Alabama Marble Co.

National Labor Relations Board - Board Decisions

Aug 26, 1949

85 N.L.R.B. 924 (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 ND STONE POLISHERS,
RUBBERS AND SAWYERS, TILE AND MARBLE SETTERS HELPERS AND
TERRAZZO WORKERS HELPERS, AFL
Cases Nos. 10-CA-86, 10-CA-87, 10-CA-88, 10-CA-93, 10-CA-185
ORDER DENYING PETITION FOR RECONSIDERATION
OF BOARD'S DECISION AND ORDER
August P,6,19-119
On June 6, 1949 , the Board issued its Decision and Order in the
above-entitled proceedings , finding that the Respondent violated
Section 8 (a) (3) and Section 8 (a) (1) of the Act, as amended,.
by discharging Charles T. Adair, W. A. Adams, W. A. Wilson, and
C. M. Kinser.' More specifically, the Board found that the Respondent
discharged Adair, Adams, Wilson, and Kinser because of their par-
ticipation in a work stoppage which occurred on October 6, 1947;
and that, although the work stoppage was in breach of a no strike
clause contained in an existing contract, the Respondent waived or
condoned such conduct by permitting them to return to work. The
Board rejected the Respondent's contention, namely, 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, on two stated grounds: (1) 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 employees to return to work without stipulating that it
1 83 N. L . R. B. 1047.
85 N. L . R. B., No. 161.
924
ALABAMA MARBLE COMPANY 925
reserved to itself the privilege of disciplining any participant in the
work stoppage; and (2) 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.'
On June 22, 1949, the Respondent filed a "Motion or Petition for
Reconsideration" of the Board's Decision and Order 3 In support of
its application for reconsideration, the Respondent asserted, among
other things, (1) that it reinstated the four employees in question in
reliance upon assurances made by the Union that such reinstatement
would be without prejudice to the Respondent's privilege "to investi-
gate and satisfy itself of the guilt of any individual employee and
then discharge any individual employee on the basis of the information
gathered"; and (2) that "the evidence affirmatively shows that the
Respondent's foremen did not have knowledge of the part played by
Adair, Wilson, Adams, and Kinser, on October 6, 1947."
. On July 30, 1949, the Board directed the Respondent to file "a state-
ment of citations from the record in this case, including page refer-
ences to the transcript of hearing, relating to each of the contentions
in which Respondent alleges that the Board's findings of fact were
in error." Pursuant thereto, the Respondent filed its "Statement of
Citations from the Record."
We have examined the Respondent's statement of citations and
the entire record in this case. Upon the basis thereof, we conclude
that there is no factual basis for the Respondent's contentions set forth
above.
The record contains no evidence that the Union assured the Respond-
ent that the reinstatement of the strikers would be without prejudice
to the Respondent's privilege to discharge any of them at a later date.
In its statement of citations, the Respondent refers to testimony of
H. M. King, the Respondent's assistant general manager, and Walter
L. Mitchell, a union representative, to support its contention that such
an assurance was given. King gave no such testimony. Indeed, King
admitted at the hearing, when asked in subsance whether on October
6, at the time of the strike-settlement meeting, he intended to discharge
any employee because of participation in the strike, that such a
"thought didn't occur to me at that time." Neither does the reference
to Mitchell's testimony support the Respondent's contention. At most,
the testimony of Mitchell referred to relates a proposal which Mitchell
made with respect to reinstatement of nine employees, not the com-
In our Decision, we attributed the knowledge of the foremen to the Respondent.
The Respondent's request for oral-argument'with respect to the application for recon-
sideration is hereby denied. The record, including the statement of citations and other
documents filed by the Respondent in support of its application for reconsideration,
adequately presents the issues and positions of the parties.
926 DECISIONS OF NATIONAL LABOR RELATJONS BOARD
plainants here, who were discharged for cause on October 6 and whose
discharge caused the strike. Mitchell testified in substance that he
proposed that, if the Respondent reinstated the strikers and the nine
dischargees and processed the cases of the nine dischargees as griev-
ances, the Respondent thereafter could discharge the nine dischargees
if such investigation convinced the Respondent that they deserved
such treatment. This proposal the Respondent did not fully accept;
at this time, the Respondent agreed to reinstate only the strikers and
to process the cases of the nine dischargees as grievances. The com-
plaint contains no allegation with respect to the nine dischargees;
they are persons other than the four strikers involved in this pro-
ceeding. The assurance contained in Mitchell's proposal thus did not
relate to any of the strikers or to any of the four union leaders involved
in this proceeding.
The record contains evidence that the Respondent's foremen knew
of the part played by local union officers in the work stoppage at the
time it occurred.
Thus, W. C. Kinser, quarry foreman, credibly testified that, on
October 6, 1947, he heard his brother, C. M. Kinser, tell W. A. Adams
to "call the men out" of the quarry; that, a few minutes later, he saw
all the employees in the south end of the quarry, about 25 to 30 in
number, leave the quarry hole; that these quarry employees then con-
gregated in the vicinity of the quarry clock; that some employees
inquired whether they should "clock out" ; that he, Foreman Kinser,
instructed the employees not to do so ; and that Cecil (C. M. Kinser)
told them, "Yes, go ahead and clock out." There is in the record an
affidavit sworn to by Foreman Kinser in which he corroborates in
large measure this oral testimony. In addition, Manager King cred-
ibly testified that he received a ieport from Foreman Kinser as to
what had occurred on October 6 in which he was told by Kinser that
he heard "his brother Cecil tell Walter Adams to go to the south end
of the quarry and pull the men out"; that he "saw Adams go in that
direction" ; and that he "saw Cecil Kinser go to the north end of the
quarry and shortly thereafter the men came out of the quarry."
Ellis I. Dison, a foreman who had "charge of the rubbing beds"
and "supervision over the coping and stock that comes out of the saw-
mill," credibly testified that, on October 6, 1947, he was told by Charlie
Adair that "they had some trouble in the shop up there and they
would have to shut the face down until they got it settled." In an
:affidavit sworn to by Dison, he states ". . . Charles Adair came
.to me and told me that I would have to shut the Rubbing Beds
down . . ."
ALABAMA MARBLE COMPANY 927
The record thus contains direct evidence that the Respondent's
foremen knew of the part played by Adair, C. M. Kinser, and Adains
in the work stoppage at the time it took place. There is credible tes-
timony by employees that certain operations were shut-down on the
morning of October 6, 1947, at the direction of Wilson, the fourth
union leader involved in this proceeding, but there is no direct evi-
dence that any foreman knew of this at the time it occurred. How-
ever, the Respondent's foremen were present in the plant and quarry
at the time of the work stoppage; Wilson's strike activity, as well as
those of the other three, took place openly and in full view of those.
present; and it is unlikely that the foremen in charge did not learnt
promptly why the operations were shut down. In view thereof, we,
find that the Respondent's foremen knew of the role played by Wil-
son, as well as Adair, Adams, and Kinser, in the work stoppage of
October 6, 1947, at the time it occurred.
For the reasons stated herein and in our Decision and Order, we
reject the Respondent's contention, namely, that there was no waiver
because it had no knowledge, at the time that the Respondent agreed
to allow the four union officers to resume work, of the role played by
them in the work stoppage.
As the Respondent has not shown that the Board misapprehended
or overlooked any matter material to the issues in this proceeding, we
hereby deny the Respondent's application for reconsideration of our
Decision and Order, dated'June 6, 1949.
MEMBERS REYNOLDS and MURDOCK took no part in the considera-
tion of the above Order Denying Petition for Reconsideration of
Board's Decision and Order.