Marquette Cement Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 549 (N.L.R.B. 1975)

MARQUETTE CEMENT MANUFACTURING CO. 549
Marquette Cement Manufacturing Company and Wil-
liam N. Underwood and Donald Ray Cundall. Cases
26-CA-5060-1 and 26-CA-5060-2
July 28, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On September 19, 1974, Administrative Law Judge
Alvin Lieberman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief,
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ularly, the principal questions for decision are as follows:
1. Was the Strike at Respondent's plant protected by the
Act?
2. Assuming that the strike referred to in the foregoing
question was unprotected, did Respondent condone the
participation therein of William Underwood and Donald
Cundall, who were employees of Respondent at the time?
3. Did Respondent violate Section 8(a)(1) and (3) of the
Act by discharging Underwood and Cundall?
Upon the entire record,3 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs sub-
mitted," I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a corporation, is engaged at Nashville, Ten-
nessee, in the manufacture of cement. During the year end-
ing on April 30, 1974, Respondent purchased products val-
ued at in excess of $50,000 from vendors located outside
the State of Tennessee. Accordingly, I find that Respon-
dent is engaged in commerce within the meaning of the Act
and that the assertion of jurisdiction over this matter by the
National Labor Relations Board (Board) is warranted.
Siemons Mailing Service, 122 NLRB 81, 85 (1958).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Marquette Cement
Manufacturing Company, Nashville, Tennessee, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
i Respondent 's request for oral argument is hereby denied since the rec-
ord, the exceptions , and the brief adequately present the issues and positions
of the parties.
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Administrative Law Judge: The hear-
ing in this proceeding , with all parties except the Charging
Parties represented , was held before me in Nashville, Ten-
nessee , on July 16 and 17, 1974, upon the General
Counsel's complaint dated May 13, 1974. 1 and Re-
spondent's answer . In general the issues litigated were
whether Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, (Act) .2 Partic-
1 The complaint was issued pursuant to charges and amended charges
filed between April II and May 13, 1974, by William Underwood and
Donald Cundall.
11. THE LABOR ORGANIZATION INVOLVED
United Cement, Lime and Gypsum Workers Interna-
tional Union, Local 80 (Union), is a labor organization
within the meaning of Section 2(5) of the Act.
III. INTRODUCTION
Briefly, this case is concerned with Respondent's dis-
charge of two employees, William Underwood and Donald
Cundall, following their participation in a strike at
Respondent's plant. The General Counsel contends that
the employment of Underwood and Cundall was terminat-
2 In pertinent part these sections provide.
Sec. 8(a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7,
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage mem-
bership in any labor organization.. .
Sec. 7 , insofar as relevant , states:
Sec. 7 Employees shall have the right to self-organization , to form.
join , or assist labor organizations , to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection ..
3 Errors in the transcript have been noted and corrected.
4 Although all the arguments of the General Counsel and Respondent
and the authorities cited by them, whether appearing in their briefs or made
orally at the hearing , may not be discussed in this Decision , each has been
carefully weighed and considered.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed by Respondent because they did so. The General Coun-
sel takes no position regarding the nature of the strike. If
the strike was protected , he argues , then the discharges of
Underwood and Cundall for having taken part in it was,
on well-settled principles , violative of Section 8(a)(1) and
(3) of the Act. On the other hand, the General Counsel's
argument continues , if the strike was unprotected , the dis-
charge of Underwood and Cundall for having engaged in
such a strike was likewise violative of the Act because their
participation in it was condoned by Respondent.
Although contending that the strike was illegal as well as
unprotected, Respondent claims that it played no part in
the discharge of Underwood and Cundall. Rather, Respon-
dent asserts , Underwood and Cundall, temporary employ-
ees, were dismissed, as its lawyer stated at the opening of
the hearing , "because they didn't measure up on the basis
of ability and initiative, primarily initiative, to . . . other
temporary employees" who were retained by Respondent.
Countering the General Counsel's condonation argument,
Respondent urges, on brief , "that participation in an illegal
strike-as opposed to a strike which is merely unprotect-
ed-cannot be legally condoned."
