Community Shops, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1961

130 N.L.R.B. 1522 (N.L.R.B. 1961)

1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although it has been found that Respondent engaged in an independent violation
of Section 8(a) (1) of the Act by interrogating Collins with respect to his activities
and the activities of other employees on behalf of the Union , the circumstances sur-
rounding such interrogation and its isolated and restricted character are not so con-
victive of a fixed determination on the part of Respondent to deprive employees of
rights secured by the Act as to justify a belief that its preventive purposes will or may
be thwarted unless an order to cease and desist from such interrogation be recom-
mended or issued.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and
Station Employees is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating in regard to the tenure of employment of Vernon M . Collins
the Respondent has engaged in an unfair labor practice within the meaning of Sec-
tion 8(a) (3) and (1) of the Act.
3. By the discharge of Collins and the interrogation of him concerning his union
activities and those of other employees , the Respondent has interfered with, re-
strained , and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act and has thereby engaged in an unfair labor practice within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Community Shops, Inc. and United Bakery and Confectionery
Workers Union , Local 15, Chicago Joint Board , Retail , Whole-
sale and Department Store Union , AFL-CIO,1 Petitioner
Community Shops, Inc. and United Bakery and Confectionery
Workers Union , Local 15, Chicago Joint Board , Retail , Whole-
sale and Department Store Union , AFL-CIO. Cases Nos.
13-RC-6165 and 13-CA-3339. March 24, 1961
DECISION AND ORDER
On May 27, 1960, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed with respect
to such allegations. The Trial Examiner further recommended that
the election conducted on August 21, 1959, be set aside , and that an-
other election be held during the customary season at, such time as'the
Respondent's interference with the election and unfair labor practices
have been remedied.
- The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
I Herein called Local 15.
130 NLRB No. 158.
COMMUNITY SHOPS, INC. 1523
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, and brief 2 in these cases, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with the following modifications.
The Trial Examiner found that the Respondent's rehire formula of
April 1959, which failed to credit strikers for the time they engaged
in a lawful economic strike, violated Section 8 (a) (3) and (1) of the
Act because it had the effect of penalizing the strikers and adversely
affected their tenure of employment. While we concur in the Trial
Examiner's conclusion that the formula was unlawful, we, unlike the
Trial Examiner who found the formula per se discriminatory, base
our finding on the attendant circumstances herein.
The Respondent, which has been engaged in the seasonal business
of manufacturing fruitcakes since 1942, acquired in 1958 a fruitcake
baking plant, herein called the Western Avenue plant. The record
shows that the Respondent commenced operating this plant in mid-
July 1958, with some experienced employees who had worked at the
Company's other plants and also new and unskilled employees hired
"off the street" who constituted the majority of the work force .3 On
September 20, 1958, Local 15, which had petitioned for an election 2
days earlier, called an economic strike that ended on November 11,
1958, when all strikers who returned to the plant were put back to
work until the end of the season in December.
On December 12, 1958, Locals 2 4 and 15 participated in an election
but the ballots were impounded by the Regional Director pending his
investigation of unfair labor practice charges filed by Local 15. After
the Regional Director's investigation revealed that (1) certain super-
visors had requested employees to vote for Local 2, and (2) the
Respondent, for 3 or 4 weeks beginning November 1, 1958, required
applicants for work to display referral slips from Local 2, the Re-
spondent executed a settlement agreement on February 24, 1959, to
remedy the above actions. Thereafter, on March 16, 1959, the Board
directed that the election be set aside and that a second election be
held when the Regional Director determined that it was proper to
do so.5
In April 1959 officials of the Respondent, which had not established
any seniority system prior to the end of the 1958 season at either the
Western Avenue plant or any of its other operations, met to decide on
the method for hiring employees in the Western Avenue plant for the
2 The Respondent's request for oral argument is hereby denied. In our opinion, the
record, the exceptions , and briefs adequately present the issues and positions of the parties.
8 The record shows that this was standard practice at the Respondent's various
operations.
4 Bakery and Confectionery Workers International Union of America Local 2, which
already represented the employees at the Respondent 's Broadway fruitcake plant, was
permitted to intervene.
5 As indicated above,' the election was held on August 21, 1959.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959 season. The first method considered-rehiring the best em=.
ployees on the basis of merit-was rejected because the Respondent
asserted it kept no permanent records pertaining to performance.
Another method-rehiring all employees in the order of the first date
of hire-was rejected because, according to the Respondent, "there had
been too much intermittent working." The criteria finally adopted
for the 1959 season were as follows : Former employees who had
worked for the Respondent prior to 1958 were placed at the top of the
list in the order of the length of their "actual working experience"
during the 1958 season. Those who had worked only during the 1958
season followed on the list also in the order of their actual working.
experience during that season. As shown in the Intermediate Report;
application of the rehire formula resulted in 20 strikers 6 not being
accorded credit for time they spent on strike, thereby impairing their
tenure of employment. The Trial Examiner further found that the
Respondent either refused to rehire or delayed in rehiring 15 of the
foregoing strikers because of the Respondent's hiring policy. The
Trial Examiner also pointed out that some new employees such as a
scaler-journeyman baker and shipping and receiving clerks were hired
by the Respondent outside the rehire formula in order to obtain em-
ployees with special skills not possessed by any employees on the re-
hiring list.
The Respondent contends that its rehire formula was a practical
expedient to utilize employees with the most actual working experi-
ence rather than a measure to punish those employees who partici-
pated in the strike of September 20, 1958. The Respondent points
out that its new hiring policy was disadvantageous not only to former
strikers, but to employees absent from work for any reason, including
employees on sick leave and employees laid off. However, the in-
clusion of the latter employees in a policy of discrimination against
former or future strikers does not immunize Respondent's conduct.'
The question remains whether Respondent's action in devising a
method of hiring, which had the effect of diminishing the opportuni-
ties for employment of all employees who exercised their statutory
right to strike, was a lawful one. As indicated above, the 1959
seniority system, adopted immediately following the strike of 1958,
was an entirely novel procedure with this Respondent, which had not
theretofore found such a system necessary or, indeed, expedient. In
previous seasons the Respondent depended upon "off the street" re-
cruitment of new and unskilled employees. If, as Respondent asserts;
it' was desirous of rehiring its' most capable employees, competence
rather than days spent on the job .would seem to be the obvious cri-
terion. Yet Respondent was, in fact, so little concerned with rehiring
"However, see footnote 11 as to striker Betty Terry.
7 American Bottling Company, 99 NLRB 345, 352, enfd. 205 F. 2d 421 (C.A. 5) cert.
denied, 346 U.S. 921.
COMMUNITY SHOPS, INC. 1525
those employees of proven competence that it kept no records of work
performance. Notwithstanding its position that it did not know
which employees among those who had worked at the Western Ave-
nue plant were competent, the Respondent had no difficulty in lo-
cating a scaler-journeyman baker and shipping and receiving clerks,
who were hired outside the rehire list because they had skills not
possessed by employees on the list. Moreover, the record shows that
the Respondent, when it desired to hire experienced and skilled em-
ployees to staff the Western Avenue operation in 1958, called upon
such experienced 'employees 'from- its other operations without re-
sorting to a system of work preference based upon actual working
experience. Finally, we note that the rehire formula of 1959 was de-
vised by the Respondent at a time when it was clear that the employ-
ees would soon be participating in another Board election in which
Local 15 and Local 2 would be contending for designation as the em-
ployees' bargaining representative.
It is, of course, well established that Respondent's employees have
the right to engage in an economic strike without being subject to
discrimination in employment as a result of their exercise of this
right.8 In the circumstances of this proceeding we are persuaded that
the natural and forseeable consequence of Respondent's rehire for-
mula was to discourage employees from union membership in contra-
vention of the Act. Respondent must be held to have intended this
result .9 Accordingly, we find, that the Respondent by formulating
and effectuating the discriminatory seniority system of 1959 violated
Section 8(a) (3) and (1) of theAct.10
ORDER
Upon the entire record in this proceeding and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board orders that the, Respondent, Community
Shops, Inc., Chicago, Illinois, its officers, agents, successors, and
assigns, shall :
s N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346; General Electric
Company, 80 NLRB 510.
O Radio Officers' Union, etc. (A. M. Bull Steamship Company ) v. N.L.R .B., 347 U.S.
17, 34-52.
10 we cannot agree with our dissenting colleagues that Respondent 's novel formula was
nothing more than an "objective standard " that fortuitously "might work to the dis-
advantage" of a striker who could not qualify for employment because he had taken
time off to participate in a strike . In our opinion , neither the Respondent nor our dis-
senting colleague has come forward with a valid reason to excuse a hiring policy which,
in effect, substantially discriminated against past , present, and future employees who had
engaged or might engage in a strike for their mutual aid and protection. The right to
strike is at the heart of the statute and is specifically protected in Sections 7 and 13:
To hold that Respondent can lawfully restrain its employees in the exercise of that right
seems to us an unwarranted infringement of protected concerted activity . The record in
this case shows that 15 strikers lost from 1 week to 6 months of employment during the
1959 season solely because the Respondent on'the basis of its newly created seniority
formula either refused to rehire or delayed in rehiring these employees.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in, or lawful activities on behalf of,.
United Bakery and Confectionery Workers Union, Local 15, Chicago
Joint Board, Retail, Wholesale and Department Store Union,-
AFL-CIO, or any other labor organization, by discriminatorily with-
holding the actual work experience credit rightfully due its employ-
ees, or in any like or related manner discriminating in regard to their
hire or tenure of employment or any terms or conditions of their
employment.
. (b) Promulgating, adopting, establishing, maintaining, or con-
tinuing in force or effect any formula, policy, practice, or system
whereby employees are denied credit toward actual work experience,
or its equivalent, for time during which they engaged in a lawful
strike, or any other protected concerted activities.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed them in
Section 7 of the Act, except to the extent that such rights 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, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
. (a) In the event that the Respondent should base any future em-
ployment or rehire rights on its 1959 rehire list, described herein, or
any similar list, accord to the employees named below the relative
standings on that list which they would normally have been accorded,
absent any discriminatory policy, by crediting them with actual work
experience for time during which they were engaged in a strike in
1958:11
- Cyrus Almond Wilma James
Henry L. Almond James Willie Johnson
Mardine Battle Eula Keys
Juanita Cannon Lonzo Lewis
John Henry Delaney James McCloud
June English L. V. Prince
Dalton Eugene Harper Boyd Sullivan
William Hodges . . Fannie May Thomas
Riley Jackson Mary Lee Williams
Rogers Jackson
"'Contrary to the Trial Examiner, the Respondent contends that it did credit Betty
Terry, who was on strike on September 20 and 22, 1958 , and also for a later period of
undisclosed duration , with work experience in accordance with its policy of giving full
credit for an entire week to each employee who worked during any part of a week. In
the absence of evidence that Terry : was not: properly credited , with strike time by the
Respondent, we shall exclude her from the list of discriminatees who were deprived of
their rightful place on the rehire list. ,
COMMUNITY SHOPS, INC. 1527
(b) Make whole the employees named below for any loss of wages
incurred as a result of the discrimination against them, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy, Case No. 13-CA-3339":
Henry L. Almond James Willie Johnson
Mardine Battle Eula Keys
Juanita Cannon Lonzo Lewis
June. English James McCloud
Dalton Eugene Harper L. V. Prince
Riley Jackson Boyd Sullivan
Rogers Jackson Mary Lee Williams
Wilma James
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and compute the amounts of
backpay due under the terms of this Order.
(d) Post at its place of business in Chicago, Illinois, copies of the
notice attached hereto marked "Appendix." 12 Copies of such notice,
to be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted promptly by the Respondent and maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily 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 said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the election held on August 21, 1959, in
Case No. 13-RC-6165 be, and it hereby is, set aside.
IT IS FURTHER ORDERED that the complaint herein be dismissed in-
sofar as it alleges that the Respondent discriminated against Cora
May Allen, Deola Allen, Sara Allen, Lillie Bell Cain, Mattie Davis,
Nettie Jean Manning, Vernon Peden, William M. Thomas, Clarence
Williams, or Betty Terry.
IT IS FURTHER ORDERED that Case No. 13-RC-6165 be, and it hereby
is, remanded to the Regional Director for the Thirteenth Region for
the purpose of conducting a new election during the customary season
at such time as the Regional Director deems that the unfair labor
practices have been remedied and circumstances permit the free choice
of a bargaining representative.
