Marden Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 29, 1953

106 N.L.R.B. 1335 (N.L.R.B. 1953)

MARDEN MANUFACTURING COMPANY 1335
CONCLUSIONS OF LAW
1 New Jersey Bell Telephone Company is engaged in commerce within the meaning of
the Act
2 Communications Workers of America, CIO , is a labor organization within the meaning
of Section 2 (5) of the Act.
3 New Jersey Bell Telephone Company has not violated Section 8 (a) (1) and (3) of the Act
by discharging Eleanor Steib.
4 Communications Workers of America, CIO, has not violated Section 8 (b) (1) (A) and
Section 8 (b) (2) of the Act by requesting and causing the discharge of Eleanor Steib
[Recommendations omitted from publication.]
MARION G. DENTON AND VALEDIA W. DENTON d/b/a MAR-
DEN MANUFACTURING COMPANY and UNITED STEEL-
WORKERS OF AMERICA, CIO. Case No. 10-CA-1523.
October 29, 1953
DECISION AND ORDER
On July 13 , 1953, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above - entitled proceeding, finding
that the Respondents had engaged in and were engaging in cer-
tain unfair labor practices , and recommending that they cease
and desist therefrom and take certain affirmative action as set
forth in the Intermediate Report attached hereto. Thereafter,
the Respondents filed exceptions to the Intermediate Report
and a supporting brief.'
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the Respondents'
exceptions and brief , and the entire record in this case, and
hereby adopts the findings , 2 conclusions , and recommenda-
tions of the Trial Examiner, with the following additions and
modifications:
iThe Respondents' request for oral argument is denied because the record and the Re-
spondents ' exceptions and brief, in our opinion, adequately present the issues and positions
of the parties.
2 We note and correct the following factual inaccuracies in the Intermediate Report which
do not affect our findings or conclusions in this case: (1) the Trial Examiner found that
Foreman Brewster called two employee meetings onMay 2, 1952, whereas in fact he summoned
employees to but one meeting on that date; (2) the Trial Examiner found that Foreman
Brewster stated that Denton would move to California on account of the health of Denton's
wife, whereas in fact Brewster stated that he (Brewster) would move to California on account
of the health of his wife; (3) the Trial Examiner found that sometime in May, Denton told
Keefer he had had a beer or two, whereas in fact it was H D. Lassiter who made the state-
ment to Keefer with regard to his (Lassiter's) drinking; and (4) the Trial Examiner found that
the Respondents refused to bargain with the Union since May 13, 1952 (the date of the Union's
certification), whereas the record shows, and we find, that the Respondents' refusal to bargain
dates from May 27, 1952 (the date of the first negotiation meeting of the parties).
106 NLRB No 247
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The General Counsel offered in evidence at the hearing
copies of ( 1) the charge and amended charge in this case; (2)
the complaint ; and (3 ) notice of hearing , together with various
documents purporting to show that such papers were mailed
to and received by the Respondents or that delivery thereof
was refused by Respondents. Respondents objected to the
receipt of - all these matters in evidence on the ground, inter
alia, that the foregoing proofs of service or of refusal of
delivery were not properly authenticated . Respondents ' objec-
tion was overruled by the Trial Examiner ,. and Respondents
except. Respondents do not show how they were prejudiced by
this ruling . There is no issue in the cases as to the adequacy
of the Respondents ' opportunity to prepare a defense and meet
the charges against them . The Respondents filed a timely
answer to the complaint , appeared at the hearing , and fully
participated in the litigation of all the issues . Nor is there
any issue as to whether the original charge was in fact re-
ceived by the Respondents . One of the documents introduced
in evidence was an affidavit of mailing of a copy of the original
charge to the Respondents by registered mail, to which
affidavit was attached a return receipt therefor purporting to
be signed by Respondent Marion Denton. Respondents do not
contend that this material was not received by them. Denton,
although testifying at the hearing , was not questioned by his
counsel about this signature . Under these circumstances, we
find no merit in Respondents ' exception on this point.
Respondents ' counsel also objected at the hearing to the
examination of Respondent Marion Denton concerning instruc-
tions given by him to counsel regarding the conduct by the
latter of negotiations with the Union . The objection , which was
based on client - attorney privilege , was overruled by the Trial
Examiner and Respondents except. The Trial Examiner did not
rely upon the foregoing testimony in finding that the Re-
spondents violated Section 8 (a) (5) of the Act, nor do we.
Accordingly , we find that any possible error in admitting this
testimony was not prejudicial.
Respondents also except to: (1) the Trial Examiner ' s conduct
of the hearing in that he allegedly permitted representatives of
the Union to be seated inside the bar in a position to coach and
encourage witnesses ; ( 2) the absence from the hearing during
its latter stages of E. V. Riffe, a representative of the Union,
despite the fact that Riffe had been subpenaed to appear; and
(3) to the "evident prejudice of the Trial Examiner in favor of
General Counsel and the Charging Union ." As to ( 1), the record
shows that only Riffe , a representative of the charging Union
whose appearance was noted on the record , was permitted to
be seated inside the bar; and , with respect to the instances of
alleged coaching relied upon by the Respondents , the record
shows either that the Trial Examiner ascertained that the
witness was not aware of such alleged coaching , or that he
cautioned against it ; as to ( 2), the record does not show that any
request was made by the Respondents for enforcement of the
MARDEN MANUFACTURING COMPANY 1337
Riffe subpena, nor that any continuance of the hearing was
requested Lor that purpose. Riffe did, in fact, appear at the
early stages of the hearing as a witness for the General Counsel
and was cross -examined by the Respondents . Moreover, Re-
spondents have so far failed to state for what purpose they
desired Riffe's further testimony; as to (3), the general allega-
tion of the Trial, Examiner's prejudice in favor of the General
Counsel and the Union is not supported by the record. Accord-
ingly, we find no merit in these exceptions.
2. We agree with the Trial Examiner that the Respondents
discriminatorily discharged Walter Lassiter and Calvin L.
Singleton . Because no exception has been filed thereto, we also
adopt the Trial Examiner's finding that the General Counsel
failed to sustain the burden of proving that Respondents dis-
criminated in the hire and tenure of employment of David
Lassiter.
3. We also agree with the Trial Examiner's finding that the
discharge of H. D. Lassiter was discriminatory. However,
in so finding, we rely only upon the following:
H. D. Lassiter, the father of David Lassiter and Walter
Lassiter, was hired in August 1948. He operated the Re-
spondents' turret lathe, a key operation requiring a skilled
operator. He was a member of the Union, a fact which he him-
self revealed to Respondent Marion Denton. He was outspoken
in his support of the Union. On one occasion, in front of the
employees assembled to hear Denton's antiunion remarks,
which are set forth in the Intermediate Report, he was the only
employee who spoke up on behalf of the Union. Denton, in a
conversation with another employee, referred to H. D. Lassiter
as a union " ringleader."
Shortly before the May 5, 1952, election at the Respondents'
plant, Lassiter was told by Dentonthat the Union could "affect"
him and his sons; and Albert Brewster, a supervisor, told
Lassiter that if the Union won the election the plant would be
shut down and Lassiter and his sons would lose their jobs.
Shortly after the election Lassiter's two sons were discharged,
one of them, as found above, disc riminatorily. Lassiter himself
was discharged on May 23.
In its brief, the Respondents contend that Lassiter was dis-
charged because of drunkeness on the job and absenteeism
caused by his drinking. Respondent Marion Denton, however,
testified only that Lassiter was discharged for absenteeism.
As set forth in the Intermediate Report, for a number of
years before his discharge, Lassiter, as well as practically
all the other employees and their foreman had been in the
habit of drinking beer during working hours. In May 1952,
Lassiter was found to have been drinking on the job, and was
warned about such conduct. The record also shows that
Lassiter was absent 47 days in 1951, and 28 days in 1952, in-
cluding 4 days of unexplained absence during the week in which
he was discharged.
