Cold Spring Granite Co.

National Labor Relations Board - Board Decisions

Dec 8, 1952

101 N.L.R.B. 786 (N.L.R.B. 1952)

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any of these groups in which a majority has voted for such repre-
sentative, which unit the Board, under the circumstances, finds to be
appropriate for the purposes of collective bargaining.
[Text of Direction of Elections omitted from publication in this
volume.]
COLD SPRING GRANITE COMPANY and MEARLE L. SMART and UNITED
STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO. Case No.
18-CA-297. December 8, 1952
Decision and Order
On April 9, 1952, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices and recommended that these allegations in the complaint be
dismissed. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report, and the Respondent filed a
supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case ,2 and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, with the additions noted below :
1. We agree with the Trial Examiner that the Respondent, in
violation of Section 8 (a) (1) of the Act, interfered with, restrained,
and coerced its employees in the exercise of their self-organizational
rights guaranteed by the Act. As discussed in the Intermediate
Report, the unlawful conduct consisted of interrogation of its em-
ployees, surveillance,' threats of reprisal, and promises of benefit,
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and Mem-
bers Murdock and Peterson].
A As requested by the Respondent , we have taken official notice of the fact that on May 19,
1952, during the course of a hearing in L. G. Everist, Irte., Case No. 18-CA-345, Mearle L.
Smart testified that he had been an International Representative of the Intervenor herein
"since sometime in January 1951".
a The record shows that Eickhoff, the quarry superintendent , asked foreman Comero
whether he knew how the employees felt about the Union and when Comero replied in the
negative , Eickhoff requested that he endeavor to get this information . Comero did engage
in such interrogation , but denied that any report was made to Eickhoff . We find, contrary
101 NLRB No. 154.
COLD SPRING GRANITE COMPANY 787
concerning the union activities of its employees. We also agree that
the Respondent's strategic timing of the wage raise, so as to demon-
strate to the employees that there was no need for a union in order to
acquire benefits, was in violation of the Act.'
2. Notwithstanding a reasonable suspicion of discrimination with
respect to the Respondent's layoff of certain employees, we agree with
the Trial Examiner that the record lacks a preponderance of proof
that the Respondent was actuated by discriminatory rather than by
lawful motives in effecting their layoff. Like the Trial Examiner,
however, we agree with the finding that Mearle L. Smart, a known
union advocate, was discriminatorily laid off in violation of the Act.
In so finding, we note that Eickhoff had previously threatened to lay
off Smart if he persisted in organizing the employees. This evidence,
viewed in light of the record as a whole and the absence of any
explanation as to why Smart, an experienced hoist man, was selected
for layoff over the other two hoist men of the other quarries involved
in the area-wide reduction of force, convinces us that Smart was being
penalized for his organizational activities.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cold Spring
Granite Company, Cold Spring, Minnesota, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Stone and Allied Prod-
ucts Workers of America, CIO, or in any other labor organization
of its employees by discriminating in regard to their hire or tenure
of employment, or any term or condition of employment because of
their membership in, or activity on behalf of, any such labor organi-
zation.
(b) Interrogating its employees regarding the employees' union
sympathies or interests, threatening economic reprisals against its
employees because of their union membership, affiliation, and activity,
or promising economic benefits to discourage union membership or
activity.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Stone and Allied Prod-
to the Respondent's contention, that these instructions to engage in surveillance were
violative of the Act, whether or not Comero reported back to Eickhoff. See H N Thayer
Company, et al, 99 NLRB 1122.
1 Homedale Tractor d Equipment Co , 101 NLRB 167, Paramount Textile Machinery
Co., 97 NLRB 691.
242305-52- 51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nets Workers of America, CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, 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 organiza-
tion as a condition of employment, 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 to Mearle L. Smart immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges.
(b) Make whole Mearle L. Smart in the manner set forth in the
section of the Intermediate Report entitled "The Remedy" for any
loss of pay he may have suffered by reason of the Respondent's dis-
crimination against him.
(c) Upon request make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due.
(d) Post in its quarries at Milbank, South Dakota, and Ortonville
and Odessa, Minnesota, copies of the notice attached to the Intermedi-
ate Report and marked "Appendix A." 5 Copies of said notice, to be
furnished by the Regional Director for the Eighteenth Region, shall,
after being duly signed by the Respondent, be posted by the Respond-
ent immediately upon receipt thereof and be maintained by it for
sixty (60) consecutive days thereafter in conspicuous places including
all places where notices are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighteenth Region, Min-
neapolis, Minnesota, in writing within ten (10) days from the date
of this Order what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges (a) that the activities of Curtis L. Roy and
John H. Dorsey, Jr., constituted violations of Section 8 (a) (1) of the
Act; and (b) that the Respondent discriminated with respect to the
hire and tenure of employment of William Anderson, John V. Blum,
s This notice, however, shall be, and it hereby Is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order." In 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."