12 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER RODGERS, dissenting:
I concur inmy colleagues' rejection^of the Trial Examiner's holding
that the Respondent's rehire formula was per se discriminatory. I
can perceive nothing unlawful in an employer's desire to staff his
plant with the most qualified workers available. For this purpose,
"on-the-job" experience seems to me to be a reasonable and recognized
criterion for employment. That such a criterion might work to the
disadvantage of a person who, because of having participated in strike
activity, lacks the requisite work experience, ought not, without more,
to invalidate the criterion.13 Of course, a criterion that disqualifies a
person solely because he had engaged in strike activity is a different
matter-a matter that is not here present. Here, the formula used by
the Respondent did not single out or stress strike participation as
the ground for disqualification; it simply disallowed credit toward
on-the-job experience for the time an applicant had absented himself
from work irrespective of the reason for his absence. Accordingly,
like my colleagues, I perceive nothing in Respondent's formula that
renders it per se unlawful.
My colleagues find, however, that the Respondent's rehire formula
was not lawful. They reach this conclusion because they say that the
"natural and foreseeable consequence [of the formula] was to dis-
courage employees from union membership" and the "Respondent
must be held to have intended this result." Certainly, Radio 0geers',
which is relied upon by my colleagues, does not support such a hold-
ing. What my colleagues are doing, in effect, is to pass on Respond-
ent's business judgment. I know of no principle of law which permits
this Board to engage in that activity.
Though finding a violation, my colleagues are not finding that the
evidence here shows that the Respondent was discriminatorily moti-
vated in the adoption of the rehire formula. The explanation for this
is obvious : the record will not support such a holding. Yet, for some
reason not too clear from the majority's decision, my colleagues have
excerpted from the record for special stress certain factors dealing
with how the Respondent managed its business. Thus, notwithstand-
ing their avoidance of an express holding, by their emphasis of these
factors, my colleagues seem to suggest that a discriminatory motive
was present. To dispel any such implication, it is necessary to view
these factors in their proper perspective.
'$ See Pittsburgh -Des Moines Steel Co . v. N.L.R . B., 284 F. 2d 74, 82-85 (C.A. 9). At
issue in that case was the validity of the employer 's bonus payment formula which,
inter alie, took into account group productivity. Application of this formula to a plant
where the employees had been engaged in a prolonged strike resulted in a withholding of
the bonus from those employees because of the plant's poor productivity. The court held
that the formula, or its application , could not , standing alone , give rise to a conclusive
presumption of an unlawful intent to discourage strike activity , and that such a pre-
sumption could arise only if the employer 's discrimination itself was "based solely upon
the criterion of union membership .", p. 82. Differentiation in treatment based upon
on-the-job experience , like that based upon group productivity, is not discrimination based
solely upon union activity.
COMMUNITY SHOPS, INC. 1529
I note first that my colleagues seem to find some significance in the
fact that Respondent selected for hiring from outside the on-the-job
experience list a few persons with special skills. But it does not fol-
low that because the special talents of certain employees may have
been known, the Respondent had general knowledge of the competency
of all its employees which would permit it to hire on a known com-
petency basis, rather than pursuant to the objective standard it
adopted.
Secondly, my colleagues attach significance to the fact that the Re-
spondent had not used the instant formula in the past, had not kept
work performance records of its employees, and devised the formula
at a time when Respondent knew that employees would soon be voting
in an election in which Local 15 and Local 2 would be competing for
selection as the bargaining representative. But these factors, when
considered in context, far from indicating a discriminatory motive,
demonstrate on the contrary a legitimate reason for the formula's
adoption. For during the 1958 season the Respondent had a total
complement of 181 employees, and Respondent needed only about half
of this number for the 1959 season. The fact that there would be an
election in which Local 15 and Local 2 would be competing made ob-
vious the need for the adoption of some kind of employing formula
which could not be attacked by either union as discriminatory, and
which would still provide the Respondent with the most qualified
workers. Certainly, had the Respondent kept work performance
records, they probably would have better suited the Respondent's pur-
pose. But the absence of such records by itself does not evidence an
unlawful motivation ; rather, it only serves to underline Respondent's
need to devise another reasonable basis for hire.
Moreover, that the formula ultimately devised by the Respondent
was not fashioned to produce a discriminatory result is evidenced by
the way the strikers fared under that formula. As noted, the Respond-
ent had a total complement of 181 during the 1958 season. An appli-
cation for employment during the 1959 season was mailed to each such
employee. Applications were filed by 102-28 strikers and 74 non-
strikers. As of August 21, 1959, the date of the Board-conducted elec-
tion, 23 of the 28 strikers, or 82 percent of those applying, had been
hired. On the other hand, only 45 of the 74 nonstrikers, or only 60
percent of those applying, had been hired by the same date. Again
by the close of the season the Respondent's employment figures
showed that 25 strikers out of 28 applicants had been hired, as against
46 nonstrikers out of 74 applicants-i.e., 89 percent of the strikers had
been hired as compared to 61 percent of the nonstrikers. Certainly,
when the matter is viewed objectively, the measure of success achieved
by the strikers under Respondent's formula will not support a holding
that the formula was designed to produce a discriminatory result.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I would find that the rehire formula was not per se discrimina-
tory, and that its adoption was not violative of the Act, I would dismiss
the complaint herein. Consequently, I would not set aside •- the Au=
gust 21,1959, election.
CHAIRMAN McCuLLOCH took no part in the consideration of the
above Decision and Order.
APPENDIX
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, as. amended, you are notified that :
WE WILL NOT discourage membership in, or lawful activities on
behalf of, United Bakery and Confectionery Workers Union,
Local 15, Chicago Joint Board, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other union, by discriminatorily
withholding actual work experience credit rightfully due our.
employees,.or in any like or related manner discriminating in re-
gard to their hire or tenure of employment or any terms or condi-
tions of their employment.
WE WILL NOT promulgate, adopt, establish, maintain, or con-
tinue in force or effect any formula, policy, practice, or system
under which employees are denied credit toward actual work
experience or its equivalent, for time during which they engaged
in a lawful strike, or any other protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights to
self-organization, to form or join labor organizations, to assist
the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, or to en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such rights may be
affected by an agreement requiring membership in a union as a
condition of employment as authorized in Section 8(a) (3) of the
National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL, if we should base any future employment or rehire
rights on our 1959 rehire list, accord to the employees named be-
low the relative standings on that list which they would normally
have been accorded, absent any discriminatory policy, by crediting
them with actual work experience for time during which they
were on strike in 1958:
COMMUNITY SHOPS, INC.
Cyrus Almond
Henry L. Almond
Mard-ine Battle
Juanita Cannon
John Henry Delaney
June English
Dalton Eugene Harper
William Hodges
Riley Jackson
Rogers Jackson
1531
Wilma James
James Willie Johnson
Eula Keys
James McCloud
L. V. Prince
Boyd Sullivan
Fannie May Thomas
Mary Lee Williams
Lonzo Lewis
WE WILL make whole the employees named below for any loss
of wages incurred as a result of the discrimination against them:
Henry L. Almond
Mardine Battle
Juanita Cannon
June English
Dalton Eugene Harper
Riley Jackson
Rogers Jackson
Wilma James
James Willie Johnson
Eula Keys
Lonzo Lewis
James McCloud
L. V. Prince
Boyd Sullivan
Mary Lee Williams
COMMUNITY SHOPS, INC.,
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.
CONSOLIDATED INTERMEDIATE REPORT
On August 28, 1958 , United Bakery and Confectionery Workers Union , Local 15,
Chicago Joint Board, Retail , Wholesale and Department Store Union , AFL-CIO,
herein called Local 15, filed with the Regional Director' a petition in Case No.
13-RC-6165 for certification of representatives for the employees at the plant of
Community Shops , Inc.,' herein called the Respondent, located at 5039 North
Western Avenue , Chicago, Illinois, herein called the Western Avenue Plant. A
hearing on Local 15's petition was held at which a number of other labor organiza-
tions intervened, including Bakery and Confectionery Workers International Union
of America, Local 2, herein called Local 2. On December 9, 1958, the Board
directed that an election be held among all employees of the Respondent at its
Western Avenue plant , including shipping and receiving employees, but excluding
office clerical employees , retail store employees , drivers, guards, and supervisors,
to determine whether they desire to be represented for collective -bargaining purposes
by Local 15, or by Local 2, or by neither. The election was held on December 12,
1958 , and the ballots impounded .' Thereafter on March 16, 1959 , the Board di-
1 The term Regional Director designates the Regional Director for the Thirteenth
Region of the National Labor Relations Board.
2 The name of the Respondent appears as amended at the hearing.
3 On September 18, 1958-between . the filing of the petition in Case No. 13-RC-6165
and the direction of election in that case-Local 15 filed charges against the Respondent
in Case No. 13-CA-2987 , alleging violations of Section 8(a) (1), (2 ), and (3) of the
Act. On December 11, 1958-between the direction of election and the holding of the
election-Local 15 filed charges against the Respondent and Local 2 in Cases Nos.
18-CA-3096 and 13-CB-699 alleging violations of section 8(a) (1), (2 ), and (3) and
7532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rected that the election be set aside, that the impounded ballots be destroyed, and
that a second election be held. The second election was conducted on August 21,
1959, and resulted in a victory for Local 2. Thereafter Local 15 filed timely ob-
jections to conduct affecting the results of election. This contained, among others,
the following objection:
7. The Employer, by its officers, agents and supervisory employees, from
the said date of re-opening of the Employer's plant to immediately prior to the
said election hired new employees obtained from the Intervenor at the same
time during which it refused to recall employees on lay-off at the time of the
hire of said new employees; said laid-off employees not being recalled for the
reason that said Employer believed them to be favorably inclined toward
Petitioner, all said new hires and lay-offs occurring among employees included `
within the unit of representation in which said election was held.
On November 23, 1959, the Regional Director issued his report on objections, in
which he recommended that all the objections be overruled, except Objection No. 7,
quoted above, and that a hearing on that objection be held and consolidated with
the hearing in Case No. 13-CA-3339, and adding, "In the event that the Board
finds that there has been an 8(a)(1)(3) violation in 13-CA-3399 (sic) then the
undersigned recommends that the election be set aside.. " On January 22, 1960,
the Board adopted the Regional Director's report, and directed that Case No.
13-RC-6165 be consolidated with Case No. 13-CA-3339 for the purpose of a hearing
as to Objection No. 7.4
Meanwhile, on June 26, 1959, Local 15 had filed charges against the Respondent
in Case No. 13-CA-3339. Upon these charges, the General Counsels issued a
complaint alleging that the Respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (61 Stat. 136), herein called the Act. The Re-
spondent filed an answer admitting that it was engaged in commerce but denying
that it had committed any unfair labor practices. Pursuant to notice, a consolidated
hearing was held before me on February 8 and 9, 1960, at Chicago, Illinois. At
the hearing, Local 2 was granted leave to intervene . 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 upon the issues. After the
close of the hearing, briefs were filed by all parties. These briefs have been duly
considered.6
Upon the entire record in these cases,7 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
There is no dispute, the Board has found,8 and it is now found, that the Respondent
is, and at all material times has been, an employer engaged in commerce within the
meaning of the Act and that its operations meet the Board' s jurisdictional standards; 9
and that Local 15.and Local 2 are, and at all material times have been, labor organi-
zations within the meaning of ,the Act.
Section 8(b) (1) and (2) of the Act, respectively. On February 24, 1959, the Regional
Director and the Respondent executed a settlement agreement with regard to Cases Nos.
13-CA-2987 and 13-CA-3096, in which Local 15 did not join. Case No. 13-CB-699 was
dismissed on November 19, 1959. In accordance with Local 15's request, I' take official
notice of the Board's records in these cases.
4In its brief, Local 2 argues that the Board erred in consolidating these two cases.
However, it is not within the province of a Trial Examiner to determine the wisdom of
action taken by the Board. Therefore that issue is not properly before me. Arkport
Dairies, Inc., 95 NLRB 1342, footnote 1; and N.L.R.B. v. American Laawn.dry Machinery
Co., 152 F. 2d 400, 401 (C.A. 2).
c The designation "General Counsel" includes the General Counsel of the National
Labor Relations Board and his representative at the hearing.
,6 After the filing of briefs, Local 15 moved that Local 2's brief be stricken. The
motion was denied. on April 25, 1960.
7 On April 27, 1960, the transcript was corrected in 592 specific respects. Additional
corrections have been made by the Trial Examiner.
9 Decision and Direction of Election, Case No. 13-RC-. 6165, dated December 9, 1958
(not published in NLRB volumes).