IV. PRELIMINARY FINDINGS AND CONCLUSIONS 5
A. The Collective-Bargaining Contracts
In addition to its plant in Nashville , where the events
with which this proceeding is concerned occurred , Respon-
dent has plants in other cities. Several of Respondent's
plants , including the one at Nashville , are covered by col-
lective-bargaining contracts between Respondent and
United Cement, Lime and Gypsum Workers International
Union, AFL-CIO (International), of which the Union is an
affiliate . There is also a supplemental collective-bargaining
agreement between Respondent and the Union relating to
Respondent's Nashville plant.
Set forth below are the material provisions of the fore-
going agreements.
1. Agreement between Respondent and International 6
ARTICLE IV-EMPLOYMENT AND SENIORITY RIGHTS
Section 1. The Company will at all times have avail-
able to the Committee for inspection, upon request, a
list of employees in the order of their last date of em-
ployment or seniority. New employees shall be consid-
ered probationary employees for the first thirty (30)
calendar days. Probationary employees may be laid
off or discharged at the discretion of the Company.
After thirty (30) calendar days within 12 months, the
names of such employees shall be placed on the se-
niority list in order of date hired.
S The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent 's alleged unfair labor
practices and the conclusions to which they may give rise . To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here , although they , as well as the findings, may again
be considered in other contexts.
6 G.C Exh 8.
ARTICLE VI-WORKING CONDITIONS
s • s
Section 12. All production and maintenance work
customarily performed by the Company in its own
plant and quarries and/or mines and with its own em-
ployees shall continue to be performed by the Compa-
ny with its own employees.
The intent of paragraph I above relative to "sub-
contracting" is: The Company will not contract for
production or maintenance work customarily per-
formed by its own employees so long as the Company
has the facilities and equipment and available trained
personnel to properly perform the work required.
Paragraph 1 above does not apply to new construc-
tion or to construction involved in major modification
work.
The Company agrees to notify the Local Union in
writing with a copy to the International or District
Representative who services the Local Union, sent by
registered mail, at least fourteen ( 14) days in advance
if reasonably possible, and to meet with the Union,
upon request by the Union, for explanation of the rea-
sons (Company does not have the facilities and/or
equipment and/or available trained personnel to
properly perform the work required and/or the work
is new construction work or major modification con-
struction work) causing the Company to decide to
contract any production and maintenance work.
s
ARTICLE XIV-HANDLING OF COMPLAINTS
It is mutually agreed and understood that should any
differences arise between the Company and any of its
employees out of misunderstanding , misrepresentation
or misapplication of the various provisions of the
Agreement , adjustment of such differences shall be
handled in accordance with the grievance procedure
outlined in the appropriate Local Supplemental
Agreement.
2. Agreement between Respondent and the Union 7
ARTICLE If. MEETINGS AND EMPLOYEE REPRESENTATION
The Management of the Company will willingly meet,
at any time that will not interfere with plant opera-
tions, with properly delegated representatives of its
employees for the purpose of discussing rates, hours,
working conditions or such grievance as may arise un-
der the provisions of this Agreement.
In order to discuss intelligently any matter arising
our of this Agreement as to wages , hours , and working
conditions , and to handle any grievance which might
7G.C. Exh 9.
MARQUETTE CEMENT MANUFACTURING CO. 551
arise in the plant or quarry, the employees shall be
represented by a committee to be known as the Union
Committee, composed of five (5) employees.
ARTICLE III . EMPLOYMENT AND SENIORITY RIGHTS
A. Seniority shall prevail in each department and
shall not be affected by temporary layoffs during slack
periods, and employees absent from work due to ill-
ness shall retain their seniority until mutually agreed
otherwise between the Company and the Union. How-
ever, any employee detained from work on account of
illness or any other reason, shall notify the foreman as
soon as possible.
E. When it becomes necessary to increase the work-
ing force, those employees laid off shall be offered
reemployment in the order of their seniority in their
respective departments before any new men are em-
ployed, providing said employees are qualified.
* * * *
ARTICLE VI. HANDLING OF COMPLAINTS
the past had been painted by Respondent's employees. Ac-
cordingly, pursuant to its agreement with International,
Respondent, on February 27, 1974,8 notified the Union
that "in the near future . . . we may find it necessary to
paint the kiln"; that "we do not have the necessary equip-
ment nor sufficient qualified available trained personnel to
properly do this work"; and that, therefore, "it will be con-
tracted out if the operating condition dictates the necessi-
ty."9 At about the same time Respondent invited contrac-
tors to submit bids for the work involved.
