Kansas Milling Co.

National Labor Relations Board - Board Decisions

Nov 30, 1951

97 N.L.R.B. 219 (N.L.R.B. 1951)

KANSAS MILLING COMPANY 219
All ticket agents, telephone information clerks, report clerks, baggage
and express agents, red caps or porters, station auditor, dispatchers
or bus callers, and maids, exclusive of professional employees and all
supervisors as defined in the Act.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any terms or conditions of employment against
any employee because of his membership in or activity on behalf of any such
labor organization.
UNION Bus TERMINAL OF DALLAS, 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.
KANSAS MILLING COMPANY aind AMERICAN FEDERATION OF GRAIN
PROCESSORS, A. F. OF L., LOCAL UNION 20991 . Case No. 17-CA -4.
November 30, 1951
Supplemental Decision
On November 9, 1950, in a proceeding under Section 10 (f) of the
Act to review the Board's Order in this case,' the United States Court
of Appeals for the Tenth Circuit ordered the case remanded to the
Board for the following purpose :
To take further evidence to establish how many places, if any,
not filled by permanent employees, were available as of October
18, 1947, and to make findings and certify such findings to this
Court; when that is done then the final order in this cause will
be entered in conformity with the views expressed in the opinion
of the Court 2
Thereafter, pursuant to the court's order, a hearing before a Trial
Examiner was held upon due notice, and evidence was introduced by
all parties. On July 12, 1951, Trial Examiner Arthur Leff issued a
Supplemental Intermediate Report, a copy of which is attached hereto.
The Respondent and the General Counsel thereafter filed exceptions
to the Supplemental Intermediate Report, and briefs.
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. The Board has considered the Sup-
plemental Intermediate Report, the exceptions and briefs, and the
1 86 NLRB 925.
2 The opinion of the Court is reported at 185 F . 2d 413.
97 NLRB No. 35.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
The Trial Examiner found that there were 19 vacancies available
as of October 18, 1947, and that 3 additional jobs (one in the elevator
group and two in the sweeper classification) were filled by temporary
employees at that time.
The Respondent contests only the finding as to the latter three jobs,
arguing that they, like the many others filled by replacements, were
filled by permanent employees. However, the record shows and the
Trial Examiner found that the Respondent's normal policy was to
provide a 30-day probationary period within which to determine
whether a newly hired employee was qualified for retention; and that
the employment of these three replacements terminated within their
respective probationary periods. We_agree with the Trial Examiner
that these three employees should not be regarded as permanent
within the meaning of the court's remand.
The General Counsel argues principally that the termination of any
employee after October 18, 1947, shows that he was not a permanent
employee as of October 18, and that, unless his place was then dis-
continued, the Respondent should later have offered it to the ap-
propriate former striker. Amplifying this argument, the General
Counsel concedes that the Respondent was at no time required to
discharge any replacements in order to make room for former strikers,
but could wait for the rate of turn-over to make jobs available and to
reveal the true status of the departing incumbents as temporary rather
than as permanent employees. The General Counsel refers to the
fact, found by the Trial Examiner, that the Respondent hired some
41 new employees between October 18 and December 15, 1947, ap-
parently contending that the figure of 41 reflected the extent to which
the Respondent should have reinstated former strikers.
In support of this position, the General Counsel argues that the
court's remand should be so. construed, because of the court's citation
of its own Shenandoah-Dives decision,3 which held, in part, that it
was an unfair labor practice for the employer to hire new workers
"after the strike was terminated and application had been made by
the old employees for reinstatement." However, as we read the opin-
ion, we believe-subject to correction by the court-that the court
cited that case here only to indicate the procedure it would follow
after the Board complied with the order of remand : namely, that it
would enter a final order upon certification to it of the Board's find-
ings on the number of places not filled by permanent employees which
were available as of October 18, 1947.
8 145 F. 2d 542.
KANSAS MILLING COMPANY 221
On the entire record, we find that a total of 22 places not filled by
permanent employees were available as of October 18,, 194:7.
MEMBERS REYNOLDS and Mu-RDOCK took no part in the consideration
of the above Supplemental Decision.