9 The Respondent is an Illinois corporation engaged In the manufacture of fruitcakes in
Chicago, Illinois . During 1958 it shipped products valued in excess of $50,000 to points
outside the State of Illinois.
COMMUNITY SHOPS, INC. 1533
A. Facts
1. Events through the 1958 season
The Respondent has been manufacturing fruitcakes since 1942: It also carried on
a retail bakery goods business at, several stores.1° In 1958 it acquired the Western
Avenue plant, and thereafter that was the only place where the Respondent manu-
factured fruitcakes. No retail bakery goods business was engaged in at the Western
Avenue plant. The Respondent has never had any collective. bargaining contract
with any union covering the employees of the Western Avenue plant.ll
The manufacture of fruitcakes is a seasonal business. The 1958 season began in
mid-July. On September 20, 1958, Local 15 called an economic strike 12 at the West-
ern Avenue plant. At that time the Respondent employed about 50 to 80 nonsuper-
visory workers at the Western Avenue plant. Of these, approximately 40 to 60 did
not report for work during the strike. The plant continued in operation, and about
12 nonsupervisory employees who had been working when the strike began con-
tinued to work during the strike. Some strikers returned to work before the strike
was over. The strike ended on November 11, 1958, and all strikers who reported to
the plant thereafter were put back to work. '
The 1958 season ended in December. At that time the Respondent terminated all
employees at the Western Avenue plant except a "year-round" skeleton crew retained
for cleanup, maintenance, making of samples, and preparation for the next season.
The "year-round" employees were selected on the basis of past work for the Re-
spondent in such capacities, and "ability to do certain cleanup and reinstallation and
rearranging work." 13 There is no contention that the choice of employees for "year-
round" work was discriminatory.
2. Adoption and implementation of the rehire formula
.
The Respondent had not established any seniority system prior to the end of the
1958 season. In April 1959, Arthur N. Gordon, the Respondent's president; Larry
Gordon, production superintendent; Joseph Vega, plant superintendent; and Samuel
Edes, the Respondent's attorney, met to decide on a method for hiring employees for
the 1959 season. They first considered rehiring past employees on the basis of merit.
This was discarded because, as the Respondent kept no permanent records pertain
ing to performance, there was no point of reference other than memory. Therefore,
it was felt that such a system might give rise to- numerous objections from individual'
employees or the two competing unions.14 The next suggested' method of hire was
to rehire old employees in order of their first date of hire. This also was rejected
on the grounds that "there had been too much intermittent working" and that there-
fore it "could lead to . greater problems than perhaps some other methods might
bring about." The criteria finally adopted for determining hiring for the 1959 season
were as follows: Former employees who had worked for the Respondent prior to
1958 were given preference over those who had worked for the Respondent only
during the 1958 season. Those who had worked only during the 1958 season were
to be selected for rehire in order of their length of "actual working experience" dur-
ing the 1958 season. In determining the length of "actual working experience," only
time actually worked was to be considered, regardless of the reason for absence.
Thus, time during which an employee did not work because he was. on strike, was
ill, was laid off, or was absent for any other cause was to be disregarded. Larry
Gordon was placed in charge of implementing this hiring formula.
Larry Gordon met with Edes and they prepared an alphabetical list of 181 is
employees who had been on the Respondent's payroll as of December 5, 1958.16
"The retail portion of the Respondent's business was sold on June 15, 1959.
11 See.Decision and Direction of. Election, Case No. 13-RC-6165, footnote 2. supra.
12 There is no evidence showing that the strike was either an unfair labor practice strike
or a strike prohibited by the Act. Moreover, the Respondent concedes in its brief that
the strike was economic . There is no contention that it was not lawfully conducted.
13 There were 11 employees who did cleanup, preparatory, and sample work for the
Respondent prior to May,8, 1959. All but one (Edelmire Ocasio) had worked for the
Respondent during the '1958 season.
11 It should be recalled that this meeting took place between the Board's direction of
a second election and the holding of the second election.
15 The last name appearing on this list (General Counsel's Exhibit No. 3) is num-
bered 182. However, number 99 was omitted.
19 This was apparently identical with the eligibility list used in the election held on
.December 12, 1958.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Opposite the name of each employee was recorded the seasons, if any, during which
the employee had worked for the Respondent prior to 1958; the first and last week
in which the employee worked for the Respondent during the 1958 season, and the
number of weeks of actual work experience of the employee during the 1958 season,
calculated as described above. This list and the payroll cards of the employees on
it (showing their addresses) were given to Helen M. Tobin, Edes' secretary, who was
told to eliminate the names of "year-round" workers, and to mail to the others a
letter from the Respondent inviting them to apply for work at the Respondent's plant
no later than May 8, 1959. Tobin checked the employees' payroll cards against the
list, typed the envelopes, inserted the letters, checked the envelopes against the pay-
roll cards, mailed the letters, and prepared an affidavit of mailing dated May 1, 1959,
which contained 171 names. About May 2, 1959, Larry Gordon and Edes prepared a
second list of employees who had been on the Respondent's payroll on December 5,
1958. After eliminating the names of six "year-round" employees 17 from the first
alphabetical list, and dividing the employees on the basis of sex, the female employees
were listed in order of rehiring preference according to the formula, and the male
employees were similarly listed. There were 80 females and 95 males listed, a total
of 175 employees.
On or before May 8, 1959 (the deadline set in the Respondent's letter of May 1,
1959), the Respondent received 55 applications from women to whom the letter
had been sent, and 45 from men, a total of 100 applications. The Respondent also
received numerous applications from people who had not been on its payroll on
December 5, 1958; and who accordingly had not been sent the letter of May 1, 1959.
The total number of applications received exceeded the number of jobs available.ls
On May 9, 1959, Larry Gordon and Edes examined the applications. Those re-
ceived after May 8, 1959, were discarded. Applications from people who had not
received the letter of May 1, 1959, were filed for future reference. The remaining
applications were separated on the basis of sex, then arranged in order of hiring pref-
erence according to the rehire formula. A list of applicants in this order was pre-
pared. Larry Gordon then contacted the applicants as needed, by telephone, follow-
ing the order of the list.19 Where he was unable to reach applicants by telephone, he
sent them letters. The first rehired applicants began working during the week ending
May 15, 1959. The last ones rehired were reemployed during the week ending
October 16, 1959. The 1959 season came to a close in mid-December. During this
season , the Respondent increased its output approximately 35 percent over the pre-
vious season.
3. Hiring of employees outside the formula
In addition to rehiring former employees in the manner described above, the Re-
spondent during the 1959 season hired five' new male employees within the bar-
gaining unit, none of whom had previously worked for it. Only four of these need
be considered here 2°
a. Henry Tate
Tate was first hired during the week ending May 8, 1959, as an oven man. His
job was to load and unload the oven. Arthur Gordon explained that, although in
1958 a number of people had performed this work, at the time Tate applied for
work the Respondent did not know how many of these former employees would
apply for rehire (presumably the May 8 deadline had not yet arrived). Moreover,
Larry Gordon, who hired Tate, had previously worked with him at another plant
and was familiar with his qualifications. Accordingly, the Respondent "nailed this
fellow [Tate] down when he showed up by hiring him immediately." The record
does not show how long Tate worked for the Respondent during the 1959 season.
b. Carl Muhler
Muhler had been a journeyman baker for many years. He was first hired by
the Respondent during the week ending May 22, 1959 , as a mixer, scaler, and
17 Albert Henderson, George Hudson, Jr., William Mincey (or Mincy), DeWitt Ross,
Ben Terry, and Willie Thomas. The names of two other "year-round" employees, Simon
Terry and William Thomas, were not eliminated. None of these eight had participated in
the 1958 strike.
18 During the 1959 season the Respondent rehired 40 of the female applicants and 31 of
the male applicants.
19 Larry Gordon admitted that in some instances he inadvertently rehired applicants
out of order.
20 The fifth , Edelmire Ocasio, was hired outside the period covered by the complaint..
COMMUNITY SHOPS, INC. 1535
baker. Prior to his hire, the Respondent had employed one other journeyman baker,
Ben Terry, a "year-round" employee who had not participated in the 1958 strike
and who continued to work for the Respondent during the 1959 season. Ben
Terry had done all the mixing throughout the 1958 season.
The job of scaler is one of importance, requiring a high degree of skill. The Re-
spondent had not employed a scaler during the 1958 season. It created the job in
1959 in anticipation of accelerated production , and also as a possible "replacement
for Terry, if anything should happen to him." None of the Respondent's former
employees who were sent the letter of May 1, 1959, were journeymen bakers.
Muhler worked as a scaler until October 1959 when he left the Respondent's
employ. He was a member of Local 2.
c. John Donavon 21 and Chester Deworcki
In mid-May the Respondent had an opening for a shipping and receiving clerk.22
None of the Respondent's former employees who had received the letter of May 1,
1959, had previously performed the functions of shipping and receiving clerk for
the Respondent. Signs were posted on the plant windows for 2 or 3 days reading:
"Experienced shipping and receiving clerk wanted." Two men applied for this
position, Donavon and Deworcki. Donavon was hired for the job. However, in
questioning Deworcki, "it developed that he was very handy with tools." Accord-
ingly, during the week ending May 29, 1959, Deworcki was hired as a maintenance
'man. The record does not show how long these men worked for the Respondent
during the 1959 season.
B. Contentions of the parties
The complaint, as amended at the hearing, alleges that in April 1959 the Respond-
ent discriminated abainst 28 named employees, listed in Appendix A attached here-
to, by failing and refusing to accord them "seniority credit" for the period during
which they engaged in the strike of September 20 to November 11, 1958. It also
alleges that since May 1, 1959, the Respondent has discriminatorily failed and
refused to rehire 24 named employees, listed in Appendix B attached hereto, be-
cause they participated in the strike, and/or because they engaged in protected con-
certed activities. In support of the allegations of the complaint the General Counsel
and Local 15 maintain that the rehire formula is per se violative of the Act,
regardless of motive, because it fails to accord strikers credit for time spent on
strike. Alternatively, they argue that the Respondent promulgated and implemented
the formula with a discriminatory intent. This, they assert, is shown by the fact
that the formula was adopted long after the strike had ended, and at a time when,
as the Respondent knew, a Board-conducted representation election was pending,
and by the fact that the Respondent disregarded the formula by hiring the four new
employees mentioned above, and by otherwise failing to follow the order of rehire
required by the formula.
The answer denies the allegations of the complaint and alleges alternatively "that
at no period of time alleged in the complaint did [the Respondent] have any
seniority system in effect . by virtue of any contract, or practice or otherwise
.. . that no persons whatsoever . were entitled to any seniority credit for
any period of time; and . . . accordingly, no persons whatsoever . . . were granted
any seniority credit for any period of time." Thus, Respondent asserts in its brief
that "no discrimination could have been practiced against any group." The Respond-
ent maintains that "actual work experience" during the 1958 season "was the sole
determinant of hire in 1959," that this was "certainly reasonable and dictated by the
interests of [the Respondent'sl business needs entirely unrelated to union member-
ship and activity," "had no necessary potential of discrimination" and "constituted an
impersonal and impartial yardstick outside of [the Respondent's] control and was
related solely to its perfectly legitimate requirement that its employment force in
1959 be the most experienced force, and, therefore, the most suitable body to achieve
its production requirements." Further, the Respondent contends that the conduct of
an economic strike "carried with it a risk of detriment to the strikers . . . that the
time spent on strike would not be credited 'as part of their work experience where time
off for any other reason likewise was not counted." As to motive, the Respondent
points out that at the time the formula was adopted, it had no way of knowing how.
many strikers or nonstrikers would apply for rehire. Finally, the Respondent
a Referred to in the Respondent's brief as Arthur Donovan.
ra Art Bonneau had been shipping clerk during the 1958 season. In 1959 he was put
in charge of maintenance and installations.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urges that, on the basis of statistics , the formula in fact resulted in the hire of a
greater percentage of applicants who had been strikers than of applicants who
had not.
C. Legality of the rehire formula
It is true, as the Respondent' points out, that an employee has no inherent right
to seniority in service, absent a contract or a practice to that effect. However, this
argument begs the question. Here, the Respondent did establish a rehiring for-
mula, and once that had been done, the Act prohibits illegal discrimination either in
the adoption or implementation of such formula. We turn, then, to a determination
of what is perhaps the key issue in these cases: whether the rehire formula adopted
by the Respondent in April 1959, and thereafter put into effect, was discriminatory
per se because it failed to credit strikers for time during which they engaged in a
lawful economic strike, regardless of the Respondent's motive.