13 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, like the Trial Examiner, we are convinced that
the reasons advanced by the Respondents were not the motivat-
ing cause for Lassiter ' s discharge . The contention in Re-
spondents ' brief that Lassiter was discharged for drinking on
the job is contradicted by Denton ' s own testimony that Lassiter
was discharged for absenteeism . Moreover , while Lassiter was
warned against drinking on the job shortly before his discharge,
there is no evidence that he was thereafter guilty of such mis-
conduct. Furthermore , as already stated, whatever drinkinghe
indulged in prior to that warning was in conjunction with other
employees and his foreman , a plant practice which, strange as
it may seem, had been tolerated by the Respondents for a num-
ber of years . There is no evidence that any other employee was
ever disciplined for drinking.
With regard to the contention that Lassiter was discharged
for absenteeism , the record shows that , despite Lassiter's
record of absences in 1951 and 1952, no issue was ever made
of his absenteeism by the Respondents until shortly after the
Union had won the election . Although absent without explana-
tion 4 days during the week in which he was discharged,
Lassiter ' s record shows that at other times he had weekly
absences of 3, 4 , and 5 days ; and on 1 occasion he was
absent an entire week.
Under these circumstances , and especially in view of the
fact that the threats by Denton and Brewster against Lassiter
and his sons were in fact carried out against the sons--in one
case discriminatorily --and because of the timing of Lassiter's
discharge so soon after the Union ' s victory in the election,
we believe the inference is inescapable that the asserted
reasons for the discharge are pretexts , and we are convinced
that Lassiter was discriminatorily discharged because of his
membership in, and outspoken sponsorship of, the Union.
4. We agree with the Trial Examiner's conclusion that the
Respondents refused to bargain collectively with the Union in
violation of Section 8 (a) (5). However , in so finding , we do not
adopt a possible implication present in one part of the In-
termediate Report that the Respondent ' s failure to make con-
cessions to the Union with respect to wages or financial
benefits was perse__ a refusal to bargain within the meaning of
the Act, rather an only "a material factor" in assessing
good faith . Nor do we find it necessary to consider, or pass
upon, the Respondents ' refusal to allow the Union to bring a
tape recorder to a bargaining session, in concluding that there
was a refusal to bargain in violation of Section 8 (a) (5).
5. Like the Trial Examiner , we find that the strike that
occurred at the Respondents ' plant was an unfair labor prac-
tice strike caused by the Respondents ' failure to bargain in good
faith and by their refusal to reinstate employees who had been
discriminatorily discharged . Accordingly, we find that Grady
Carroll, Melvin Purvis, R. B . Granger, J . D. Story, A. C.
Letchworth , H. N. Wells, T . C. Singleton , W. W. Singleton,
MARDEN MANUFACTURING COMPANY 1339
and J. R. Smith were unfair labor practices strikers and that
the Respondents ' refusal to reinstate these employees on July
9, when they unconditionally applied for reinstatement, was
discriminatory.
In view of our determination that the strike was an unfair
labor practice strike, we need no pass upon the Trial Exam-
iner ' s statement by way of dictum concerning the applicable
law if the strike be regarded as an economic strike from its
inception.
THE REMEDY
We do not agree with the Trial Examiner ' s conclusion that
the Respondents unlawfully conditioned the reinstatement of
W. W. Singleton upon his withdrawal of a claim for overtime
pay. As the Trial Examiner found, Singleton was reinstated on
November 6, 1952, on his own application . On the next day, he
was asked by Respondent Marion Denton to withdraw a
previously filed wage claim for overtime pay. After refusing
to withdraw the claim, Singleton , without explanation, failed to
report for work the next day or thereafter.
In the absence of further evidence bearing on this issue, we
find, contrary to the Trial Examiner, that Singleton's com-
pliance with Denton's request was not a condition , either express
or implied , of his continued employment by the Respondents.
Accordingly, we find that Singleton was reinstated onNovem-
ber 6, 1952, and thereafter voluntarily left the Respondents'
employ. For this reason we shall not order his further rein-
statement, as the Trial Examiner recommended . We shall,
however, order that Singleton be made whole , in the manner
set forth in the section of the Intermediate Report entitled
"The Remedy ," for any loss of pay he may have suffered from
July 9, 1952, the date of the Respondents ' discrimination
against him , to November 6, 1952, the date of his reinstate-
ment.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondents , Marion G . Denton and Valedia W. Denton, d/b/a
Marden Manufacturing Company, of Auburndale , Florida, their
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of
America, CIO , or in any other labor organization of their em-
ployees, by discharging or refusing to reinstate any of their
employees , or by discriminating in any other manner in regard
to the hire and tenure of employment of their employees or
any term or condition thereof.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to bargain with the above-named labor organi-
zation as the exclusive representative of all production and
maintenance employees, including truckdrivers, at their Au-
burndale, Florida, plant, excluding office employees, profes-
sional employees, guards or watchmen, and supervisors as
defined in the Act.
(c) Threatening employees with the closing and removal of
their business and with other reprisals for engaging in union
activity; promising employees rewards for refraining from
union activity; interrogating employees as to their union affilia-
tions or activities; or soliciting employees to keep under
surveillance, and report, union activities.
(d) In any other manner, interfering with, restraining, or
coercing their employees in the exercise of their right to
self-organization, to join or assist United Steelworkers of
America, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Offer Walter Lassiter, Calvin L. Singleton, H. D. Lassiter,
Grady Carroll, Melvin Purvis, R. B. Granger, J. D. Story,
A. C. Letchworth, T. C. Singleton, and J. R. Smith, immediate
and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make all of said employees and
N. H. Wells and W. W. Singleton whole for any loss of pay
suffered, in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy," and hereinabove.
(b) Upon request, bargain collectively with the above-named
labor organization as the exclusive representative of their
employees in the aforesaid appropriate unit with respect to
rates of pay, wages, and hours and conditions of employment
and, if an understanding is reached, embody such understanding
in a signed agreement.
(c) Post at their Auburndale, Florida, plant copies of the
notice attached hereto as an appendix. 9 Copies of said notice,
to be furnished by the Regional Director of the Tenth Region,
shall, after being duly signed by the Respondents, be posted by
them immediately upon receipt thereof and be maintained by
them for a period of sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken
SIn the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
MARDEN MANUFACTURING COMPANY 1341
by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Preserve and, upon request, make available to the Board
and its agents , for examination and copying , all payroll records,
social-security payment records , timecards , personnel
records, and all reports and other records necessaryto deter-
mine the amount of back pay due.
(e) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed insofar as it alleges that the Respondent
discriminatorily discharged David Lassiter.
Member Rodgers took no part in the consideration of the
above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL bargain collectively upon request with
United Steelworkers, CIO, as the bargaining representative
of the employees in the bargaining unit described below
with respect to rates of pay, wages, hours of employment,
and other conditions of employment and , if an understanding
is reached , embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees, includ-
ing truckdrivers, at our Auburndale, Florida, plant,
excluding office employees, professional employees,
guards or watchmen, and supervisors as defined in
the Act.
WE WILL NOT discourage membership of our em-
ployees in the above -named or any labor organization by
discharging or refusing to reinstate any of them, or by
discriminating in any other manner in regard to their hire
and tenure of employment , or any term or condition of their
employment.
WE WILL offer all employees named below immediate
and full reinstatement to their former or substantially
equivalent positions , without prejudice to any seniority or
other rights and privileges previously enjoyed, and we will
make all said employees and N. H. Wells and W. W.
Singleton whole for any loss of pay suffered as a result of
the discrimination against them:
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter Lassiter J. E. Story
Calvin L. Singleton A. C. Letchworth
Grady Carroll T. C. Singleton
Melvin Purvis J. B. Smith
R. B. Granger H. D. Lassiter
WE WILL NOT threaten our employees with the closing
or removal of our plant or other reprisals for their en-
gaging in union activities . We will not interrogate our
employees as to their union affiliations or activities; we
will not solicit our employees to keep under surveillance
and report union activities ; and we will not promise our
employees reward for refraining from union activity.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights to self-organization , to form labor organizations,
to join or assist the above - named or any other labor
organization , to bargain collectively through representa-
tives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any
or all such activities except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
MARION G. DENTON AND VALEDIA W. DENTON
d/b/a MARDEN MANUFACTURING COMPANY,
Employer.