Supplemental Intermediate Report
STATEMENT OF THE CASE
On October 28, 1949, the Board issued its Decision and Order in the above-
entitled proceeding. The Board ruled in substance that the Respondent violated
Section 8 (a) (1) and (3) of the Act by refusing, on October 18, 1947, to rein-
state 107 employees who had engaged in a strike, found to have been earlier
transformed by the Respondent's unfair labor practices into an unfair labor
practice strike. The Board ordered, inter alia, that (1) the Respondent cease
and desist from engaging in unfair labor practices of the character found ; (2)
it offer to 73 of the 107 employees reinstatement to their former or substan-
tially equivalent positions and make them whole for losses of pay suffered ;
(3) it make whole the remaining 34 employees, who, it was found, received
"belated but otherwise sufficient offers of reinstatement" subsequent to October
18, 1947; and (4) upon application, it offer reinstatement to or place upon
a preferential hiring list 9 additional striking employees, who, it was found, had
not theretofore requested reinstatement.
Thereafter, the Respondent petitioned the United States Court of Appeals for
the Tenth Circuit to review and set aside the Board's Order, and the Board
filed an answer asking that its Order be enforced. On November 9, 1950, the
court issued its opinion in the case. The court disagreed with the Board's find-
ing that the strike of the Respondent's employees, extending from August 11 to
October 17, 1947, was prolonged by unfair labor practices and thus transformed
into an unfair labor practice strike. . It ruled in substance that, as economic
strikers, the old employees were entitled to reinstatement to such jobs only as
had not been permanently filled prior to October 18, 1947, when, it found, the
Union made its only unconditional request for the reinstatement of striking em-
ployees. The court said :
The Board has made no finding as to the number of permanent replace-
ments which had been made by that date, nor as to the number of jobs held
by temporary employees. In the absence of such a finding no order with
respect to reinstatement of striking employees can be made.
Therefore, the court concluded :
Since the record does not help us to determine the number of positions,
if any, that had not been permanently filled on October 18, 1947, we are
unable to enter a final order. The final decision is therefore reserved and
the matter is remanded to the Board to take further evidence to establish
how many places, if any, not filled by permanent employees were available
as of October 18, 1947, and certify such findings to this court. When this
is done, a final order will be entered in conformity with the views herein
expressed (N. L. R. B. v. Shenandoah, 145 Fed. (2d) 542).
On February 15, 1951, the Board issued an order reopening the record in
the above-entitled proceeding, remanding the proceeding to the Regional Di-
rector for the Seventeenth Region, and directing that a further hearing be held
to take testimony and to make appropriate findings as to how many places,
if any, not filled by permanent replacements, were available as of October 18,
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1947. Thereafter, pursuant to the remand, and upon due notice, a hearing was
held at Wichita, Kansas, between May 22 and 25, 1951, before the undersigned,
Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel of the Board, the Respondent, and the Union were repre-
sented at the hearing. All parties were afforded opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. Opportunity was afforded all parties for oral argument upon the record
and for the filing of briefs and proposed findings of fact. A brief was thereafter
filed by the General Counsel. Together with his brief, the General Counsel
filed a stipulation, agreed to by all the parties, containing certain supplementary
evidentiary data. The said stipulation has been made part of the record of this
proceeding.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
SUPPLEMENTAL FINDINGS OF FACT
A. Introduction
To determine the number of places not filled by permanent employees available
as of October 18, 1947, the starting point used was to ascertain the number
of employees occupying each job classification on August 11, 1947, just before
the strike began, and to compare that with the number actually employed in
each such classification on October 18, 1947, when the strike ended. In some
instances two or more separate job classifications were grouped for considera-
tion on a unit basis. This was done pursuant to stipulation of the parties. As
a check against inaccuracies resulting from possible unusual situations existing
on either of the polar dates above mentioned, reference was also made, where
figures were available, to the Respondent's "standard" employee complement
for the respective job classifications. The "standard" is a previously determined
managerial estimate which, although not rigidly adhered to at all times, is used
by the Respondent as a running guide to indicate the number of employees in
each job classification with which it is anticipated maximum plant efficiency
can be achieved. As bearing further on the remand issue, and particularly on
certain arguments advanced by the General Counsel, evidence was also received
relating to the history of employment at the plant during the 60-day period fol-
lowing the end of the strike. This shows, inter alia, the employees working on
October 18, 1947, whose employment terminated within the next 60 days, the
employees who were newly hired during that period, and the strikers who during
that time were returned to work. It shows also those employed on October 18
1947, whose employment was subsequently terminated before they had com-
pleted a total of 30 days' employment. The significance of this will be, more
fully explained below.