COLD SPRING GRANITE COMPANY 789
Derald Bogenreif, Stephen Bogenreif, Arthur Derrick, Anton Erne,
Ernest Irwin, Derald Magnuson, Ernest F. Nitz, Casper Rader-
macher, Robert Schulte, Frank Smith, and Carl C. Wellnitz.
Intermediate Report
STATEMENT of THE CASE
Upon charges duly filed by Mearle L Sniart, an individual, the General
Counsel for the National Labor Relations Board; by the Regional Director
for the Eighteenth Region (Minneapolis, Minnesota), issued a complaint dated
May 17, 1951. In this complaint it was alleged that the Respondent had
engaged in and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, the
complaint, and notice of hearing were duly served upon the parties. In its
answer , duly filed, the Respondent admitted certain facts with respect to its
business operations but denied the commission of the alleged unfair labor
practices.
Pursuant to notice, a hearing was held from July 9 to August 4, 1951, at
Milbank, South Dakota, before the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. All parties were represented by counsel
and were afforded opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues.
On August 4 the parties completed their presentation of available evidence.
The record was held open, however, upon the representation of the General
Counsel that the testimony of a material witness would have to be secured by
deposition. This deposition was taken on September 12. Thereafter the Re-
spondent filed an application to take rebuttal depositions from two of its wit-
nesses. This application was granted and the depositions taken pursuant
thereto on October 24. By order dated November 23, 1951, the undersigned
closed the hearing.
At the close of the hearing, the Respondent renewed various motions to dismiss
the complaint, previously made at the conclusion of the General Counsel's
case-in-chief. Ruling thereon was taken under advisement. They are dis-
posed of as will appear hereinafter in the body of this report.
Opportunity was afforded all parties to argue orally on August 4. Only the
Respondent chose to do so. All parties were likewise advised that they might
file briefs with the Trial Examiner. Subsequent to the close of the hearing,
on December 19, 1951, an extensive brief was received from counsel for the
Respondent which has been carefully considered by the undersigned. The
General Counsel submitted no brief.
FINDINGS OF FAOr
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Cold Spring Granite Company, is a corporation organized
under the laws of the State of Minnesota, having its principal office and finish-
ing plant at Cold Spring, Minnesota, and operating and maintaining quarries
and fabricating plants in various States of the United States. In the course and
conduct of its business the Respondent's annual purchases exceed $1,000,000,
' The General Counsel and the attorney representing him at the hearing are referred to
as the General Counsel; the National Labor Relations Board as the Board.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
75 percent of which comes from outside the States in which the quarries
are located. Its annual sales exceed $1,000,000 and approximately 75 percent
of these are made to customers in States other than those in which the quarries
are located. Only three of the Respondent's quarries are involved in the
present proceeding : the Agate at Ortonville, Minnesota, the Carnelian at Mil-
bank, South Dakota, and the Ruby Red at Odessa, Minnesota'
Upon the foregoing facts the Respondent concedes, and I find, that the Cold
Spring Granite Company is engaged in commerce within the meaning of the Act.
N. L. R. B. v. Peerless Quarries, Inc., et al., 193 F. 2d 419, 420-421 (C. A. 10).
II. THE LABOR ORGANIZATION INVOLVED
The Intervenor,' United Stone and Allied Products Workers of America, CIO,
hereinafter called Stone Workers, is a labor organization admitting to member-
ship employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
1. The facts
In October 1950, Lewis R. Lowry, a representative of the Stone Workers, spent
several days in the granite quarrying areas about Milbank, South Dakota, and
Ortonville, Minnesota. On November 14, following his return to a headquarters
maintained in Ohio, he wrote Mearle L. Smart and Herbert A. Karels, employees
of the Company at its Carnelian quarry, to tell them that an organizer named
Ralph Broadwell had been assigned to the area and soon would be in touch with
them. Smart testified that upon receiving this letter he showed it to Arvid
Larson, the quarry foreman, on either November 16 or the morning of November
17, and told him that the Stone Workers had asked Smart's help in organizing
the quarries in the vicinity. According to Smart, during the conversation he
asked Larson whether this would precipitate any hard feelings, and Larson
replied in the negative.`
' In addition to the above three, the Respondent 's other quarries include the following
in Minnesota : The Rainbow at Morton ; Opalescent at Cold Spring ; Diamond Pink and
Crystal Gray at St. Cloud ; Rockville , near the town by the same name ; Diamond Gray
at Isle ; Mora Grey #1 and #2 at Warman ; and at Mellen, Wisconsin , the Mellen Black
Quarry.