Dated ................ By.............. ..... ..................
.
............
(Marion G. Denton)
Dated ................ By....................................................
(Valedia W. Denton)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge and four amended charges respectively duly filed on May 19, 1952, June 17,
1952, August 1, 1952, and November 25, 1952, by United Steelworkers of America, CIO,
herein called the Union, the General Counsel of the National Labor Relations Board, respec-
tively herein called the General Counsel and the Board, by the Regional Director for the
Tenth Region (Atlanta, Georgia), herein called the Director, issued a complaint dated January
8, 1953, against Marion G. Denton and Valedia W. Denton d/b/a Marden Manufacturing
Company, herein called the Respondents. The complaint as amended at the hearing alleged
in substance that ii violation of Section 8 (a) (1), (3), and (5) of the Act Respondents (1) on
or about May 23, 1952, and at all times thereafter refused to bargain collectively in good
faith with the Union as the exclusive bargaining agent of all employees in an appropriate
MARDEN MANUFACTURING COMPANY 1343
unit ; (2) in May 1952 discharged four employees and thereafter failed and refused to reinstate
them because of their membership in and activities on behalf of the Union, and because they
engaged in concerted activities with other employees for the purposes of collective bargaining
and other mutual aid and protection; (3) atvarious times in March, April, May, June, and July
1952, through certain named officers, agents , and representatives, (a) threatened to dis-
charge their employees and to effect other economic reprisal upon them if they joined or
retained membership in the Union or engaged in activities on behalf of the Union, (b) inter-
rogated their employees concerning their membership in and activities on behalf of the Union,
(c) solicited their employees to spy upon and keep under surveillance the union members
and their activities on behalf of the Union and to report such activities, (d) threatened their
employees that the plant would be closed down and moved away if the Union came in, (e)
stated they would never sign a contract with the Union, and, (f) promised their employees
financial reward on condition that they withdraw from membership in the Union and refrain
from assisting the Union; (4) by their unfair labor practices caused nine of their employees
to go on strike about July 1, 1952, and by their unfair labor practices prolonged said strike;
(5) on or about July 2, 1952, discharged the nine employees who had gone on strike because
they had become members of and had assisted the Union and had participated in the strike;
and, (6) on or about July 9, 1952, refused and have since continued to refuse (a) to accept
an unconditional application for reinstatement made by the nine employees who went on strike
and, (b) to reinstate them, because they had become members of and had assisted the Union,
and had participated in the strike.
Respondents filed an answer in which they in substance admitted certain jurisdictional
matters, the appropriateness of the collective-bargaining unit, the designation of the Union
as the representative of the employees in the unit, and having discharged one employee on or
about May 23, 1952. All other allegations and the commission of any unfair labor practices
were denied. By amendments made at the hearing they set up certain special defenses.
Pursuant to notice a hearing was held before me, Stephen S. Bean, duly designated as
Trial Examiner, by the Chief Trial Examiner, at Winter Haven, Florida, from March 16
through March 21, 1953.
The General Counsel and Respondents were represented by counsel, the Union by its
representative. All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, to argue orally upon the record, and to file briefs and proposed
findings of fact and conclusions of law. Arguments were waived but briefs which were
received on May 5 and May 18, 1953, under an extension of time duly granted for the filing
of same, have been carefully considered. Disposition of motions to dismiss is made by
the following findings, conclusions, and recommendations. Upon the entire record in the
case and from my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
Marion G. Denton and Valedia W. Denton are now, and have been at all times material herein,
copartners doing business as Marden Manufacturing Company with their principal office and
place of business at Auburndale, Florida, where Respondents are principally engaged in the
manufacture, sale, and distribution of brush and weed-cutting machinery. In the course and
conduct of business operations during the calendar year 1952, which period is representative
of all times material herein, Respondents purchased raw materials, equipment, and supplies
valued in excess of $25,000, more than 75 percent of which, in value, originated outside the
State of Florida and was shipped in commerce to its plant in Auburndale. During the same
period, Respondents manufactured and sold finished products valued in excess of $100,000,
more than $25,000 of which represented the value of such products sold and shipped to
customers outside the State of Florida.
Respondents are engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED AND ITS REPRESENTATIVE STATUS
United Steelworkers of America, CIO, is a labor organization within the meaning of the
Act.
On May 5, 1952, by a tally of 14 to 10, Respondents' employees voted for the Union at a
Board-conducted election. The Union was certified on May 13, 1952. Since May 5, 1952, the
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union has been the exclusive bargaining representative of all employees of Respondents in
an appropriate unit. 1
Ill. THE UNFAIR LABOR PRACTICES
A. Introduction
The main issues in this case surround and are related to the election, unsuccessful
negotiations for a contract in May and June 1952, and a strike which was called by the Union
on June 30 and continued from July 1 through July 8.
B. Conduct violative of the Act before the strike
1. Interference , restraint , and coercion
On the Friday (May 2. 1952) before the election which was held on May 5, 1952, partner
Marion G. Denton talked to Respondents' assembled employees at two meetings. He stated
that he would never sign a contract with any union whatsoever, and neither would his partner,
nor his manager, nor his lawyer; that nobody, the Government included, could cause hun to
sign; that payment of dues to the Union would not do the employees any good; that the Union
or even the Government could not put the employees back to work or pay them for the time
they lost; that the employees of Adams' Packing Company had been fired because they
attended a union meeting and that they would not be put back to work; that maybe the scale
of hours would be cut if the Union were to get in; that if the Union was not voted in he did
not have any intention of making any changes; that if the employees should strike they would
lose their jobs; that labor unions required employers to hire Negroes to work with white
employees; that his employees could join any union or church they wanted to, that he was not
telling them what or what not to join but that he ran his business his way and neither the
Union nor anybody else was going to tell him how to conduct his affairs.
At a meeting earlier in the day, before Denton addressed the employees en masse, there
had been a meeting between him and some of the pieceworkers starting out with a discussion
concerning their dissatisfaction with Albert Brewster as a foreman. The talk turned to matters
relating to the Union and Denton asked the pieceworkers what they thought about the with-
drawal of some of the employees, including Earl Mock and C. W. Stokes, from the Union and
the staying in of others.
Before the election Denton talked to employee H. D. Lassiter, who was later discharged,
asking him how he felt about the Union. Lassiter replied that he was a member and believed
that a body of men could do more than one man. Denton then stated that Lassiter knew Charles
Clark (a former foreman) had been fired for not reporting to Denton abour the Union and
that the Union could affect Lassiter and his two sons (also employed at the plant). Before the
election Denton also talked to employee J. D. Story, who later went on strike and has not been
reinstated, stating that he would not sign a contract with the Union and that before doing so,
he would move his shop to Puerto Rico. 2
Albert Brewster became shop foreman March 6, 1952. Before that date when solicited to
join the Brewery Workers, he told his fellow employees that he had never belonged to a union
and never would. He directs employees in their work and all they are to do from day to day.
He has authority effectively to recommend the disciplining and rewarding of employees and
their hiring and firing. He is responsible for the production of parts made by the men under
him and coordinates the work of hourly paid employees with that of pieceworkers. He called
'On October 22, 1951, January 8, 1952, and January 25, 1952, International Union of
United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, herein called the Brewery
Workers, requested recognition of Respondents and the setting of a date for the purpose of
beginning bargaining negotiations. On January 25, 1952, this union submitted a proposed
agreement. Prior to February 14, 1952, this union withdrew a petition for certification of
representatives which it had previously filed and on February 14, 1952, Respondents were so
notified by the Director.