In General Electric Company 23 the Respondent had a long-established policy that
"service credit" could be earned only by time actually worked, except for illness,
layoffs for lack of work, and military service. A contract between the Respondent
and the Union provided for continuity of service from the date of first employment,
with certain specified exceptions. Employees in bargaining units covered by the
collective-bargaining agreement engaged in an economic strike for a period of about
9 weeks, shutting down the plant's operations. Thus other employees not in these
bargaining units were unable to work. After the end of the strike, the Respondent
withheld from employees in the striking units "continuous service credit" for the
period of the strike. All other employees who indicated a willingness to work by
returning to work as soon as physically possible received service credit for the entire
period of the strike.
In finding that this conduct discriminatorily affected the strikers' relative seniority
standing, in violation of Section 8(a)(1) and (3) of the Act, the Board stated:
In the instant case, seniority, in accordance with plant practice and the sub-
sisting bargaining contract, can affect the tenure of employment of individual
employees. By its very nature seniority is a relative matter, and the tolling of
the accrual of seniority of any particular employee or group of employees
necessarily improves the relative seniority of the other employees involved.
Thus at the beginning of the strike all employees had acquired a fixed relative
seniority which, but for the strike, would have remained constant. The effect
of the Respondent's action in tolling the seniority of the strikers during their
participation in the strike, and at the same time permitting other employees to
accrue seniority for the corresponding period, changed the prestrike relative
seniority standing of the employees to the detriment of the strikers. As a result
the strikers became more vulnerable to lay-off or discharge in the event of a sub-
sequent necessary reduction in force. [Citation.]
Thus, it would appear unquestionable that the effect of the Respondent's
action with respect to seniority was to penalize the strikers because of their con-
certed activities. Unlike wages, vacations, and pensions, whose sole aspect is
monetary compensation for work performed during the employment relation-
ship, relative seniority, as applied in the Respondent's plants, in addition to any
compensatory characteristics it may possess, is one of the factors upon which
the individual employee's tenure of employment may depend. It is well settled
that, except to the extent that a striker may be replaced during an economic
strike, his employment relationship cannot otherwise be severed or impaired
because of his strike activity. [Citation.] [Emphasis supplied.]
The Respondent seeks to distinguish General Electric from the instant case on two
grounds: (1) in General Electric there was a contract and a longstanding custom in
effect governing continuous service credit, whereas here there was none prior to April
1959, and (2) in General Electric nonstrikers were accorded continuous service
credit for periods when they were not actually working, thereby creating disparate
treatment, whereas here nonstrikers were only credited with "actual work experi-
ence" for time they actually worked. I cannot agree. In the first place, the prin-
ciples set forth in General Electric apply in all cases where a seniority system 24 is
adopted, regardless of whether such a system is required by custom or contract. The
important matter is not the source or origin of seniority rights, but the manner in
which they are applied once they have been established. Secondly, under principles
established in General Electric, the test is whether or not strikers were deprived of
23 80 NLRB 510.
24 I consider "continuous service credit" and "actual work experience" forms of seniority,
because they affect employees ' tenure of employment.
COMMUNITY SHOPS, INC. 1537
their relative seniority standing vis-a-vis nonstrikers; hence the fact that here the
nonstrikers actually worked during the strike is not controlling, so long as they con-
tinued to accrue "actual work experience" while the strikers did not. Moreover,
the fact that time spent on strike and time out for illness, etc., were equated affords
the Respondent no defense. For, as pointed out in General Electric,25 strikers "stand,
by force of the Act, on an entirely, different footing than employees absent from
work for other causes."
General Electric makes clear certain basic principles of controlling importance
here: an economic striker runs the risk that his job may be lost through permanent
replacement. But where, as here, no such replacement occurs, and the employee
returns to work, he cannot thereafter be penalized for lawfully striking, absent cer-
tain circumstances not here present.26 Relative seniority, unlike wages, is a factor
which is not forfeited by engaging in a lawful economic strike. And the employer's
failure or refusal to accord seniority to strikers during the period of the strike in a
situation such as existed here, regardless of motive, has the effect of penalizing the
strikers and acts to the detriment of their tenure of employment.
These cardinal principles found in General Electric have never, so far as I am
aware, been departed from by the Board. They are decisive of the issue herein. It
is accordingly found that in April 1959, by establishing and maintaining a rehire
formula which had the effect of discriminatorily denying proper "actual work experi-
ence" credit to strikers, thereby adversely affecting their tenure of employment, the
Respondent violated Section 8(a)(1) and (3) of the Act. And this is true regard-
less of the Respondent's motivation in doing so. It is therefore unnecessary to reach
the question of the Respondent's intent.
D. Identity of the strikers
The complaint alleges that the employees • named therein were discriminated
against because they engaged in the 1958 strike. The parties stipulated that all the
named employees participated in the strike, except Cora May Allen, Deola Allen,
Sara Allen, and Betty Terry. The General Counsel and Local 15 contend that all
four of these female employees participated in the 1958 strike. The Respondent
maintains that, at the time it adopted the rehire formula, it had no way of knowing
that any of these four individuals had been a striker.
The parties stipulated that all four did not work for the Respondent on Saturday,
September 20, 1958, or Monday, September 22, 1958, the first 2 days of the strike.
While none of the four testified as to her reason for absenting herself from work on
these 2 days, there was undisputed testimony by other witnesses bearing on the issue,
as follows:
On September 22, 1958, Local 15 held a meeting of the Respondent's employees,
attended by about 60 people, including the four individuals in question. A motion
to support the action of the strike committee in calling the strike was passed without.
dissenting vote. Cora May Allen, Sara Allen, and Betty Terry were seen voting in
favor of the motion.27 Betty Terry performed picket duty during the first or sec-
ond week of the strike. Then she crossed the picket line to go to work for an un-
disclosed period of time. Sometime later she resumed picketing, again for an undis-
closed period of time. Finally, she once more abandoned picket duty, crossed the
picket line, and remained at work for the duration of the strike. Cora May Allen,
Deola Allen, and Sara Allen were assigned picket duty to Local 15 but failed to
report at headquarters to carry out this assignment. Ten days or 2 weeks after the
strike began, they were seen crossing the :picket line to go in to work.
From the above stipulation and testimony it is reasonable to assume that at the
inception of the strike these four women voluntarily refrained from working, thus
making common cause with other strikers and participating in the strike, but that
sometime before the end of the strike they abandoned this concerted activity, crossed
25 At page 522-523 of the Intermediate Report.
2e I express no opinion as to the employer ' s right, during the strike, ' to promise replace-
ments supersentority when it ' is otherwise impossible to obtain replacements . Such was
not the situation here. 'Compare Mathieson Chemical Corporation and/or Olin Mathieson
Chemical Corporation . 114 NLRB 486 , enfd. 232 F . 2d 158 (C.A. 4), affd. 352 U.S.
1020 : Potlatch Forests, Inc., 187 NLRB 1193, enforcement denied 189 F. 2d 82 (C.A. 9)
California Date Growers Association, 118 NLRB 246 , enfd. 259 F . 26 587 (C.A. 9) ;
and Ballas Egg Products , Inc., 125 NLRB 342.
27 Deola Allen presumably either voted affirmatively or refrained from voting , as there
were no negative votes.
597254-61-vol. 130-98
1538 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
the picket line, and resumed work. It is so found. Accordingly, I conclude that all
employees named in the complaint participated in the 1958 strike, although some
returned to work before it terminated 28
E. Effect of the rehire formula on specific strikers
1. In general
In accordance with the above findings and conclusions, when the rehiring formula
was devised, the strikers should have been credited with the time during which they
were on strike. However, the Respondent maintains that its failure to do so did not,
in fact, adversely affect the tenure of employment of the strikers as a group. For,
urges the Respondent, the actual results show that the percentage of striker applicants
rehired in 1959 was larger than the percentage of nonstriker applicants rehired. In
my opinion, this argument misconstrues the issue. Inasmuch as the rehire formula,
as found above, was discriminatory, a violation of the Act would be established if
a single striker thereby suffered detriment to his tenure of employment, regardless
of how the 'group of strikers fared as a whole. It therefore becomes necessary to
determine which individuals named in the complaint, if any, were in fact discrimi-
nated against by the operation of the rehire formula.
The strike lasted 7 weeks, but there is no proof as to how long each employee
named in the complaint remained on strike. For present purposes, it will be as-
sumed that each striker remained on strike the maximum length of time, unless the
record clearly shows otherwise. At the compliance stage of this proceeding, if any,
it may become necessary to determine the actual amount of time spent on strike in
1958 and the exact number of weeks of "actual work experience" accordingly denied
to each individual herein found to have been discriminated against 29
2. Females
a. Nettie Jean Manning, Mattie Davis, Cora May Allen, and Sara Allen
Manning had worked for the Respondent during 1954, 1956, and 1957; Davis dur-
ing 1955, 1956, and 1957; 30 and Cora May Allen and Sara Allen during 1956 and
1957. They were accordingly placed respectively as numbers 2, 3, 4, and 5 females
according to the Respondent's rehire formula. (See Appendix C.)
The General Counsel contends that the Respondent's failure to accord these em-
ployees seniority credit for the time they were on strike in 1958 deprived them of their
rightful" places on the seniority list. I cannot agree. Even had the time they were
out on strike been counted, their relative standings on the seniority list (numbers 2,
3, 4, and 5, respectively) would have remained the same. (See Appendix D.) Thus
no detriment to their tenure of employment resulted. As it has not been shown that
they were denied their "rightful" places on the seniority list, I am of the opinion
that there was no violation as to them.31
b. Eula Keys
Keys had worked for the Respondent in 1957. In 1958, of 23 weeks during which
work was available for her, she was credited with only 16 weeks of actual work ex-
perience, thus placing her as number 10 on the female rehire formula used. (See
Appendix C.) Had she been given full credit for the 7 weeks of the strike, she
would have been placed at the number 6 spot on the female rehire list. (See Ap-
pendix D.)
11 The fact that the Respondent may not have known that Cora May Allen, Deola
Allen, Sara Allen, and Betty Terry were strikers is immaterial. The -protection accorded
strikers by the Act is not affected by the employer's lack of knowledge concerning the
exercise of rights by employees. See Home Beneficial Life Insurance Company, Inc. v.
N.L.R.B., 159 F. 2d 280, 285 (C.A. 4), rehearing denied March 10, 1947, cert. denied
332 U.S. 758.
3' The Respondent's brief states "under the Company's hiring policy full credit for an
entire week was. given to each employee who worked during any part of the week." The
present record does not show this. Perhaps such a practice may appropriately be de-
veloped, if necessary, at the compliance stage.
"Davis testified that she had worked for the Respondent every season from 1949
through 1959. The Respondent's records do not so credit her. However, there is no
contention that the Respondent discriminated against her by failing to count her past
seasons.
a Davis was rehired during the week ending May 15 and laid off after working for
4 days. The General Counsel does not contend that her layoff was discriminatory.
COMMUNITY SHOPS, INC . 1539
The. General Counsel contends that the Respondent's failure to credit Keys with
the time during which she was on strike denied her her proper place on the rehire list.
I agree. The effect of the discrimination was to drop her from number 6 to number
10. Hence I find that the Respondent discriminated against Keys at the time the
hiring formula was adopted by adversely affecting her tenure of employment because
of her strike activities.
The General Counsel also maintains that the Respondent illegally delayed 1 week
in rehiring Keys because of her strike participation. (See Appendix B.) The Re-
spondent's records show that nine females were rehired during the week ending
May 15, 1959 (see Appendix E), and that Keys' rehire date in 1959 was the week
ending May 22. (See Appendix C.) As she was improperly placed at number 10 on
the rehire list she would not normally-according to that list-have been rehired
during the week ending May 15; but had she been accorded her proper place as num-
ber 6 she would normally have been among the nine females rehired during that
week. It follows, and I find , that during the week ending May 15, 1959, the Re-
spondent discriminatorily delayed in rehiring Keys until the week ending May
22, 1959.32
c. Betty Terry
Terry had worked for the Respondent in 1957. In 1958, of 22 weeks during which
work was available for her, she was credited with only 20 weeks of actual work ex-
perience, thus placing her in the number 8 spot among the females. (See Appendix
C.) Had she been given credit for all the weeks during which work for her was
available, she would have retained the same numerical position, number 8. (See
Appendix D.)
The General Counsel maintains that the Respondent's failure to credit Terry with
the time she spent on strike deprived her of her rightful place on the rehire list. I
find merit in this contention. Terry was improperly placed below Willie May Turner,
number 7 on the rehire list (see Appendix C); she should have been ranked ahead of
Turner, who should have been placed in the number 9 slot. (See Appendix D.)