On March 12, William Penley, Respondent's plant man-
ager, and the Union Committee (Committee) discussed the
reasons causing Respondent to consider having a contrac-
tor paint the kiln. Because the Committee was of the opin-
ion that the kiln should be painted by Respondent's em-
ployees, Penley agreed to defer a final decision on the
matter pending further consultation with Respondent's of-
ficers.
Several days later a contractor from whom a bid for the
kiln painting had been solicited asked Penley for permis-
sion to come into Respondent's plant to conduct a test to
be used as the basis for the submission of a bid. Penley
granted the contractor's request, but did not notify the
* Union that he had done so.
Before there shall be suspension of work by strike,
lockout or otherwise, any grievance shall be handled
between the Management of the Company and the
Union Committee in the following manner.
A. All complaints among the employees arising out
of misunderstanding , misinterpretation or application
of the various provisions of this Agreement shall be
discussed first by the aggrieved employee with the
foreman in charge. Failing to obtain a satisfactory set-
tlement , the employee shall submit the complaint to
the Union Committee. In the event the Union Com-
mittee decides that the complaint has merit , the com-
plaint shall within five (5) days after the foreman's
decision be submitted to the Plant Manager in writing.
Within five (5) days of the filing of such complaint
with the Plant Manager he will advise the Union Com-
mittee of the Company's position in regard to the
complaint. Should the Union Committee consider the
Company's position unsound, the complaint shall be
referred to the officers of the Union who may, in their
discretion, discuss the matter with the Company's Vice
President of Industrial Relations or his representative
not later than ten (10) days following the Plant
Manager's decision. If a settlement cannot be reached
in this manner , the matter may be referred to a repre-
sentative of the Union, the President or Chairman of
the Local, the Plant Manager and a representative of
the Industrial Relations Department.
B. The Strike
Early in 1974 Respondent had under consideration the
retention of an outside contractor to paint its kiln, which in
On March 21 the contractor entered Respondent's prem-
ises to make the test. Not having been informed that the
contractor was in the plant for this purpose and being of
the opinion that he was there to paint the kiln, the Union,
without invoking the grievance procedure set forth in its
contract with Respondent, struck Respondent.
Among those who participated in the strike were Wil-
liam Underwood and Donald Cundall, temporary employ-
ees whose later discharge is alleged in the complaint as
having been violative of Section 8(a)(1) and (3) of the Act.
Several other temporary employees, who were hired at
about the same time as were Underwood and Cundall, did
not participate in the strike.
The strike was short-lived, lasting only 1 day. On the
following day all striking employees returned to work.
Respondent argues that the strike was unprotected.1° I
agree.
There is no contention that the strike was caused by an
unfair labor practice committed by Respondent. I I Accord-
ingly, the Union's failure to resort to the grievance proce-
dure contained in its contract with Respondent 12 before
striking deprived the strike of the Act's protection. Hayes
Coal Co., Inc., 197 NLRB 1162 (1972); W. L. Mead, Inc.,
113 NLRB 1040, 1042-43 (1955).13
I find, therefore, that the strike called by the Union with-
out first invoking the grievance procedure provided for in
8 All dates hereinafter mentioned without stating a year fall within 1974.
9 G.C Exh. 3.
10 As noted in the introductory portion of this Decision , the General
Counsel takes no position concerning the nature of the strike.
11 Even had the strike been so caused , in the circumstances of this case
the conclusion that the strike was unprotected would still be required. Mrd-
West Metallic Products, Inc, 121 NLRB 1317, 1319-20 (1958).
12 G.C. Exh. 9, art. VI.
13 In Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri-
ca V. Lucas Flour Co., 369 U.S. 95, 105 ( 1962), the Supreme Court cited
Mead with approval.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its agreement with Respondent was an unprotected strike.
Respondent contends that the strike was not only unpro-
tected, as I have found, but also unlawful. This position is
taken by Respondent to bolster its argument that the con-
donation doctrine cannot be applied to an illegal strike.
