Alabama Marble Co.

National Labor Relations Board - Board Decisions

Jun 6, 1949

83 N.L.R.B. 1047 (N.L.R.B. 1949)

In the Matter of ALABAMA MARBLE COMPANY and CHARLES T. ADAIR,
AN INDIVIDUAL
In the Matter of ALABAMA MARBLE COMPANY and W. A. WILSON,
AN INDIVIDUAL
In the Matter of ALABAMA MARBLE COMPANY and W. A. ADAMS,
AN INDIVIDUAL
In the Matter of ALABAMA MARBLE COMPANY and C. M. KINSER,
AN INDIVIDUAL
In the Matter of ALABAMA MARBLE COMPANY and LocAL NUMBER 133,
INTERNATIONAL ASSOCIATION OF MARBLE, SLATE AND STONE POL-
ISHERS, RUBBERS AND SAWYERS , TILE AND MARBLE SETTERS HELPERS
AND TERRAZZO WORKERS HELPERS, A. F. L.
Cases Nos . 10-CA-86,10-CA-87, 10-CA-88, 10-CA-93, and 10-CA-
185, respectively .Decided June 6, 1949
DECISION
AND
ORDER
On January 28, 1949, Trial Examiner Sidney L. Feiler issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. He also found that the Respondent did not
engage in other alleged unfair labor practices and recommended that
allegations as to them be dismissed. Thereafter, the General Counsel
and the Respondent filed exceptions to the Intermediate Report and
supporting briefs.
The request of the Respondent for oral argument is hereby denied,
as the record, including the exceptions and briefs, in our opinion
adequately present the issues and the positions of the parties.
83 N. L. R. B., No. 151.
1047
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 1 has reviewed the rulings made by the, Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby i ffirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as they are inconsistent with the
additions, exceptions, and modifications hereinafter set forth.
1. We agree with the Trial Examiner that the Respondent dis-
charged Charles T. Adair, W. A. Wilson, W. A. Adams, and C. M.
Kinser because of their participation in the work stoppage of October
6, 1947; and that, although the work stoppage was in breach of a no-
strikeclause contained in an existing contract, the Respondent waived
or condoned such conduct by permitting them to return to work .2 The
Respondent contends that there was no waiver because it had no
knowledge, at the time that the Respondent agreed to allow these four
union officers to resume work, of the role played by them in the work
stoppage. We find no merit in this contention. At that time, the
Respondent knew that the employees had engaged in a work stoppage
in breach of contract; yet the Respondent agreed to permit all em-
ployees to return to work without stipulating that it reserved to itself
the privilege of disciplining any participating in the work stoppage.
In any event, the Respondent's foremen had personal knowledge of
the part played by the four union officers in the work stoppage at the
time it occurred, and we attribute such knowledge to the Respondent.
Accordingly we find, in agreement with the Trial Examiner, that
the Respondent, by discharging Charles T. Adair, W. A. Wilson,
W. A. Adams, and C. M. Kinser on October 16, 1947, and thereafter
failing to reinstate them, discriminated with respect to their hire or
tenure of employment, thereby discouraging membership in the Union,
within the meaning of Section 8 (a) (3) of the Act as amended .3 We
further find that the Respondent discharged these four employees and
failed to reinstate them because of their concerted activities, thereby
interfering with, coercing, and restraining the employees in the exer-
cise of the rights guaranteed by Section 7 of the Act, in violation of
Section 8 (a) (1) thereof. Whether the Respondent's discriminatory
conduct be viewed as violative of Section 8 (a) (3) or Section 8 (a)
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers in connection with
,this proceeding to a three -member panel [ Chairman Herzog and Members Houston and
-Gray ] .
2In addition to the cases cited in the Intermediate Report, footnote 10, see Matter of
.Colwmbia Pictures Corp., 82 N . L. R. B. 568.
6 We find that the conduct of the four union officers in instigating or sponsoring the
work stoppage of October 6 constituted union , as well as concerted , activity within the
meaning of the Act.
ALABAMA MARBLE COMPANY 1049
(1), effectuation of the policies of the Act requires that the four em-
ployees be reinstated with back pay. '
2. For the reasons stated in the Intermediate Report, we agree
with the Trial examiner that the Respondent did not unlawfully dis-
criminate against John T. Stewart or Rex Gordon Stewart by refus-
ing to reinstate them.
3. We agree with the Trial Examiner that the Respondent did not
refuse to bargain collectively with the Union, in violation of Section
8 (a) (5) of the Act. As fully discussed in the Intermediate Report,
the Respondent met and dealt with the Union, as the exclusive repre-
sentative of its employees, whenever requested. The entire course of
negotiations was marked by genuine interchanges of proposals and
counterproposals and discussions thereof, leading to agreement on
several important items. With respect to others still in dispute, there
were indications that further agreement might have resulted had
negotiations continued. Thus, Attorney Cook, the Union's principal
negotiator at the last two conferences, volunteered the opinion in a
telephone conversation with the Respondent's attorney, Smith, 4 days
after Union Representative Mitchell filed the charges herein, that the
two chief obstacles to agreement-the union shop and certain asserted
management prerogatives-could have been worked out. Yet the
Union made no further request for the resumption of bargaining.
The General Counsel, however, contends that the Respondent's bad
faith was reflected, among other things, by its demands to reserve to
itself the right to change the number of working hours per day and
the number of working days per week, and to determine the time when
and what rate of wage increase, if any, an apprentice should receive,
without consulting the Union. It is true, as the General Counsel
urges, that matters affecting wages, hours, and conditions of employ-
ment are proper subjects for collective bargaining. It is equally well
settled that an employer's adamant insistence on reserving to himself
the right to take unilateral action with respect to these matters, so as
to preclude agreement thereon, is the negation of the collective bar-
gaining envisaged by the Act.4 However, we are unable to conclude,
on this record, that the Respondent's demands were beyond the negoti-
ation stage and that an impasse had been reached on these proposals.
Indeed, as indicated above, the Union's chief negotiator, Cook, himself
recognized the possibility of resolving the disputed issues at a further
conference, which the Union never sought. In these circumstances,
4 See, for example, Matter of Singer Manufacturing Company, 24 N. L. R. B 444, enfd.
as mod. 119 F. (2d) 131 (C. A. 7), certiorari denied 313 U. S. 595; Matter of V-O Milling
Company, 43 N. L . R. -B.-348 ; Matter of South Carolina Granite Company, 58 N. L. R. B.'
1448.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we cannot view the Respondent's demands in question as reflecting on
its good faith bargaining.
Nor, like the Trial Examiner, do we agree with the General Counsel
that the Respondent's bad faith was further demonstrated by filing
a representation petition. It is clear- that the Respondent was
prompted to file the petition by the impasse that was reached on the
question of the inclusion of its watchmen in the plant unit, for which
the Union was bargaining. Although the Union was willing to ex-
clude guards as a class, it refused to commit itself as to the status of the
Respondent's watchmen. To resolve the deadlock thus created by the
Union, the Respondent resorted to representation proceedings. This
was the only available means for determining the status of watchmen,
which was necessitated by the amendments to the Act.'
Accordingly, we find, as did the Trial Examiner, that the Respond-
ent did not fail in its obligation to bargain collectively with the
Union, as required by Section 8 (a) (5) 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, Alabama Marble
Company, Gantt's Quarry, Alabama, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local Number 133, International
Association of Marble, Slate and Stone Polishers, Rubbers and
Sawyers, Tile and Marble Setters Helpers and Terrazzo Workers
Helpers, affiliated with the American Federation of Labor, or any
other labor organization of its employees by laying off, discharging,
or refusing to reinstate any of its employees and from refusing to
employ any member of that Union or in any other manner discrimi-
nating in regard to their hire or tenure of employment or any term
or condition of employment;
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the said Union, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
s The situation in the present case is unlike the situation in those cases where the Board
has found an unlawful refusal to bargain because the employer was motivated in its
insistence on a Board election, not by any bona fide doubt as to the union ' s majority, but
rather by the rejection of the collective bargaining principle or by a desire to gain time
within which to undermine the union. Cf. Matter of Artoraft Hosiery Company, 78
N. L. R. B. 333, and cases cited therein ; Matter of Atlanta Journal Company d/b/a Radio
Station WSB, 82 N. L. It. B. 832.
ALABAMA MARBLE COMPANY 1051
mutual aid or protection, and to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Charles T. Adair, W. A. Wilson, W. A. Adams, and
C. M. Kinser, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
or other rights and privileges;
(b) Make whole Charles T. Adair, W. A. Wilson, W. A. Adams,
and C. M. Kinser for any loss of pay each may have suffered by reason
of the Respondent's discrimination against him by payment to each of
them of a sum of money equal to the amount which each normally
would have earned as wages from the date of their discharge to the
date of the Respondent's offer of reinstatement, less the net earnings
of each during said period;
(c) Post at its plant at Gantt's Quarry, Alabama, copies of the
notice annexed hereto marked "Appendix A." 6 Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by said Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material;
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 10-CA-185
be,'and it hereby is, dismissed insofar as it alleges that the Respondent
discriminated against John T. Stewart and Rex Gordon Stewart and
refused to bargain collectively within the meaning of the Act.
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 :
B In the event hat this Order is enforced by a decree of 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."
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 LOCAL NUMBER 133,
INTERNATIONAL ASSOCIATION OF MARBLE, SLATE AND STONE POL-
ISHERS, RUBBERS AND SAWYERS, TILE AND MARBLE SETTERS HELP-
ERS AND TERRAZZO WORKERS HELPERS, A. F. L. or any other labor
organization, 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 amended Act.
WE wmL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination :
Charles T. Adair
W. A. Wilson
W. A. Adams
C. M. Kinser
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 term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
ALABAMA MARBLE COMPANY,
Employer.
Dated------------------ By --------------------------
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
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
William M. Pate, Esq ., for the General Counsel.
John J. Smith, Esq., of Birmingham , Ala., and C. W. Stringer, Esq., of Talla-
dega, Ala., for the Respondent.
Messrs. Walter L. Mitchell ; of Birmingham , Ala., and B . C. Mitchell, of Childers-
burg , Ala., for the Union.
ALABAMA MARBLE COMPANY
STATEMENT OF THE CASE
1053
Upon a charge filed by Charles T. Adair in Case No. 1O-CA-86, a charge filed
by W. A. Wilson in Case No. 1O-CA-87, a charge filed by. W. A. Adams in Case
No. 1O-CA-88, and a charge filed by C. M. Kinser, in Case No. 1O-CA-93, herein-
after at times referred to as the individual complainants,' the General Counsel of
the National Labor Relations Board,' by the Regional Director for the Tenth
Regional (Atlanta, Georgia), issued a complaint, dated March 24, 1948, against
Alabama Marble Company, Gantt's Quarry, Alabama, herein called the Respond-
ent, 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,
49 Stat. 449, 61 Stat. 136, herein called the Act.
Upon a charge filed by Local 133, International Association of 'Marble, Slate
and Stone Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and
Terrazzo Workers Helpers, A. F. L., hereinafter referred to as the Union, the
General Counsel of the Board, by the Regional Director for the Tenth Region,
issued a complaint dated May 25, 1948, against the Respondent alleging that it
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) (3) and (5) and Section 2 (6) and (7)
of the Act.
On May 26, 1948, the Regional Director issued an order consolidating the
cases of the individual complainants with that based on the charge filed by the
Union. Copies of the complaints, the charges, and notice of hearing were duly
served upon the Respondent, the individual complainants, and the Union.
With respect to unfair labor practices, the complaint in cases 1O-CA-86, 87, 88,
93 alleges in substance that the Respondent, on or about October 16, 1947, dis-
charged and thereafter failed and refused to reinstate Charles T. Adair, W. A.
Wilson, W. A. Adams, and C. M. Kinser because of their membership in, and
activities on behalf of, the Union, and because they engaged in concerted activities
within the protection of the Act.
The Respondent filed an answer and, on June 4, 1948, an amended answer to
this complaint. The Respondent admits certain jurisdictional allegations, the
discharges of the individual complaints, but avers that they were discharged for
cause and that the Respondent had not thereby committed any unfair labor
practice.
The complaint in Case 1O-CA-185 alleges in substance that the Respondent
committed the following unfair labor practices :
(1) discharged and thereafter failed and refused to reinstate the four indi-
viduals named above for the reasons there outlined ; (2) on or about September 6,
1947, and at all times thereafter refused and continues to refuse to bargain
collectively with the Union as the exclusive collective bargaining representative
of its employees in an appropriate unit; (3) on or about November 8, 1947,
caused and prolonged a strike of its employees by its unfair labor practices; (4)
on or about December 15, 1947, refused and since then has failed and refused to
reinstate strikers John T. Stewart and Rex Gordon Stewart because of their
union membership and activities.
i On March 24, 1948, the Regional Director issued an order directing that the cases of
the individual complainants be consolidated.
9 The General Counsel and the attorney representing him at the hearing are referred to
as the General Counsel . The National Labor Relations Board is referred to as the Board.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer to the above complaint, dated June 8, 1948, the Respondent
admits certain jurisdictional allegations; realleges its contention as to the dis-
charges of Adair, Witson, Adams, and Kinser ; denies that it failed and refused
to bargain with the Union, and denies that it discriminated against John T.
Stewart and Rex Gordon Stewart.
Pursuant to notice, a hearing was held at Talladega, Alabama, on June 8 and
9, 1948, and at Sylacauga, Alabama, from June 10 to 25, 1948, before the under-
signed , Sidney L. Feiler, the Trial Examiner designated by the Chief Trial Ex-
aminer. The General Counsel and the Respondent were represented by counsel ;
the Union, by representatives. The individual complainants appeared and
testified. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
At the outset of the hearing, the undersigned made the following rulings on
motions filed by the Respondent; denied motions to dismiss each case because of
alleged defects in the complaints, denied a motion to sever each of the five cases
for trial, and to extend the date of the hearing. The Respondent also in a
motion attacked the redundancy contained in the two complaints as to the
allegations of the wrongful discharges of the individual complainants. The
General Counsel thereupon moved to amend the complaint in Case No. l0-CA,-
185 by striking the allegations that by the four discharges the Respondent was
engaging in unfair labor practices. The motion was granted without objection.
The undersigned granted a motion by the Respondent to change the place of
the hearing. The Respondent then moved for a bill of particulars which motion
was granted in part. At the end of the General Counsel's case-in-chief, the
Respondent moved to dismiss the complaints. The motion was denied. At the
conclusion of the testimony the General Counsel moved to conform the pleadings
to the proof as to formal matters. This motion, which was joined in by the
Respondent, was granted as to all pleadings. The Respondent then renewed its
motion to dismiss the complaints. Decision was reserved thereon and it is dis-
posed of by the findings, conclusions, and recommendations herein. Oral argu-
ment was presented by the General Counsel and the Respondent. Memoranda
also were received from them.
