Kansas Milling Co.

National Labor Relations Board - Board Decisions

Oct 28, 1949

86 N.L.R.B. 925 (N.L.R.B. 1949)

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that the earlier charges should be viewed as "superseded " or "abandoned" or "withdrawn,"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that it was never withdrawn .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