To establish the strike's illegality Respondent asserts
that it was instituted by the Union in support of its sugges-
tion that the kiln painting work be done by Respondent's
employees rather than by employees of an outside contrac-
tor, and that thereby the strike fell within the proscription
of Section 8(b)(4)(D) of the Act.14 In the circumstances of
this case, however, a judgment that the strike was outlawed
by Section 8(b)(4)(D) is unnecessary. For, even were I to
find that the strike was unlawful, as Respondent claims,
such a finding would have no effect upon my opinion, to
be set forth below, that the condonation doctrine is appli-
cable here.
C. Disciplinary Action Taken by Respondent Against
Employees Participating in the Strike
On March 25, 1974, John Gaffney and William Penley,
respectively Respondent's vice president and plant manag-
er, met with the Union's president, the Union Committee,
and a representative of International to determine what
discipline should be meted out to the employees who par-
ticipated in the strike.ls Before the meeting Gaffney had
decided to terminate the employment of all the strikers and
so informed the representatives of the Union and Interna-
tional at the outset of the meeting.16
Vigorous opposition to this course of action was inter-
posed by the union representatives. Bowing to this, Gaff-
ney changed his position. As Gaffney put it, he "got bar-
gained down" from his determination to terminate the
employment of all employees who participated in the
strike. Instead, Gaffney having been "bargained down"
from his initial resolve, the discipline meted out by Re-
spondent as a consequence of the strike was limited to
14 Insofar as material, Sec 8 (b)(4)(D) provides-
Sec. 8(b) It shall be an unfair labor practice for a labor organization
or its agents-
(4)(i) to engage in . . a strike . . . or (ii) to threaten , coerce, or
restrain any person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is
(D) forcing or requiring any employer to assign particular work to
employees in a particular labor organization or in a particular trade,
craft, or class rather than to employees in another labor organization or
in another trade , craft , or class, unless such employer is failing to con-
form to an order or certification of the Board determining the bargain-
ing representative for employees performing such work:.. .
15 The Union 's president and the members of the Union Committee are
employees of Respondent and had joined the strike.
1 Gaffney conveyed this information in a somewhat euphemistic manner
As he testified , he told the representatives of the Union and International
that it was his intention "to accept the resignation of everyone who had
walked off on the 21st ." In view of what followed however, there is no doubt
that all those present at the meeting understood what Gaffney meant.
sending letters of reprimand to the Union's president and
to the members of the Union Committee. All other strikers
were permitted to continue in their employment with Re-
spondent without penalty.
The General Counsel contends that in the foregoing
manner Respondent condoned the participation of its em-
ployees, including Underwood and Cundall, in the strike of
March 21. In opposition Respondent argues, relying on
Mackay Radio and Telegraph Company, Inc., 96 NLRB 740,
742-743, (1951), that the doctrine of condonation is inap-
plicable here because the strike, it claims, was illegal, hav-
ing been instituted in support of an object proscribed by
Section 8(b)(4)(D) of the Act.
It seems to me, however, that Respondent gives Mackay
Radio an unduly broad reading. In that case the Board
refused to apply the condonation doctrine to participants
in a strike which, in an appropriate proceeding, would have
been found to have been unlawful under Section 8(b)(2) of
the Act. However, by way of limitation, the Board went on
to say, with respect to the asserted condonation of the dis-
charged strikers there: "We decide no more than is re-
quired by the facts in this case : namely, that the employees
who participated in the unlawful strike of the kind herein
found may not invoke the protection of the Act. . . . As
the question is not now before us, we do not decide wheth-
er an employer, after permanently reinstating employees
who participated in an unlawful strike, may subsequently
discharge or otherwise discipline them for having engaged
in such activity."
Because of the limited nature of the holding in Mackay
Radio, the Board in a subsequent case, Union Twist Drill
Co., 124 NLRB 1143, 1145-46 (1959) refused to extend it
to a situation encompassing a strike for which the Union
instituting it might have been found to have violated Sec-
tion 8(b)(I)(A) of the Act, a section not involved in Mac-
kay Radio. In doing so, the Board, stressing the narrow
reach of Mackay Radio, stated:
The Respondent contends that because of the
Board's holding in the Mackay Radio case the doctrine
of condonation is inapplicable herein. The Respon-
dent argues that, as the strike and the strikers' miscon-
duct on the picket line were caused or ratified by the
Charging Union and therefore constituted a violation
of Section 8(b)(1)(A) of the Act, the 17 discriminatees
had engaged in behavior that contravened the public
policy as expressed in the Act, that their conduct was
subversive of the Statute, and that the Board therefore
could not extend the protection of the Act to them.