The factual information referred to has been tabulated in summary form,
and is set out in Appendix A hereto attached.
B. General considerations
Comparison of the employee rosters of August 11 and October 18, alone, is
not enough to supply an answer to the question remanded by the circuit court.
Under the remand order the Board must make findings showing the number of
places unfilled by permanent employees on October 18,.1947. There is now little
or no controversy with regard to the number of positions actually occupied on
the critical date. The dispute centers principally about the status of those then
KANSAS MILLING COMPANY 223
employed. The Respondent contends that all those listed occupied permanent
status. The General Counsel, on the other hand, contends that a substantial
number of them must be viewed as temporary replacements for striking
employees.
Except for some 30 employees who did not participate in the strike, and pos-
sibly a handful who went out but returned before the strike ended, all listed on
Appendix A as employed on October 18 were hired during the course of the
strike. They represented the residue of approximately 230 new employees who
were hired by the Respondent between August 23 and October 18, 1947, to fill
approximately 150 positions.
As appears from the testimony of Hugh D. Palmer; replacements hired during
the strike were assured they could look forward to permanent positions with the
Respondent if they were able to qualify for the jobs on which they were placed.
An employee "qualified" by demonstrating his ability while on the job to fulfill
its requirements. Although it was the Respondent's intention to retain in its-
employ all replacements who proved themselves satisfactory, it was anticipated
on the basis of past experience that a substantial percentage of those hired would
be found unqualified. Normally it has been, and still is, the Respondent's policy
to provide a 30-day testing period within which to determine whether newly
hired employees are qualified for retention. Under the collective bargaining
agreement that was in, force before the strike, this policy was formalized by the
following provision :
8 (b) Employees shall be regarded as temporary employees for the first
thirty (30) days of their employment. These employees shall be paid five
cents (5#) per hour less than the basic rate on the job until they have com-
pleted the thirty days or until they are qualified.
A substantially similar provision was incorporated in the new collective agree-
ment which the Respondent and the Union executed on October 17, 1947, at the
time of the strike settlement. It is true that no contract was in effect during
the strike and employees then hired were not expressly advised that they were to
be on a "temporary" basis during the first 30 days of their employment, as pro-
vided in the above-quoted contract provision. But the record reflects that the
Respondent did not deviate during the strike period from its normal policies
with regard to new employees. It continued, as it did before and as it has since,
to require foremen to appraise the work of newly hired employees within the
30-day period to determine whether they should be retained. And it continued
to pay employees, pending their qualification, 5 cents less than their basic rate,
;just as if the contract provision was then in effect. It is significant, moreover,
that when the October 17, 1947, contract was executed, a substantial number of
the strike replacements then working had been employed for less than 30 days.
Yet, with knowledge of the fact, the Respondent did not except them from the
operation of the 30-day "temporary" employee provision of the contract, thereby
in effect acknowledging their "temporary" employment status within its meaning.
In contending that a substantial number of replacements at work on October
18, 1947, cannot properly be catalogued as permanent, the General Counsel does
not, however, rely primarily upon their "temporary" employment status within
the contract meaning, suggesting this only as a secondary position.
The General Counsel's primary position, as nearly as I can make it out, seems
to proceed along the following lines : The record discloses an unusually high
turn-over rate among employees newly hired during the strike, some 118 em-
I The Respondent 's labor relations director at the time of the strike, and now manager of
its Cherryvale plant.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees having both entered and left the Respondent's employ between August
23 and October 18, 1947. Also during that period, there was a "shifting around"
of new employees from job to job in an effort to find some type of work for which
they might qualify. Therefore, argues the General Counsel, on October 18, 1947,
it was reasonably to be anticipated that the "weeding out" process among newly
hired employees would continue for some time thereafter, and that a certain
percentage of the newly hired employees occupying positions on that date would
soon be terminated. To the extent of the then reasonably to be anticipated con-
tinued turn-over-the General Counsel contends-positions occupied by replace-
ment employees on October 18 ought not to be considered as having been filled by
"permanent" employees. To determine the number of jobs not then "perma-
nently" filled, the General Counsel suggests application of a formula based upon
the expected rate of turn-over among newly hired employees, which, he says, the
Respondent was then in a position to estimate from its experience with such
employees in the 60-day period preceding the end of the strike. More precisely,
he proposes that the number of jobs in each classification not "permanently"
filled as of October 18, 1947, be computed in an amount equal to the number of
employees in each such classification who entered and left the Respondent's
employ during the 60 days preceding the end of the strike-this on the assumption
that the Respondent should then have calculated that an approximately like
amount of job openings would appear within 60 days following the end of the
strike 2 As an alternative formula, the General Counsel suggests that considera-
tion might be given to the Respondent's actual experience in the post-strike
period and that the number of jobs not permanently filled as of October 18, 1947,
be determined on the basis of the number of employees in each classification who
actually left the Respondent's employ within 60 days after the strike's end a In
urging the arguments outlined above, the General Counsel makes clear he is not
claiming the Respondent was obliged on October 18 to discharge any replace-
ments to make room for qualified strikers who had applied for reinstatement.