2 Denton admitted making comparisons between wages paid in Florida and Puerto Rico to a
number of people and pointing out the desirability of proposals offering income-tax exemption
there, but denied stating he would move his shop to that island I am satisfied that at the very
least Denton made a thinly veiled threat that the plant would be moved away.
MARDEN MANUFACTURING COMPANY 1345
the meetings where Denton spoke on May 2, 1952, just before the election . He gave employees
David R. Lassiter, Grady Carroll, J. D. Story, and Melvin Purvis time off on one or more
occasions . He transferred employees from one machine and one job to another. There is
ample evidence supporting the General Counsel 's contention that Brewster since March 6,
1952, has been a supervisor within the meaning of the Act, and I so find.
During a period of 3 weeks before the election and also after the election , Brewster, who
expressed his opinion to employee H. D. Lassiter that the Union was "no good " and tried
at different times to induce employees Grady Carroll and A. C. Letchworth not to join it,
told the latter 2 men, laborers who worked together , that if the Union did not come in he
would give all employees piecework and that they would make more money and that Denton
would not sign a contract with the Union. He came to Carroll and Letchworth and asked
them to attend meetings of the Union and report back to him what transpired at them . 'These
2 employees attended about 3 meetings after the election and thereafter told Brewster who
would come to them and ask if employees whose names he called had been in attendance,
what went on, and when the next meeting was to be held . 3 Both before and after the election,
Brewster told Carroll several times that Denton would close the door before he would let
the Union in. About 3 weeks before the election Brewster told employee R. B. (Harvey)
Granger, an hourly worker , who tried to get other men to join the Union , that if he would
pull out of the Union he would see that Granger got some piecework. 4
Before the election , Brewster came to H. D. Lassiter 's machine and stated that employees
and probably Lassiter and his sons would lose their jobs if the Union should come in, and
talked to Lassiter about getting out of the Union. Before the election in a talk with employee
J. D. Story during the course of which Brewster referred to H. D. Lassiter as a ringleader
(as had Denton likewise referred to him in a conversation with employee Harvey Granger),
Brewster stated he was going to get rid of Lassiter and the bunch of union fellows who were
fooling around and asked Story who attended the meetings of the Union and what went on at
them. About a month before the election Brewster stated to employee Melvin Purvis that he
wished the boys would wake up because he was afraid that if they went ahead and tried to get
the Union in that it was going to shut every one of their jobs down.
A day or two before the election Plant Manager Edward B. Keefer told employee John R.
Smith that, as Denton had told the employees , he never would sign a contract , that it would
do no good to attempt to get a contract , that to get one the employees would have to strike
and that they would lose their jobs.
In substance it is Respondent 's contention that apart from Denton's assertion that he would
not sign a contract the record is bare of evidence of any other conduct violative of Section
8 (a) (1) of the Act and that since this statement of Denton was "isolated " and in his own
mind merely related to the proposal submitted by the Brewery Workers on January 25, 1952,
no remedial order should issue "under the circumstances." With this contention, I am
unable to agree.
Taking up first the attempted exculpation for Denton 's announcement he would not sign a
contract , there is a plethora of credible evidence that Keefer and Brewster as well as Denton
said on far more than one occasion that Denton would not sign any contract . It is not claimed
that Denton told anybody that he had the Brewery Workers' proposal in mind when he said
he would not sign a contract until he so testified at the hearing after Manager Keefer had
testified he heard Denton tell all of the employees on May 2 that he would not sign any
contract. Denton knew as early as February 14, 1952, that the Brewery Workers had with-
drawn their petition. He had never discussed the January 25 proposal with them. Yet, as
will appear later, on July 9, 1952, about 6 weeks after the Union had presented its proposals
to Respondents ' negotiators and they had been discussed at 3 or 4 meetings , and after a
strike had been in progress since July 1, Denton again repeated to employees W. W.
Singleton , the union president , T. C. Singleton, the union treasurer , and JohnR Smith, who
had been elected on committee to notify him that the strike was off and that the employees
were ready to go back to work unconditionally , that he would not sign a contract.
3Brewster , while admitting the employees gave him this information about three times,
testified the- did so on their own initiative rather than at his request and that he told them it
would be all right. I believe Carroll and Letchworth's testimony that they were solicited by
Brewster.
41t is worthy of note that this testimony of Granger, whom Denton had stated he knew was a
ringleader , was brought out by a leading question in cross-examination, there having been no
reference to such an incident in Granger 's direct examination.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turning now to that portion of Respondents ' contention that apart from Demon's declara-
tion he would never sign a union contract "as far as the coercive measures of the Respondents
are concerned the record is as empty as a vacuum ," I only say that the General Counsel
had convinced me to the contrary. On the facts as I have found them, and need not here
repeat , after a resolution , both qualitative and quantitative , of divergencies in the testimony
(much of which is indeed uncontradicted) of Carroll, Letchworth, H. D. Lassiter, Story,
Granger, and Purvis , on the one hand, and Denton and Brewster on the other , I am convinced
that Respondents have interfered with , restrained , and coerced employees in the exercise of
rights guaranteed by the Act.
2. The discharge of David Lassiter, Walter Lassiter, and Calvin L. Singleton
Respondents ' records indicate that David Lassiter entered their employ on November 21,
that he was "separated" on or during the week for which pay was due of May 16. 1952, and
rehired on October 20, 1952 . It is alleged that Respondents unlawfully discharged him on or
about May 9, 1952 , and thereafter failed and refused to reinstate him. During his testimony
on March 18, 1953, Lassiter became ill before giving any salient testimony and was unable
to continue. On March 19, the General Counsel announced that he did not propose to recall
him to the witness stand. Thereupon Respondents moved to strike his testimony. This motion
was granted without objection. The facts that Denton had told David's father, H. D. Lassiter,
that the Union could affect him and his sons, Brewster had told the father that if the Union
should prevail he and his sons would probably lose their jobs, and David 's "separation" or
his selection therefore so shortly after the election in which the Union prevailed , are suf-
ficient to arouse suspicion that Respondents' conduct toward this employee was motivated by
other causes than those of inefficiency and lack of need which were advanced by Denton,
Keefer, and Brewster . Whether or not Lassiter could have resumed the witness stand on or
after March 19 and whether or not, if he had, he would have given testimony supportive of
the allegation which concerned him, however, must remain matters of conjecture. The fact
that he was rehired or reinstated subsequently to May 1952 is quite dissuasive of the contention
that Respondents failed and refused to reinstate him and the fact that at no time during the
remainder of the year did Respondents have in their employ as many employees as were on
the payroll the week during the week Lassiter was discharged, suspended, or laid off, lends
support to Respondents ' assertion of economic necessity . In this state of the record I am
unable to conclude that the General Counsel has sustained the burden of proving that David
Lassiter was the object of unlawful discriminatory treatment.
Walter Lassiter, another son of H. D. Lassiter, first worked for Respondents without layoff
from March 1947 until November 1951, reentered their employ as a laborer in February 1952,
and continued until he was laid off in May of that year . During his last period of employment,
Lassiter was out 4 or 5 weeks undergoing and recuperating from a hernia operation. He
joined the Union before the election and attended all of 6 or 7 union meetings. He was present
during 1 of the 2 speeches made by Denton shortly before the election and heard him say
that he would not sign any contract, that Adams Packing Company employees who had been
fired for union activities would not be put back to work , that if employees were going to give
their money away they should take their union fee and hire a lawyer with it, and that his lawyer
had told him not to make these statements but he was disregarding his advice. Lassiter voted
in the election and the next day Brewster told him he was to be "laid off indefinitely on the
following Friday for killing too much time on the job." Neither Denton nor any official of the
Company had previously mentioned any time-killing or made any complaint about his work.
Lassiter had but recently returned to work after his operation and Brewster had advised
him then to take it easy and not do too much work or perform tasks he knew he should not
undertake.