However, if it is assumed arguendo that the Union's
conduct violated Section 8(b)(1)(A), Mackay Radio
would not apply. In that case a union struck to obtain
from the company an unlawful union-security con-
tract. The Board found that the strike was unlawful
from its inception because it was seeking to compel the
company to violate Section 8(a)(3) of the Act, and
would have constituted a violation of Section 8(b)(2)
of the Act if the General Counsel had preferred
charges against the union. The Board expressly ex-
cluded cases involving "violence or other similar con-
duct during the course of otherwise lawful, albeit not
MARQUETTE CEMENT MANUFACTURING CO. 553
always protected concerted activity," from the Mac-
kay holding. The Board further held that participation
in an unlawful strike did not automatically terminate
the strikers' employment relationship, and that Mac-
kay decided no more than was required by the facts in
that case: "namely, that the employees who partici-
pated in the unlawful strike of the kind [therein] found
may not invoke the protection of the Act." We believe
that the limitation of Mackay Radio to the facts in that
case was proper, and we see no reason to extend its
holding to the facts herein.
In view of the self-contained limitations of Mackay Ra-
dio and the Board's refusal in Union Twist Drill to "extend
[the Mackay Radio holding to the facts [therein]," it is my
opinion that, for the same reasons, it should not be extend-
ed to the facts in this case, even on the assumption that the
Union's strike fell within the ambit of Section 8(b)(4)(D) of
the Act. Accordingly, I reject Respondent's contention that
Mackay Radio precludes the application of the condona-
tion doctrine here.
But this does not end the matter. What must further be
determined is whether the participation of Respondent's
employees in the strike was actually condoned. As will ap-
pear, I find that it was, except with respect to the Union's
president and members of the Union Committee.
"Where, as here, . . . misconduct [, participation in an
unprotected strike,] is clearly shown, condonation .. .
must clearly appear from some positive act by an employer
indicating forgiveness and an intention of treating the guil-
ty employees as if their misconduct had not occurred."
N.L.R.B. v. Marshall Car Wheel and Foundry Co. of Mar-
shall, Texas, Inc., 218 F.2d 409, 414 (C.A. 5, 1955). "Con-
donation can be found and is invocable . . . where there is
clear and convincing evidence that the employer has com-
pletely forgiven the guilty employee[s] for [their] miscon-
duct-and agrees to a resumption of company-employee
relationship as though no misconduct had occurred."
Packers Hide Association, Inc. v. N.L.R.B., 360 F.2d 59, 62
(C.A. 8, 1966). 17
Applying the teaching of Marshall Car Wheel and Pack-
ers Hide to the instant case it seems apparent that, except
with respect to the Union's president and members of the
Union Committee, Respondent forgave the participation
of its employees, including Underwood and Cundall, in the
unprotected strike. Recapitulating the evidence in this re-
gard , it appears that before his meeting on March 25 with
representatives of the Union and International, Gaffney,
Respondent 's vice president , had decided to terminate the
employment of all employees who had joined the strike. At
the meeting Gaffney announced his intended course of ac-
tion. However, as the meeting progressed he was "bar-
gained down" from applying this penalty to the strikers.
The "bargain[ing] down" continued to the point where, in-
stead of penalizing all strikers in accordance with
Respondent 's originally announced plan, the discipline
meted out as a consequence of the strike was restricted to
17 Marshall Car Wheel was relied on by the Packers Hide court . In Ameri-
can River Constructors, 163 NLRB 551, 552 ( 1967), the Board cited Packers
Hide with approval.
the issuance of letters of reprimand to the Union's presi-
dent and members of the Union Committee.
By so limiting its discipline after the announcement that
the employment of all strikers would be terminated and by
resuming an employer-employee relationship with them as
though their misconduct in engaging in the strike had not
occurred, Respondent positively, clearly, and convincingly
indicated that it had completely forgiven all strikers, except
the Union's president and members of the Union Commit-
tee, for their misconduct. This being the case, I conclude,
in agreement with the General Counsel, that Respondent
condoned the participation of its other employees, includ-
ing William Underwood and Donald Cundall, in the un-
protected strike.