His claim, rather, appears to be that to the extent of the anticipated turn-over of
strike replacements in the period immediately following the conclusion of the
strike the replacements should not be deemed permanent, and to that extent the
Respondent remained legally obliged as and when job vacancies later arose to
make such jobs available to strikers seeking reinstatement before hiring new
employees to fill them.
Considering, as I must, the General Counsel's primary position in the frame
of the narrow remand issue, I think it an untenable one. As I read the remand,
the circuit -court is concerned now only with determining what the situation
was with respect to the status of replacements on October 18, 1947, not what it
was in prospect and not what it later proved to be. That being so, the de-
S In certain classifications the record shows that the number of employees who entered
and left the Respondent's employ during the 60-day strike period exceeded the number of
jobs in such classifications. In these classifications the General Counsel would modify his
formula by computing jobs not permanently filled in an amount equal to the number of
jobs.
The assumption on which the General Counsel's formula rests-that the rate of turn-
over for the 60-day period following the end of the strike would be the same as for the
preceding 60-day period-is not proved a correct one on the basis of what actually occurred.
The turn-over rate declined shortly after the end of the strike. Thus, for example, in the
elevator shoveler group there was turn-over of 1 in the poststrike period as contrasted to
more than 13 in the prestrike period; in the warehouse and loading group, a turn-over of
19 as contrasted to 71.
8 With regard to the alternative formula, the General Counsel candidly concedes, how-
ever, that it may be objectionable because of "its complete dependence on subsequent events
which could not have been known to the Respondent on October 18."
KANSAS MILLING COMPANY 225
termination must be made solely on the basis of the replacements' status as of
that day. As of a given time an employee must be regarded as having permanent
status if the circumstances surrounding his employment relationship reflect a
then present intention to retain him, not on a temporary. basis, but for a period
of indefinite duration so long as the job lasts and he continues to fulfill his
employee obligations. As permanency, in the sense intended by the court,
involves essentially a question of the job status of individual employees, it
must' be considered on an individual basis. Where an employee is otherwise
found to possess such status it is immaterial that as a result of turn-over factors
a prospect exists that some in the employee group of which he is part may soon
be terminated and he may be among them. The fallacy in the General Counsel's
approach lies in his treatment of the problem as one of turn-over expectancy as
of October 18, 1947, rather than as one of individual employee status as of that
date. Turn-over expectancy as of a given date establishes neither job vacancies,
on that date nor the absence of permanent job status in the individuals then
occupying jobs. All it proves is a then forseeable prospect that job vacancies
will arise in the future.
Boiled down, this position of the General Counsel really reduces itself to an
argument that even though no available job vacancies existed on October 18,
1947, the Respondent was obliged in law, at least to the extent it was able on
that date to anticipate vacancies in the near future, to fill such future vacan-
cies when and as they arose by the reinstatement of strikers. What merit this
position might have as an original proposition is not for me now to say. This
case was originally tried on the alternative theory that even if no unfair
labor practice strike was established, the Respondent, nevertheless, discrimi-
nated against those strikers on whose behalf the Union had made an uncondi-
tional and continuing application for reinstatement on October 18, 1947, by
failing to reinstate them not only to job vacancies which actually existed on
that day but to vacancies which occurred during the period shortly thereafter.
Having found that the strike was an unfair labor practice one, it was un-
necessary for the Board to pass on the General Counsel's alternative theory,
and the Board consequently made no findings in that regard. Although the
circuit court disagreed with the Board's finding that the strikers at the end of
the strike enjoyed the reinstatement rights of unfair labor practice strikers,
its opinion contains no specific discussion of the alternative theory on which
the case was presented. The General Counsel now suggests that the court
may have left open the question of the right of the strikers to jobs which were
filled by permanent employees on October 18, 1947, but which became vacant
shortly thereafter. I do not so interpret the court's opinion, and in any
event find no authority in the remand order to pass on that question. This
case was returned to the Board to make findings on a narrow question of fact.