When Denton hired Lassiter he had told him that the last one hired would be the first one
laid off. Since Lassiter had been hired in February, N. H. Wells, Melvin Purvis, Charles
Combee, Grady Carroll, and A. C. Letchworth, as well as Calvin L Singleton, had been hired.
When Lassiter returned to see Denton about a week after his layoff , concerning reimbursing
Respondents for their advance in payment of his hospital bill, he reminded Denton of his
February statement and the fact of these more recent hirings. Denton replied in substance
that last to come , first to leave was the policy prevailing in February , but that he was running
his shop his own way now and the policy had become different. Lassiter spent 3 or 4 days
on the picket line during the strike the first week of June. He has not been recalled to work,
although his brother David, whom it would seem from Plant Manager Keefer's testimony was
MARDEN MANUFACTURING COMPANY 1347
the more noticeably a shirker of the two, has, as we have seen before, been hired back on
his own application. In the light of the above facts, the many acts of interference, restraint,
and coercion set forth in section III, B,1 of this report, as well as in view of Walter Lassiter's
relatively long period of employment dating back to early 1947 and the additional considera-
tions that his employer, at a time before the activities of the Union were at the height,
regarded him sufficiently highly to have advanced the payment of his hospital bill--a not
unusual action on part of Respondents, it is true--and to have taken him back to work while
he was still partially incapacitated and that he participated actively in the affairs of the Union
in Respondents' small shop (a fact not proved in the case of his brother), so sufficiently
differentiate Walter Lassiter's case from that of David, as to lead to conclusion that here the
General Counsel has sustained the burden of proving that on May 9, 1952, and thereafter
Walter Lassiter was the object of unlawful discriminatory treatment.
Calvin L. Singleton went to work for Respondents as a laborer, mainly cutting steel, on
March 10, 1952, with N. H. Wells. The last previous hiring had been on February 11. In the
meantime John Durham, G. C. Akin, and Henry A. Pilcher had been separated on February
22, March 7, and March 10, respectively. Singleton was laid off May 9, 1952. During the next
6 months thereafter, there were 16 separations (10 of them alleged to have been discrimina-
tory) and 16 hirings. Singleton joined the Union before the election and attended most all of
the union meetings and talked to other employees about the Union. His work was commended
several times by Brewster who told him he could make one of his best helpers after he had
learned how and remarked to employee J. D. Story that his work was nearly perfect. Singleton
acted as observer at the election. The next day Brewster told him he was going to lay him
off the following Friday, giving as a reason, disputed by Singleton, a claim of loafing on the
job. Singleton, who has not been reinstated, visited the plant at the invitation of his brother,
another employee, after his layoff. Denton went out on the production floor for the purpose
of telling Singleton that he had issued instructions for "none of those men to come back." 5
When Singleton stated he was back at the plant with the intention of going to work, Denton,
who admitted a rule relative to visiting the plant was not vigorously enforced, insisted that
he leave and it appears that he then departed.
Here we have the situation of an employee who Respondents would have us believe, from
testimony they offered, was hired only for an emergency job of straightening out an excess
lot of steel that had been delivered in carload quantities, dumped off and stacked up in a grove
and elsewhere, and had to be cleared up and put in its proper location, and, from their argu-
ment, who was laid off because of comparative inefficiency "when this situation was allevi-
ated." Yet it does not appear that Singleton's services were particularly employed in clearing
up this steel and putting it into its proper location, but rather that he was assigned to process-
ing steel plate on a cutting machine, a job (which despite Brewster's conclusory generality,
significantly only in response to the very last question asked of him as a witness, that he
recommended that the two Lassiters and Singleton be discharged because they did more
loafing and less work than anyone in the shop) for the performance and near perfection of
which Brewster undeniably extolled him. Under these circumstances I fail to grasp a connec-
tion between Singleton's layoff from an assignment he was performing more than satisfactorily
and the completion of an entirely different job. Respondents declined in their discussions
with the Union to submit any financial data relative to their financial situation. This informa-
tion if it had been made available would have tangentally at least borne upon Respondents'
alternative argument that after May 9, 1952, it was not able profitably to employ Singleton.
As the evidence stands there is no more than a naked unsubstantiated assertion that he could
not earn his keep. In the normal course of events it would be expected that if the retention
of recently hired employees was economically unfeasible, such people, more recently hired
than Singleton, as Melvin Purvis, Charles Combee, Grady Carroll, and A. C. Letchworth
would be first laid off. By showing that Denton had announced his intention not to sign a
contract; that he would move his plant before doing so; that neither the Union nor the Govern-
ment could make him restore laid-off employees to work or reimburse them for their lost
time; that employees of a neighboring business had been fired for attending a union meeting
and would not be reinstated; that a former foreman had been fired for not reporting about
the Union; that Brewster, who had expressed his antipathy to all unions in general and the
instant Union in particular, had attempted to dissuade employees from joining the Union
and asked them to report its activities to him, had promised them more money if the Union
did not enter the plant and threatened that lobs would shut down if it did, and had stated he was
50bviously a reference to employees who had been laid off.
322615 0 - 54 - 86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to get rid of the union fellows who were fooling around , the General Counsel has
presented persuasive evidence that the discharge of Calvin L . Singleton , who had participated
so actively in talking about and in the affairs of the Union in this small plant where Denton
admitted he was aware of the fact employees had joined a union , hard upon his signal par-
ticipation as union election observer , was discriminatorily motivated In this state of the
record, I am convinced that Respondents have not met their burden of going forward with
sufficient credible evidence successfully to rebut the case made out against them. I accord-
ingly am unable to give credence to Respondents ' claim as to their reason for laying off or
discharging Singleton , but conclude and find that he was discriminatorily discharged to dis-
courage membership in the Union , and because of his union interest , activities , and member-
ship.
3. The discharge of H D. Lassiter
This long-time employee had worked for Respondents as a machine operator since August
21, 1948 He joined the Brewery Workers early in 1952 and after it had withdrawn its petition
for certification , he became a member of the instant Union and attended about 5 or 6 of its
meetings before the election. Before and after the election Brewster had spoken about the
Union in disparaging terms; he also stated that everyone would lose his job if the Union came
into the plant, and that Denton would shut the shop up and probably have to go to California on
account of his wife's health As has also been previously noted , Denton asked Lassiter how he
felt about the Union , Lassiter replied that he was a member , that he had belonged to the
Farmers' Union , and believed in the efficacy of unionism , Denton told him he had fired Fore-
man Clark for not reporting to him about the Union , Denton stated after the election he knew
how Lassiter stood on the union question ; Denton told employee Harvey Granger that Lassiter
was a ringleader in the Union ; Brewster stated to Lassiter that probably he and his sons
would lose their jobs if the Union prevailed at the election ; and, Brewster stated to employee
J D Story that Lassiter was ringleader of the Union . Shortly before the election Lassiter
took the lead of a group of employees who agitated with Denton for a raise which was not
granted Lassiter then told him that the employees knew of no other recourse than to get the
Union in and try to get a decent living wage and that he believed Denton had the cheapest place
in Polk County The prediction that Lassiter would lose his job came true on May 23, and
thereafter although he was elected an employee member of the union negotiating committee he
was refused admission by Respondents to bargaining meetings
Denying the General Counsel ' s contention that Lassiter was discharged because of his
membership in and activities on behalf of the Union, Respondents say he was dismissed be-
cause of drunkenness and absenteeism due thereto
I find on the credited and virtually uncontradicted testimony of Lassiter that for a number
of years and ever since he had entered Respondents ' employ , he and practically all the rest of
the employees , as well as their foreman , had been in the habit of bringing in beer in dozen can
lots and reciprocally treating one another and drinking during working hours Sometime in
May, upon inquiry, Denton told Keefer he had had a beer or two. When Keefer stated such con-
duct was contrary to company rules, Lassiter replied he knew of no such rule and pointed out
the time-honored prevalence of the practice. Not long thereafter, but before May 19 , Denton
told Lassiter he had learned he had been drinking beer while on the job and that such conduct
was strictly against the rules When Lassiter told Denton that practically every employee had
been drinking beer , Denton said he was not aware of the fact Lassiter expressed contrition and
since the time of this interview remained abstemious while on the job. 6 To go back a bit, on
the evening of January 24, 1952, Lassiter had fallen sick. When he went to work the following
morning Keefer said that he should be taken to a hospital and authorized the sending of the
hospital bill to the Company . He was hospitalized from January 25 to January 28 , 1952, for
an undisclosed condition and was absent from work for a week after his release. He was seen
professionally only once by Dr . Clenton Whitehurst from June 18, 1951, through July 1. 1952,
that date being March 26 , 1952 . The record is bare of evidence showing the nature of the con-
dition for which the patient was treated by this physician . ' He was absent on the Friday,
61 credit Lassiter ' s denial of Denton's testimony that he told Lassiter at this time that if
he should be absent without notice or good cause he would no longer be employed by the Com-
pany.
