the bargaining contract with the Union, Respondent was permitted to employ one apprentice for each seven full-time journeymen, apprentices were required to have "five years practical experience at one or more branches of photo-engraving or kindred process" to be classified as a journeyman, unless otherwise mutually agreed by the parties, apprentice pay was increased at 6-month intervals at certain percentages of the current journeyman rate the attention of Harold Bishop, the plant superintendent over Taylor. It would appear that neither of these two men had any significant opportunity to observe or supervise Groves at first hand during this period, though Groves did submit his work to them for evaluation. Taylor testified that there was no complaint about the quality of Groves' work, only the amount.4 It would appear that neither Taylor nor Bishop took any constructive action with respect to these complaints. Groves was not reprimanded, warned, or given any indication that Respondent was dissatisfied with his progress. At the most, Taylor asked Groves on two occasions whether he could be of any assistance to Groves, to which Groves replied, in effect, that he thought that he was getting along all right. Taylor and Bishop state that the turmoil and pressures in the shop at the time precluded any greater attention to Groves. Groves' testimony that he was making progress in the amount of work he was doing, and in the amount of work he was doing on his own, is credited. Taylor testified that Groves got to the point he could do work on his own, that Groves was getting out some work, and Taylor was appreciative of that in the circumstances. There was no complaint about Groves' effort or attention to work. At the hearing, Taylor testified that in his opinion, Groves "can be trained to be a good color photographer. It might take a while ..." On the other hand, Groves admitted that he was not a qualified journeyman and could not produce as much as a journeyman. C. The Strike and the Strike Settlement On August 9, certain of Respondent's employees in the unit represented by the Union went on strike against Respondent in support of union economic bargaining demands. Among those participating in the strike was Groves, Herschel Johnson (a member of the union negotiating committee), Wilson (then a union member), and Supervisor Taylor (also a union member). During the strike Respondent was able to continue some operations and hired some replacements for striking employees, even, surprisingly, a new journeyman color screener, Estelle Weiss. On August 15, the President of the United States announced an economic program which included a "wage freeze." On August 16, the Union called off its strike against Respondent. The Respondent thereupon notified the Union by telegram that it desired a meeting to discuss the return of the strikers. This meeting was held on August 17. At this meeting, the Respondent gave the Union a list which it had prepared showing the employees employed before the strike in each classification. Under the classifi- cation of "Color Screening," listed in the order of seniority, were Lloyd Wilson, Herschel Johnson, and Gary Groves.5 At the same time, Respondent gave the Union another list showing in handwriting the names of employees employed during the strike including replacements for some strikers, a At an earlier point, Taylor seemed to state the contrary, saying that "very, very little" of Groves' work was "acceptable " There are also implications from the testimony of other witnesses reflecting upon the quality of Groves' work To the extent that this is inconsistent with Taylor's testimony set forth in the text immediately above it is not credited 5 Groves' last name was misspelled "Gross." but there is no question concerning the identification of the individual 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in typed capital letters the names of the senior striking employee or employees in each classification for whom positions were open at the end of the strike. These 11 strikers (including Supervisor Taylor) were offered rein- statement. With respect to the color screening classification, this second list showed the names of Lloyd Wilson and Estelle Weiss, in handwriting.6 The testimony of Respondent's witnesses, which was not controverted, was that Weiss was employed during the strike as ajourneyman; that while she was not as proficient as Wilson and Johnson in color screening, she was more versatile; and though she was handicapped somewhat by her small size, she was a competent journeyman color screener. Neither Johnson nor Groves were offered reinstatement in the color screening classification on August 17. Respondent had lost business during the strike, and Respondent asserts this as the basis for not employing an apprentice in color screening after the strike. So far as the record shows, the Respondent has employed only two journeymen at one time in this classification since the end of the strike. Respondent's testimony is to the effect that these two are fulfilling its needs. There is no evidence to the contrary, or that the two journeymen have been or are presently working unusual hours.? There is no evidence that the Union questioned the Respondent's contention at the August 17 meeting that it had only two positions available in color screening on that date and that they were filled by Wilson and Weiss. At this meeting on August 17, in addition to offering to reinstate the most senior striker to each available position in the striker's classification, Respondent agreed to place the remaining strikers on a preferential hiring list, and to recall them by seniority in each classification as positions became available. At this meeting Respondent made no distinctions as to journeyman or apprentice status, or as to the qualifications of the remaining strikers not offered reinstatement at that time. The procedure agreed was that the Respondent would notify the Union with respect to openings as they became available and the Union would notify the employees to report. Respondent thereafter continued to recall strikers to available positions in accordance with this procedure. On the evening of August 17, Respondent alleges Groves engaged in certain conduct with respect to certain of Respondent's employees which assertedly disqualifies him for reemployment with Respondent. The incident involved unquestionably came to Respondent's attention at the time. As set forth hereinafter, however, it is clear that Respondent's management did not consider the incident as disqualifying Groves from reemployment. It is therefore unnecessary to detail the circumstances of this incident. 