On the entire record and from his observation of the witnesses the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Alabama Corporation. It maintains its principal office
and place of business at Gantt's Quarry, Alabama, where it is engaged in the
quarrying, processing and sale of marble and its byproducts. During the year
ending March 1, 1948, the Respondent purchased materials valued in excess of
$25,000, of which approximately 90 percent was purchased and shipped to the
quarry of the Respondent from points outside the State of Alabama. During the
same period, the Respondent sold finished products valued in excess of $500,000,
of which approximately 75 percent was shipped to customers outside the State of
Alabama. The Respondent does not deny that it is subject to the jurisdiction
of the Board and the undersigned finds that at all times here relevant the
Respondent was and is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local Number 133, International Association of Marble, Slate and Stone
Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Terrazzo
ALABAMA MARBLE COMPANY 1055
Workers Helpers, affiliated with the American Federation of Labor is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharges of Charles T. Adair, W. A. Wilson, W. A. Adams, and
C. M. Kinser
1. Background
At the time of the discharges of the individual complainants, the Respondent
and the Union were signatories to a 1-year collective bargaining contract, dated
November 7, 1946. The contract contained the following no-strike-no-lock-out
clause:
It is mutually agreed that, during the term of this agreement, there shalli
be no lock-out by the Company, nor shall there be any slow-down or work-
stoppage by the Union until after all the provisions of the grievance proce-
dure have been complied with.
The four dischargees all held positions in the Union. Kinser was its president,
Adair was secretary and treasurer, the other two were committeemen. While
their duties were not specified in detail, the testimony reveals that they repre-
sented the Union in bargaining and grievance meetings with management and
held positions of leadership among the union men at the quarry.
2. The events of October 3, 1947
On October 3, 1947, Houston Harris, a hand polisher, brought a radio to his
place of work for the purpose of listening to a broadcast of a World Series
baseball game that afternoon. During the morning, George Warren, foreman
of the Finishing Department told Harris that General Manager H. M. King
did not want radios brought in and that Harris should remove the radio. After
some discussion among the group of band polishers, it was agreed that all 10
of them would remain away from work that afternoon and listen to the broad-
cast. This decision was followed by all the men except Harris who returned
to works Committeeman Aubrey Ellison was one of those who stayed away
from work.
King testified that he saw some of the hand polishers at a store during the
afternoon listening to the baseball broadcast and that he then went to the
Finishing Department and saw that all the hand polishers, with the exception
of Harris, were not at work. He then ascertained from Warren that Warren
had not given the men permission to absent themselves and that he had told
Harris that King had forbidden the use of radios in the plant. On Monday
morning, October' 6,' King sent word to all production foreman to discharge any-
one who had wilfully absented himself from work without permission on the
afternoon of October 3.
3. The work stoppage of October 6
Adair worked in the Finishing Department as an inspector and checker.
Shortly before starting time, Warren showed him a letter which, as Adair
s The general course of the occurrences leading to the discharge of the four individual
complainants is not in dispute. The testimony of the witnesses ordinarily differed only in
details which do not affect the conclusions to be drawn from the facts . Significant
conflicts and discrepancies have been dealt with in detail; minor clashes have resolved as
indicated in the narration of events.
* All dates given are in 1947 , unless otherwise indicated.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
recalled, was to the effect that nine hand polishers were discharged. Warren
told Adair to tell the nine men to report to his office.
Adair testified that he proceeded to carry out Warren's order. His account of
what he did thereafter and what occurred is as follows : After he had notified
several of the hand polishers of their discharge, word spread among the em-
ployees of the Finishing Department and they did not begin working, the senti-
ment being not to start work until "something was done" about the discharges.
Adair' then went for committeemen Kirk and Wilson. He was unable to find
them and left word for them to come to the Finishing Department. He then
returned to the Finishing Department. Shortly thereafter Committeemen Kirk,
Wilson, Robinson, and Ellison met at the Finishing Department. Adair did not
take an active part in discussions they had among themselves and with the men.
However, he talked with William Harrison, Jr., an employee and son of an official
of the Company, and suggested` that Harrison bring King to the Finishing De-
partment to see if some arrangements could not be worked out. King did not
come to the Department nor did the men work the rest of the day.
Committeeman Henry Robinson testified that he first learned of difficulties at
the plant when Ellison came up to him before starting time and said there would
be no work until something was done about the nine discharges. Robinson ob-
tained further information from Warren and Adair. He later heard Cecil
fiinser call men from the quarry and, like the others, he did no work that day.
Cecil Kinser, president of the Union, testified that shortly after he started
work he was told by another employee that there was trouble in the Finishing
Department. He left his place of work in the quarry and went to the Finish-
ing Department. Upon his arrival, he conferred with some of the committeemen,
found out the cause of the trouble, and learned that it was the will of the com-
mitteemen to call a work stoppage. He then called on the men present to vote
on a motion that the quarry be shut down. The motion was carried
Kinser then proceeded to the quarry and called the men out of its north end.
He also instructed Committeeman Walter A. Adams to go to another section and
call the men from, that end. The men from the quarry went to the Finishing
Department. Kinser stayed at the plant most of the day. He admitted telling
some men later in the day to go home and return the following day.
Adams testified that he told some men to come out from their place of work
at about 8 a. m.
Committeeman W. A. Wilson testified that before starting time Adair spoke
to him at his place of work at the sawmill and told him to come to the Finish-
ing Department, that there was trouble over the discharge of nine men. At
the Finishing Department he met Ellison and went with him to Warren. Then
he returned to his place of work and reported to the employees that no one
was working in the Finishing Department. Then, according to Wilson, one
of the employees said, "Let's strike." Wilson replied, "All right, shut her
down." Operations were then stopped. He then returned to the Finishing
Department and was present when the vote was taken to close the quarry.
The parties stiplated that on Monday, October 6, 1947, there was a complete
work stoppage in the production operations of the Respondent brought about
by employees represented by the Union.
King testified that he learned of the work stoppage at about 7: 45 a. m. when
Harrison reported to him that all work was stopped except at one place, that
men were massing there, and that there might be trouble. King gave instruc-
tions that work be stopped, but he did not personally go to the production area
that day.
ALABAMA MARBLE COMPANY 1057
Walter L. Mitchell, a representative of the Union, learned of the work stoppage
during the morning of October 6. In the late afternoon he arrived at the plant
accompanied by a Federal conciliator. A meeting1of company and union offi-
cials was held that evening. King and Mitchell acted as spokesmen for the
Company and the Union, respectively. Mitchell told King that he was not
familiar with the circumstances under which the work stoppage had occurred,
but that he was sorry that it had occurred and that he would order the men
to return to work. Mitchell proposed that all employees, including the nine
discharged hand polishers, be allowed to return to Work and that the discharges
should be handled under the grievance procedure in the contract. King agreed
that everyone could return to work but the nine hand polishers . As to them
he stated that he was ready to go to arbitration. Mitchell asserted that the dis-
charges should first be handled as grievances. King agreed and the following
Saturday, October 11, was set as the date for a meeting to consider the discharges-
under the grievance procedure. King refused to permit the hand polishers to-
return to work in the meantime. During the meeting King declared that there
had been a violation of the contract by the work stoppage and that it constituted
gross insubordination and defiance of the Company and that he resented it.
A meeting was held on October 11 at which time the hand polishers testified
as to the occurrences on October 3.5 At the next meeting on October 15 King
stated that the position of the Company as to the nine dischargees was as fol-
lows: (1) one hand polisher could return to his job immediately without any
loss of pay or seniority because the Company felt that he was absent because
of the illness of his wife ; (2) seven other hand polishers could return to work
immediately without loss of seniority but with loss of pay during the period
they had been discharged; (3) Aubrey Ellison would remain discharged because
the Company felt that he could have prevented the absences of October 3 and
was partially responsible for the complete work stoppage which took place on
October 6.
Mitchell refused to accept this proposal. On behalf of the Union he proposed
that all nine men be reinstated without any loss in pay or seniority. The dis-
agreement could not be resolved and it was finally agreed to resort to the arbitra-
tion procedures set out in the existing contract.
4. The October 16 discharges
On the morning of October 16 the individual complainants Adair, Kinser, Wilson,
and Adams were discharged. Each received a separation notice which gave the
following reason as the cause for the discharge:
Caused or provoked a complete work stoppage in production operations of
the Company on Monday morning, October 6, 1947, in disregard of welfare
of fellow workers and interest of Company and in violation of contract be-
tween Company and Union.
King gave the following account of the circumstances leading up to the dis-
charges of the four men. During the latter part of the week of October 6 he
had a talk with W. C. Kinser, foreman at the quarry. Foreman Kinser told King
that during the morning of October 6 he heard Cecil Kinser tell Adams to go to
6 Mitchell testified that during the October 11 meeting he told Committeeman Robinson
in' King's hearing , that the strike of October 6 had been settled and that King nodded his
head. King denied that the incident had taken place. Robinson, in his testimony, did
not recall any such incident. The undersigned credits King's denial that he heard
Mitchell make the alleged statement.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one end of the quarry and call the men from their places of work and that Cecil
Kinser went to the other end and shortly thereafter the men came from the
quarry.e King asked Foreman Kinser if he would make an affidavit to that effect
and Kinser replied that he would. King also instructed him to obtain a statement
from someone at the other end of the quarry who had seen Adams call men from
their work. King also had a talk with Foreman E. I. Dison who told him that on
the morning of October 6 Adair and Ellison had come up to him separately and
told him to stop work at the rubbing beds which were in his charge. Men began
to mass around those beds and Dison then closed them down. He agreed to furnish
King with a statement. King, in further discussions with employees, was told
that sawing operations were stopped at the direction of Wilson.
On Monday, October 13, King instructed William Runge, Jr., an employee at the
plant, to prepare affidavits reciting the substance of what had been related to King
and that Runge should obtain signatures from the men who had promised to
sign them. Five affidavits were received in evidence. In one affidavit Employee
C. W. O'Neal stated that he saw Adams motion men to come out of the quarry.
Employee A. J. Carden, in another statement, declared that he saw Kinser motion
men to come out of the quarry. E. I. Dison, in his statement, affirmed that Adair
and Ellison demanded that he shut down certain production operations and that
he did so. W. C. Kinser stated in his written version of the facts that he heard
Kinser direct Adams to call men out of the south end of the quarry, that Adams
left in that direction and shortly thereafter men came out of the south end of the
quarry. Employee J. W. Green stated that he shut down certain operations on
the morning of October 6, 1947, at the direction of Wilson. Continuing his testi-
mony King related that at about 5 p. in. on October 15 he had a meeting with the
three other shareholders and directors of the Respondent, at which time the cases
of the nine hand polishers and the four persons mentioned in the statements were
discussed. Decision was reached as to the nine hand polishers as related hereto-
fore. It was further decided that Adams, Wilson, Adair, and Kinser would be
discharged for their activities in connection with the work stoppage on October
6. King further testified that during the meeting with union representatives on
October 15 there was a recess at which management officials conferred among
themselves and on this occasion King recommended that the decision as to the
four individual complainants not be announced that evening. This recommenda-
tion was followed. King stated that his reason for postponing the announcement
of that decision was because everyone at the meeting was, in his words, "pretty
well heated up" at that time.
King further testified that his first thoughts after the work stoppage on October
6 were to get the plant back in operation and that he had no thought at that time
of discharging anyone for participation in the work stoppage. However, he testi-
fied, when he received information in the latter part of the week as to the identity
of those who had caused the stoppage he decided to make the discharges or to
recommend them to the directors.
. There is a dispute between witnesses for the Company and witnesses for the
General Counsel as to whether the arbitrators named pursuant to the contract
provisions were also to consider the case of the four individual complainants.
6 Kinser testified that at a meeting before his discharge he had told King that he had
called the men from the quarry. King denied this. Kinser could not fix the meeting at
which the alleged statement was made and there is no proof that King, in any event, learned
of Kinser's activities before his talk with Foreman Kinser.
ALABAMA MARBLE COMPANY 1059
In any event , arbitration proceedings were not actually engaged in ' Adair,
Wilson, and Adams filed individual charges dated the day after their discharges,
Kinser's charge is dated October 20, 1947.
Conclusions as to the October 16 Discharges
The discharges of Adair, Kinser, Wilson, and Adams were based on their activity
in the work stoppage on October 6. The testimony establishes that the work stop-
page was directed by union leaders and supported by union members both by
formal vote and by cessation of work. At the conference on the evening of Octo-
ber 6 the Union, in effect, assumed responsibility for the stoppage and King placed
responsibility for it on the Union.
The work stoppage constituted concerted activities within the meaning of the
Act and those who engaged in it would be entitled, under ordinary conditions, to
protection against disciplinary action by their employer for engaging in that
activity. However, where such a work stoppage is in violation of a contractual
obligation an employer may impose penalties upon the strikers.'
In the present case, the work stoppage resulted from the discharge of the nine
hand polishers. The Respondent, as of October 6, had not committed any unfair
labor practice. The work stoppage was in violation of the no-strike provisions
of the contract since there had not yet been any resort to the grievance procedure
as provided in the contract. The Respondent thus had the general right to im-
pose disciplinary action on the strikers and their leaders.
However, this right is not unlimited. As the Board has said in the Dorsey
Trailers case,' "The employee status of strikers, within the meaning of the Act,
is not automatically severed because a strike is in violation of their agreement ;
but such status may be terminated by affirmative and timely action by their em-
ployer." (Italics added.) It has been held that promise to reinstate
strikers operates as a condonation of their strike activities and that an em-
ployer may not thereafter repudiate such a promise without violating the Act.1°
Restoration of a striker to employee status similarly operates as an effective con-
donation even though strikers are discharged before they actually resume work,
or are never reemployed thereafter." In the present case, the four dischargees
were permitted to return to work and were allowed to continue to work for 10
days. Prior to their discharge, no notice was given by the Respondent that it
intended taking disciplinary action against them or against any striker because
of their participation in the work stoppage.
The Respondent maintains that at the time of its conference with the Union
on October 6 it did not have full information as to the work stoppage and the
'Arbitrators were appointed by both parties. The arbitrator selected by the Union
became ill and could not act. The Respondent then asked the Union to name another
arbitrator. The Union did not do so because it was felt that the existing contract would
expire before the arbitrators could act. Its failure to attempt to complete arbitration
does not constitute a defense to those proceedings . (Matter of Union City Body Company,
Inc, 69 N. L R. B 172, 185.)