And if, as found above, Keys should be moved from number 10 to number 6, Terry
would be reduced to number 9, unless she is given the extra 2 weeks' credit due her.
Accordingly it is found that, by improperly ranking Terry below Turner, a non-
striker, the Respondent, at the time the rehire formula was put into effect, discrimi-
nated against Terry with regard to the tenure of her employment.
Additionally, the General Counsel urges that the Respondent discriminatorily de-
layed 1 week in rehiring Terry because she took part in the strike. (See Appendix B.)
Terry was ranked by the Respondent as the number 8 female, and therefore had the
Respondent's formula been followed, would have been among the nine females re-
hired during-the week ending May 15, 1959. In fact, her rehire date was later-the
week ending May 22. It thus appears that the delay of 1 week in recalling her, if
any,33 was due to the Respondent's unexplained failure to follow the order prescribed
by the rehire formula rather than by the Respondent's failure to accord her proper
placement on the seniority list.
During the hearing, the following colloquy took place:
Mr. BORovsKY: Mr. Examiner, if I may, I would just like to briefly state the
issues framed by the complaint as I see them?
TRIAL EXAMINER: That might be very helpful.
Mr. BoROVSKY: . . The issue is a very narrow one that consists of the propo-
sition , did the hiring formula established by the company for the recall of em-
ployees in 1959 have the effect of discriminating against those employees who
had participated in the 1958 strike by discontinuing work when they were on
strike and thus penalizing them for having engaged in the strike. [Emphasis
supplied. ]
Mr. EDES: That is precisely the issue that we are here to defend.
Mr. RoSENBLOOM: We certainly agree with that statement of the issues... .
82 During the 1959 season , Keys was laid off, then later recalled . The effect of this
layoff is discussed below.
av In its brief, the Respondent points out that the 1959 rehire date shown in its records
is merely the date on which the employee actually started work, not the date on which
she was called to come to work. Therefore, reasons the Respondent, where the date of
hire is out of proper order, this may have been caused (1) by unavoidable delay en-
countered in contacting the employee, or (2) prompt recall of the employee, but delay
by the employee in reporting for work ; thus the Respondent may have been entirely
blameless.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This constituted a clear and unequivocal limitation upon the issues by the General?
Counsel, upon which the other parties were entitled to rely. In the context of such
a statement I am- of the opinion that it would be improper for me now to enlarge.
upon the issues as defined by the General Counsel, who is by statute "charged with,
primary responsibility for prosecuting the case." 34 Accordingly, I decline. to de--
termine whether or not the Respondent discriminated against Terry by failing to fol-
low the order of rehire which it had established. As the delay in recalling Terry, if.
any, was not due to the Respondent's failure to accord her a proper seniority stand-
ing, I find that her rehire was not discriminatorily delayed within the General Coun-
sel's above-quoted definition of the issues.
d. Lillie Bell Cain
Cain had worked for the Respondent in 1957. During 1958, of 18 weeks in.
which work was available for her, she received credit for only 11 weeks' actual work,
experience. As a result, she was ranked number 11 on the rehire list for females.
(See Appendix C.) Had she been accorded full credit for the 7 weeks of the strike,.
she would have stayed in the same slot-number 11-for in any event she was the-
least senior of the 11 females who had worked for the Respondent in seasons prior
to 1958. (See Appendix D.)
The General Counsel contends that the Respondent's failure to credit Cain with
time spent on strike had a detrimental effect on her relative seniority standing. This.,
contention is not supported by the record. Whether or not strike time is counted,
Cain's position on the rehire list would not be changed, therefore she was not denied,
her "rightful" place thereon. Accordingly, no violation is found as to her. _
The General Counsel further urges that the Respondent discriminatorily delayed
1 week rehiring Cain because she participated in the strike. (See Appendix B.) I
find no merit in this contention. As found above, Cain's relative seniority standing:
was not adversely affected by the adoption of the discriminatory rehire formula.
Aside from that, however, she would not in any event have been entitled to have
been rehired earlier than the week ending May 22, the week during which she was in
fact rehired. For only nine females were rehired during the week ending may 15
(see Appendix E) and her position as number 11 therefore put her beyond reach'
for that week. Accordingly, it is found that Cain's rehire was not delayed.
e. Fannie May Thomas
Thomas had not worked for the Respondent prior to 1958 . In that season 19'
weeks of work were available to her; she was only credited with 12 weeks of actual
work experience . This placed her as number 21 among the females on the rehire list.
(See Appendix C.) Had the full 7 weeks of the strike been counted toward her
"actual work experience" she would have been entitled to the number 12 spot. (See
Appendix D.)
The General Counsel maintains that Thomas' proper relative seniority standing.
was denied her by the operation of the illegal rehire formula . As the formula's ap-
plication resulted in her being dropped from number 12-her rightful position-to,
number 21 , I agree. Hence I find that , at the time the formula was adopted , the Re-
spondent discriminatorily impaired Thomas' tenure of employment.
. The General Counsel also . contends that the Respondent illegally delayed the rehire
of Thomas 1 week because of her strike participation. (See Appendix B.) By vir-
tue of her position as number 21 on the rehire list, Thomas was rehired during the
week ending May 22, 1959. Had she been given her proper slot as number 12, she
would not have been reached any earlier, because only nine females were rehired
previous to that week. ( See Appendix E.) As to her, it is therefore found that
there was no delay in rehiring.
f. Deola Allen
Deola Allen had not worked for the Respondent prior to 1958. In that year 17
weeks of work were available to her, of which 16 were credited as actual work ex-
perience . As a result , she was accorded the number 12 place on the rehire list. Thus,
she was treated as the most senior among the females who had worked for the
Respondent in 1958 only-the 11 above her all having worked for the Respondent
during prior seasons. (See Appendix C.)
,The General Counsel 's contention is that Deola Allen's seniority standing was
impaired by the application of the discriminatory hiring formula . I cannot follow
his reasoning in this regard. Allen was accorded top priority vis-a-vis the female
34 Borg-Warner Corporation, 113 NLRB 152, 154, enfd. 231 F. 2d 2'37 (C.A. 7).
COMMUNITY SHOPS, INC. 1541
employees with only one season 's experience . Unless the General Counsel is urging
,that the formula improperly provided for first priority to those with multiple seasons'
•experience-arid I do not understand this to be the case-his contention that the
rehire formula adversely affected Deola Allen's tenure of employment collapses as
being contrary to the record facts. Indeed, had a proper rehire formula been applied,
Deola Allen would have been reduced in ranking from 12th to 13th place by virtue
•of Thomas' elevation above her. (See Appendix D.) It is accordingly found that
there has been no violation proved with respect to Deola Allen.
. The General Counsel also maintains that Deola Allen's rehire during the week
-ending May 29 was 2 weeks late, because of the application of the illegal rehire
formula. (See Appendix B.) This is based on the contention "that she would have
been hired on 5/15/59 . . . but for the fact that she was penalized for participating
in the 1958 strike by the application of the discriminatory hiring and recall formula."
This argument is untenable. Examination of the Respondent's records clearly demon-
-strates-that only nine females were rehired in 1959 during the week ending May 15
(see Appendix E), and in the normal course of events these would all have been
•employees who had worked during seasons prior to 1958, thus excluding Deola
Allen. (See Appendix C.) Accordingly, had a proper rehire list been followed the
earliest rehire date on which she would have been reached would have been during
the week ending May 22. The delay in rehiring her until the week ending May 29,
if any, was due to the Respondent's failure to follow its rehire list, not to its use of
an improper list. Accordingly, there was no discrimination against Deola Allen
within the definition given by the General Counsel at the hearing.
g. Mardine Battle, Juanita Cannon, and Mary Lee Williams
None of these individuals had worked for the Respondent prior to 195.8. In that
year; 17 weeks of work were available to Battle and Cannon, and 16 to Williams.
However, each of them was credited with only 10 weeks of "actual work experience."
-Their rankings among the females on the rehire list were numbers 35, 38, and 39,
respectively. (See Appendix C.) Had Battle and Cannon been accorded credit for
-the full 7 weeks of the strike, and Williams for 6 weeks of the strike, they would
have attained places on the list as numbers 14, 15, and 16, respectively.- (See
-Appendix D.)
The General Counsel contends that the relative seniority standings of these three
.women were improperly reduced by the application of the discriminatory rehire
formula. The Respondent's records bear this out. A substantial number of non-
strikers (see numbers 13 through 20 and 22 through 34 on Appendix C) were im-
properly ranked ahead of Battle, Cannon, and Williams, thereby illegally impairing
their tenure of employment at the time the formula was adopted.
Battle's 1959 rehire date is shown as the week ending May 29. The General
Counsel contends that this is 2 weeks later than it would have been had she been
accorded her proper place on the rehire list. (See Appendix B.) But for reasons
discussed above, under Deola Allen, Battle was not rightfully entitled to have been
rehired during the week ending May 15. However, she normally would have been
reached, as number 14, during the week ending May 22, if a proper rehire list had
been used. Therefore it is found that the Respondent, during the week ending May 22,
1959, discriminatorily delayed in rehiring Battle, because of her participation in the
1958 strike, until the week ending May 29, 1959.
Cannon and Williams were not rehired during 1959 and the General Counsel con-
tends that this was due to their being assigned improper places on the rehire list.
,(See Appendix B.) Had they been accorded their rightful slots as numbers 15 and
16, respectively, they would normally have been reached for rehire during the week
ending May 22. Larry Gordon testified without contradiction that both Cannon
and Williams were recalled to work during 1959, and that in October "they were sent
letters." The Respondent and Local 2 offered to prove that the letters sent Cannon
and Williams read: "Please report for work on Thursday, October 8, 1959, at 8 o'clock
in the morning," that they were dispatched by registered mail, that the Respondent
received the return receipt "bearing a signature which purported to be that of Juanita
Cannon," that Cannon later telephoned Larry Gordon and stated that "she couldn't
come back to work," and that the entire envelope addressed to Williams was returned
to the Respondent "with a notification that the addressee could not be found." The
offer of proof was,accepted, providing that "competent evidence is produced to sub-
stantiate" it, but no such evidence was forthcoming. In any event, assuming without
deciding that in October 1959 the Respondent made every reasonable effort to notify
Williams to come to work, and that Cannon refused a bona fide offer of rehire, these
came too late; Cannon and Williams should have been rehired during the week ending
May 22. It is accordingly found that during the week ending May 22, 1959, the
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
Respondent discriminatorily either failed and refused to rehire Cannon and Williams,
or alternatively delayed their rehire until the week ending October 9, 1959,-because
of their improper placement on the rehire list.35
h. Wilma. James • and June English
James and English first worked for the Respondent in 1958. During that season,
13 weeks of work were available to them, of which only 6 were credited to them as
"actual work experience." Accordingly, they were placed as numbers 41 and 42,
respectively, on the female rehire list. (See Appendix C.) Had the full 7 weeks
of strike been credited to them, they would have appeared on the list as numbers 24
and 25, respectively. (See Appendix D.)
The General Counsel maintains that the relative seniority standings of these two
individuals were illegally reduced by the use of the discriminatory rehire formula.
I agree. By virtue of the formula's operations, numerous nonstrikers (see numbers
20, 22 through 34, 36, and 37 on Appendix C) were improperly placed in position
above James and English, to the detriment of their tenure of employment. There
was therefore discrimination against them at the time of the formula's adoption.
The General Counsel also contends that the rehire of James and English was dis-
criminatorily delayed for 22 weeks because of the use of the illegal hiring formula.
(See Appendix B.) Had a proper formula been used, and had they been accorded
their rightful places as numbers 24 and 25, respectively, they would normally have
been reached for rehiring during the week ending May 22 (see Appendix E), not
during the week ending May 15, as the General Counsel suggests in his brief. The
record shows their rehire date as the week ending October 16. I conclude that during
the week ending May 22, 1959, the rehire of James and English, because of the Re-
spondent's improper rehiring system, was discriminatorily delayed until the week end-
ing October 16, 195936
3. Males
a. Hiring of new employees
It will be recalled that in May 1959 the Respondent hired four new male employees
within the bargaining unit: Tate, Muhler, Donavon, and Deworcki. Muhler was
hired to fill a newly created job, that of scaler, which required a journeyman baker.
None of the male employees named in the complaint was a journeyman baker quali-
fied to take over the scaler's work. Accordingly, Muhler's hire was not shown to
have adversely affected any specifically named male applicant.
Donavon was hired as shipping clerk and Deworcki to do maintenance work.