7The hospital record was not offered in evidence. Neither was Dr. Whitehurst called as a
witness
MARDEN MANUFACTURING COMPANY 1349
Saturday, Monday, and Tuesday after March 26. Thereafter Lassiter missed no time with the
exception of one Saturday and a part of another Saturday until he was absent from work on
account of illness, from May 19 through May 22 Upon the day of his return, May 23, he was
summarily discharged 10 minutes before quitting time apparently without being afforded any
opportunity to give an explanation for his absence
At one time during his working career, Lassiter had gone directly to Denton, telling him
he had been drinking and asked for and received permission to get off from work It is ap-
parent that Respondents suspect and want to believe that Lassiter's absences were due to his
drinking excesses, arguing in their brief, as they do, "that the record is replete with testi-
mony concerning this individual's drunkenness on the job and his absenteeism due to drunken-
ness " Although the evidence indicates that beginning as early as January 1951 Lassiter was
frequently absent from work, 8 there is nothing by way of records which tends to prove that he
was either more or less regular in his attendance than some, all, or the average of all other
employees Nought appears which would justify a finding that his absences in the early part of
1952, during and after hospital and medical treatment, were due to drinking or that the treat-
ments themselves were for any condition caused bydrinking In fact Lassiter's testimony that
he was treated for nothing related thereto stands unrefuted. Keefer's ready testimony that he
was certain Lassiter had been on a spree before he came in on May 23 is scarcely that type
of reliable and substantial evidence which is prerequisite to the making of a finding on the
entire record taken as a whole. Lassiter does not present the appearance of a person given to
overindulgence in alcoholic beverages His selection for, and his retention of, the job as an
armed guard of convicts since Respondents discharged him goes far toward negating the
notion that he is addicted to drunkenness Keefer's admission that Lassiter did good work
while on the job and his letter of recommendation that he had given satisfactory performance
in his duty while in Respondents' employ over a period of 32 years are incompatible with
Respondents' claim that he was discharged for cause. Lassiter's unexplained absences in
1951, before there were any union activities, went unheeded. Nor did Respondents voice dis-
approval of their presently claimed results of Lassiter's drinking before the spring of 1952,
although if the testimony of John A. McKnight, a witness called by Respondents, is to be be-
lieved, Lassiter would get full once each week from the time he was employed and have to be
taken home.
It was not until Respondents had clearly demonstrated in the many ways previously outlined
in these pages, their hostility to the Union, their desire to prevent the unionization of their
plant, and their resentment of Lassiter's ringleadership and his contribution to the success
of the Union at the polls, that they inflicted upon him the severe penalty of discharge. To me
the conclusion is inescapable that the reasons given by Respondents for their treatment of
H D Lassiter are pretextuous, that the real reason for his discharge was discriminatory
and conduct constituting discouragement to membership in the Union.
4. The refusal to bargain
The complaint alleges, the Board has found, Respondents offered no evidence to the con-
trary, and I conclude and find, that a unit of Respondents' employees appropriate for the
purpose of collective bargaining consists of the following.
All production and maintenance employees including truckdrivers at its Auburndale,
Florida, plant, but excluding office employees, professional employees, guards and watchmen,
and supervisors as defined in the Act.
On May 27, 1952, the Union represented by its representatives, E. V. Riffe and W B.
Gravatt, met with the Respondents represented by their attorney, A. R Surles, and their
manager, Edward B Keefer, in Surles' office. The Uniott presented a proposed contract for
consideration Surles read over the proposal but it was not discussed in detail. The same
parties met again in Surles' office on June 4 Surles agreed to incorporating provisions re-
specting recognition, the composition of the unit in conformity with the Board's order direct-
ing an election, the placing of a bulletin board for the posting of union notices, the responsibility
of the employer for the safety and bealthof its employees, the hours of work, and overtime for
hourly paid workers. Surles would not consider the incorporation of a union-shop provision
which he stated violated the State law Riffe stated the Union would waive the clause but would
8 In their exhibit relative to Lassiter's absences in 1951, Respondents included such days
as July 4, Labor Day, Thanksgiving, and Christmas. Whether the week in August during which
Lassiter was absent was granted as a vacation is not shown
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
like to know what type of security Surles would be willing to grant. The latter said he would
take the matter up with Denton. Surles refused to accept the Union's checkoff proposal, and
its request for a wage increase and paid vacations and holidays. He expressed willingness to
incorporate a clause concerning grievance procedures only on condition that no international
representative should participate in grievance presentations Surles refused the Union's
liability exemption request and demanded the addition to the proposal of a no-strike clause.
There was a discussion concerning the Union' s proposal of a probationary period of 30 days
within which the employer could discharge newly hired workers without consultation with
the Union Surles said that the Company desired that the proposal provide for 90 days. There
ensued some discussion to the effect that it would take at least 90 days for employees to
become proficient after being assigned to semiskilled jobs. Gravatt, assuming that Surles'
reference to the length of time needed to acquire proficiency referred to a training program
which is a part of the Union's program, indicated to Surles that the Union would be willing to
accept 90 days There was no conclusion at the June 4 meeting with regard to the question of
the probationary period but Gravatt s incorrect assumption led to a dispute at next meeting
which was held on June 25 with Surles, Keefer, Riffe, Gravatt, and W V. Van Over, another
staff representative of the Union.
On either May 27orJune4, H D Lassiter--whose discharge on May 23 has been considered
in section III, B, 3, a duly elected employee member of the negotiating committee , accom-
panied Riffe to the building in which Surles' office is located and Riffe asked Surles' per-
mission for Lassiter to attend the meeting Surles declined to allow Lassiter' s participation
on the ground that he had been discharged and was no longer an employee of the Company
Since Lassiter was thus excluded Riffe attempted to set up a tape recorder in Surles ' office.
Surles ordered Riffe to take the machine out of the office saying that unless he did so he would
not meet with the Union At the June 25 meeting Riffe asked Surles if he had any counter-
proposals to make with respect to matters unconcluded at the previous session The latter
replied that he had no counterproposals to make and that he had not changed his mind on those
things he had definitely decided upon Riffe then started reading the proposed probationary
period clause . Surles interrupted that this subject had been agreed upon . Riffe denied this
assertion . Then ensued a heated discussion enlivened by the mutual use of the word "liar," an
invitation to get out the door, a defy to be thrown out, and a suggestion of calling the police.
Following this clash, both calmed down sufficiently for Riffe to read , and Surles to listen to,
the Union' s proposals , section by section. Riffe asked Surles his position as to each Surles'
response to each inquiry was that his position was the same as before . Nothing having been
achieved, the union representatives left the office.
Throughout the discussions Respondents declined to consider any pay increase on the
ground of the "world situation . with everything so uncertain ." Surles stated that Denton
was able to give an increase but that he was not willing to do so, and that he would not let a
certified public accountant check the company books. Before these meetings started and as
late as July 9, 1952, Denton repeated his previous statements that he would not sign a con-
tract. Between July 1 and July 9 when Gravatt expressed a desire to meet with Denton, who
had not attended any meetings , Denton replied that he would not enter into any further nego-
tiations , giving as his reason that picketing was being engaged in by employees, union
organizers, and strangers and Riffe was pointing him out as a man of property who was trying
to make men work for 75 cents an hour.