' N L. R. B. v. Sands Mfg. Co., 306 U. S. 332 ; Matter of Fafnir Bearing Company, 73
N. L. R. B. 1008; Matter of Joseph Dyson & Sons, Inc., 72 N. L. R. B. 445; Matter of
Scullan Steel Company, 65 N. L. R B. 1294; Matter of National Electric Products Corp.,
80 N. L R. B 995.
0 80 N. L. R. B. 478.
10 Matter of E. A. Laboratories, Inc., 80 N. L. R. B. 625; Matter of Victory Fluospar
Mining Company, 72 N. L. R. B. 1356; Matter of The Fafnir Bearing Company, supra.
"Matter of The Carey Salt Company, 70 N. L. R. B. 1098; Matter of Dorsey Trailers,
Inc., supra.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roles played by the dischargees, that when King received additional information
approximately 4 days later he made further inquiries and that the Respondent
acted with reasonable promptness in taking action on the reports it received.
King entered the October 6 meeting with,knowledge of the work stoppage.
According to his own testimony, he had not visited the production area during
the day nor did he then know who the strike leaders were. However, the question
of the return to work of the strikers was specifically raised and King expressly
stated that all the strikers could return to work and only the 9 hand polishers
who had previously been discharged, could not do so. The strikers did return to
work the next day. King, according to his own testimony, gave no considera-
tion to question of punishing the strikers until' the end of the week when he
began receiving the reports previously mentioned. While there had been no
formal settlement agreement on October 6, the agreement that all strikers could
return to work constituted a disposition of the matter of disciplining the strikers
for their strike activity. There is a public policy against upsetting such agree-
ments." In any event, this agreement plus the actual return to work of the
strikers, including the four complainants, the failure of the Respondent to initiate
any action for several days, and its failure to take final action against the four
former strikers until 10 days after the work stoppage, all constituted condonation
of their strike activities. It did not take "affirmative and timely action" to
enforce its rights to discipline the strikers. As indicated by the authorities cited
the Respondent was under an obligation to take affirmative action against any
strikers, or at least, effectively reserve that right 13 It could not wait, as the
Respondent contends, until some time in the future when it might receive infor-
mation in some manner of strike activity which it might find particularly objec-
tionable and then proceed to take action against the employees concerned. In
most cases, this would mean that employees who engaged in a work stoppage in
violation of a contractual obligation would be in danger of discipline for such
activity for an indefinite period of time. Precedents are in opposition to the
creation of such a situation. The discharges of Adair, Kinser, Wilson, and Adams
on October 16, 1947, for their activities in connection with the work stoppage
of October 6, 1947, there having been prior condonation of such activities, were
violative of the Act.
B. The alleged refusal to bargain
1. The appropriate unit
On October 4, 1946, the Board issued its Decision and Certification of Rep-
resentatives in Case No. 10-R-2034 in which it certified as an appropriate unit a
unit consisting of all employees of the Respondent including watchmen but
excluding office and clerical employees, draftsmen, executives, and all super-
visory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend
such action. It was stipulated that the unit described in the certification and
the unit described in the contract during the effective period of the contract
covered the same employees. It was further stipulated that there were not and
never had been in the past any professional employees within the unit as de-
scribed. It was finally stipulated that the Respondent at the time of the hearing
13 N L. R. B. v Aladdin Industries , Inc., 125 F. (2d) 377 (C. A. 7), cert. den. 316 U. S.
706; Stewart Die Casting Corp. v. N. L. R. B., 114 F. (2d) 849, (C. A. 7), cert. den. 312
U. S. 680.
13 Matter of Copperweld Steel Company , 75 N. L. R. B. 188 ; Matter of Socony Vacuum
Oil Company, Inc., 78 N. L R B. 1185.
ALABAMA MARBLE COMPANY 1061
employed four watchmen Previously they had been included in the bargaining
unit. It was stipulated that such watchmen were in fact guards and should
be excluded from the unit. The undersigned finds that all employees of the Re-
spondent, excluding watchmen, office and clerical employees, draftsmen, execu-
tives, and all supervisory employees as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
It was stipulated by the parties that during the period from September 6,
1947, through November 7, 1947, the Respondent had within the unit between
130 and 135 employees and that since that time there has been no substantial
increase or decrease in that number. A record of dues collected by the Respondent
from the salaries of union members pursuant to voluntary check-off authoriza-
tions filed by them for the period September 21 to October 4, 1947, shows that
there were such deductions from the salaries of 96 employees. A similar record
for the period October 19 to November 1, 1947, lists 82 employees. Employees
supported the strike which began on November 8, 1947, and operations were
halted. When negotiations were begun for a new contract, the Respondent
did not question the majority status of the Union. Detailed negotiations of the
substantive provisions of the contemplated new contract were entered into and
conferences were held both before and after the strike. The first time that the
issue of majority status could be said to have been seriously raised by the
Respondent was when it filed a representation petition after a meeting on Decem-
ber 23, 1947. In view of the above circumstances the undersigned concludes
that at all times here relevant the Union represented a majority in the appro-
priate unit." The certification was then only 14 months old. It is well settled
that such certification clothed the Union with status as exclusive bargaining
agent, and that "under general principles and for the purposes of practical
administration of the Act, such status is presumed to continue until shown to
have ceased or until such time as circumstances arise which indicate that the
presumption no longer holds true.""
3. The bargaining negotiations
During the period when the discharges were taking place, negotiations were
also under way for a renewal of the existing contract between the Respondent
and the Union On September 2, 1947, the Respondent sent the Union notice
that it did not wish the contract to continue beyond its expiration date. Copies
of this letter were sent to the Board and the Federal Mediation and Conciliation
Service. On Sepember 7, 1947, the Union sent the Company a notice giving the
required 60-day notice of its intention to reopen the contract On October 2,
1947, the Respondent sent notice to the Federal Mediation and Conciliation
Service that no agreement had yet been reached as to the provisions of a new
contract. On October 6, 1947, the Union sent a similar notice to the Federal
Mediation and Conciliation Service.
Meetings were held between the parties from September 17 until the end of
the year, at which contract proposals were discussed in detail. A meeting in
the nature of a preliminary bargaining conference was held on September 17.
" See Matter of Dorsey Trailers, Inc ., supra.
15 Matter of Bethlehem Steel Company, 73 N. L R B 277; Matter of Dorsey Trailers,
Inc, supra.
844340-50-vol 83-68
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitchell suggested to King that there be a mutual exchange of proposed contracts.
King would not agree to this and said that he would communicate with Mitchell
later on a course of procedure . Mitchell asked King if he doubted the Union's
majority. King replied that he did but also stated that he had no proof of
this fact but merely surmised it. At no other conference was the question of
the Union 's majority raised . An agreement was made to meet at a later date.
On September 19, King sent Mitchell a letter stating in part that the Respondent
proposed that the present agreement should serve as a starting point of negotia-
tions rather than there be an exchange of proposed separate agreements. King
further stated that it was the Respondent 's position that an entirely new agree-
ment should be drafted in the forthcoming negotiations.
Bargaining conferences were held on September 26, October 22, October 30,
November 6, November 28, and December 23, except for the last two meetings,
Mitchell appeared with a union committee and conducted the negotiations on
behalf of the Union . In the last two meetings Harold Cook , attorney for the
Union, acted as chief representative . John J. Smith , attorney for the Respondent,
and King, together with other company of vials, represented the Respondent.
Smith and King were . the chief spokesmen for the Respondent . Smith and
Mitchell testified extensively as to the course of the negotiations , relying on
memory and extensive notes made at the meetings . What disagreements there
were in their testimony were generally of a minor character . The undersigned
has based his findings as to the bargaining conferences primarily on their testi-
mony and has resolved disagreements between them as indicated in the findings.
On September 26, the Union submitted a memorandum of proposed changes to
be incorporated in a new contract . The Respondent submitted a draft of two
clauses and , at the end of the meeting , its counsel drew up a written memorandum
of its position which was submitted to the Union. At the October 22 meeting,
the Respondent submitted a complete draft of a new proposed contract. On No-
vember 28 the Union submitted a draft contract and on December 23 the Union
tendered written drafts of certain sections.
The parties followed the pattern of referring to the 1946 contract and under
each heading , discussing the proposals submitted . The following is a summary
of the high lights of the discussion as to each clause; the headings being those
in the 1946 contract . For further reference , a more detailed exposition of the
negotiations at each meeting is annexed as "Appendix B."
Introductory Clause
The Respondent pointed out that there was a discrepancy between the con-
stitution of the Unioii and the 1946 contract as to the exact name of the Union
and asked for additional information and also proof that the American Federa-
tion of Labor, the labor organization originally certified , had ceded jurisdiction
to the Union . The Union agreed to furnish this information , but had not yet
furnished it as of December 23.
Recognition
The Unit
The 1946 contract set forth the unit as all employees except supervisory em-
ployees, clerical employees , and draftsmen . At the final meeting on December
23, the Respondent referred to Board decisions concerning the status of watchmen
under the Act. The Union was willing to amend the unit to exclude guards as
defined in the Act , but was unwilling to commit itself specifically as to the status
of the four watchmen employed by the Company.
I
ALABAMA MARBLE COMPANY 1063
Rights of management (Art. 1A)
The 1946 contract provided that the Company had exclusive right to manage
its business and included examples of the scope of this right. The Respondent,
proposed a similar, but expounded, clause on October 22. The Union proposed
a qualifying clause that the rights of management should not be inconsistent
with other provisions of the proposed contract. This qualification was accepted
by the Respondent at the meeting and both parties were in agreement on this
clause.
No Discrimination (Art. 1B)
The 1946 contract provided that there should be no discrimination by the Com-
pany or the Union against any employee because of his union membership. On
October 22, the Respondent proposed that the clause be expanded to prohibit
discrimination by the Company, the Union, or any employee against any em-
ployee because of his membership or nonmembership in the Union. The Union
objected to this proposal on the ground that it might be. liable for the acts of
nonunion members. It suggested that the protection to nonunion members be
eliminated. The Respondent maintained that there had been discrimination by
union members against nonunion members in the past and insisted on its pro-
posal No agreement was reached on this section although the Respondent indi-
cated on November 28 that it might consider eliminating liability for the acts of
individual employees.
No-strike-No-lockout (Art. 1C)
The 1946 contract contained a no-strike-no-lock-out clause prohibiting such
action until the grievance procedure had been exhausted. The Union on Sep-
tember 26 proposed that this clause be eliminated taking the position that under
the Act it might be held responsible for unauthorized acts of third persons. The
Respondent took the position that the Union should bear its full responsibility
under the law. No agreement was reached on this clause, but there was addi-
tional discussion of it in connection with the clause on Grievance Procedure.
Presentation of Grievances
On September 26, the Respondent submitted a proposal restating in substance
the provisions of the Act permitting individual employees to present grievances
and have them adjusted (Sec. 9 (a) ). On November 28, the Union submitted a
redraft of this clause which was not agreed to. On December 23, the Union
proposed that a provision for advance notice to the Union be inserted. No
agreement was reached.
Working Conditions (Art. 2)
The workweek, standard day's work, and standard week's work (Art. 2A)
There was agreement on these provisions including some minor modifications
requested by the Respondent.
Right to change starting and stopping time, hours per day and days per week
The 1946 contract specified that the Company would fix the time to start and
stop work, that one day's notice of proposed changes should be given, and that
such changes might be made by mutual agreement between the Company and the
Union. (Art. 2B). On October 30, the Respondent proposed that it have the
right to initiate such changes and that it give notice to the Union after the
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes were "determined upon." Similarly, the Respondent proposed that the
1946 contract provision permitting it to reduce hours per day and days per week
if business required it upon 2 weeks' notice to the Union be changed by deleting
the requirement for advance notice (Art. 2C). The Respondent maintained that
these matters should be in the prerogative of management and, further, that
the 2 weeks' notice requirement might entail financial loss to it. The Union
opposed these changes insisting on some advance notice. At the December 23.
meeting, the Un rn offered some concessions on the notice provisions, but these
were not accepted.
Holiday and Overtime Pay (Art. 2D)
The Union initially proposed that the 1946 provision for time and one-half pay
for hours worked in excess of 40 in every week and for hours worked on 5
named holidays and on Sunday be changed to provide for overtime after 8 hours.
in any one day, 6 holidays with straight time pay if not worked and time and
one-half in addition for hours worked, plus Sunday pay as provided in the old
contract. The Respondent maintained that it could not pay the increased cost
of this proposal and wished to reduce the 5 holidays previously listed to 4-
On October 30, the Union offered to forego its demand for pay on holidays
not worked. On December 23, the Union and the Respondent agreed to accept
the holidays specified in the old contract. They were still in disagreement on
the Union proposal for overtime after 8 hours in'any day and on a new proposal
by the Union that there be 2 holidays with regular pay, though no work was
performed on them.
Contract Work (Art. 2E)
The 1946 contract permitted the Respondent to make piece-work or contract
arrangements with employees for certain work on condition that consent be
obtained of the individual employee and the union committeeman for the depart-
ment and that the employee make no less than the scale set up for that class
of work. On September 26 the Union took the position that this arrangement
be eliminated entirely ; the Respondent proposed that the new contract permit
such agreements, but eliminate the role of the union committeeman. The Re-
spondent contended that contract work aided production and that, in the past,
committeemen had been unavailable or unwilling to approve these arrangements.
On November 28, the Union offered to accept the clause in the 1946 contract, but
the Respondent would not agree.
Transfers (Art. 3)
The Respondent, on September 26, proposed that transfers in general be left
in its discretion. It proposed the removal of limitations that transfers should be
made only in emergencies and that requests for permanent transfers, when made
by the Union, should be granted if possible (Art. 3A, 3c). The Union proposed
the elimination of a clause permitting supervisory employees to do the work of
production workers in emergencies. There was no agreement on any of these
proposals at that time. At the December 23 meeting, the Respondent agreed
to retain the clause that transfers requested by the Union would be granted if
possible. There was agreement as to the wage rates to be paid those tempo-
rarily transferred. The Respondent also agreed to a union compromise proposal
that supervisory employees should not do hourly work if it would cause a lay-off
Otherwise there was disagreement.
ALABAMA MARBLE COMPANY 1065
Apprentices (Art. 3H)
The Respondent wished to change the existing apprentice regulations which
provided that apprentices should be trained by the journeymen under whom
they worked, that in case a journeyman teacher should be unsatisfactory, the
Union and the Company would by mutual agreement take further action. The
Respondent wished to have full control over the training of apprentices. The
Union wished to retain the provisions in the 1946 contract except that it wanted
to restrict the ages of apprentices. On December 23, the Union receded from
the effort to restrict the ages of apprentices and proposed that the Respondent
should have control over the training of apprentices subject to the Union resort-
ing to the grievance procedure if it had any complaints as to any instructor.