D. Respondent's Practice Regarding the Hiring of
Temporary Employees
It has been Respondent's practice to hire temporary em-
ployees in the spring of each year. Respondent's purpose in
doing this, as Marshall Shetter, Respondent's maintenance
manager, testified, is "for cleanup of accumulation during
the winter months, . . . to dig silos [,and] to get the plant in
shape to operate during the heavy season." In accordance
with this practice, in March 1974 Respondent hired six
temporary employees, including William Underwood and
Donald Cundall.
Not wishing the temporary employees hired in the
springtime to become members of the bargaining unit rep-
resented by the Union or to acquire seniority, which pur-
suant to Respondent's contract with International they
would gain after 30 days 18 Respondent has followed the
custom of discharging them in advance of the 30th day of
their employment. This custom, however, was not followed
with respect to the temporary employees hired in the spring
of this year.
Anticipating that some longtime employees would retire
in 1974 and that other permanent job vacancies would also
occur as the year wore on, William Penley, Respondent's
plant manager, decided to retain four or five of the tempo-
rary employees hired in March. In implementation of this
decision, four were retained.19
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondent's Alleged Violations of
Section 8(a)(1) and (3) of the Act
As already noted, William Underwood and Donald
Cundall, whose discharge is alleged in the complaint as
having been violative of Section 8(a)(1) and (3) of the Act,
were hired by Respondent as temporary employees in the
spring of 1974, the former on March 13 and the latter on
March 18. Underwood's employment came about as the
result of a recommendation made to Respondent' s assis-
tant plant manager by Robert Hunter, Underwood's fa-
ther-in-law, a longtime employee of Respondent.
Also in March Respondent hired four additional tempo-
's G.C Exh. 8, art. IV.
19 As will appear below, Underwood and Cundall were not among the
temporary employees who were retained. -
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rary employees. As stated by Respondent's lawyer at the
outset of the hearing and as disclosed by the evidence, the
work done by the temporary employees was "mostly [of
the] pick and shovel type."
Underwood and Cundall performed their job assign-
ments, requiring the exertion of physical strength rather
than intellectual sharpness, in a workmanlike manner. In
this regard, Marshall Shetter, Respondent's maintenance
manager, testified that his only "criticism of the work that
was done by . . . Underwood [was] his lack of initiative."
Shetter gave similar testimony respecting Cundall. To ex-
plain this vague appraisal of the work done by Underwood
and Cundall, Shetter stated that they never made "sugges-
tions" concerning their assignments . In this regard , there is
evidence in the record that other temporary employees
made such suggestions.
Underwood and Cundall participated in the unprotected
strike which took place on March 21. The other four tem-
porary employees did not do so. As already found, upon
the termination of the strike all strikers, including Under-
wood and Cundall, were permitted to resume their work
and, as I have found, their participation in the strike was
condoned.
On April 10, by which time Underwood had been in
Respondent's employ for 29 days, he was discharged. Cun-
dall was discharged on April 11, the 25th day of his em-
ployment by Respondent. Upon their discharge Under-
wood and Cundall were told, in essence, that they had been
hired for a temporary period and that this period had ex-
pired.
The other four temporary employees hired at about the
same time as were Underwood and Cundall, none of whom
participated in the strike, were not discharged. They were
retained as permanent employees.
On April 21, Hunter (Underwood's father-in-law), Wal-
ter Cox, who like Hunter is also a longtime employee of
Respondent and William Davenport, Respondent's pro-
duction foreman, were together in Davenport 's office.
Hunter asked Davenport why Underwood's employment
had been terminated. Davenport replied, as Hunter testi-
fied, that Respondent "laid [Underwood] off because he
walked out with you all."20 Continuing his conversation
with Hunter, as Cox testified, Davenport stated that Cun-
dall had been "laid off" for the same reason 21 and that
Underwood and Cundall "would have been permanent
hired if they had not walked out . . . that day."
Davenport denied making the statements attributed to
him by Hunter and Cox. If, notwithstanding his denial,
Davenport, a foreman,22 actually told Hunter and Cox, as
they testified, that Underwood and Cundall were dis-
charged because they participated in the strike, this would,
to a substantial extent , negate Respondent's defense,
which, as will be discussed below, is in part that the partici-
20 Hunter and Cox were among the employees who had joined the strike.
21 Being mainly interested in Underwood's discharge , Hunter's failure to
mention , while testifying , that Davenport also gave the reason for Cundall's
discharge is understandable.