Until, as later will appear , Surles told Riffeon the late evening of June 30 that he could take
or leave what Respondents were willing to offer, Respondents displayed , it is true , a willing-
ness to talk with the Union But collective bargaining does not consist of mere surface nego-
tiations While the Act does not require an employer to make concessions to a union ' s demands,
his failure to yield ground in any respect as is the case here , with regard to such basic
matters, as a wage increase, a grievance procedure participated in by national representa-
tives, and paid holidays and vacations , is a material factor in determining whether or not he
bargains in good faith, and is earnestly endeavoring with an open mind to reach a workable
agreement This recalcitrance must be considered in the light of contemporapeous conduct.
As found heretofore , Denton made known to his employees his intention not to sign a contract--
a complete negation of the basic principle of collective bargaining ; 9 Respondents refused to
deal with or allow the attendance of a duly elected bargaining representative of its employees
at its negotiating meetings - - itself a refusal to bargain collectively with the Union, 10 Denton
9 Atlanta Broadcasting Company, 90 NLRB 808; enfd 193 F. 2d 641 (C. A. 5).
10 Deena Artware, 86 NLRB 732, enfd. 198 F 2d 645 (C A 6)
MARDEN MANUFACTURING COMPANY 1351
and his supervisors engaged in interference , coercion , and restraint , and, three employees
were discharged to discourage union membership
These facts lead inescapably to the conclusion, and I find, that by the conduct described
immediately above, and by their refusal to make any concessions to union proposals as to
wages or financial benefits, despite the fact of their financial ability to do so, Respondents
have since May 13, 1952, the date of the Board's certification of the Union, refused to bargain
collectively in good faith with the Union, and that by such refusal they interfered with, re-
strained , and coerced employees in the exercise of rights guaranteed by the Act.
C. The strike and conduct violative of the Act after
its commencement
1 The calling, nature, and extent of the strike
On the late afternoon or early evening of June 30 , Riffe reported in detail to the employees
called to a meeting the lack of progress made in the negotiations , the unwillingness of Re-
spondents to reinstate David, Walter, and H D. Lassiter, and Calvin L Singleton, and ex-
pressed the opinions that Respondents were unwilling to bargain in good faith and that further
attempts to negotiate a contract would be futile Thereupon the employees present voted
unanimously to strike the following morning. Riffe telephoned Surles the employees' decision
Surles replied that Riffe had heard Respondents' proposal, could take it or leave it, and if the
employees should strike, they would come back
The strike which started the next morning, July 1, was caused by the unfair labor practices
of Respondents set forth in the preceding sections A picket line was set up. During the week
a number of employees indicated their desire to return to work and they and five new em-
ployees who were hired on July 7 started to work on that day when the plant resumed opera-
tions. A sixth new employee was hired on July 8 and two more were hired on July 13 and 15.
2 The discharge of the strikers
On July 2, before any replacements were hired and while the plant was shut down due to
the strike which started the preceding day, Respondents issued separation notices to and
discharged Grady Carroll, Melvin Purvis, R. B. Granger, J. D. Story, A. C. Letchworth,
N. H. Wells, and T. C. Singleton, for, to use their own words, "failure to report for work."
On or before July 8, Respondents also discharged W. W. Singleton and on or before July 9,
discharged J. R. Smith for the same given reason As will be pointed out later 8 of these 9
employees were denied reinstatement . Although separation notices were also prepared for
employees George Belcher and Irvin Hopson , they in fact returned to work when the plant
reopened on July 7, with other employees who had not been discharged Respondents' Exhibit
17 discloses that no other than the above-named 9 were permanently discharged at this
time There is a striking proximity between the total number of employees laid off after the
election and permanently discharged during the strike (13) and the number of votes cast in
favor of the Union at the election (14). When we take from the number of pro-union votes
the name of Willie Ray Nelson, who refused to attend the bargaining meetings before the
strike although elected to the negotiating committee but did attend a back-to-work meeting
after the strike , there is a numerical exactitude . It appears from the testimony that workers
who were not discharged were either not members of the Union, or had not attended any
meetings thereof , or had not gone to the strike-meeting , or had attended , or had assisted
Denton in calling, the back-to-work meeting ii at his home on July 5, or had stated that they
would not strike iz
There is no question in my mind, and I find, that the nine employees in question were dis-
charged because they had become members of or had assisted the Union or participated in
ti The holding of which incidentally had the necessary effect of undermining the Union's
authority and accordingly constituted a violation of Section 8 (a) (1) of the Act.
12 There are nine employees in addition to Nelson shown to have been in this general
category; to wit: C W Stokes, Earl Mock, W. S Porter, Olin Lashley, Charles Combee,
Roy L Brown, John A. McKnight, D. F Thigpen, and Bert Whitehead.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike. Conduct of this character has been uniformly held by the courts and the Board
to be unlawful. i3
3. The refusal to reinstate the strikers
After a number of employees returned to work on Monday, July 7, following the meeting at
Denton ' s home on Saturday , July 5 , and the hiring of new employees on July 7 and 8, the
strikers at a meeting on July 8 decided to discontinue the strike and appointed a committee
to so notify Denton and make an unconditional offer of return to work . This committee,
consisting of W. W. Singleton , the union president , T. C. Singleton , and John B. Smith,
saw Denton at about 7 a. in., July 9 , notified him that the strike had been called off, and
that all the employees were ready to return to work unconditionally 14
Denton told W. W. Singleton that despite the fact of his being his most profitable employee,
before he would be outdone by himhewould spend money to train some one else, that he would
not consider reinstating him or his brother , T. C., until they got their uncle (another par-
ticipant in the strike) out of his house . He told Smith that he had "burnt up" by seeing him
talking to a union man the preceding day He pointed out to the committee that he had said
he was not going to sign any contract , that apparently he was not believed but that his state-
ment still stood, stated that he would not even talk to some of the other men, let alone ever
put them back to work, and that he would not employ anyone at that time for the reason that
he had hired other men to take their places . The committee then left Denton's office and
reported what he had said to the other employees who had stayed out on strike . Thereafter,
a second committee consisting of Purvis , Story, Granger , and Wells , saw Keefer and asked
him for their jobs Keefer replied that new employees had been hired to take their places,
that they were too late, and that if the four knew Denton as long as he had, they should realize
that he would not sign a contract . When the committee sought permission to see Denton,
Keefer informed them that Denton would not talk to anyone of them.
Since the strike which occurred on July 1, 1952, was , as I have found , caused by Respond-
ents' unfair labor practices , it was the duty of Respondents to reinstate all employees who
went on strike that day whenever they unconditionally made application for reinstatement.
I find that on July 9, 1952, Grady Carroll , Melvin Purvis, R B. Granger , W. W. Singleton,
J. D. Story, A. C. Letchworth , N. H. Wells , T. C. Singleton , and J. R Smith made uncondi-
tional applications for reinstatement and that all with the exception of W. W . Singleton and
N. H. Wells, whose special situations will be discussed hereafter , were continuously refused
reinstatement . In view of the fact that the strike was due to their unfair labor practices,
Respondents ' contention regarding the filling of vacancies is without merit . I find therefore
that these nine employees were discriminatorily refused reinstatement on July 9 , 1952, and
that thereby Respondents discouraged union membership and interfered with, restrained, and
coerced employees in the exercise of rights guaranteed by the Act . Furthermore even if this
were initially a case of an economic strike, a similar order should issue against Respondents
in view of their subsequent unlawful conduct either in discharging or in refusing to reinstate
these employees , either beforeor after they had been replaced , 15 because they had participated
in the strike. Under these circumstances I find that Respondents have , under either theory,
violated Section 8 (a) (1) and ( 3) of the Act.