The proposed compromise was rejected.
Seniority (Art. 4)
The 1946 contract provided that "seniority rights on the basis of length of
service with the Company will be the determining factor in making advancement
and promotions, and in reducing the forces...." On September 26, the Re-
spondent proposed that seniority should not only be based on length of service,
but on skill, ability, and work performance as evaluated by it On November 28,
the Union proposed that the Respondent and the Union jointly evaluate these
factors. This proposal was not accepted. There was agreement on certain
factors to be considered in evaluating seniority and counsel for the parties were
to consult further on it.
As to probationary employees, the Respondent wished to extend the existing
provision for a 30-day probationary period to 90 days and to restrict the grievance
procedure for those employees to the first step, namely, presentation of the griev-
ance to the foreman. The Respondent maintained that a longer probationary
period was necessary to properly evaluate the work of new employees. The
Union opposed both proposals stating that the suggested chai,ges would mean
that for a long period the Union would be unable to offer new employees any
protection and thus would not be able to interest them in the Union. This dis-
agreement never was settled. The Union wished to retain the 1946 provisions,
.the Respondent sought the changes outlined above.
Grievance Procedure (Art. 5)
Both parties were in general agreement that the terminal point of the existing
grievance procedure, arbitration, be eliminated. The Union also wished to make
certain that it would have the right to strike if grievances were not settled by
the prescribed procedure. To that end, it proposed the elimination of a no-
strike-no-lock-out clause. The Respondent refused to agree to this. Actually
the dispute here was over the interpretation and reconciliation of the proposed
grievance and no-strike clauses. In the December 23 meeting, the Union pro-
posed a return to arbitration procedure and the Respondent agreed to study
the proposal.
Vacations (Art. 6); Wages (Art. 8)
The Union, on September 26, proposed that the vacation allowance be liberal-
ized and that all employees be given a 25-cent an hour increase The Respond-
ent opposed these proposals maintaining that it could not afford the increased
expense. On November 28, the Union receded from its demand as to the vaca-
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion allowance, but there was no agreement on wages except as to the one provi-
sion dealing with the Wage Scale and Classification Table, though the Union
halved its demand.
Leave of Absence (Art. 7)
Under the 1946 contract, it was agreed that union representatives be granted
leaves for designated union business if the Respondent determined that they
could be spared. There also was a provision for automatic leaves of absence in
cases of illness. The Respondent proposed that the entire subject be left in its
discretion, but the Union did not agree and wished to adhere to the prior
provisions.
Job Description (Art. 9)
The 1946 contract referred to annexed job descriptions and provided that any
question as to those provisions could be handled as a grievance. The Respond-
ent proposed that the grievance provision be dropped, but the Union wished to
retain the existing provision.
Health and Sanitation (Art. 10)
There was agreement on the reenactment of existing provisions as to equip-
ment and physical conditions to be made available to employees.
Shift Differential (Art. 11)
Both parties agreed to continue the existing clause as to premium payments.
Apprenticeship (Art. 12)
The 1946 contract provided that the time and rate of increase of pay of
apprentices should be fixed by the Union and the Respondent. Here again, the
Respondent demanded that apprenticeship matters should be in its sole discretion.
No agreement was reached.
Reporting for Work (Art. 18)
On September 26, the Respondent proposed that the provision allowing em-
ployees at least 4 hours pay for reporting for work be modified to eliminate such
pay if employees were unable to work for some cause not under its control. On
October 30, it abandoned this proposal and agreed to the continuance of the
existing provision.
Union Security (Art. 14)
The 1946 contract contained a maintenance-of-membership clause plus provi-
sions for a voluntary check-off of dues. The Union on September 26 proposed a
provision for a union shop and irrevocable check -off. The Respondent declared
itself opposed to such a clause . The Union maintained that it needed such
security in view of the changes proposed by the Respondent . On November 28,
the Union proposed to relax its demand as far as present employees were con-
cerned. The question was raised as to whether the Union was in compliance
with the Act so that a union-shop referendum could be conducted among the
employees . The union representatives were uncertain as to this and this matter
was left open.
ALABAMA MARBLE COMPANY 1067
Applicable Laws (Art. 15B)
The 1946 contract provided that the invalidity of part of the agreement should
not affect any other portion. On October 22, the Union proposed an addition to
the clause that in the event of partial invalidity the parties would confer on
substitute language and, if unable to agree, there could be resort to a "strike or
lockout." The Respondent would not agree to this proposal. On December 23,
the Union suggested that provision for resort to the grievance machinery be
substituted. It was agreed that counsel for both parties would confer on this
proposal.
Bulletin Boards
The Respondent agreed to furnish two bulletin boards as requested by the
Union.
Duration of Agreement (Art. 15)
The parties were agreed on a 1-year term. However, the Union wished to con-
tinue an existing provision providing for reopening the contract during its term
as to wages, but the Respondent was opposed to any reopening.
On December 30, 1947, Smith sent a letter to Mitchell, and forwarded a copy
of it to Cook, informing Mitchell that the Company had filed a representation pe-
tition with the Board. The letter further stated :
It is believed that both the Company and the Union should do everything
possible to expedite the holding of an election by secret ballot among the
employees of Alabama Marble Company by the National Labor Relations
Board at the earliest possible date.
Also, it is believed that the National Labor Relations Board should be
given the opportunity to act fully on the company's said petition ; that any
further negotiations should he dependent upon the decision of the Board on
the Company's said petition, together with the certified results of the said
election to be held among employees of Alabama Marble Company
The next day Smith had a conversation with Cook'8 Cook had, by that time
received the copy of the letter Smith sent to Mitchell. Cook raised the question as
to whether or not a meeting scheduled for January 2, 1948, should be held.
Smith replied that the Company was willing to do so. It was agreed that neither
party would "hold it against" the other if they did not attend the scheduled
meeting. Smith also said in the conversation, "The Company is willing to bar-
gain even, though it now doubts that the Union represents its employees." On
January 5, 1948, Mitchel] filed a charge with the Board alleging that the Company
had refused to bargain with the Union within the meaning of the Act. The
charge was signed by Mitchell and also listed Cook as a person who could be
reached on the matter. On January 9, Smith telephoned Cook and found out
that the latter knew nothing of the charge and had had nothing to do with
its preparation. Cook also stated, during the conversation, that he thought that
the two chief obstacles to reaching an agreement had to do with the union shop
and certain management prerogatives, and he felt that those could have been
worked out. He also confirmed the arrangement made in the prior conversa-
tion that neither party would hold the other to blame if they did not attend the
]U The findings as to Smith's discussions with Cook are based upon Smith's uncontra-
dicted testimony . Cook did not testify at the hearing. '
f
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 2 , 1948, meeting. No further conference or collective bargaining nego-
tiations took place between the parties.
Conclusions
(a) The bargaining conferences
It is undisputed that both the Respondent and the Union were desirous of
changing the terms and conditions of the 1946 contract . Both sides submitted
written proposals and, in general, discussed them in detail on the merits. No
difficulties were encountered in setting the dat::s of meetings.
The General Counsel concedes that the Respondent maintained the outward
forms of bargaining in good faith, but contends that its effort to reserve to
itself sole power over matters vital to the working conditions of the employees
constituted a failure and refusal to live up to its obligations under the Act. The
following clauses were referred to by the General Counsel in his argument :
1. Giving the Respondent sole authority to set the time for beginning and ceas-
ing work , to lay off , and to set the hours per day and days of work per week
without giving any advance notice. This differed from the provision in the old
contract which required advance notice and also gave the Union a voice in fixing
the time of starting and stopping work.
2. Eliminating the requirement that union committeemen have a voice in con-
tract work arrangements.
3. Permitting the Respondent to make transfers in its discretion . It should
be noted here that while the parties remained in disagreement on this proposal,
certain other parts of the clause relating to transfers were agreed to by com-
promise between the parties.
4. Eliminating the Union 's participation in the training of apprentices.
5. Insistence on a no-discrimination clause which would make the Union liable
for the acts of individual employees . On November 28, the Respondent indicated
that it might consider a modification of this clause . There was no further
discussion of this point at the last meeting.
6. Injecting factors in the determination of seniority , other than length of
service, and giving the Respondent sole power to evaluate them. During the course
of negotiations , there was agreement on some additional factors and , at the last
discussion of that subject the problem was referred to counsel for both parties
for further study.
7. The elimination of the end step of the grievance procedure coupled
with a refusal to make a clear indication of the Union 's right to strike if no
agreement was reached . As has been indicated before, this issue involved an
interpretation of the clauses on strikes and grievances . Also, the Union, on
December 23, proposed a return to the arbitration provision and the Respondent
agreed to study the proposal.
When the Union and the Respondent began negotiations for a new contract
they were far apart . A few clauses of a minor character were not in serious
controversy. These were, Rights of Management , Wages ( not wage rates),
Health and Sanitation , Shift Differential , and Bulletin Boards. The Respondent
receded from its position on Reporting for Work , and agreed to accept the old
clause.
Concessions by both parties led to some progress in the clauses on Holiday
and Overtime Pay and Transfers . Other clauses were still in an intermediate
ALABAMA MARBLE COMPANY 1 O69
stage of negotiation and had either been referred to counsel for further study
or had been resubmitted in modified form by one of the parties.
However, there was deep and fundamental disagreement as to several key
clauses such as no-discrimination, no-strike, working conditions, transfers, ap-
prentices and seniority, as well as over new demands by the Union which, in
practically every respect, were refused by the Respondent.
Nevertheless, the undersigned is not persuaded that the Respondent, had not
fulfilled its statutory duty to bargain collectively with the Union. Neither party
was bound to continue the provisions of the 1946 contract. Both parties proposed
substantial changes. In general, it might be said that the Respondent showed
less willingness to recede from its original proposals than the Union. Yet it
did make some concessions and agreement was reached on important points.
There were indications that there might be further agreement if negotiations had
continued. The Respondent, at all times, was willing and did discuss all pro-
posals in detail and gave reasons why it advanced certain proposals ; why it would
agree to certain clauses, and what local conditions caused it to oppose other
proposals. As to those clauses specifically adverted to by the General Counsel
as establishing bad faith, it should be noted that there was some agreement
between the parties while as. to others, the parties were continuing efforts to
reach a satisfactory settlement. Under these circumstances, the undersigned
cannot conclude that the Respondent, in violation of the Act, did not enter into
the bargaining discussions "with an open and fair mind, and a sincere pur-
pose to find a basis of agreement touching wages and hours and conditions of
employment...." Si There were deep differences between the parties and certain
issues on which the Respondent adopted an adamant position. The record,
however, does not support the conclusion that this intransigeance reflected an
intention to avoid coming to any agreement, but rather that on certain points an
impasse had been reached which did not reflect on the good faith of either
party."
(b) The representation petition
After the December 23 conference the Respondent filed a representation petition
with the Board. Such a petition raises questions concerning majority status
and composition of the appropriate unit which are, under ordinary circumstances,
properly raised in advance of the commencement of collective bargaining negotia-
tions. The filing of a petition by an employer after several months of negotiations
with a Union concerning a contract, generally speaking, raises strong doubts as
to its good faith.
However, there were circumstances here which lead to a different evaluation
of the conduct of the Respondent. Section 9 (b) (3) of the Act provides that
the Board shall not :
... decide that any unit is appropriate for such purposes if it includes,
together with other employees, any individual employed as a guard to enforce
against employees and other persons rules to protect property of the employer
11 Globe Cotton Mills v. N. L. R. B., 103 F. (2d) 91 , 94 (C. A. 5). See also N . L. R. B.
V. Whittier Mills Co., 111 F. (2d) 474 (C. A. 5) ; N. L. R. B. v. Reed and Prince Manufac-
turing Co., 111 F. ( 2d) 874 (C. A. 1), certiorari denied 313 U. S. 593.
"See Matter of National Maritime Union of America, 78 N. L. R. B. 971 ; Matter of
Burns Brick Company , 80 N. L. R. B. 389.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to protect the safety of persons on the employer's premises; but no labor
organization shall be certified as the representative of employees in a bar-
gaining unit of guards if such organization admits to membership, or is
affiliated directly or indirectly with an organization which admits to member-
ship, employees other than guards.
The question whether watchmen were guards within the meaning of Section
9 (b) (3) was the subject of controversy until the decision of the Board in
Matter of C. V. Hill & Company, Inc., 76 N. L. R. B. 158 (February 12, 1948) where
the Board stated as to the watchmen concerned in that case:
These employees have a duty to protect property of the Employer against
theft, whether by employees or by "other persons" who might gain access to
the plant. They therefore fall within the definition of the individuals whom
the Board is now prohibited from including in units with other employees.
In view of the terms of the declaration by Congress in Section 9 (b) (3),
we have no choice but to disregard the agreement of the parties as to the
watchmen, and exclude them, as well as the guards, from the production
and maintenance unit 19
As' of December 23, 1947, when the Respondent first raised the question as to
the inclusion of watchmen in the appropriate unit, that question had not been
authoritatively settled and was a real, not frivolous, issue. The Respondent
pointed out the problem to the Union. While the Union agreed to exclude guards
from the unit, it was unwilling to specifically commit itself as to the 4 watch-
men in the Respondent's employ. While the unit includes approximately 135
employees and these 4 employees would not substantially affect the composition
of the unit, it cannot be said that the Respondent was foreclosed thereby from
seeking a determination of the exact composition of the unit, there being an
apparent deadlock between the parties on that point. All the circumstances
herein indicate that the Respondent raised the issue in good faith and attempted
to adjust it before filing its petition. It is true that it did not contest the com-
position of the unit until bargaining had been in progress for over 2 months.
However, in view of the novelty of the problems arising from the amendments
to the Wagner Act and the general unfamilarity with the scope of the Act, as
amended, the undersigned does not feel that the delay herein reflects on the
motives of the Respondent. The record does not establish any violation by the
Respondent of its bargaining obligation under the Act by its filing of the rep-
resentation petition.
(c) The discharges
The General Counsel contends that the discharges of the four union officials
furnishes additional evidence that the Respondent was not bargaining in good
faith. On the theory that an employer cannot seek to destroy the majority
status of a bargaining agent by its own unfair labor practices and then attempt
to take advantage of the success of its efforts 2°
In the instant case, the undersigned has found that the work stoppage of
October 6 was the beginning of the chain of events leading to the discharges.
The discharges were made early in the negotiation period and negotiations con-
'9 See to the same effect Matter of Continental Industries , Incorporated, 76 N. L. R. B.