Arthur Gordon testified without contradiction that none of the male applicants for
rehire was qualified to perform the job of shipping clerk or to do maintenance work.
Hence the hiring of these two men cannot have been detrimental to any male named
in the complaint. With regard to the posting of the "clerk wanted" sign, the General
Counsel at oral argument stated: "There is the possibility that it was done as a method
of controverting the hiring formula which had been determined by the Company,
and was done when the company realized how many strikers applied for jobs." How-
ever, in view of the limited issue before me-the legality of the rehire formula-I
deem it unnecessary to determine the Respondnt's motive in posting the sign.
There remains the effect of the hire of Tate to do oven work. During the 1958
season oven work had been performed by William Hodges, William Thomas (not to
be confused with William M. Thomas named in the complaint), Lonzo Lewis, Mack
Kaiser (also spelled Mack Kizer in the Respondent's records), and Willie Brown.
In 1959 it was done by Thomas; Tate, hired during the week ending May 8, 1959;
Hodges and Brown, rehired during the week ending May 15; and Lewis, rehired
during the week ending May 29. Thomas was a "year round" employee and Kaiser
did not apply for rehire in 1959; they therefore need not be considered. Of the
remaining three ovenmen, only two, Hodges and Lewis, are named in this complaint,
The effect of Tate's hire on these two men will be discussed below.
88 At the compliance stage of this proceeding, if any, the Respondent may perhaps be
permitted to show, by competent evidence, that in fact it made every reasonable effort to
recall Williams and Cannon, thus cutting down pro tanto the backpay due them. How-
ever, this issue need not now be decided.
6 James and English were laid off in November 1959; English was recalled in Decem-
ber 1959. The effect of these layoffs is discussed below.
COMMUNITY SHOPS, INC. 1 543
b. Vernon Peden and Clarence Williams
Peden had - worked for the Respondent in 1956 and 1957 and Williams in 1957.
They were the only two male applicants who had worked for the Respondent prior
to 1958 .. •By..virtue of that , fact , the operation . of the rehire_ formula placed them
in slots numbers 1 and 2 , respectively , among the males. (See Appendix F.) Peden
was denied credit for 6 possible weeks of actual work experience , and Williams for 7.
Had they been given this credit , they would still have ranked numbers 1 and 2, re-
spectively . (See Appendix G.)
The General Counsel maintains that Peden and Williams were deprived of their
"rightful" places on the rehire list. I cannot agree . The number of weeks of
actual work experience , whether few or many, had no effect on their relative stand-
ings. And I cannot see how there can be any detriment to the tenure of employment
of men ranked in the first two positions , as they could not possibly have been ranked
any higher . Accordingly, as to them I find no discriminatory weakening of tenure
of employment.
The General Counsel also contends that Williams , whose 1959 date of rehire is
during the week ending May 22, was rehired a week late under the discriminatory
rehire system because of his participation in the strike . ( See Appendix B.) I find
no merit in this contention . The Respondent rehired only three male applicants
during the week ending May 15 , 1959 . ( See Appendix E.) Had therehire formula
been followed , these normally would have been Peden, Williams, and Brown. (See
Appendix F.) Instead the three actually rehired that week were Peden , Brown, and
Hodges. Thus, the substitution was that of Hodges for Williams . But as both were
strikers who were denied a full 7 weeks of "actual work experience " credit , it cannot
be said that the Respondent 's favoring of one over the other , if any, was related to
their strike activities . Moreover , the Respondent 's failure to follow the rehire list,
as found above, is not properly an issue herein . It is accordingly found that the
Respondent 's rehire of Williams 1 week late, if it occurred at all , was not discrim-
inatory.
c. William Hodges and Lonzo Lewis
Hodges and Lewis had been ovenmen in 1958 , but had not worked for the Re-
spondent in prior seasons. During 1958 , 23 weeks of work were available for
Hodges and 19 for Lewis. They were credited , respectively, with only 16 and 12
weeks of actual work experience . Based on this "actual work experience" they were
accorded slots numbers 4 and 17, respectively , on the male rehire list . (See Ap-
pendix F. ) There is no evidence that ovenmen were rehired as a separate group;
the rehire formula seems to have been based on the equivalent of "plantwide
seniority ." Hence, had Hodges and Lewis been credited with actual work experience
for the full 7 weeks of the strike , they would have ranked . as numbers 3 and 7,
respectively , on the male rehire register . ( See. Appendix G.)
. The General Counsel maintains that these two men were denied their rightful
places on the rehire list , both by the discriminatory operation of the improper rehire
formula, and the hire of Tate as an ovenman . Of course , the hiring of Tate did not
affect the adoption of the formula, for the formula was devised in April , before Tate
was taken on. But the record bears out the General Counsel 's contention that the
formula operated to the detriment of these individuals . Hodges was dropped one
notch from slot number 3, where he properly belonged , and Willie Brown, a non-
striker, given priority over him on the list. Lewis ' relative ranking was downgraded
from number 7, where he rightfully belonged , to number 17, and nonstrikers were
improperly passed over him . (See e.g. numbers 3 and 5 through 11 on Appendix
F.) It is accordingly found that , at the time the rehire formula was adopted, the
Respondent illegally discriminated against Hodges and Lewis with regard to their
tenure of employment because of their participation in the 1958 strike.
The General Counsel also contends that Hodges and Lewis were rehired late
(see Appendix B) because of the alleged discriminatory hiring of Tate as ovenman
and the operation of the improper hiring formula. So far as Tate's hiring is con-
cerned, it is a matter outside the issues as defined by the General Counsel at the
hearing. With respect to Hodges , who was among the three males rehired the first
week of the 1959 season (the week ending May 15 ), it is found that there was no
delay- -discriminatory or otherwise-in rehiring him due to the use of the hiring
formula. As to Lewis, the General Counsel argues that , absent discrimination, he
"would have been hired on 5/15 /59 but for the fact that he was penalized for having
participated in [the] 1958 strike ." The 1959 date of rehire of Lewis is shown on the
Respondent 's records as the week ending May 29, and that is the week he-as num-
ber 17-would normally have been rehired by operation of the rehire formula. (See
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix E.) However , as number 7 on a proper rehire list, he would normally
have been among the 10 males rehired during the week ending May 22, but not
among the 3 rehired during the week ending May 15, as the General Counsel urges.
I am accordingly convinced , and find , that during the week ending May 22, 1959,
Lewis' rehire was delayed , by the application to him of the Respondent 's discrimina-
tory rehire formula, until the week ending May 29, 1959.
d. Cyrus Almond, John Henry Delaney, Boyd Sullivan , James McCloud, L. V.
Prince, James Willie Johnson, Rogers Jackson, Henry L. Almond , and Dalton
Eugene Harper
These nine men first worked for the Respondent in 1958 . The number of weeks of
work available to them, respectively , were 19, 22 , 19, 17, 18, 22, 17, 16 , and 16.
They were only credited with weeks of actual work experience as follows: 12, 12, 12,
11, 11, 11, 10, 9, and 9, respectively . Accordingly , they were placed at numbers
12, 13, 16, 21 , 25, 26, 28, 29 , and 30, respectively , on the Respondent 's rehire list.
`(See Appendix F.) Had McCloud been given credit for the maximum number of
weeks during which work was available to him, and had the other 8 men been ac-
corded full credit for the entire 7-week period of the strike , they would have ranked
numbers 4 , 5, 6, 10, 8, 9, 11, 12, and 13, respectively ; in fact, the first 13 names on
a proper rehire list would all have been those of strikers . (See Appendix G.)
The General Counsel argues that these nine men were denied their proper places
,on the rehire list. I agree. A number of nonstrikers ( see, e.g., numbers 5 through
11 on Appendix F) were improperly ranked above them . Cyrus Almond was
dropped from number 4 to number 12, and the other eight were similarly treated.
I accordingly find that all nine were discriminated against when the Respondent's
rehire formula was adopted , in that their relative standings were reduced and their
'tenure of employment thereby impaired.
The 1959 rehire dates shown for these nine men are as follows : Cyrus Almond
and Delaney , week ending May 22; Sullivan , week ending May 29; McCloud, week
ending June 5; Prince, week ending June 12; Johnson, week ending June 19; and
the remaining three, week ending July 3. The General Counsel urges that the opera-
tion of the rehire formula caused all of them to be rehired late (see Appendix B),
as follows: Cyrus Almond and Delaney, 1 week; Sullivan, 2 weeks; McCloud, 3
weeks; Prince, 4 weeks ; Johnson, 5 weeks; and Jackson , Henry L. Almond, and
Harper, 7 weeks. In my opinion , these calculations are not correct . Had a proper
rehire list been used , none of the nine would have been among the three males re-
hired during the week ending May 15. Cyrus Almond and Delaney would nor-
mally have been reached during the following week , as they were. (See Appendix E.)
'Therefore as to them I find no delay in rehire , discriminatory or otherwise. The
remaining 7, all being within the first 13 places on a proper rehire list, would nor-
mally have been reached for rehire during the week ending May 22, but none of
-them were rehired that early. It is accordingly found that the operation of the
discriminatory rehire formula delayed the rehire of Sullivan 1 week , that of McCloud
2 weeks, that of Prince 3 weeks, that of Johnson 4 weeks,37 and that of Jackson, Henry
L. Almond, and Harper, 6 weeks.
e. Riley Jackson
Jackson had not worked for the Respondent prior to 1958. In that season, of 13
weeks of work available to him, he was credited with only 6 weeks of actual work
,experience . The result was that he was placed in the number 33 position on the
male rehire register . ( See Appendix F.) Had he been credited with "actual work
experience" for the entire period of the strike , he would have been accorded the
number 22 spot on the list . (See Appendix G.)
The General Counsel contends that Jackson 's standing on the list was improperly
reduced . I find merit in this contention . Jackson was dropped from number 22-
where he should rightfully have been-to number 33 and nonstrikers (see, e.g., num-
bers 14, 15, 18, and 19 on Appendix G) were placed ahead of him. I therefore
conclude that , when the rehire formula was drawn up, Jackson 's tenure of employ-
ment was discriminatorily impaired because of his strike participation.
Jackson was not rehired during the 1959 season ; neither were any other appli-
cants below him on the male rehire list, as the Respondent rehired only 31 males.
(See Appendix E.) The General Counsel argues that , but for the discriminatory
misplacement of Jackson by operation of the hiring formula, he would have been
reached for rehire during the week ending May 22, 1959 . (See Appendix B.) But
9' Johnson was laid off in November 1959 . The effect of this layoff is discussed below.
COMMUNITY SHOPS, INC. 1545
had Jackson been accorded his rightful spot on the rehire list as number 22, he
would not normally have been rehired in 1959 until the week ending June 12. It
is therefore found that during the week ending June 12, 1959, the Respondent dis-
criminatorily failed to rehire Jackson because of his participation in a lawful strike
during the previous season.
f. William M. Thomas
Thomas had not worked for the Respondent prior to 1958. In that year, of 19
weeks during which work was available to him (his hiring date in 1958 was August
8 and his termination date December 12), he was credited with only 12 weeks of
actual work experience. His name was included on the alphabetical list of 181
employees who had been on the Respondent's payroll as of December 5, 1958, com-
piled in April by Larry Gordon and Edes, and given to Tobin. It also appears in
the second such list prepared by them on about May 2, 1959. It does not appear,
however, on Tobin's affidavit of mailing dated May .1, 1959, or on any list prepared
after May 8, 1959.
The General Counsel maintains that Thomas "was not requested to apply for
employment for the 1959 season for the reason that he engaged in the 1958 strike,"
and that "when he applied for work he was told he was too late." The Respondent
contends that, in view of the "precautions" taken by Tobin by checking the list
against the envelope, "it is not likely that . Thomas was omitted from the
mailing," but because of his change of address "it may well be . . . that Thomas
did not 'receive the invitation . . . [due to no] fault of [the] Respondent." I find
from the record facts, including Tobin's affidavit and Thomas' testimony, that the
letter of May 1, 1959, inviting former employees to apply for rehire, was never
sent to Thomas. It is further found that, when he failed to receive this letter,
Thomas neither applied for rehire nor made any attempt to contact the Respondent.
Instead, he sought and obtained employment elsewhere, taking the attitude, in his
own words, that "if they [the Respondent] want me they could call me like they
did the rest of them."