22 Davenport has been a foreman for 3 years. On his shift Davenport's
area of supervision includes, he testified , "the kiln burner, the miller, the
miller helper, the feeder , light maintenance , and . general operational
procedures of the plant"
pation in the strike by Underwood and Cundall was not a
factor in their discharge. Accordingly, I have given much
thought to the resolution of this testimonial conflict.
"The average employee [testifying in a proceeding to
which his employer is a party] is keenly aware of his depen-
dence upon his employer's good will, not only to hold his
job but also for the necessary job references essential to
employment elsewhere." Wirtz v. B.A.C. Steel Products,
Inc., 312 F.2d 14, 16 (C.A. 4). Bearing this truism in mind,
it is plain to see that Hunter and Cox, both longtime em-
ployees of Respondent and in Respondent's employ at the
time of the hearing, in testifying against Respondent, did
so knowing that they were in peril of economic reprisal.
Thus, having much to lose, their testimony, adverse to Re-
spondent, was in a sense contrary to their own interests
and for this reason not likely to be false.23
Taking the foregoing into account, and considering the
comparative demeanor of Hunter and Cox on the one
hand and Davenport on the other,24 I credit Hunter and
Cox rather than Davenport.
In assessing Hunter's credibility I have also taken into
account the fact that he is Underwood's father-in-law and
that this relationship might have moved him to give testi-
mony favorable to Underwood notwithstanding its falsity.
Hunter, however, did not strike me as a person who would
disregard his oath and testify untruthfully even if he, him-
self, had been the beneficiary of such testimony , let alone
his son-in-law. Furthermore, Cox, who is not related to
Underwood, fully corroborated Hunter's testimony con-
cerning Davenport's statement as to the reason for
Underwood's discharge, although Cox was not in the hear-
ing room while Hunter testified.25
B. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(1) and (3)
of the Act
It seems to me that the starting point in the search for
the reason for the discharge of William Underwood and
Donald Cundall is Respondent's departure in April 1974
from its usual custom of terminating the employment of
temporary employees hired in the springtime. Unlike previ-
ous years, this year, for reasons already noted, Respondent
retained four springtime temporary employees , not includ-
ing Underwood and Cundall.
Underwood and Cundall were not discharged because
they did not do their work well, nor were they discharged
because they were physically unable to do their work.
Rather, Respondent represents, Underwood and Cundall
were discharged because they showed no initiative and, un-
like the four temporary employees who were retained, of-
fered no suggestions concerning the performance of their
work. Respondent further asserts that the participation of
Underwood and Cundall in the strike of March 21, 1974,
was not a factor in its decision to discharge them.
All the temporary employees hired in March, including
23 See , in this connection, Georgia Rug Mill, 131 NLRB 1304, 1305 ( 1961),
modified on other grounds 308 F.2d 89 (C.A. 5, 1962).
24 Hunter and Cox demeaned themselves well while testifying . I was not
similarly impressed by Davenport
25 At the outset of the hearing , I ordered that witnesses be sequestered.
MARQUETTE CEMENT MANUFACTURING CO. 555
Underwood and Cundall , were pick and shovel laborers.
The principal attributes of their jobs consisted of an ability
to use simple tools , the strength to do so , and an acquies-
cence in doing what was required . It does not appear that
Underwood and Cundall were deficient in any of these
areas , nor is it claimed that they were.
The only "criticism" that Marshall Shetter,
Respondent's maintenance manager , could level against
Underwood and Cundall was their "lack of initiative" and
their failure to make suggestions concerning the perfor-
mance of their work . At the risk of disparaging pick and
shovel laborers , which I have no intention of doing, it is
difficult for me to understand how such workmen can dis-
play initiative . Nor am I persuaded by Respondent 's addi-
tional claim that it discharged Underwood and Cundall
because they did not make suggestions.
In my opinion both are pretexts . Two facts in the record
demonstrate to my satisfaction , and I find , that in making
its selection as to which temporary employees should be
discharged and which should be retained Respondent, de-
spite its protestation to the contrary , chose Underwood
and Cundall for discharge because they participated in the
strike.