The General Counsel's argument relating to the right of strikers to job vacan-
cies opening up after October 18, 1947, does not fall within the limited scope of
the remand.
That brings us, then, to the question of whether, considering the status of
employees on an individual basis, any of the employees filling jobs on October
18, 1947, occupied their places other than as permanent employees. That ques-
tion has been raised only as to those employees who had been employed for less
than 30 days on October 18, 1947, and who, under the contract executed on.
October 17, 1947, were classed as "temporary employees." Those who on October
18, 1947, had worked for less than 30 days are divisible into 2 groups. In the
first and larger group are those employees who eventually continued in the
Respondent's employ for a total of more than 30 days. In the second-grouli.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are some 12 employees who eventually terminated before they had ever com-
pleted the 30-day trial period.
With regard to those in the first group, I am satisfied that although "tem-
porary" under the contract, they must now be viewed as "permanent" in the
sense intended by the circuit court in its opinion. When hired they were assured
that they would retain their jobs not for a period of limited duration but in-
definitely, provided only they proved themselves qualified. True, the ultimate
determination of whether they were to be retained on a temporary or permanent
basis was deferred. But when the qualifying condition was met with the pas-
sage of 30 days' employment, it established their status ab initio as that of per-
manent replacements for the striking employees whom they displaced. Although
their status was still probationary on October 18, 1947, the Respondent was not
required on that day to discharge them to make room for returning strikers
who had unconditionally applied for reinstatement. In hiring these employees
originally on a probationary basis, the Respondent was following its normal
employment practices, and it was entitled to avail itself on the full qualifying
period before determining whether or not these employees should be accorded
the status of permanent employees.
• With regard to the employees in the second group, however, I believe a different
conclusion must be reached. As in the case of the first group, the assurance
of permanency given them was a conditional one with ultimate determination
deferred for the qualifying period. The most that can be said of their status
on October 18 was that potentially it was permanent. But having failed to meet
the condition upon which the intent to hire them on a permanent basis depended,
they, unlike those in the first group, may not by relation back be viewed other-
wise than as temporary employees as of October 18, 1947. As long as they were
still on probation, and thus still potentially permanent, the Respondent was not
required to discharge them to make room for returning strikers. But when
the potentiality of their permanent status was eliminated by their termination
within the 30-day qualifying period, the Respondent could no longer regard
the position they had occupied as having been permanently filled. Accordingly,
I find that the places shown on Appendix A to have been occupied by employees
whose total service with the Respondent was less than 30 days were places
not filled by permanent employees as of October 18, 1947.
C. Analysis
In the light of the general considerations discussed above, we turn now to
an analysis of the Respondent's employment records as summarized in Appendix
A hereto attached.
With regard to a number of the job categories, it is clear from the face of
Appendix A that all jobs were filled by permanent employees on October 18, 1947,
and as to these no further comments are necessary. The job categories in this
group are watchmen, line elevator repair and maintenance, maltsters, drier men,
spouters (also known as bolters), malt feed in, and the feed mill group (includ-
ing truck loaders, feed mill general and feed mill hay barn). The other cate-
gories will be discussed below.
The shop maintenance and repair group shows 18 employees on August 11,
1947, as against 15 employees on October 18, 1947.' This group is actually made
* The transcript of proceedings contains two errors. At page 95, the transcript has Mr.
Witch saying, "One auto mechanic before, none after" and "One machinist before, none
after." As my notes indicate, and as is apparent from Mr. Bitch' s entire statement, what
Mr. Bitch actually stated was that "one" auto mechanic and "one" machinist were
employed at the end of the strike rather than "none" as the transcript now states. The
record is hereby corrected accordingly.
KANSAS MILLING COMPANY 227
up of some 14 separate classifications, mostly skilled crafts, the occupants of
which are not interchangeable. The disparity between the number employed
before the strike and the number employed on October 18 has been explained
as follows: (a) Before the strike the Respondent employed 1 office yardman and
1 general maintenance helper. These 2 positions were combined after the strike
and 1 employee has filled them continuously since. (b) Before the strike the
Respondent employed 2 sheet metal mechanics ; after the strike it retained 1,
although it has hired others for special jobs on occasions. Oscar Beane, the
sheet metal worker who was not reinstated, set up his own business during the
strike and made no request for reinstatement either directly or through the
Union. No other striker was qualified to perform this work. (c) Before the
strike there was I. position of auto mechanic's assistant. This was abolished
at the end of the strike. Albert Scholl who had held this position was offered
another job within a few days after the end of the strike, and although he de-
clined it at first, he accepted a position with the Respondent several weeks later.