561; Matter of Brinks , Inc., 77 N. L. R. B. 1182.
m Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678 ; Matter of The Toledo
Desk & Furniture Co., 75 N. L. R. B . 744; Matter of Karp Metal Products Company, 51 '
N. L. R. B. 621.
ALABAMA MARBLE COMPANY 1071
tinned after they were effected. While union leaders were discharged, the cir-
cumstances under which they were released do not indicate that the Respondent
was motivated by a desire to weaken the Union's position at the bargaining
table, to destroy its majority, or to avoid the Respondent's obligation to bargain.
The undersigned concludes that the Respondent has not refused to bargain
collectively within the meaning of Section 8 (a) (5) of the Act.
C. The alleged discriminatory discharges
On November 8, 1947, the day after the expiration of the contract between the
Union and the Respondent, union members at the plant went on strike. A picket
line was established and was maintained until December 12, when the members
held a union meeting and voted to call off the strike.21 Mitchell and a union
delegation met with King and other officials of the Company. King told Mitchell
that the strikers would have to apply to him individually for reemployment, and
that he would put them back to work as soon as he could. This plan was fol-
lowed and eventually all the strikers were reemployed except John T. Stewart
and Rex Gordon Stewart, his son. The failure to reemploy them is alleged in
the complaint to have been in violation of the Act. Their cases will be considered
separately.
John T. Stewart
John T. Stewart was a member of the Union. He joined in the strike and
served as a picket-line captain. King saw him on the picket line three or four
times and had at least two conventions with him. On December 12, when
the union members voted to end the strike, Stewart was elected temporary presi-
dent. Stewart applied for work on December 15th. At that time King told him
that he was unable to put him back to work, saying that his case was different
from that of the others. However, Stewart filled out a written application.
Approximately a week later, Stewart again asked King for reemployment, and
King then told him that other men in the plant thought that he had been disloyal
to the Company. Approximately 3 days later, Stewart had another conversation
with King in which King told him that some foremen thought that he should not
be reemployed after having participated in the strike and going on the picket line.
About 4 or 5 weeks after December 12, Stewart asked King for permission to take
his tools. King told him that the situation was unchanged and that if he secured
other employment, he would give him a good recommendation. Stewart never
was recalled to work.
King testified that he had seen Stewart on the picket line but denied that
he knew that he was a picket captain. He also denied Mitchell's testimony that
on December 12th the former told him that Stewart had been elected temporary
president. He also denied receiving information as to Stewart's status in the
Union at that time from Stewart. However, as to that point, he testified in part
"Stewart said that he had put on new committee men, that he thought the men
who had been fired would not be the proper persons for that committee and I
agreed with him." The undersigned credits the version of Mitchell and Stewart on
this point. King did admit that Stewart did tell him that he had been elected tem-
porary president of the Union at some meeting, but after he had applied for
21 The complaint alleges that the strike was caused by the Respondent 's unfair labor
practices . The timing of the strike, however, indicates that it was motivated by the fact
that a renewal contract had not been signed before the expiration of the existing contract
and that the strike was an economic strike.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement . King further testified that he did not know that Stewart was an
officer of the Union when the former applied for reinstatement . King also
testified that he never made a decision not to reinstate Stewart, but that he did
decide to delay his reinstatement for the reason that be received complaints from
four foremen that they resented his membership in the Union and his taking an
active part in the strike because they felt he was a foreman and should not have
any allegiance to the Union . King testified that it was because of that sentiment
that he decided to delay Stewart 's reinstatement until he could see if he could
work the matter out.
It is clear from King 's own testimony that Stewart was denied reinstatement
because of his union membership and because of his engaging in protected union
activities . If there were no other question , the undersigned would find that
John T. Stewart had been discriminatorily denied reinstatement . The law is
well settled that an employer , under circumstances such as existed in this case,
cannot, at the request of a group of employees , discriminate against another
employee for engaging in protected union activities . However, the Respondent
contends that Stewart was a supervisory employee within the meaning of the
Act and that he is not entitled or should not be given any relief in the circum-
stances existing herein.
Stewart began work for the Respondent in June 1943 At the beginning lie
performed the duties of a machinist and had no regular helper . In July 1945 he
was assigned a helper. There were increases in the staff from time to time
and in November 1947, there were four other employees in the Machine Shop
where he worked . Stewart originally had been paid by the hour. In November
1946, about the time the Union contract first went into effect , King told Stewart
that he intended to cut out all overtime and that he proposed paying Stewart $75
per week so that his take-home pay would equal approximately what his previous
earnings had been. Stewart agreed to this arrangement . Stewart testified
in detail concerning his duties and responsibilities and the work in the machine
shop . His testimony , in substance , was as follows : The primary task of the
machine shop employees was to maintain all the machinery and equipment at
the quarry and in other places in the plant . In October and November 1947, the
staff at the machine shop consisted of Rex Gordon Stewart, who operated a lathe,
another employee , Kirk , who did welding, another employee, Leslie, who generally
did maintenance work outside of the shop, and a crane operator named Wise
who worked part time in the machine shop. Stewart testified that he helped
the others , and performed electrical repairs.
Orders generally were given to Stewart who would tell the men what job
should be done, when it should be done, gave them instructions when needed,
checked the work of the other employees occasionally , and directed them to
correct faulty work . Stewart also placed supply requests with the Respondent's
employee in charge of purchasing. In the case of expensive machinery, Stewart
would first discuss the matter with King and obtain his approval before asking
the supply officer to purchase it. In the case of some special orders, a salesman
would be sent to him to ascertain in further detail the specifications . King, on
occasion , discussed with him contemplated purchases of expensive machinery
and obtained his opinion as to these purchases . ' Stewart estimated that he spent
about 90 percent of his time performing manual labor and about 10 percent in
getting , material , placing orders and miscellaneous matters. Later in his testi-
mony, he estimated that he spent 80"to J90 percent of his time in manual work.
His pay-roll title was "Master Mechanic " and this title was listed in the contract
ALABAMA MARBLE COMPANY 1073
as being in the unit. Also Stewart's union dues were checked off by the
Respondent.
Stewart testified that he was never told that he had the right to hire, discharge,
or suspend employees, and that he did not at any time attempt to perform these
personnel functions. However, in practice he did discuss certain personnel
problems with King from time to time. Stewart gave several illustrations of
matters handled in this way. According to Stewart, he had discussed the hiring
of new employees with King from the time that new employees were hired for
work in the machine shop. In July 1945, when King told Stewart that he would
get a helper for him, Stewart recommended a Joe Kirk. Eventually, King
did hire Kirk. Stewart recommended the employment of Lloyd Edmondson in
1944. He was eventually hired in January 1946. In March 1947, King asked
him which of three applicants he thought best qualified for work in the machine
shop, and Stewart replied that he thought one of them, Clyde Leslie, was the
best able to qualify. Leslie was hired. Stewart also suggested that one em-
ployee, Wise, might be assigned to the machine shop to work part time. This
conversation took place approximately in June. 1946. King adopted that sug-
gestion. On the other hand, Stewart made one or two other recommendations
for hiring which were not followed by King. Stewart testified that King occa-
sionally asked him how employees were performing their work. In July 1946,
Stewart made an adverse report as to Edmondson and King took disciplinary
action. Edmondson eventually was discharged by King several months later.
Stewart denied that he recommended the discharge but admitted that he had
had conversations cogcerning Edmondson with King.
Stewart testified that Tom Guy, foreman of construction operations and the
crusher was his supervisor. However, according to Stewart's own testimony,
Guy did not direct the work of the men in the machine shop, and his main
contact with Stewart was when they would discuss special jobs. As to overtime,
Stewart assigned specific men to overtime after King had authorized the extra
work.
King testified that Stewart was in charge of the machine shop and the men
assigned to it, and that in addition he gave suggestions as to the use and appli-
cation of new machines designed and made some machines, and took a part in the
moving and erection of other special machines, such as derricks. He testified
that he considered Stewart foreman of the shop, but admitted that he never
told Stewart that he had such a title. His testimony was to the effect that as a
matter of practice, Stewart was in charge of the shop. In addition co his duties
above mentioned, he ordered small parts without prior consultation with King
and placed orders for special equipment and conferred with salesmen as to the
orders after receiving prior authorization from King. As to hiring and firing,
King stated that he consulted with Stewart on these matters, and while he did
not always follow Stewart's recommendations, he gave those recommendations
weight. King further testified that during Stewart's employment, as new men
were hired, Stewart's manual work decreased. King denied that Stewart spent
90 percent of his time in manual work in his last year and estimated that the
total was nearer 20 to 25 percent, although he admitted he could give no accurate
figure on this point. The rest of the time, King maintained, Stewart supervised
the work of other employees, laid out and designed equipment, ordered supplies,
and consulted with him.
Clyde Leslie was first employed in the Machine Shop in October 1947. He
testified that he had received orders and instructions from Stewart, as well as
overtime assignments . He estimated that Stewart spent about 25 percent of his
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time doing manual work. However, he admitted that he was not with Stewart
all during the working day and did not know what Stewart did when they were
not together. He further testified that after Stewart left no one was placed
in charge of the machine shop, that the four or five workers who remained
specialized,in certain types of repairs, and that if there was any question, they
decided among themselves who should do a particular job. Rex Gordon Stewart
testified that he received his orders and instructions from his father and esti-
mated that his father spent most of his time doing manual work. His testimony
was subject to the same qualification as that of Leslie's.
Conclusions
The undesigned, from his observation of the witnesses, credits Stewart's testi-
mony to the extent of finding that he spent the major portion of his time in
manual work or performing other tasks of a nonsupervisory character. How-
ever, it is clear from Stewart's own testimony that he regularly spent a sub-
stantial portion of his time directing the work of the other employees in the
machine shop. He exercised wide discretion in directing the operations of the
men and no other supervisory employee attempted to directly control the shop
operations. Stewart requisitioned materials, assigned employees to their tasks,
and passed judgment on their work. He was the only employee in the shop
who received a fixed salary. It is clear, and the undersigned finds, that he was
the recognized agent of the Respondent for the transmission of instructions to
regular production employees-and was, in fact, immediately responsible for the
degree of effective supervision required to assure the proper execution of the duties
assigned to such nonsupervisory personnel. The undersigned concludes that
John T. Stewart responsibly directed the work of employees 23 and can best
be classified as a working foreman and supervisor within the meaning (t the Act.u
The final question relating to Stewart's discharge is whether supervisors are
afforded any protection under the Act against discharge for union membership
or activities. In the case of National Labor Relations Board v. Edward G. Budd
Manufacturing Company '21 the court in passing upon the discharge of a fore-
man for membership in a union of foremen said :
We believe it is clear that Congress intended by the enactment of the Labor
Management Relations Act that employers be free in the future to discharge
supervisors for joining a union, and to interfere with their union activities.
The present case concerns the discharge of 'a supervisor for membership in
and participation in the activities of a Union of production workers. However,
in the opinion of the undersigned, the logic of the Budd case applies with equal
force to the present case and renders unnecessary a detailed discussion of the
legal arguments meriting consideration in the absence of binding precedent.
22 As to personnel recommendations made by Stewart , it is true, as the General Counsel
points out , that he had made such recommendations almost from the time he was first
employed . The undersigned has not given conclusive weight to this factor, but has relied
primarily on the nature of Stewart's daily tasks.
23 See Matter of The Ohio Power Company, 80 N. L. R B. 1334.
24 Matter of Lloyd Corp., Ltd., 79 N. L. R. B. 1477; Matter of Steelweld Equipment
Company, Inc., 76 N. L. R. B. 831; Matter of Farmville Mfg. Co., 76 N. L. R. B. 237,
Matter of Norfolk Southern Bus Corp., 76 N. L. R. B. 488; Matter of Wasatch Oil Refinery
Company, 76 N. L. R. B. 417.
Stewart's pay-roll title and its inclusion in the union contract cannot be considered
controlling in view of Stewart 's duties and responsibilites. See Matter of Chas. Eneu
Johnson c6 Co ., 77 N. L. R. B. 41.
26169 F. (2d) 571 ( C. A. 6), on Remand from the Supreme Court of the United States,
certiorari denied , 335 U . S. 908.
ALABAMA MARBLE COMPANY 1075
It is therefore concluded that the Respondent has not discriminated against
John T. Stewart within the meaning of the Act.
Rex Gordon Stewart
Rex Gordon Stewart was first employed by the Company in November 1943 as
an apprentice ,machinist. His first period of employment ended-in-1Vlarch 1944.
He was reemployed in June 1946 and continued working until the strike in
November 1947. He was a member of the Union, and he participated in the
strike, although not in a position of leadership. His union dues were checked
off. At the conclusion of the strike, Stewart tiled an application for employment
but was never recalled to work. The Respondent contended that Rex Stewart
was not recalled because it did not need his services.
During his entire period of employment, Stewart worked as an apprentice
machinist and received his orders and instructions from his father. Stewart
testified that he helped the other employees in the shop as his help was needed.
No one was placed in charge of the machine shop after John T. Stewart was not
recalled. According to the undenied testimony of employee Clyde Leslie each
of the mechanics in the shop performed work in the field in which he was skilled
and the employees settled among themselves differences over specific work tasks.
No one was employed as an apprentice machinist following the failure to reem-
ploy Rex Stewart.
While there is a suspicion that the failure to recall Rex Stewart was linked
to the similar treatment accorded his father, John T Stewart, the evidence does
not affirmatively establish that connection Rather, it appears that after the
strike there was no supervisor from whom an apprentice machinist could take
orders and instructions, that no apprentice machinist was hired to replace Rex
Gordon Stewart, and that there is no proof that the services of Stewart were
needed after the strike. Accordingly, the undersigned concludes that the evi-
dence does not support the allegation that Rex Gordon Stewart was discrimina-
torily denied reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations described in Section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States and such of them as have been found to be unfair labor practices tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since it has been concluded that the Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action which the undersigned finds will effectuate the
policies of the Act.
It has been found that the Respondent discriminatorily discharged Charles
T. Adair, W. A. Wilson, W. A. Adams and C. M. Kinser. It will therefore be
recommended that the Respondent offer them immediate and full reinstate-
ment to their former or substantially equivalent positions 26 without prejudice
to their seniority and other rights and privileges . It will be further recom-
21 Matter of The Chase National Bank of the City of New York, San Juan , Puerto Rico
Branch, 65 N. L. R. B. 827.