The first is that the four temporary employees who were
retained did not join the strike . The second is the statement
of William Davenport , Respondent's production foreman,
to Robert Hunter and Walter Cox, employees of Respon-
dent, that Underwood and Cundall were "laid . . . off"
because they "walked out" and that they "would have been
permanent hired if they had not walked out."
In view of the unprotected nature of the strike Respon-
dent would have been privileged in discharging Under-
wood and Cundall for having participated in it , had their
participation not been condoned . However , Respondent
having condoned Underwood and Cundall for joining the
strike , their later discharge for doing so was violative of the
Act. American River Constructors, 163 NLRB 551, 552
(1967); Union Twist Drill Co., 124 NLRB 1143, 1144
(1959); Alabama Marble Company, 83 NLRB 1047,
1048-49 ( 1949), enfd . 185 F.2d 1022 (C.A. 5).
Accordingly, I conclude that by discharging Underwood
and Cundall for having participated in the strike instituted
by the Union on March 21 Respondent violated Section
8(a)(1) and (3) of the Act.
VI. THE EFFECT OF RESPONDENT'S UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent 's unfair labor practices set forth in section
V, above, occurring in connection with its operations de-
scribed in section I, above, have a close , intimate , and sub-
stantial relationship to trade , traffic , and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
desist therefrom and to take such affirmative action as will
effectuate the policies of the Act. In this connection, my
order will provide that Respondent offer immediate and
full reinstatement to William Underwood and Donald
Cundall and that Respondent make them whole for any
losses they may have suffered by reason of the discrimina-
tion practiced against them. Any backpay found to be due
to Underwood and Cundall shall be computed in accor-
dance with the formula set forth in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and shall include interest in the
amount and manner provided for in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. The strike against Respondent, instituted by the
Union on March 21, 1974, did not fall within the protec-
tion of Section 7 of the Act.
4. Respondent condoned the participation in the fore-
going strike by William Underwood and Donald Cundall.
5. By discharging William Underwood and Donald
Cundall for participating in the strike referred to in Con-
clusion of Law 3, above, after condoning their having done
so and by failing and refusing to reinstate them, thereby
discouraging membership in the Union, Respondent has
engaged in, and is engaging in, unfair labor practices with-
in the meaning of Section 8(a)(l) and (3) of the Act.
6. The unfair labor practices engaged in by Respondent,
as set forth in Conclusion of Law 5, above, affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 26
The Respondent, Marquette Cement Manufacturing
Company, Nashville, Tennessee, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Cement, Lime
and Gypsum Workers International Union, Local 80, or
any other labor organization, by discharging, or refusing to
reinstate , employees, or by discriminating in any other
manner against employees in regard to hire or tenure of
employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
VII. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act my order will require Respondent to cease and
26 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and Order herein shall, as provided in Sec . 102.48 of the Rules
and Regulations , be adopted by the Board and become its findings , conclu-
sions, and Order, and all objections thereto shall be deemed waived for all
purposes.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing employees in the exercise of their right to self- have been taken to comply herewith.
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National La-
bor Relations Act, as amended, or to refrain from any or
all such activities.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended.
(a) Offer to William Underwood and Donald Cundall
immediate and full reinstatement as employees without
prejudice to their seniority or other rights or privileges and
make them whole, in the manner set forth in the section of
this Decision entitled "The Remedy," for any loss of earn-
ings they may have suffered by reason of the discrimina-
tion practiced against them.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its premises in Nashville, Tennessee, copies
of the attached notice marked "Appendix." 27 Copies of
said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of this Order, what steps
27 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law, and has ordered us to
post this notice. We intend to carry out the Order of the
Board and abide by the following:
WE WILL NOT fire you because you take part in a
lawful strike against us.
If we excuse you for taking part in a strike which is
in violation of the no-strike clause of the contract be-
tween the Union and the Company, WE WILL NOT then
fire you for having taken part in such a strike.
WE WILL NOT in any way interfere with any right
given employees by the National Labor Relations Act.
As it has been decided that we fired William Underwood
and Donald Cundall for taking part in such a strike after
we excused them for doing so,
WE WILL immediately offer to take William Under-
wood and Donald Cundall back to work for us.
WE WILL pay William Underwood and Donald Cun-
dall any wages lost by them because we fired them.
MARQUETTE CEMENT MANUFACTURING COMPANY