Marquette Cement Manufacturing Co.

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