D. Respondents ' special defenses
Respondents contend that " any acts taken by the labor union or its representatives were
illegal" because the union representatives had not been granted a license or a permit to act
as a business agent as required by a State of Florida statute and that the Union had made no
i3N L R.B. v. Mackay Radio and Telegraph Co , Inc ., 304 U . S. 333, 346-7 ; Moanalua Dairy,
Limited, 65 NLRB 714- 717; Carter Carbureton Corp v. N. L. R. B , 140 F 2d 714, 718
( C A 8); N. L R B . v. Barrett Co., 135 F. 2d 959 (C A 7).
i4Denton 's claim that he considered these three men were representing themselves only
and not the other strikers , is reminiscently similar in character to his other assertion that
when he stated he would not sign a contract he simply had in mind the Brewery Workers'
proposal and, in my opinion, no less specious
15 It is certain that at least seven of them were dicharged before any new hirings and
probable that the remaining two were discharged before any replacements were made.
MARDEN MANUFACTURING COMPANY 1353
annual report as required by another Florida statute. Respondents do not point out any pro-
visions of the statutes prohibiting them from dealing with an unlicensed union representative
or an unreporting union Moreover, assuming that the State statutes in question support
Respondents' position, it is established beyond question that any such State law must yield
before the paramount authority of Congress expressed in a valid and Federal applicable
law. 16 I therefore conclude that these contentions are without merit.
Respondents raise the further points and claims that no charter was issued by the Union
to a local union, that no local union existed, that no employees were members in good stand-
ing of the Union because none had paid dues (no question had been raised concerning the
payment of initiation fees), and that the strike was "illegal" because by the constitution and
bylaws of the Union 30 days' notice of a strike was required to be given and that no notice
whatsoever was given.
I fail to see the application or materiality of the first three of these points -to the issues
involved and find neither they nor the last point raised possess merit. Assuming the facts
are as Respondents claim, the Union involved in this case is the charging Union, United
Steelworkers of America, CIO, which was duly certified by the Board as the exclusive
bargaining representative of Respondents' employees in an appropriate unit after they had
chosen it as such representative. It matters not whether there was a local union. Whether
employees who joined the Union and voted for it and supported it had paid dues or were mem-
bers in good standing is the Union's concern, not Respondents. Finally the failure, if any,
of the Union in calling the strike to comply with the provisions of its constitution did not
make the strike an illegal one. The Act guarantees to employees the right to strike. Any
provisions of a union charter cannot abridge that right. 17
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in connection with
the operations of Respondents, described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce in the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found the Respondents have engaged in unfair labor practices, I will recommend
that they cease and desist therefrom and take certain affirmative action that will effectuate
the purposes of the Act Having found that Respondents have discriminated in regard to the
hire and tenure of employment of Walter L. Lassiter, Calvin Singleton, H. D. Lassiter, Grady
Carroll, Melvin Purvis, R. B. Granger, W. W. Singleton, J. D. Story, A. C. Letchworth,
N. H. Wells, T. C. Singleton, and J. R. Smith, I will recommend that Respondents offer them
all with the exception of N. H. Wells full and immediate reinstatement18 to their former
i6Amalgamated Association of Street Electric Railway and Motor Coach Employees, etc
v, Wisconsin Employment Relations Board, 340 U. S. 383 See also Henderson v, Florida,
ex rel Lee, 65 So. 2rd 22; Hill v. Florida, 325 U. S. 538.
17 N. L. R. B v. Star Publishing Co , 97 F 2d 465, 470 (C. A. 9); International Union,
Automobile Workers v. O'Brien, 339 U. S. 454.
18 Wells, whom as we have seen was one of the committee of four who unsuccessfully
sought reinstatement from Keefer on July 9 after the committee of three unsuccessfully
applied to Denton for reinstatement of the strikers, was reinstated on October 18, 1952, after
the third amended charge had been filed, on his personal application made on October 13.
W W. Singleton was upon his personal application reinstated on November 6. This also
occurred after the third amended charge had been filed. The following day, Denton asked in
the form of a suggestion that Singleton withdraw a wage-hour claim Singleton had filed some
time earlier When Singleton asked for time to think it over Denton stated he would have a
paper for Singleton to sign at lunch time. Singleton then talked to Keefer, telling him that he
did not feel like withdrawing the claim and thereupon left his employment The requirements
of a reinstatement, no less than of an application for reinstatement, are correlative. Both
must be unconditional. Singleton was not given full reinstatement. Since he left his employ-
ment because of the condition that had been imposed upon his continuing at work, I believe
and will recommend that W W. Singleton, too, should be offered full and immediate rein-
statement
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or substantially equivalent positions , without prejudice to their seniority and other rights
and privileges , discharging , if necessary , any and all employees hired since July 2, 1952. 19
I will also recommend that Respondents make whole Walter L. Lassiter and Calvin L.
Singleton from May 9 , 1952, the date of the discrimination against them to the date of offer
of reinstatement , H. D. Lassiter from May 23 , 1952, the date of the discrimination against
him to the date of offer of reinstatement , and Grady Carroll , Melvin Purvis , R. B. Granger,
W. W. Singleton, J. D. Story. A. C. Letchworth, T. C. Singleton, and J. R. Smith, from July 9,
1952 , the date the strike ended and of their unconditional offer to return to work to the date
of offer of reinstatement and N. H. Wells , from July 9, 1952, to October 18, 1952, the date
of his reinstatement , for any loss of pay they may have suffered as a result of the dis-
crimination against them , by payment to each of them of a sum of money equal to the amount
he would normally have earned as wages, less his net earnings , during the applicable stated
periods , the back pay to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company (90 NLRB 289). I will also recommend that Respondents
be ordered to preserve and, upon request , make available to the Board and its agents all
pertinent records necessary to determine the amount of back pay due
I have also found that from May 13, 1952, Respondents have unlawfully refused to bargain
with the Union as the exclusive representative of the employees in an appropriate unit. I
will therefore recommend that Respondents , upon request , bargain collectively with the Union
as such representative and, in the event an understanding is reached , embody such under-
standing in a signed agreement
In view of the nature and extent of the unfair labor practices committed , thecouimission by Re-
spondents of similar and other unfair labor practices may be anticipated The remedy should be
coextensive with the threat [therefore will recommend that Respondents cease and desist front
infringing in any manner upon the rights of employees guaranteed in Section 7 of the Act. For
the reasons stated above I will recommend that the complaint be dismissed insofar as it alleges
that Respondents unlawfully discharged David Lassiter and refused to reinstate him Upon the
basis of the foregoing findings of fact, and upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
I United Steelworkers of America , CIO, is a labor organization within the meaning of
Section 2 t5) of the Act.
2 All production and maintenance employees , including truckdrivers at Respondents'
Auburndale, Florida, plant, but excluding office employees, professional employees, guards
or watchmen, and supervisors as defined in the Act , constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3 The above-named Union on May 5, 1952, and at all truces since then has been the
exclusive representative of all the employees intheaforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (a) of the Act
4 By refusing on May 13, 1952, and at all times thereafter to bargain collectively with
the aforesaid Union as the exclusive representative of their employees in the aforesaid
appropriate unit, Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act
5 By discriminating in regard tothehureandtenure of employment of their employees, and
thereby discouraging metubership in the above-named labor organrration, Respondents Iuave en-
gaged in and a reengaging in unfa i r labor practices within the meaning of Section 8 (a) (3) of the Act.
6 By interfering with, restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
8 Respondents have not discriminated in regard to the hire and tenure of ernployrnent of
David Lassiter within the nieannng of Section 8 (a) (3) of the Act
[Recommendations omitted from publication ]
19 it appears that the only two persons hired between the time Walter L. Lassiter and
Calvin L. Singleton were laid off and H. D Lassiter was discharged, and July 2, when at
least seven of the strikers were discharged , were a truckdriver and a night watchman called
in, because of Respondents ' apprehension that a strike was to take place , to protect the plant.
None of the found discriminatees were in this work classification.