The General Counsel does not contend that Thomas was deprived of his rightful
place on the Respondent's rehire list. But he does maintain that the Respondent
discriminatorily omitted to invite Thomas to apply for rehire and thereby denied him
an opportunity to be employed during the 1959 season. (See Appendix B.) The
trouble with this contention is that there is no evidence that the unexplained failure
of Tobin to mail Thomas a letter was intentional. Indeed, Tobin also neglected to
mail the letter to a nonstriker, Archie Johnson, who likewise was included on the
list compiled by Larry Gordon and Edes and given to Tobin. It should be noted,
also, that Tobin's omission of these two names was not in conformance with her
orders, as she was instructed to eliminate only "year round" employees.38 I con-
clude that the General Counsel has failed to prove that Thomas was deliberately
discriminated against because of his strike participation.
THE REMEDY
Case No. 13-CA-3339
It has been found that the Respondent adopted and maintained in effect an
illegal rehire policy whereby employees were not accorded credit toward "actual
work experience" for time spent on lawful strike, thereby impairing the tenure of
employment of 20 employees.39 It will therefore be recommended that the Respond-
ent cease and desist from discouraging membership in Local 15, or any other
union, by discriminating in regard to the hire or tenure of employment of its em-
ployees. It will also be recommended that the Respondent cease and desist from
promulgating, adopting, establishing, maintaining, or continuing in force or effect
any such formula, policy, practice, or system. As the unfair labor practices found
do not indicate a basic opposition to the purposes of the Act, and therefore there
does not appear to be danger of the commission of other unrelated unfair labor
practices in the future, it will not be recommended that the Respondent cease and
desist from committing other unrelated unfair labor practices.
Affirmatively, the General Counsel requests that the Respondent be required to
restore the discriminatees to their "rightful" places on the rehire list "for the pur-
poses of any bearing it may have on the tenure of [their] employment." As the
88 In view of the similarity of names, it is possible that Tobin might have inadvertently
confused Thomas with Willie Thomas and William Thomas, both eliminated as year-
round employees.
89 Cyrus Almond, John Henry Delaney, William Hodges, Betty Terry, Fannie May
Thomas, and the 15 employees named below in footnote 40.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has no contract requiring it to maintain any kind of seniority system,
it is free, of course, to set up or not to set up such a system. And it is uncertain
whether or not the Respondent may at some future date refer to the 1959 rehire list
or use it again in determining tenure of employment. Although the 1960 season is
now presumably about to begin, the record does not show on what basis employees
for that season will be or have been chosen. Nevertheless, it will be recommended
that, in the event that the Respondent should base any employment or rehire rights
on that list, then the 20 employees found to have been discriminated against shall
be placed thereon in order -of their rightful relative rankings, being accorded due
credit for time spent on strike.
It has been found that the. Respondent either refused to rehire or delayed in rehiring
15 strikers 40. during the 1959 season, because of its discriminatory rehiring'policy.
It will accordingly be recommended that the Respondent make whole each of these
15 employees for any loss of pay he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money equal to that which he
normally would have earned from the date he normally would have been rehired
in 1959 41 to the date he was actually rehired, or the date on which he would nor-
mally have been rehired according to the Respondent's discriminatory rehire list,
whichever is earlier, and in Riley Jackson's case, to the date he would normally
have continued to work during the 1959 season, less his net earnings during the said
period. In the cases of those employees whose delay in rehire extended beyond
July 1, 1959, the amount of backpay due shall be computed on a quarterly basis
in the manner established by the Board; earnings in one particular quarter shall
have no effect on the backpay liability for any other period.
. One further problem remains. It will be recalled that English, James, Johnson,
and Keys'were laid off before the end of the 1959 season . The General Counsel
contends that this acceleration of their layoffs was attributable to their improper
placement on the Respondent's rehire list and that they therefore should be further
,compensated for any additional loss of pay sustained thereby. The record, how-
ever, does not fully reveal either the circumstances under, which these layoffs oc-
curred or the identity of other employees laid off simultaneously, if any. These mat-
ters may perhaps appropriately be developed further at the compliance stage of
this proceeding, if any. I deem it sufficient, at present, to recommend merely that
these 15 employees be reimbursed for all losses attributable to the Respondent's
discriminatory failure to accord them proper standings on the rehire list, whether this
took the form of failures to rehire, delays in rehiring, or accelerated layoffs. But
losses due to the Respondent's failure to follow its discriminatory formula, or to
any reason other than its failure to establish a proper rehire policy, are not intended
to be included.
It will further be recommended that the Respondent preserve and make available
to the Board or its agents all records needed to determine the amount of backpay
due hereunder, and post the usual notices. Finally it will be recommended that the
complaint be dismissed insofar as it alleges discrimination against the nine employees
named in conclusion of law number 5, above.
Case No. 13-RC-6165
It will be recalled that the Regional Director, in his report on objections dated
November 23, 1959, recommended that: "In the event that the Board finds that
there has been an 8(a)(1)(3) violation in 13-CA-3399 [sic] then the undersigned
recommends that the election be set aside .. . ," and that thereafter the Board
adopted the Regional Director's Report. Thus, as pointed out in Local 2's brief,
",the substance of [Local 15's] Objection No. 7 [in Case No. 13-RC-6165] and the
conduct complained of in Case No. 13-CA-3339 were equated."
The Respondent and Local 2 argue "that such a conclusion is erroneous." This
contention is bottomed upon two grounds: (1) According to Board election pro-
cedure, the only way Local 2 could properly have raised the matters alleged in
objection No. 7 would have been to challenge at the election those voters who in its
opinion were ineligible to vote, or to vote under challenge those whom it considered
eligible ,42 and (2) the mere violation of Section 8(a) (1) and ( 3) of the Act relating
40 Henry L. Almond, Mardine Battle, Juanita Cannon, June English. Dalton Eugene
Harper, Riley Jackson, Rogers Jackson, Wilma James, James Willie Johnson, Eula Keys,
Lonzo Lewis, James McCloud, L. V. Prince, Boyd Sullivan and Mary Lee Williams.
"In the case of Riley Jackson, this , date is the week ending June 12; for Keys it is
the week ending May .15 ;'and for.-each of -the other 13 it is the weekending May 22.
u The report on - - objections , shows that . eight challenged ballots were cast-a number
insufficient to affect the results of the election.
COMMUNITY SHOPS, INC. 1547
to hiring procedure, standing alone, should not "necessarily or automatically result
in voidance of the election results."
I cannot agree. It has been found above that the Respondent has been engaging
in unfair labor practices since April 1959. These remained unremedied at the time
the second election was conducted on August 21, 1959. Under these circumstances,
it is unlikely that the election results reflected the free and uncoerced choice of the
eligible voters. In any event, the Regional Director recommended that the elec-
tion be set aside should it be found that the Respondent committed the unfair labor
practices alleged in the complaint in Case No. 13-CA-3339, and the Board adopted
that recommendation. As a Trial Examiner, I am bound by the Board's decision
on this issue. Accordingly, in view of the findings that the Respondent committed
the unfair labor practices described above, it is recommended that the second elec-
tion conducted herein on August 21, 1959, be set aside, and that a third election be
held during the customary season, at such time as there has been compliance with
the recommendations made above in Case No. 13-CA-3339.
Upon the basis of the foregoing findings of fact, and upon the entire record in
these cases, I make the following:
CONCLUSIONS OF LAW
1. United Bakery and Confectionery Workers Union , Local 15, Chicago Joint
Board , Retail , Wholesale and Department Store Union , AFL-CIO, and Bakery and
Confectionery Workers International Union of America , Local 2, are, and at all
material times have been , labor organizations within the meaning of Section 2(5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of certain
named employees , thereby discouraging membership in United Bakery and Con-
fectionery Workers Union , Local 15, Chicago Joint Board , Retail , Wholesale and
Department Store Union , AFL-CIO, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
3. By the above-described conduct and by adopting and maintaining in effect a
-discriminatory policy of refusing to credit time spent on lawful strike as "actual
work experience ," thus penalizing employees for, engaging in protected concerted
activities , the Respondent has interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. The above-described unfair labor practices , occurring in connection with
the Respondent 's operations , 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 thereof , and there-
fore constitute unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The General Counsel has failed to prove that the Respondent discriminated
,against Cora May Allen , Deola Allen , Sara Allen , Lillie Bell Cain , Mattie Davis,
Nettie Jean Manning, Vernon Peden, William M . Thomas, or Clarence Williams.
APPENDIX A
Cora Mav Allen 1 John Henry Delaney Nettie Jean Manning
Deola Allen 1 s June Enelish James McCloud
Sara Allen 1 4 Dalton Eugene Harper Vernon Peden
Cyrus Almond William Hodges L. V. Prince
Henry L. Almond Riley Jackson Boyd Sullivan I
Mardine Battle Rogers Jackson 2 Betty Terry 1
Lillie Bell Cain 2 Wilma James Fannie May Thomas
Juanita Cannon James Willie Johnson Clarence Williams 1
Mattie Davis Eula Keys Mary Lee Williams
Lonzo Lewis
I Added by amendment at the hearing.
' Spelling of name amended at the hearing. Rogers Jackson is spelled Roders Jackson
on some of the Respondent's records.
Spelled Leola Allen on some of the Respondent's records.
' Spelled Sarah Allen on some of the Respondent's records.
,NOTE.-The name of Alma Charles was. deleted at the hearing.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. APPENDIX B
Deola Allen 13 Dalton Eugene Harper James McCloud
Cyrus Almond William Hodges L. V. Prince
Henry L. Almond Riley Jackson Boyd Sullivan 1
Mardine Battle Rogers Jackson 2 Betty Terry 1
Lillie Bell Cain 2 Wilma James Fannie May Thomas
Juanita Cannon James Willie Johnson William M. Thomas 1
John Henry Delaney Eula Keys Clarence Williams 1
June English Lonzo Lewis Mary Lee Williams
'Added by amendment at the hearing.
2 Spelling of name amended at the hearing. Rogers Jackson is spelled Roders Jackson
on some of the Respondent's records.
3 Spelled Leola Allen on some of the Respondent's records.
APPENDIX C
FEMALE APPLICANTS FOR REHIRE IN 1959 RANKED ACCORDING TO REHIRE
FORMULA USED
-Name (those listed in complaint shown
in caps)
Seasons prior
to 1958
1958 hiring
and terms-
nation dates
Number
wks. work
available,
1958
Number
wks.
actual
work ex-
perience,
1958
1959 rehire
date, week
ending
1. Stanley, Willie Mae____________________ 54, 55, 56, 67 7/18-12/26____ 24 22 5/15.
2. MANNING, NETTIE JEAN_______ 54,56,57 ---- 7/25-12/19____ 22 14 5/15.
3. DAVIS, MATTIE____________________ 55,56,57 ---- 7/25-12/26____ 23 16 5/15.
4. ALLEN, CORA MAY_______________ 56-7--------- 7/18-12/19--__ 23 22 5/15.
5. ALLEN, SARA______________________ 56-7 --------- 7/2.5-12/26____ 23 21 5/15.
6. Graham, Viola_________________________ 57 ----------- 7/18-12/12__-_ 22 22 5/22.
7. Turner, Willie May____________________ 57 ----------- 5/16-12/12____ 31 21 5/15.
8. TERRY, BETTY___________________ 57___________ 7/18-12/12__-- 22 20 5/22.
9. Taglioli, Mary_________________________ 57 ----------- 8/8-12/12-_-__ 19 19 5/22.
10. KEYS, EULA________________________ 57___________ 7/18-12/19____ 23 16 5/22.
11. CAIN, LILLIE BELL________________ 57___________ 8/15-12/12___- 18 11 5/22.
12. ALLEN, DEOLA____________________
'
___ ___________ 8/1-11/21_____ 17 16 5/29.
13. Smith, Maggie_______________________ _ ______________ 8/29-12/12____ 16 15 5/22.
14. Davis, Betty Joe_______________________ ___c---------- 9/26-12/26____ 14 14 5/15.
15. Haynes, Ola Mae______________________ ______________ 9/26-12/26____ 14 14 5/15.
16. Daniels, Joe Ella_______________________ ______________ 9/26-12/19____ 13 13 5/22.
17. Mays, Tommy Lee-------------------- ______________ 9/26-12/19____ 13 13 5/29.
18. Young, Bertha________________________ ______________ 9/26-12/19____ 13 13 5/29.
19. Calloway, Katie Bell__________________ ______________ 9/26-12/19____ 13 13 6/21.1
20. Henderson, Ollie Mae__________________ ______________ 9/12-12/19____ 15 12 5/15.
21. THOMAS, FANNIE MAY__________ ______________ 8/8-12/12_____ 19 12 5/22..
22. Bolden, Julius Ann____________________ ______________ 9/26-12/12____ .12 12 5/22..
23. Askew, Hazel Young_________________ ______________ 9/26-12/12__- 12. 12 5/22.
24. Copeland, Gladis______________________ ______________ 9/26-12/12___- 12 12 5/22.,
25. Smith, Pearline________________________ ______________ 9/26-12/12__-_ 12 12 5/22..
26. Tate, Ethel____________________________ ______________ 9/26-12/12____ 12 12 5/22:.
27. Webb, Sophonia______________________ ______________ 9/26-12/12_-__ 12 12 5/22.-
28. Young, Eunice________________________ ______________ 9/26-12/12____ 12 12 5/22..
29. Young, Lela Mae______________________ ______________ 9/26-12/12____ 12 12 5/22..
30. Cyrus, Estell__________________________ ______________ 10/3-12/12____ 11 11 5/22.
31. Dorrough, Jewellyne___________________ ______________ 10/3-12/12____ it 11 5/29..
32. Grove, Marlene Y_____________________ ______________ 10/10-12/19___ 11 11 5/29-
33. Thomas, Georgia 0-------------------- ______________ 10/10-12/19_-_ 11 11 6/5.
34. Blakney, Catherine____________________ ______________ 10/10-12/12___ 10 10 5/29..
35. BATTLE, MARDINE_______________ ______________ 8/22-12/12___- 17 10 5/29.
36. Jackson, Vera--------------------------
------- - - -- - - _ 9/26-12/5_____ 11 10 5/29.37. Taylor, Luethel________________________ ______________ 10/10-12/12___ 10 10 5/29.