With regard to this group, it is found that no places not filled by permanent
employees were available as of October 18, 1947.
In the elevator group (elevator shovelers, elevator general and up and down
men), there were 13 employees before the strike and 11 on October 18, 1947.
One of the 11 employees employed on October 18-Joel Copeland-thereafter
terminated before working 30 days, and hence is here viewed as a temporary
rather than a permanent employee. As the Respondent's normal complement
of employees in these categories seems to have been 13, it is found that there were
3 places available not filled by permanent employees as of October 18, 1947. To
fill these places, the Respondent reemployed 2 strikers-J. B. Lewis on October
20, 1947, and A. H. Scholl on November 10, 1947. The third vacancy was filled
by John Brewer who, although he had worked for the Respondent in the past,
was admittedly.hired as a new employee about November 11,1947.`
In the sweeper classification, 12 were employed on August 11, 1947, and 13
on October 18, 1947. Of those employed on the latter date, 4 are found not
to have been permanent employees because they never completed the 30-day trial
period.° During the 60 days following the strike, a total of 8 employees (in-
cluding the "temporary" employees) terminated, and the Respondent hired 12
new employees of whom 4 terminated shortly thereafter? The average weekly
roster during this period was 12, just as it was on October 11. On this basis,
I find the Respondent had 12 places to be regularly filled. These places were
filled as of October 18 by 9 permanent employees-the 13 then occupying posi-
tions, less the 4 "temporary" employees-thus leaving, it is found, 3 available
places not filled by permanent employees. One of these places was filled by a
striker, Elmer Drown, who returned to work during the week ending Novem-
ber 17. As noted, new employees were hired for the others.'
In the corn meal and self-rising classification, there were four on August 11
and but two on October 18. None were hired within the following 60-day period.
It appears that the corn meal mill was in the process of demolition and that
after the strike the Respondent no longer had need for the services of two
men in this classification who formerly had been employed in that mill. It is
5 On the basis of seniority , A. H. Scholl had first claim and J. B. Lewis fourth claim to
jobs in this category. Between them were Lloyd Debacher and Elmer Dowell in that order.
° Each of the four terminated during the week of October 27.
Most of the new employees were hired during the week ending November 17, 1950 This
was the week after the Respondent-as the record in the original case shows-advertised in
the local papers for laborers
° On the basis of seniority, those having first call to those positions-in the order named-
were Jerome Kintzel, Jess Scholl, S. P. McDaniels , and Ralph Twyman , all of whom had
applied unconditionally for reinstatement.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that as of October 18, 1947, all available positions in this classification
were filled by permanent employees.
In the roll tenders and oilers category , there were five employees on October 18
as against seven on August 11, 1947. The standard for the classification was
six., However , during the 60-day period following the strike the normal comple-
ment remained at five. One employee left during that period, and a striker, L. E.
Holbrook, took his place. It is found that as of October 18, 1947, all available
positions in this classification were filled by permanent employees.
In the malt packers group, there were three employees on August 11, and only
two on October 18. Although the standard was four, it appears that- the Re-
spondent required the services of only three after the strike. It is found that
there was one available unfilled position as of October 18. This position was
filled after the strike by V. V. Baker, a striker who was offered reinstatement
on October 20, 1947.
In the warehouse and loading group, there were 48 employees before the strike,
although the "standard" was 54. At the end_ of the strike 45 employees were
working in these classifications. During the next 60 days the records show
considerable. turn-over, with a net gain of 3.9 This would indicate that, not-
withstanding the "standard," the Respondent during that period required the
services of 48 employees in these classifications, the same number it had on its
August 11 payroll. Of the 45 working on October 18, 1947, there are 7 falling
in that category of "temporary" employees as that term is used here. There
were thus 38 permanent employees filling 48 places on October 18, leaving, it is
found, 10 places unfilled by permanent employees. It is noted, however, that the
Respondent, while hiring many new employees, reemployed 10 strikers, a number
equivalent to the unfilled places, within a period of about a month following the
end of the strike.