1076 DECISIONS OF , NATIONAL LABOR RELATIONS BOARD
mended that the Respondent make them whole for any loss of pay they may
have suffered by reason of the Respondent ' s discrimination against them, by
payment to each of them of a sum of money equal to the amount each would
have earned as wages from the date of their discharge to the date of the Re-
spondent 's offer of reinstatement , less the net earnings of each during that
period24
The use of the method of discharges as a penalty for engaging in activity pro-
tected under the Act has been recognized as a discrimination which "goes to the
very heart of the Act ." R8 The scope of the illegal conduct discloses a purpose
to defeat self-organization among the employees ' Such conduct reflects a de-
termination generally to interfere with, restrain , and coerce the employees in
the exercise of the right to self-organization , to form, join, or assist labor organ-
izations , to bargain collectively through representatives of their own choosing
and to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection and presents a ready and effective means of de-
stroying self-organization among the employees . The undersigned is convinced
that if the Respondent is not restrained from committing such conduct the
danger of their commission in the future is to be anticipated from the conduct
in the past and the policies of the Act will be defeated . In order, therefore, to
make effective the interdependent guarantees of Section 7 of the Act , to prevent
a recurrence of unfair labor practices , and thereby to minimize industrial strife,
which burdens and obstructs commerce , and to thus effectuate the policies of the
Act, the undersigned will recommend that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local Number 133, International Association of Marble, Slate and Stone
Polishers, Rubbers and Sawyers, Tile and Marble Setters Helpers and Terrazzo
Workers Helpers, affiliated with the American Federation of Labor, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Charles T. Adair, W. A. Wilson, W. A. Adams, and C. H. Kinser, thereby dis-
couraging membership in the Union, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By such discrimination, the Respondent has interfered with, restrained and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, and has thereby engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
5. The Respondent has not refused to bargain collectively with the Union within
the meaning of Section 8 (a) (5) of the Act.
6. The Respondent has not discriminated in regard to the hire and tenure
of employment of John T. Stewart and Rex Gordon Stewart within the meaning
of Section 8 (a) (3) of the Act.
2' Matter of Crossett Lumber Co ., 8 N. L. R. B. 440 , 497-8.
28 N. L. R. B. v. Entwistle Mfg. Co., 120 F. ( 2d) 532, 536 (C. A. 4).
ALABAMA MARBLE COMPANY 1077
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, Alabama Marble Company,
Gantt's Quarry, Alabama, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Local Number 133, International Association
c.f Marble, Slate and Stone Polishers, Rubbers and Sawyers, Tile and Marble
Setters Helpers and Terrazzo Workers Helpers, affiliated with the American
Federation of Labor, or any other labor organization of its employees by laying
off, discharging or refusing to reinstate any of its employees, and from refusing
to employ any member of that Union or in any other manner discriminating in
regard to their hire and tenure of employment or any term or condition of
employment ;
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the said Union, 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 as guaranteed in Section
7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Charles T Adair, W. A Wilson, W. A. Adams, and C. M. Kinser,
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and privileges;
(b) Make whole Charles T. Adair, W. A. Wilson, W. A. Adams, and C. M.
Kinser for any loss of pay each may have suffered by reason of the Respondent's
discrimination against him by payment to each of them of a sum of money equal
to the amount which each normally would have earned as wages from the date
of their discharge to the date of the Respondent's offer of reinstatement, less the
net earnings of each during said period ;
(c) Post at its plant at Gantt's Quarry, Alabama, copies of the notice annexed
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Tenth Region, shall, after being duly signed by the
Respondent's representative, be posted by said Respondent immediately upon
receipt thereof and maintained by it for a period of sixty (60) consecutive days
thereafter in conspicuous places including all places where notice to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other
material.
It is also recommended that the Respondent file with the Regional Director
for the Tenth Region, as an agent for the Board, within twenty (20) days from
the date of the service of this Intermediate Report, a report in writing setting
forth in detail the manner and form in which it has complied with the foregoing
recommendations.
It is further recommended that the complaint in Case No. 10-CA-185 be dis-
missed insofar as it alleges that the Respondent in violation of the Act, discrim-
inated against John T. Stewart and Rex Gordon Stewart and that it refused to
bargain collectively with the Union within the meaning of the Act.
All parties are advised, however, that any party may, within twenty (20) days
from the date of service of the order transferring the case to the Board, file with
844340-50--vol. 83-69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board, Rochambeau Building, Washington 25, D. C.-pursuant to Section
203.46 of the aforesaid Rules and Regulations-an original and six copies of a
statement in writing setting forth such exceptions to the Intermediate Report,
or to any other part of the record or proceeding (including rulings upon all mo-
tions or objections) as he relies upon, together with the original and six copies
of a brief in support thereof. Matters not included in the Statement of Excep-
tions may not thereafter be urged before the Board, or in any further proceed-
ing under the Act. Any party also may, within the same period, file an original
and six copies of a brief in support of the Intermediate Report. Immediately
upon the filing of such a Statement of Exceptions and supporting brief, or brief
in support of the Intermediate Report, the party filing the same shall serve a
copy thereof upon each of the other parties. Proof of service on the other
parties of all papers filed with the Board shall be properly made as required by
Section 203.85. 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.
The parties are further advised that, in the event no Statement of Exceptions
is filed as provided by the aforesaid Rules 'and Regulations, and in the absence
of compliance, all objections and exceptions to this Intermediate Report shall
be deemed waived for all purposes-as provided in Section 203.48 of the afore-
said Rules and Regulations—and the findings, conclusions, and recommendations
contained herein shall be adopted by the Board and become its findings, conclu-
sions, and order.
Dated at Washington, D. C., this 28th day of January 1949.
SIDNEY L. FEILER,
Trial E.Taininer.
APPENDIX A
NOTICE TO ALL EMPLOYEES
PURSUANT TO THE RECOMMENDATIONS OF A TRIAL EXAMINER 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:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist LOCAL NUMBER 133, INTERNATIONAL ASSOCIA-
TION OF MARBLE, SLATE AND STONE POLISHERS, RUBBERS AND SAWYERS, TILE
AND MARBLE SETTERS HELPERS AND TERRAZZO WORKERS HELPERS, A. F. L., or
any other labor organization, 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.
WE WILL OFFER to the employees named below immediate and full rein-
statement 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 discrim-
ination.
Charles T. Adair
W. A. Wilson
W. A. Adams
C. M. Kinser
ALABAMA MARBLE COMPANY 1079
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 term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
ALABAMA MARBLE COMPANY,
Employer.
Dated-------------------- By-------------------------------
(Representative ) (Title)
NOTE : Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced , or covered by any other material.
APPENDIX B
THE BARGAINING NEGOTIATIONS
Meeting of September 26
At the beginning of the meeting of September 26 Mitchell handed to Smith a
one-page memorandum which contained an outline of various changes which the
Union wished to make in the existing contract. It was then agreed that the old
contract be reviewed clause by clause with each party stating its position thereon.
Smith stated that definite proposals had not been prepared by the Company but
would be submitted later. Smith did have two typewritten pages which he
submitted to Mitchell. The first page was the formal introductory clause of the
proposed contract. Smith pointed out that the name of the Union as shown in
the contract differed from the name of the Union as printed on its constitution and
requested Mitchell to furnish the correct name of the Union. Mitchell agreed
to do so' The discussion on other clauses was as follows :
Recognition.-Smith submitted a typewritten proposal on this clause which
substantially reiterated Section 1 of the prior recognition clause with the addi-
tion that it noted the certification of the Board and contained a clause providing
for the presentation of grievances by individual employees as embodied in the
present Act. There was tentative agreement on the first part of the clause but
none on the clause dealing with the right of presentation of grievances by indi-
viduals. The old contract contained a no-strike no-lock-out clause. Mitchell
declared that under the Labor Management Relations Act of 1947 the Union
might be held responsible in damages for unauthorized acts by third parties and
that it was unwilling to agree to such a clause. Smith stated that the Union
should be willing to bear full responsibility under the law. There was no agree-
ment as to this clause.
Working Conditions.-Mitchell proposed that overtime be paid for all work in
excess of 8 hours in any 1 day instead of for work in excess of 40 hours in any
week. He also proposed that there be 6 paid, holidays with additional compensa-
tion for work performed on those days instead of an existing awarding compen-
' The name of the Union as listed in the contract did not include the categories of
marble and mosaic helpers which categories were included in the name as noted on the
constitution.
1080 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sation for work done on 5 named holidays and on Sundays. King, on the other
hand, wished to cut down the number of holidays for which extra compensation
would be paid from 5 to 4. He also stated that the Company could not stand the
cost increase involved in the Union's proposal. No agreement was reached.
There was agreement on a proposal by Smith that the contract state that the
work-week would include 7 consecutive days of 24 hours each. Article 2C of the
contract permitted the Company to reduce working hours and work days below the
maximum stipulated on giving 2 weeks' notice to the Union. The Company wished
to eliminate the requirement of the 2 weeks' notice ; the Union disagreed. Article
2E of the contract permitted the Company to make contract or piecework arrange-
ments with individual employees for certain work on condition that the employees
involved and the union committeeman for the particular department consented
to the arrangement and that the employee would not make less per hour than the
scale set up for the class of work involved. Smith proposed that in the new
contract the Union should not have any voice in contract work arrangements.
Transfers.-Smith proposed that a provision in the old contract limiting trans-
fers to emergencies be eliminated. He also suggested that a clause allowing a
union committee to suggest permanent transfers be eliminated. The Company
also proposed that transfers from one classification to another or lay-offs should
be left to the discretion of the Company provided seniority was not disturbed
Mitchell did not agree to this proposal. The Union proposed that a contract pro-
vision permitting a foreman or superintendent to do the work of an hourly paid
employee during an emergency be eliminated, but the Company insisted that that
provision be kept and no agreement was ever reached on it. With regard to
the training of apprentices, the old contract provided that the teaching of appren-
tices should be in the hands of skilled journeymen except where no journeyman
was considered capable of teaching an apprentice, in which case it was agreed
that the function should be performed by the supervisory staff. The Union pro-
posed that the ages of apprentices be restricted to 16 to 18 years, otherwise it
wished to leave the clause intact. King stated that the training of apprentices
was a problem of management and that the Company wanted full control over
the fixing of requirements for apprentices and their course of instruction. He
also protested that a restriction of the age of apprentices would hamper the
Company in enlarging its work force. No agreement was reached.
Seniority.-Mitchell proposed that the old contract provisions be kept in any
new contract with the addition of a clause stating that unless an employee was
discharged for cause or quit without proper notice, his seniority should date from
his first day of employment. Smith proposed that a new seniority clause be used
providing that promotions would be based on skill, ability, work performance as
evaluated by the Company, together with length of service. Mitchell refused
to accept this proposal stating that, in the old contract seniority was a determining
factor in promotion. No agreement was reached on this clause. The Company
proposed that -the existing provision for a 30-day probationary period be extended
to 90 days, King taking the position that the time was necessary for the evaluation
of a new employee's prospective worth to the Company. Mitchell refused to
accept this proposal, asserting that the proposal would permit the Company to
discharge new employees during that period without furnishing any reason and
that the Union would not be able to interest new employees in its program since
it would be unable to give them any protection. He expressed the fear that the
Union might be eliminated. in the plant by such a proposal. There was no agree-
ment. The parties were still in disagreement as to the factors which should be
considered in fixing the seniority of an employee , the Company taking the posi-
ALABAMAMARBLE COMPANY 1081
tion that other factors besides length of service should be involved , the Union
maintaining that that should be the principal factor. There also was disagree-
ment as to how often seniority lists should be prepared but the disagreement as
to what factors were involved in seniority was the fundamental obstacle to
agreement.
Grievance procedure.-Both parties were in apparent agreement that the exist-
ing clause providing for arbitration as the terminal point of the grievance pro-
cedure be dropped and that the last stage of dispute settlement be mediation.
The proposal originated with the Union which conditioned its proposal upon the
elimination of the no-strike, no-lock-out clause with the retention by the Union
of the right to strike in case grievance remained unsettled . The Company
insisted on the retention of the no -strike, no -lock-out clause . The Union also
proposed a change in the existing procedure to permit members of the grievance
committee to visit departments other than their own or union business involving
the Company without existing limitations contained in the contract.
Vacations.-The Union proposed a liberalization of the vacation allowance.
King stated that the Company could not afford this and suggested retention of
the existing provisions with some clarifying language.
Leave of absence.-The Union proposed that existing language be retained.
Smith stated that he would submit a new clause on that at a later meeting.
Wages.-The Union proposed that clauses and scales in the existing contract
be modified by adding two new job classifications and providing for a 25-cent
an hour increase to all employees . King proposed that existing provisions and
wage rates be retained in the new contract.
Job description.-The existing contract provided that, if any question arose
to job description contained in the contract that that question would be handled
as a grievance procedure . The Company proposed that the provision for griev-
ance procedure on such questions be dropped.
Shift differential -The parties agreed to retain the existing clause providing
for specified shift differential rates. The Company did raise a question on what
it termed the pyramiding of overtime and stated that it wished language which
would eliminate question concerning an employee 's receiving overtime pay and
holiday pay for working on holidays . This matter was left open for later dis-
cussion.
Apprenticeship.-The existing clause contained regulations of apprentice rates
of pay and a determination of the time and rate of increases . As afore-men-
tioned, the Company wished to have full freedom in administering the appren-
ticeship program. The Company maintained that apprentice training should
be a prerogative of management. The Union maintained its position that the
Union should have a voice in that program.
Reporting for work.-The Union proposed that the clause in the existing
contract providing for at least 4 hours' pay to employees reporting for work
without prior notice from the Company not to do so should remain in the new
contract . Smith proposed that that sum not be paid if the failure to work was
caused by circumstances beyond the control of the Company . There was no
agreement on this clause at the meeting.
Union security.-The Union proposed that the existing clause providing for
maintenance -of-membership with optional cheek-off should be revised to provide
for a union shop and irrevocable check-off . King'declared that ' he was opposed
to a closed shop and that employees should be free to join a Union or not. I He
further suggested that the proposal be held in-abeyance since the Union had not
yet qualified under the Taft-Hartley Act and an election to authorize a union-
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop agreement could not be held. Walter Mitchell declared that in the absence
of union security the proposals advanced by the Company would lead to the
elimination of the Union from the plant.
Duration of agreement -The Union proposed that the contract be for a 1-year
term with provision for a reopening on 60 days' notice by either party. Smith
stated that the Company desired a 1-year contract with no reopening provision.
The meeting concluded at this point with the understanding that an additional
meeting would be arranged later . At the conclusion of the meeting Smith gave
Mitchell a written statement of the position of the Company on the various
proposals discussed.
The parties continued bargaining negotiations at a meeting on October 22.
The Company 's proposals , which were submitted in detail , served as a basis of
discussion . The trend of the discussion was as follows :
Agreement -The question of the correct name of the Union still remained
unsettled.
Recognition.-There was agreement on the wording of part of this section.
Right of Management -The Union was willing to accept this clause if language
were added to the effect that the rights of management should not be inconsistent
with other contract provisions. Smith deferred comment on this counterproposal.
No Discrimination .-The Company proposed a clause stating in part that
there should be no discrimination by the Company or the Union or any employee
against any employee because of membership or nonmembership in the Union.