6 It would thus appear that Wilson returned to work before the official end of the strike 7 There is certain handwritten material on C P Exh 2, placed there by Respondent, with respect to the discontinuance of the night shift at the end of the strike In the absence of testimonial support, I have considered this to be sheer hearsay, and have disregarded it 8 The record indicates that the two employees discussed in this regard D. The Posistrike Negotiations After August 17, on two or three occasions Respondent attempted to obtain the Union's agreement to certain limitations upon the prior agreement to recall the strikers who had not been reinstated by August 17, including a right on the part of Respondent to judge the qualifications and competency of the strikers for reinstatement. In particular, Respondent named two employees whom it did not want to take back because of dissatisfaction with their performance prior to the strike, but did not name Groves as one of these.8 Though the Union discussed these proposals of the Respondent they were not agreed. Prior to a negotiation meeting about October 20, Respondent heard that a petition for decertification of the Union would be filed with the Board. At this meeting, Respondent requested that negotiations be postponed for a few days until this matter could be clarified. A decertifica- tion petition was filed with the Board on October 20. No further negotiations between the Respondent and the Union have been held, although just prior to the hearing in this matter, the Union requested a meeting on certain changes in working conditions desired by Respondent.9 E. The Refusal To Reinstate Groves In November, Respondent decided that it would transfer Estelle Weiss, one of its two journeymen color screeners, to another job function, in accordance with her desires. Pursuant to the prior agreement with the Union, Respon- dent notified the Union of an opening for a color screener and requested that Herschel Johnson be sent. Johnson refused to return to work with Respondent at the time, and the Union sent Gary Groves, the only other color screener on the list who had not been reinstated. When Groves reported to James H. Webb, chief executive officer of Respondent, on November 18, as directed by the Union, Webb advised Groves that in Webb's opinion Groves was not qualified for the job, that Respondent was in need of a journeyman color screener, and he considered that Groves "did not have what it took to do it." Webb agreed to check with Taylor and Bishop concerning this, and said he would call Groves that afternoon with respect to their decision. Webb checked with Taylor and Bishop, who confirmed his opinion, and Webb that afternoon called and advised Groves that he was not qualified for the position which Respondent wished to fill, and declined to reinstate him. At the hearing Webb emphatically denied that Groves' alleged prior misconduct had anything to do with Respondent's failure to reinstate Groves. As a result of Johnson's refusal to accept the color screening job at that time, Respondent did not transfer Weiss from that position. At a later time, when Johnson did come back to work for Respondent, Weiss was transferred to another position. There is no evidence that were J Pemberton and D Rodriguez Nevertheless , Respondent thereafter offered J Pemberton reinstatement (See C P Exh. 5) 9 The Union's original charge in this matter had alleged that Respondent refused to bargain with the Union in violation of the Act. The Regional Director refused to issue complaint on this issue and was sustained by the General Counsel on appeal from this decision COLOUR IV CORPORATION 49 Respondent has employed more than two color screeners since the strike, or that it has employed other than journeymen in that position , or that the two color screeners have not been able to perform the work required within the usual work periods. F. Analysis and Conclusions Prior to the expiration of its most recent contract with the Union, on May 31, Respondent employed two journeymen color screeners. Because of an extraordinary situation existing at the time, Respondent hired an apprentice, Gary Groves, in its color screening department, prior to the strike which began on August 9. At the end of the strike this extraordinary situation no longer existed, and the Respondent advised the Union that it intended to operate the color screening process with only two persons, both of whom were journeymen. The Union did not at any time raise a question concerning this decision, though Groves and one striking color screening journeyman, Johnson, were not reinstated, and Respondent has operat- ed with only two journeymen color screeners since the end of the strike. It is therefore found, contrary to the position of the General Counsel, that at the end of the strike, the apprentice color screening position which Groves had held for approximately 17 days was abolished by Respondent for good and sufficient business reasons. In November, when Respondent had under considera- tion the transfer of one of its journeyman color screeners, Weiss, to another position, it offered Johnson, a striking journeyman color screener, reinstatement in the expected opening. When Johnson declined , Respondent refused to take Groves in his stead, and, in fact did not transfer Weiss until Johnson at a later date agreed to come back to work. General Counsel argues that while Groves was not as competent as Johnson , he was qualified to do the work required, and particularly to take the place of Weiss who was handicapped because of her size . However, there is no reason to discredit Respondent's contention that the position which it contemplated opening was one that required the qualifications of a journeyman , as Respondent advised Groves when he applied for the opening. Certainly, the position was then held by a journeyman . While it would seem that Groves received something less than a fair trial during the 17 days he was employed by Respondent as an apprentice, Groves himself admits that he is not a qualified journeyman . Even as an apprentice, Groves would still have been in a probationary status if he had returned to Respondent's employ. In the circumstances, it is found that Groves was not qualified for the position then held by Weiss, for which he was applying. It may be that Respondent breached its agreement with the Union in respect to the recall of strikers by its refusal to reinstate Groves. However, this is not directly before me inasmuch as General Counsel has not alleged this to be a violation of the Act, or that Respondent has refused to bargain in violation of the Act. I have, however, considered this factor in assessing Respondent's motive for refusing to reinstate Groves . However, the record as a whole discloses no animus against the Union on Respondent's part. Respondent reinstated a considerable number of strikers, and at the time it rejected Groves' application to return to work, Respondent was willing to take back another striker, Johnson. So far as this record shows , there is no indication that the latter was any less a supporter of the Union than Groves. On the basis of the above and the record as a whole, since it has been found that the position Groves held before the strike was abolished for proper business reasons, that the position for which Groves applied on November 18 was a journeyman position, for which Groves was not qualified, and that the Respondent's motivation for refusing to reinstate him was solely that Groves was not qualified for the contemplated opening, it is therefore found that Respondent did not violate the Act by refusing to reinstate Gary Groves after the strike as alleged in the complaint. On the basis of the foregoing, I make the following conclusions of law and recommended Order: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate the Act by its refusal to reinstate Gary Groves to the position which he held before the strike or to the position which Respondent contemplat- ed opening about November 18, 1971. ORDER On the basis of the foregoing findings of fact , conclu- sions of law, and upon the entire record in this case, the complaint in this matter shall be and it is dismissed in its entirety.