In the flour and feed packer group, where the "standard" was 21, the Respond-
ent had 18 employed on August 11 and 16 on October 18. In the period im-
mediately following the strike, 3 employees terminated and 8 were added, making
a net gain of 5 over those working on October 18. This would indicate that the
Respondent required the "standard" number of 21. Since only 16 permanent
employees filled positions in these classifications on October 18, it is found that
there were as of that time 5 unfilled places. It is noted, however, that within
a month after the end of the strike, the Respondent reinstated 6 strikes s to
positions in these classifications.
- In the truck driver classification, where the "standard" was seven, there were
six employed on October 18 as against seven on August 11. The record reveals
that the number of trucks operated by the Respondent was reduced, and that
since the strike the Respondent has never employed more than six truck drivers.
Two striking truck drivers, Harris and Fitzsimmons, were reemployed after the
strike in other classifications, and some months later were restored to their truck
drivers' jobs when vacancies arose. It is found that as of October 18, 1947,
there were no unfilled positions available in the classification.
[Recommended Order omitted from publication in this volume.]
This is computed as follows :
New employees hired---------- ------------------------------------------- 17
Strikers returned to work----------------------------------------------- 10
Total additions---------------------------------------------------------- 27
Employees working 10/18/47 who term inated -------------------------------- 19
Employees hired after 10/18/47 who terminated----------------------------- 5
Total deductions--------------------------------------------------------- 24
Net gain---------------------------------------------------------------- 3
Appendix A
1
Classification
2
Standard
3
Employed
Aug 11, 1947
4
Employed
Oct 18 , 1947
5
Number in col -
umn 4 who ter-
minated before
working 30 days
6
Number in col-
umn 4 who ter-
urinated before
Dec 15, 1947
7
New employees
hired between
Oct 18, 1947
and Dec 15, 1947
8
Strikers reem-
before
D
ployed
ec. 15, 1947
Shop maintenance and repair-------- 24 18 15 0 0 1 0
Watchman________________________ ____________ 2 4 0 2 0 0
Line elev. R & M__________________
Line el
____________ 1 1 0 0 0 0
ers__________________________ 5 6 6 0 1 0 0
Drier men _________________________ 2 2 2 0 0 0 0
Elevator shovelers_________________ ____________ 13 11 1 1 1 2
Elevator general------------------- ------------ ------------ ------------ ------------ ------------ ------------ --------- --
Up and down men----------------- ------------ ------------ ------------ ------------
------------ ------------
-
-Sweepers __________________________ 6 12 13 4 8 112 -- ---------1
Shouters__________________________ 6 6 7 0 1 1 0
Corn meal and S. R. men___________ ____________ 4 2 0 0 0 0
Roll tenders and oilers______________ 6 7 5 0 1 0 1
Malt feed i_______________________ 4 2 4 0 0 0 0
Malt packers______________________ 4 3 2 0 0 0 1
Warehouse and loading group _ _ _ _ _ _ _ 54 48 45 7 19 2 17 10
Flour feedln ------------------ ------------ ------------ ---------- ---------- ----------- --------
Feed trucker------------------ ------------ ------------
--
-----------
--
------------
-
------------
----
--------
------------
Warehouse trucker------------- ------------ ------------
-
---------- --------- -----------
----
-------
------------
Specialties-------------------- ------------ ------------
--
-----------
---
------------
-
------------
-----
------------
------------
------------
Traffic man------------------- - - - - - - - - - - - - ----------- -------- ---- - -- ---
Car cooper-------------------- ------------ ------------
----
------------
--------
------------
-- -------
------------
---------
------------
------------
---------
Check weigher----------------- ------------ ------------ ------------ ------------ --- -------- ------------
---
------------Sanitatlon
Sack cleaner
Spark-O-Life------------------ ------------ ------------ ------------ ------------ ----------- -------- ---------
Flour packers______________________ 21 18 16 0
-
3
----
2
----
6
Feed packers ---------------------- ------------ ------------ ------------ ------------ ------------ -------- -
Truck loaders
---- -----------
Feed mill general ------------------ ------------ 25 31 0 11 7 5
Feed millhaybarn ----------------- ------------ ------------ ------------ ------------ ------------ -------- -Truck drivers 7 7 6 0 0
----
0
-- ---------
I Of whom 4 terminated before Dec 15, 1947, 2 Of whom 6 terminated before Dec, 15, 1947.