Mitchell objected that the proposed clause would make the Union liable in
damages for actions of employees, including nonunion members. He proposed
that a change in the clause be made to eliminate such a liability and to eliminate
the guarantee of protection against discrimination for non -membership in the
Union. King, in the discussion, maintained that some employees had refused
to help a nonunion worker in his work and that he wanted to prevent such
practices in the future. No agreement was reached on this clause.
Applicable Laws -The proposed clause stated in part that if any provision
of the contract should conflict with any valid law, regulation, or directive the
remainder of the contract should be kept in full force in effect. Mitchell proposed
additional language to the effect that, in the contingency of the invalidity of any
clause, the parties agreed to confer on modifications of any invalid clause and
that, if there were no agreement , the Union would be free to strike and the
Company could resort to lock-out tactics without incurring liability . No agreement
was reached on this proposal.
Discussion of other clauses in the proposed contract took place on October 30.
The first clause discussed was "Working Conditions " which was divided into
six subsections . The discussion was as follows :
1. Specified the workweek
Smith explained that he wanted the clause for reasons connected with the Fair
Labor Standards Act. After some discussion , the Union agreed to it and the
next clause specifying an 8-hour day and 40 -hour week as standard.
3. Giving the Company the right to set the time for beginning and ceasing
work and to change it from time to time, the Union to receive notice when
changes were determined by the Company.
Mitchell opposed this clause as being a change from the old contract which
provided that changes should be made by mutual agreement . Smith maintained
ALABAMA MARBLE COMPANY 1083
that this matter should be a prerogative of management. No agreement was
reached.
4. Gives the Company the right to reduce the number of employees, hours
or days per week, giving the union notice after its decisions are made. This
clause differed from the previous contract in that provision for 2 weeks'
advance notice was eliminated.
Mitchell argued that the 2 weeks' advance notice was necessary to enable em-
ployees to make other arrangements, that the Company knew of the need for
reductions more than 2 weeks in advance, that even if it might not in some cases,
it should run that risk in fairness to the employees. King maintained that the
outlook for the future was such that there was a possibility that the advance
notice provision might entail a financial loss through the obligation to pay
unneeded personnel.
5. Provided for time and a half pay for hours in excess of 40 hours in any
workweek, and work on 4 named holidays and on Sundays with a provision
against pyramiding of overtime compensation (overtime compensation and
premium pay for the same day's work). In addition to the proviso which
was new this proposal cut down the prior list of holidays from 5 to 4.
Mitchell advanced the Union's proposal previously made for overtime pay
for hours worked in excess of 8 in any 24-hour period, 6 holidays with pay, with
time and a half in addition for work on those days. He offered to forego pay
for holidays not worked, but would not agree to the pyramiding formula.
6. Provided that the Company could enter into contract or piece-rate work
arrangements with individual employees at the option of the employees and
provided that an employee would not earn less than the hourly rate for the
class of work involved. The clause in the old contract permitted contract
work, but only with the consent of the union committeeman in the depart-
ment involved.
Mitchell stated that this proposal eliminated the Union from having any voice
in contract work arrangements whereas the Union was to eliminate contract
work altogether. King stated that contract work aided production. In response
to an inquiry from Mitchell, he stated that in the past committeemen had some-
times been unavailable or unwilling to approve contract work arrangements
and that he felt that management should have the sole voice in this field. No
agreement was reached on this clause in the meeting.
There also was a brief discussion of the Union's proposal for weekly pay in-
stead of semi-monthly payments. King promised to check on the ability of the
office staff to make the change. .
Transfers.-The Company's new proposal was contained in six subsections.
The discussion on each part was as follows:
1. Provided that transfers would be made in the discretion of the Company
as distinguished from the provision in the existing contract that transfers
would be made in emergencies in the discretion of the Company.
Mitchell took the position that the existing contract provision should be
retained. Smith contended that transfers should be in the unfettered discretion
of the Company.
2. This was an reenactment of the existing contract provision that em-
ployees temporarily transferred to a job with a higher classification would
receive the minimum rate for the classification.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However , the parties disagreed as to the inclusion of the existing contract
provision that when an employee would be transferred from his regular job,
his regular job would not be operated until his return , unless the Union Com-
mittee approved and that, at the conclusion of an emergency assignment, the
employee would resume his regular job and pay.
Mitchell took the position that the clause was necessary to protect union
members against discrimination . Smith opposed it.
Smith also was opposed to Mitchell 's demand for inclusion of the existing,
clause that permanent transfers, when requested by the Union Committee,
should be granted if possible.
3. The parties agreed to part of this section providing that an employee
temporarily transferred to a job with a lower rate should receive his regular
rate. They disagreed as tQ a new part which stated that an employee demoted
to a job with a lower rate should receive that rate.
4. There was no disagreement over this provision which provided that in
the event of a shortage of employees in one classification , those in a higher
classification could be required to work in the lower paying job but receive their
higher rate . A similar provision was contained in the existing contract.,
5. The parties also were in agreement as to the reenactment of a provision
permitting a laid-off employee to accept an offer of a lower rate job, if it did not
disturb the seniority of the regular employee.
6. There was sharp controversy over the proposal of the Company that it should
have the power to prescribe the training and instruction of apprentices. The
Union wanted to continue the existing provision which stated that apprentices
would be instructed by the journeymen under whom they were working, that if
the journeymen were not interested in or incapable of teaching them the Union
and the Company would consult on the action to be taken, and finally, that if no
journeymen were capable of teaching, then the supervisory staff could instruct.
King maintained that training should be a management function since it best
knew the needs of the business and that it should be free to choose instructors
and supervise them.
Mitchell also advocated a new provision forbidding the use of foremen or
superintendents to do the work of hourly employees. The existing contract per-
mitted such work in emergencies . King stated that supervisors had only done
work of hourly employees in emergencies or absences and refused to agree to the
proposal.
At this point, the parties considered the Union's proposal for a union shop
with irrevocable check-off. King stated that the Company was opposed to a
union shop.
King then offered to modify the new proposal entitled "Reporting for work"
to retain the existing provision that unless employees were notified the day
before not to report the next day, they would be paid at least 4 hours pay for
reporting for work . The proposed clause would have exonerated the Company
on occasions when work was prevented by acts not in control of the Company.
The final issue discussed at the meeting was the Union 's proposal of a wage
increase. There was extensive discussion in which King reviewed the Company's
business , past operations , and prospects . He stated that the Company could not
afford to increase wages or liberalize vacation and holiday allowances. Mitchell
advocated an increase to balance increases in costs of living and to boost morale.
In the course of the discussion , King expressed dissatisfaction with the existing
contract and the way it had worked out.
The meeting adjourned soon after.
ALABAMA MARBLE COMPANY 1085
The meeting of November 6
On November 6 a meeting took place arranged by Virgil Finch, a commissioner
of conciliation of the Federal Mediation and Conciliation Service. Finch stated
that he had called the meeting in an effort to assist the parties to settle the issues
in dispute.
Finch asked King to state the position of the Company as to wages. King
restated the position he had taken at the preceding conference giving figures which
he maintained prevented the granting of a wage increase . Mitchell restated the,
position of the Union that an increase should be granted to cover higher living
costs.
The parties then discussed the Union 's proposal for union security . Mitchell
took the position that a union shop with irrevocable check -off was necessary to
maintain the Union in the plant in view of proposed changes which removed
many matters from collective bargaining . King stated that the Company was
opposed to union security provisions . He also said that the Company had pro-
posed changes in good faith to clarify and avoid certain incidents in the past
year.
There was discussion of the problem of seniority in promotions , but no con-
clusions were reached.
Finch, after further discussion , proposed that the Company 's last offer be
submitted to the employees for their approval or disapproval in a secret ballot.
Mitchell refused to do so. -
The meeting ended with no progress towards a resolution of the matters in
dispute.
On November 8 the Union began a strike which lasted until December 12
when the employees voted to end it.
The Meeting of November 28
The chief spokesmen for the Respondent were again Smith and King. For the
Union the spokesmen in addition to Mitchell were Hugh Brown, an A. F. L.
official and Harold Cook , an attorney . Finch also was present . At Cook's
request it was agreed that the old contract and the Company 's proposals should
be reviewed and compared to ascertain areas of agreement and disagreement.
The following discussion on the respective clauses took place :
Introductory clause.-Smith reiterated his previous stand that the correct name
of the Union should be furnished for description in the contract . He also asked
that some proof be obtained from the American Federation of Labor to whom
the original certification had run that it had ceded jurisdiction over employees
in the plant to the Union herein . Cook agreed that that information would be
furnished . He also submitted written proposals on behalf of the Union. This
document was considered in the ensuing discussion together with the other two
documents.
Recognition.-The Union's proposal followed the language of the Company's
proposal in describing the appropriate unit. However, a new clause on the rights
of individual employees to present grievances was submitted by the Uniori. Cook
maintained that it had the identical meaning with the clause submitted by the
Company at the previous meeting. Smith expressed some doubt on this and
there was no agreement on it.
Right of Management.-The Union in its proposal adopted the clause proposed
by the Company with the addition of language stating that the rights of manage-
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment shall not be inconsistent with other terms of the agreement. There was
agreement on this clause.
No discrimination.-The Union proposed a clause similar in purpose to that in
the expired contract providing that there should be no discrimination by the
Company or the Union against any employee because of his membership in the
Union. Smith refused to accept this proposal and argued for the proposal pre-
viously advanced by the Company that there should be no discrimination by the
Company, the Union or any employee against any employee of the Company
because of his membership or non-membership in the Union. Cook raised the
point that the Union under such a clause might be held responsible for the acts
of individual employees. Smith replied that the Company might consider elimi-
nating that part of the proposal. There was no agreement on this clause.
Applicable Laws.-The parties were in agreement that if any clause in the
proposed contract were to be ruled illegal the remainder would remain in full
force and effect. They disagreed, however, as to what should be done in the event
that part of the contract was ruled illegal or invalid. The Union proposed that
in that event if there were no agreement on changes in the clause in question the
Union should retain the right to strike and the Company the right to lock out
employees . The Company as in the previous conferences was not willing to
accept this proposal.
Working Conditions.-The Union in its proposals adopted the language first
proposed by the Company as to the definitions of the workweek and a standard
workday. The Union also adopted the language of the Company that the time
for beginning and ceasing work should be fixed by the Company. It added an
additional requirement that at least 15 days' notice should be given to the Union
before changes were placed into effect . There was discussion as to whether there
should be any notice provision in the contract and this matter was by agreement
held in abeyance . The Union also proposed reenactment of a clause in the old
contract permitting the Company to make reductions in the operating force and
the hours and days per week providing that 2 weeks' advance notice of any such
contemplated change were given to the Union. A similar clause proposed by the
Company provided that notice would be given to the Union after such decisions
were made. Cook and Smith agreed to work on this clause. Mitchell also orally
stated the Union's demand for overtime pay and for holiday pay as previously
advanced . King reiterated the Company 's refusal to accept its demands and
after some discussion it was agreed to pass this clause and hold it for further
consideration. As to contract or piece-rate work the Union abandoned its posi-
tion that this type of arrangement should be outlawed and instead proposed that
the language in the old contract be adopted. That clause provided that such
arrangements could only be entered into upon the consent of the individual
employees and the Union committeemen for the particular department. The
principal point of disagreement on this clause was whether or not the consent of
the union committeemen should be a requirement. The Company felt that it
should not be ; the Union took the contrary position.
Transfers.-The Union proposed that the clauses relating to transfers in the
old contract be reenacted in the proposed new one. The Company had previously
submitted proposed changes in these clauses and a comparison was then made
between the two proposals. Cook proposed that language be placed in the clause
permitting the Company to make transfers in its own discretion to the effect
that the transfers would not be used to discriminate against union members.
Smith stated that the Company might agree to language prohibiting it from
discriminating against any employee in the manner set forth in its proposed no-
ALABAMA MARBLE COMPANY 1087
discrimination clause previously advanced . The parties , however, were not in
agreement on that main clause. There was agreement to the proposal that a
person temporarily transferred to a job with a higher classification should receive
the minimum rate for the higher classification for the time worked therein, except
that there was no agreement on the company proposal that an employee demoted
to a job with a lower rate of pay should receive the pay for that classification.
There also was agreement on a clause proposed by the Company , taken from the
old contract , permitting a laid-off employee to accept a lower rated job from the
Company if it did not disturb the seniority of a regular employee . However, the
parties were still in fundamental disagreement over the provisions for the train-
ing and instruction of apprentices and whether the Union should have any voice
therein. The parties also could not agree on the question of whether a foreman or
superintendent should be allowed to perform work of an hourly paid employee.
Cook suggested as a compromise that that part of the clause in the old contract
providing that a foreman or superintendent should not take over the work or
duties of an hourly employee be amended to prohibit such work if it would cause
production workers to be laid off . This proposal was taken under advisement.
Seniority.-The Union proposed that the parties go back to the language in the
old contract instead of the provisions suggested by the Company. The parties
then examined the Company's proposals in detail. The Company proposed that
each employee's seniority standing should be subject to the employee's skill,
fitness, ability, performance, and cooperativeness with other employees as deter-
mined by the Company. In the discussion King stated that the purpose of includ-
ing cooperativeness was to avoid an occasion in the past when, he claimed union
employees refused to cooperate with a nonunion employee Cook suggested that
those factors should be left to or determined by agreement by the Company
and union committeemen. Smith took the position that the Company should have
sole voice in this matter with the Union retaining the right to present grievances
if it was dissatisfied with any action taken by the Company. The Company
proposed that when any employee was promoted from a lower classification to
a higher classification if he failed to qualify to the satisfaction of the Company
within 30 days for that position he should be returned to his former position
and should not be eligible to try again for the particular job for 90 days. This
provision was similar to one in the old contract. Cook proposed that the determi-
nation of an employee's qualification for higher position should be left to a joint
determination by the Company and union committeemen. Smith refused to agree
to this proposal pointing out that the old contract did not have any such restric-
tion. The parties did reach some agreement on other provisions in the seniority
clause They were in deep disagreement as to the extent of probationary periods
for new employees and the disposition of grievances relating to those employees.