38. CANNON, JUANITA_______________ ______________ 8/22-12/12____ 17 10
39. WILLIAMS, MARY LEE____________
'
______________ 8/22-12/5____- 16 10
10. Nebels, Cora Lce______________________ ______________ 10/31-12/19___ 8 8 10/9.
11. JAMES, WILMA---------------------- ______________ 9/19-12/12____ 13 6 10/16.
12. ENGLISII, JUNE___________________ ______________ 9/19-12/12____ 13 6 10/16.
I Treated in Appendix E as week ending June 26, 1959.
NoTE.-Others below omitted as unnecessary.
COMMUNITY SHOPS, INC.
APPENDIX D
1549
FEMALE APPLICANTS FOR REHIRE IN 1959 RANKED ACCORDING TO PROPER REHIRE
FORMULA
ame (those listed in complaint shown in caps)
Seasons prior
to 1958
1958 hiring
and termina-
Number
weeks
which
should
1959 rehire
date should
have been
tion dates be
credited
for 1958
week
ending.
1. Stanley, Willie Mae_______________________________ 54, 55, 56, 57_ 7/18-12/26---- 22 5/15.
2. MANNING, NETTIE JEAN__________________ 54, 56, 57 ---- 7/25-12/19--,- 21 5/15.
3. DAVIS, MATTIF________________________________ 55,56,57 ---- 7/25-12/26 ---- 23 5/15.
4. ALLEN, CO RA MAY__________________________ 56, 57-------- 7/18-12/19____ 23 5/15.
5. ALLEN, SARA-------------------------------- 56,57 -------- 7/25-12/26____ 23 5/15.
6. KEYS, E ULA---------------------------------- 57----------- 7/18-12/19_-__ 23 5/15.
7. Graham, Viola----------------------------------- 57----------- 7/18-14/12-___ 22 5/15.
8. TERRY, BETTY ------------------------------ 57----------- 7/18-12/12____ 22 5/15.
9. Turner, Willie May_______________________________ 57----------- 5/16-12/12____ 21 5/15.
.10. Taglioli, Mary------------------------------------ 57----------- 8/8-12/12_____ 19 5/22.
11. CAIN, LILLIE BELL__________________________ 57----------- 8/15-12/12____ 18 5/22.12. THOMAS, FANNIE MAY_____________________ -------------- 8/8-12/12_____ 19 5/22.
13. ALLEN, DE OLA_______________________________ -------------- 8/1-11/21_____ 17 5/22.
14. BATTLE, MARDINE__________________________ -------------- 8/22-12/12____ 17 5/22.
15. CANNON, JUANITA__________________________ -------------- 8/22-12/12__-_ 17 5/22.
16. WILLIAMS, MARY LEE_____________________-_ -------------- 8/22-12/5_____ 16 5/22.
17. Smith, Maggie------------------------------------ 8/29-12/12____ 15 5/22.
18. Davis, Betty Joe_________________________________ 9/26-12/26____ 14 5/22.
19. Haynes, OlaMae_________________________________ -------------- 9/26-12/26____ 14 5/22.
'20. Daniels, Joe Ella_________________________________ 9/26-12/19____ 13 5/22.
:21. Mays, Tommy Lee------------------------------- -------------- 9/26-12/19____ 13 5/22.
22. Young, Bertha---------------------------------- 9/26-12/19____ 13 5/22.
23. Calloway, Katie Bell ----------------------------- ------------- 9/26-12/19____ 13 5/22.
.24. JAMES, WILMA--------------------------------- -------------- 9/19-12/12____ 13 5/22.
25. ENGLISH, JUNE______________________________ -------------- 9/19-12/12____ 13 5/22.
:26. Henderson, Ollie Mae_____________________________ -------------- 9/12-12/19____ 12 5/22.
NOTE.-Others below omitted as unnecessary.
APPENDIX E
REHIRE OF 1958 EMPLOYEES IN 1959 BY SEX AND WEEK (excluding two males
rehired 5/5 to assist in cleanup for the 1959 season)
Males Females
Week ending
Rehired Cumulative Rehired Cumulative
May 15------------------------------------------------- 3 --------- 9 -----
May 22------------------------------------------------ 10 13 17
- ---26
May 29------------------------------------------------- 4 17
9
35
June 5-------------------------------------------------- 4 21 1 36
June 12------------------------------------------------ 2 23 ------------ ------------
June 19-------------------------------------------------
June 26------------------------------------------------- ------------
24
---------
------------
1
----------37
July 3-------------------------------------------------- 5 29 ------------ ------------
July 17------------------------------------------------ 30 ------------ ------------
July 24-------------------------------------------------
Oct. 9-------------------------------------------------- ------------
31
------------
------------ ----------38
Oct.16------------------------------------------------- ------------ ------------ 2 40
Totals--------------------------------------------1 31 1 ------------1 40
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX F
MALE APPLICANTS FOR REHIRE IN 1959 RANKED ACCORDING TO REHIRE
FORMULA USED
Name (those listed in complaint shown
in caps)
Seasons prior
to 1958
1958 hiring
and termi-
nation dates
Number
wks.work
available,
1958
Number
wks.
actual
work ex-
perience,
1958
1959 rehire.
date, week
ending
1. PEDEN, VE RNON__________________ 56,57 -------- 7/18-12/19____ 23 17 5/15.
2. WILLIAMS, CLARENCE___________ 57 8/15-12/12____ 18 11 5/22.
3. Brown, Willie__________________________ ______________ 9/12-12/26____ 16 16 5/15.
4. HOD GES, WILLIAM________________ ______________ 7/11-12/12____ 23 16 5/15.
5. Allen, Charlie_________________________ ______________ 8/8-12/14_____ 19 15 5/29.
6. Conley, Luscious______________________ ______________ 9/26-12/26____ 14 14 5/22.
7. Boston, Lester_________________________ ______________ 9/26-12/19____ 13 13 5/22.
S. Brewer, Ralph_________________________ ______________ 9/26-12/19____ 13 13 5/22.
9. Brown, IIarry_________________________ ______________ 9/26-12/19____ 13 13 5/22.
10. Flicks, Raymond______________________ ______________ 9/26-12/19____ 13 13 5/22-
11. Webber, William_______________________ ______________ 9/25-12/19____ 13 13 9/18.
12. ALMOND, CY RUS__________________ ______________ S/15-12/19____ 19 12 5/22.
13. DELANEY, JOHN HENRY________ ______________ 7/18-12/12____ 22 12 5/22.
14. Gorden, John__________________________ ______________ 9/26-12/12____ 12 12 5/22..
15. Sholar, Ozell___________________________ ______________ 9/26-12/12____ 12 12 5/22..
16. SULLIVAN, BOYD------------------ ______________ 8/8-12/12_____ 19 12 5/29-
17. LEWIS, LO NZ0______________________ ______________ 8/8-12/12_____ 19 12 5/29.
18. Moss, Delmos__________________________ ______________ 10/3-12/19____ 12 12 5/29.
19. Barry, Edward------------------------ -------------- 10/3-12/19____ 12 12
20. Hawkins, Versey______________________ ______________ 9/26-12/12___- 12 12 9/25-
21. McCLOUD, JAMES__________________ ______________ 8/29-12/19___- 17 11 6/5.
22. Knight, Leon_____
---------------------------
______________ 10/3-12/12____ 11 11 6/5.
23. Segers, Jerry Lee_______________________ ______________ 10/3-12/12____ 11 11 6/5.
24. Barnett, Will Jr________________________ ______________ 10/10-12/19___ 11 11 6/5.
25. PRINCE, L. V_______________________ ______________ 8/29-12/24____ 18 11 6/12..
26. JOHNSON, JAMES WILLIE________ ______________ 7/18-12/12____ 22 11 6/19.
27. Mines, Roy-- --------------- ----------- ______________ 10/17-12/19___ 10 10 6/12.
28. JACKSON, ROGE RS__________ _____ ______________ 8/22-12/12____ 17 10 7/3.
29. ALMOND, HENRY L_______________ ______________ 8/29-12/12___- 16 • 9 7/3.
30. HARPER, DALTON EUGENE____ ______________ 8/29-12/12____ 16 9 7/3.
31. Jordan, Willie__________________________ ______________ 10/17-12/12___ 9 9 7/3.
32. Harris, R. D. Jr_______________________ ______________ 10/31-12/19___ 8 8 7/3.
33. JACKSON, RILEY__________________ ______________ 9/12-12/5_____ 13 6
NOTE.-Others below omitted as unnecessary.
APPENDIX G
MALE APPLICANTS FOR REHIRE IN 1959 RANKED ACCORDING TO PROPER REHIRE
FORMULA
ame (those listed in complaint shown in caps)
Seasons prior
to 1958
1958 hiring
and termina-
tion dates
Number
weeks
which
should
be
credited
for 1958
1959 rehire
date should
have been
week
ending -
1. PEDEN, VE RNON____________________________ 56, 57________ 7/18-12/19____ 23 5/15.
2. WILLIAMS, CLARENCE______________________ 57 ----------- 8/15-12/12____ _ 18 5/15.
3. HO D GES, WILLIAM___________________________ ______________ 7/11-12/12____ 23 5/15.
4. ALMOND, CYRUS____________________________ _____________ 8/15-12/19____ 19 5/22.
5. D ELANE Y. JOHN_____________________________ ______________ 7/18-12/12____ 19 5/22.
6. SULLIVAN, B OYD___________________________ ______________ 8/8-12/12_____ 19 5/22.
7. LEWIS, LONZO-------------------------------- -------------- 8/8-12/12-___ 19 5/22.
8. PRINCE, L. V_________________________________ ______________ 8/29-12/24___- 18 5/22.
9. JOHNSON, JAMES WILLIE___________________ ______________ 7/18-12/12____ 18 5/22.
10. McCLOUD, JAMES____________________________ ______________ 8/29-12/19____ 17 5/22.
11. JACKSON, RO GE RS__________________________ ______________ 8/22-12/12____ 17 5/22.
12. ALMOND, HENRY L_________________________ ______________ 8/29-12/12____ 16 5/22.
13. HARPER, DALTON EUGENE-- __ ______________ 8/20-12/12____ 16 5/22.
14. Brown, Willie ------------------------------------ -------------- 9/12-12/26___- 16 5/29.
15. Allen, Charley ----------------------------------- -------------- 8/8-12/14_____ 15 5/29.
16. Conley, Luscious--------------------------------- -------------- 9/26-12/26_-_ 14 5/29.
17. Boston, Lester____________________________________ ______________ 9/26-12/19_-__ 13 5/29.
18. Brewer, Ralph---------------------------------- -------------- 9/26-12119____ 13 6/5.
19. Brown, Harry------------------------------------ ------------- 9/26-12/19____ 13 6/5.
20. Hicks, Raymond_________________________________ ______________ 9/26-12/19____ 13 6/5.
21. Webber, William---------------------------------- -------------- 9/26-12/19____ 13 6/5.
22. JACKSON, RILEY____________________________ ______________ 9/12-12/5_____ 13 6/12.
23. Gorden, John____________________________________ ______________ 9/26-12/12____ 12 6/12.
NOTE.-Others below omitted as unnecessary.