The Company asked, as it previously had, that the probationary period be
extended from 30 to 90 days. The Union took the position that such a period
was too long and that it should not be extended beyond the period originally
provided of 30 days. King on behalf of the Company took the position that the
Company needed more than the 30-day period in order to fully determine the
capabilities of new employees . The parties next disagreed as to the method of
handling grievances of probationary employees. The Company took the position
that such grievances should not be processed beyond the first step of the griev-
ance procedure, namely, to the employee's own foreman and that this was merely
part of the right of selection of employees . The Union on the other hand contended
that all steps in the grievance procedure should be available to probationary
employees.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grievance Procedure.-The Union's proposal submitted in writing at this meet-
ing was that the old contract clauses be adopted but that it would agree to leave
out the arbitration procedures specified if after the provisions of the grievance
procedure had been exhausted without agreement between the parties the Union
would have the right to strike and the Company have the right to lock-out. The
Company adhered to its previously expressed position that each party must bear
its responsibility for strikes and lockouts. In a discussion of this clause Smith
took the position that unless the Union expressly waived it, it would have the
right to strike upon the exhaustion of the grievance procedure as provided in the
contract and that the Union had previously taken the position that it wanted
to be free from liability for strikes occurring without adherence to the grievance
procedure. There was then a discussion of the detailed provisions of the grievance
procedure as outlined in the Company's written proposals to the effect that all
grievances must be presented in writing to the foreman of the department
within 24 hours after their alleged occurrence and also that the facts relied
upon as constituting the grievance should be fully stated in writing. The Union
proposed that more time be given for presentation of a grievance. There also
was discussion of how detailed a statement of a grievance would be required.
No conclusions were reached as to these points but no fundamental disagreement
was apparent. There was no disagreement as to the two intermediate steps pro-
viding for discussion between the grievance committee and the superintendent of
the plant and then between the grievance committee or other union representa-
tives and the representatives of the Company. The provisions were taken from
the existing contract.
As to the final step of the grievance procedure, Cook stated that the Union
proposed that that step either provide for arbitration or if the Company wished
to leave out arbitration procedures then the parties should mutually be absolved
from any liability for resort to strikes or lockouts. King expressed the opinion
that disputes were better settled between the parties without resort to outside
arbitrators. Smith expressed the opinion that when the grievance procedures
were exhausted the Union would have the right to resort to strikes if it wished to.
There was no further discussion of this provision of the proposed contract. The
old contract provision provided that if it were proved through resort to the
grievance procedure that any employee who had been discharged or demoted had
been unjustly dealt with he should be reinstated to his former position without
loss of seniority and pay. The Company's proposal set forth that such claims
should be handled as grievances and should be finally determined by conferences
between union representatives and those of the Company. No provision was
inserted in this clause to settle any dispute still existing between the parties
after resort to this step in the grievance procedure. The Company's proposal
further provided that any employee found to have been wrongly discharged
should be reinstated without loss of seniority and pay except that in a "doubtful"
case there would be no compensation for pay lost. Cook took the position that
the provision did not adequately cover cases where the Union and the Company
would still be in disagreement. He further stated that the Union was opposed
to the incorporation in the discharge clause of a provision reserving to the
Company the right to discharge employees who engaged in unauthorized strikes or
other labor activities forbidden or prohibited in the Act. Smith on the other
hand found fault with the clause in the old contract in that it extended pro-
tection to union members but not to nonunion members and stated protection
should be afforded all employees. There was agreement to extend protection
ALABAMA MARBLE COMPANY 1089
to employees claimed to have been discharged without proper or just cause as
distinguished from the word proper which was in the Company's original
proposal. The Company also indicated as it had in the discussion under the
grievance procedure that it was willing to extend the 24-hour time limit for the
presentation of this particular type of grievance. However, the parties did not
agree on the substance of this clause.
Work Stoppages.-The expired contract contained a provision that there
should be no lock-out by the Company and no slow-down or work stoppage by
the Union until after all the provisions of the grievance procedure had been
complied with (Section I C). The Union at this meeting submitted a proposal
which in addition to provisions similar to that in the old contract also drew a
distinction between strikes and work stoppages authorized, caused, or called
by the Union and those not so ordered. In the latter case there would be no
liability on the part of the Union if it cooperated with the Company and sought
to end such activity and that the Company, if combined efforts with the Union
failed to end such unauthorized activity, would have the right to take disciplin-
ary measures including discharge against employees who engaged in such ac-
tivity. The Company's proposal submitted prior to this meeting contained a gen-
eral prohibition against strikes, lock-outs and stoppages of work. Both parties
stood by their proposals and this clause remained unsettled.
Vacations.-The Union receded from its previous demand that vacation allow-
ance be increased and suggested that the provisions of the old contract be re-
tained. The Company's proposal was substantially a redraft of the similar
clause in the old contract with no change in substance. There was apparent
agreement on this clause although Mitchell indicated in his testimony that no
formal agreement was reached
Leaves of Absence.-The Union proposed that the clause in the old contract be
retained. This clause provided that when in the opinion of the Company the
services of a designated representative of the Union could be spared that em-
ployee would be allowed time off without pay to attend to union duties relating
to the Company or to other specified union matters. Another provision in the
clause set forth that in case of illness the Company would automatically grant
leave of absence to an employee. However, if he were absent 3 days or more
the Company could require proof of illness. The Company's proposal was that
leave of absence should be in the sole discretion of the Company. In the dis-
cussion on this clause the Company maintained that a provision relating to ill-
ness was incorporated in its proposals in the seniority clause and that the old
clause on leave of absence left the decision in the hands of the Company and
further that its proposal was not substantially different from that clause. The
Union, however, did not agree to the proposal that it accept the new clause as
drafted by the Company.
Wages.-A general provision as to wages and the negotiation for new classifica-
tions was agreed upon, both parties being satisfied with the language in the old
contract.
Job description.-The Union proposed the adoption of the clause in the old
contract. This clause provided as did the Company's proposal that the attached
job descriptions were intended to describe and explain only the more important
qualifications for the various jobs listed and the duties for each job. However,
the existing contract also provided that if any question arose under this clause
that the matter would be considered a grievance and handled in accordance with
the prescribed grievance procedure. Smith expressed the view on behalf of the
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company that there should be agreement as to the various job descriptions with-
out making any questions thereunder the subject of grievance proceedings and
possibly a strike. No agreement was reached on this clause.
Health and Sanitation .-The Union proposed that the old contract language
be followed in this clause on health and sanitation . The Company also in its
proposals had reiterated the old contract language.
Shift Differential.-Both parties were agreed on the continuation of the clause
in the prior contract for premium payments.
Apprenticeship .-This clause dealt with the wages and increases of pay of
apprentices and represented another phase of the disagreement between the Com-
pany and the Union as to the entire program relating to apprentices. The Union
desired the clause in the old contract which provided that the time and rate of
increases of pay of apprentices should be determined every 3 months by the union
committee and the Company. The Company proposed that it should have sole
power to determine increases . In the discussion Cook indicated the Union
would abandon its demand that there be an age limit for apprentices.
Reporting for Work.-King indicated that the Company was willing to abandon
its position that minimum pay not be given employees who reported for work
and were not given work because of causes beyond the control of the Company.
He stated that the old contract provision as desired by the Union was acceptable.
Union Security.-The Union proposed a maintenance of membership for all
employees who were or who in the future might become members of the Union.
It was further provided that all new employees should join the Union after 30
days employment. Check-off were also provided This was a change from the
provision in the old contract which contained a straight maintenance of member-
ship clause and dues check-off provisions. However it represented a recession
from the Union's demands as to union security. King expressed his opposition
to the granting of union security and stated that each employee should decide for
himself to join the Union. Smith raised the question as to whether the Union
had complied with the provisions of the Act which would enable it to secure a
Board-conducted election authorizing the signing of a contract with a union
security provision in it. Mitchell was uncertain and suggested that the matter
be left open.
Saving Clause.-The Company raised no objection to a union proposed clause
that in the event that the American Federation of Labor in the future grant the
jurisdiction over any of the employees to another division of the American Fed-
eration of Labor that division should become a party to the agreement and the
agreement should remain in full force and effect.
Bulletin Board.-The Company took under advisement a union proposal that
two bulletin boards be provided for the use of the Union but indicated that it
would have no substantial objection to this provision.
Duration of Agreement.-The parties were in agreement that the contract
should be for 1 year and should continue thereafter from year to year unless
either party gave sixty (60) days written notice prior to any anniversary day of a
desire for a change or termination of it but the Company would not agree to a
provision for a reopening of the contract as to wage rates and classifications after
the contract had been in force 6 months. A similar provision was in the old
contract.
Mitchell at this point proposed that the wage issue be compromised by a 121/2
cent an hour increase across the board for everyone . King replied that the
Company could not afford this. The meeting ended soon after.
ALABAMA MARBLE COMPANY 1091
The Meeting of December 23
The final bargaining conference between the parties took place on December
23rd. The Union had prepared certain new proposals and modifications which
it presented at this meeting. As in previous meetings the parties started at the
very beginning of the proposed contract and discussed the various clauses in the
following order :
Introduction .-Smith again asked for information as to the correct name of
the Union and proof that the American Federation of Labor had delegated
jurisdiction over the employees in the plant to the Union. Mitchell replied that
he did not have the information as yet but would have it later on.
Recognition.-The first paragraph of this clause set forth the bargaining unit.
Smith raised the point that Board decisions had held that watchmen performing
certain functions would be considered guards within the meaning of the Act.
Mitchell stated that he was willing to amend the unit to exclude guards as defined
in the Act. However, Smith pressed for a specific agreement as to the watchmen
employed by the Company, but Mitchell refused to commit himself specifically
as to those employees. There was also a brief discussion of the second paragraph
in this clause providing, in the Company's proposal, that any individual employee
or group of employees should have the right to present grievances to the Company
and have them adjusted without the intervention of the Union. Cook suggested
that a possible compromise would be to insert a provision for advance notice of
such a meeting to the Union. No decision was reached.
Rights of Management.-The parties were in agreement on this clause, that is
they adopted the clause proposed by the Company as amended in two respects
at the suggestion of the Union
No Discrimination -The parties were unable to agree on this clause, each ad-
hering to their positions as previously stated.
Applicable Laws.-The parties were still in disagreement as to the rights of
each in the event that they were unable to agree on changes in a clause declared
invalid, the Union advocating a position allowing freedom of strike and lock-out
in the event of such a contingency, the Company being unwilling to agree to this
proposal Cook finally suggested that a possible compromise be to provide for
resort to the grievance machinery to settle such disputes. It was agreed that
Cook and Smith should confer with each other in an attempt to draft a satisfactory
provision.
Working Conditions.-The Union submitted a new proposed clause. The
Union's proposal followed that of the Company in specifying the work week
and the standard 8 hour day. It further provided that the Company in its
discretion should fix the starting time for work each day, but between the hours
of 6 a. in. to 9 a in. and that it should have discretion to fix the time for
ceasing work but between the hours of 2 p in to 5 p. in., and further that
if it wished to go outside these hours, the Union should be given at least
15 days' notice before the new schedule was placed in effect. King took the
position that this proposal would bind and restrict the Company. Smith stated
that this proposal was entirely different from that previously proposed by the
Union and since the Union had changed its position, he would suggest on behalf
of the Company a clause giving the Company full freedom in setting hours of
work, increasing and decreasing its staff, and setting hours for each particular
day. Cook rejected this proposal. The Union's proposal also included a pro-
vision permitting the Company to make reductions in hours and days per week
if business did not justify full-time operations, and that the Union would be
1092 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
given specified advance notice-of such changes which, in certain instances, was
less than the previous proposal advanced by the Union for a 2 weeks' notice
of any such changes. However, Smith took the position that he had advanced
in the discussion of the preceding provision, namely, that this was a new
proposal and that therefore he, on behalf of the Company, would also advance
a new proposal giving the Company full freedom in the matter. There was no
agreement on this clause. As to holidays, the Union receded from its position
that Election Day work should be paid at time and a half rates. The Company
agreed to accept the list of holidays specified in the old contract for days on
which work would be paid at time and a half rates Mitchell proposed that there
be 2 holidays, Christmas Day and Labor Day, where straight time would be
paid to employees who were not called to work on these days and time and a
half would be paid to those who did work. The Company took this proposal
under advisement. King suggested A adjournment at this point, but Mitchell
refused to do so. As to contract work the Union's new proposal would permit
it upon condition that the employees involved and the Union committeeman of
the department consented to the arrangement. Cook pointed out that this was
a recession from the Union's original demand that contract work be eliminated.
King, however, reiterated the Company's previously expressed stand that it
should have full freedom to negotiate with individual employees as to contract
work without obtaining the consent of committeemen. Cook then suggested
that perhaps arrangements could be worked out by which the Company might
resort to the grievance procedure if a committeeman unreasonably blocked a
contract work arrangement. This suggestion was not accepted.
Transfers.-The Union submitted a new proposal on this subject consisting
of eight subdivisions. The discussion as to each subdivision was as follows :
(1) This provided that the Company should not discriminate against any
individual because of his membership in or his activities on behalf of the Union.
Smith maintained that this represented a change of position on the part of the
Union and that there had been agreement on a different clause at the November
28 meeting. Cook stated that this paragraph spelled out the Union's position
as to discrimination. In essence, the disagreement of the parties as to this
subdivision was part of a larger issue of disagreement on a general no-discrimina-
tion clause on which the parties had not agreed.
(2) This clause was the same as the. Company's prior proposal that an employee
temporarily transferred to a job with a higher classification would receive a
higher rate of pay.
(3) This dealt with the rights of an employee who was transferred to a job
with a lower rate of pay. This clause was the same as the clause proposed by
the Company previously and therefore there was no disagreement.
(4) and (5) The Union's proposals here, dealing with the rights of employees
assigned to work in lower classifications or offered jobs in the event of a lay-off,
were the same as those proposed previously by the Company.
(6) This subdivision dealt with the controversial subject of the training of
apprentices. The Union's proposal provided that the Company should prescribe
the training and instruction of apprentices, but that in the event that the journey-
man teacher assigned did not show the proper interest or was not capable of
giving instructions, the Union would have the right to take the matter up as
a grievance. King stated that this proposal was unacceptable and that the
Company should have full right to select and train apprentices and that the
grievance procedure suggested would delay the Company in conducting its
business.
ALABAMA MARBLE COMPANY 1093
(7) The Company agreed to a proposed provision that permanent transfers,
when requested by the Union Committee, would be granted if possible.
(8) The Company also agreed to a provision that a foreman or superintendent
should not take over the work of an hourly paid employee qualified for a job to
the extent that the hourly employee would be laid off from work.
Grievance Procedure.-The chief question on this clause was, as it always had
been, what the end step of the grievance procedure would be. The Union now
proposed that the final step be arbitration between a representative of the Union
and a representative of the Company, that if they could not agree they should
select a third member, that if there could be no agreement as to the third
member, he should be chosen by the Director of the Federal Mediation and
Conciliation Service. Smith agreed to take this proposal under advisement.
As to the balance of the clause, there either was agreement or minor differences
which it was agreed should be discussed and revised by counsel for the parties.
At that point the meeting ended and a new meeting date was set for January 2,
1948.
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