At the outset of the Respondent 's case its counsel moved that in lieu of a view of the
quarries in question the Examiner should observe a motion picture filmed on Respondent's
premises which depicted its quarry and granite finishing operations . Because the Examiner
felt that the motion picture might serve as useful background to an understanding of the
operations of the Respondent and the work of the employees involved in the case he granted
this motion . The film was then shown in the hearing room with all parties , their counsel,
and the reporter present. It lasted for approximately 40 minutes . The film itself was
not received in evidence but colored slides depicting scenes similar to those in the film
were offered by the Respondent and received. See, e. g., Kennedy "Motion Pictures in
Evidence" 27 Illinois Law Review 424; Ko) tz v. Guardian Life Ins. Co., 144 F. 2d 676, 679
(C. A. 10) cert. denied, 323 U. S. 728; Richardson v. Missouri-K-T. R. Co., 205 S . W. (2d)
819, 824-825 (Texas ) ; Sun Oil Co. v. Hoke, 169 P. 2d 753 , 756 (Okla .) ; and Wigmore,
Evidence, § 1168-1169 (3d ed.).
8 At the outset of the hearing, counsel for the Stone Workers moved to intervene on the
ground that it had an interest in these proceedings , having filed a petition in Case No.
18-RC-1158, in which it had claimed to represent a majority of the employees at the
three quarries here involved and had requested an election to resolve the issue. The
undersigned granted the motion.
4 Larson testified that he could not recall whether Smart had any such conversation
with him.
COLD SPRING GRANITE COMPANY ."791
At about noon on November 17, John Eickhoff, a member of the Respondent's
supervisory staff,' arrived at the Carnelian . According to Eickhoff , upon arriving
he had a brief conversation with Larson in which Smart's name was mentioned.
Eickhoff then proceeded to the hoist building where the quarry employees were
gathering to eat their lunch. Shortly after he entered, the employees introduced
the subject of an increase in wages. Derald Bogenreif, a drifter operator, asked
why the Respondent had not granted a raise despite the fact that other granite
companies had done so. According to Bogenreif, Eickhoff told the employees
that a raise was not possible at that time. When Anthony Erne, another em-
ployee, stated that the Hunter Granite Company, a nearby competitor, had given
its employees a raise, Eickhoff replied that the Cold Spring employees were still
getting more take-home pay. After some further discussion, Smart commented,
"Well, it looks like if we can't get a raise this way, we had better get a union
in here and get something started so we can get a raise." This seems to have
terminated the colloquy and Eickhoff left the building.
It is undisputed that following the incident in the hoist house Eickhoff spent
several hours meeting with each of the quarry employees individually. There
is a sharp conflict in the record, however, as to the subject matter of these con-
versations. The testimony of the General Counsel's witnesses will be considered
initially and before turning to that adduced by the Respondent.
According to Anthony Erne, a drifter operator at the Carnelian :
[Eickhoff] called me aside and says "You fellows got something up your
sleeve?" And I says, "What do you mean, about the union?" And he says,
"Yes." He says, "We didn't know you fellows wasn't satisfied out here
with your pay." And as I remember it I said to him, "Well, we weren't ; we
haven't had a raise in two years." "Well," he says, "Why do you want to pay
an arbitrator to come in, a white collar guy to come in and do your arbitrating
for you?" I said, "Just who is our arbitrator out here?" He said, "Mr.
Larson." I says, "Who do we go to if he doesn't act ?" He says, "To
me..."
Erne then declared that he had long had a grievance inasmuch as for 2 years
he had been promised a new model drifter to replace the older type assigned
him. Eickhoff assured him that the new equipment would be out "on the next
truck." Karels, a yardman , testified that Eickhoff, when talking with him,
asked whether he had any complaints, noted that in the hoist room mention had
been made of a union , and asked what Karels thought of labor organizations.
Karels told him that the men felt they were entitled to a raise and on the sub-
ject of unionization told Eickhoff that he knew an attempt would be made to
organize the quarries since an organizer had already written some of the em-
ployees including himself. Karels went on to say that although he was still un-
decided as to whether a union offered any advantages, he felt that in the United
States one should be able to talk freely about the subject at any time. Eickhoff
agreed with this latter remark and then left, promising, as he did so, that be
would see what could be done about a raise . Valentine Erne, another employee,
testified that on the same day Eickhoff told him :
6 Eickhoff held a position above that of the quarry foremen and directly under the
president of the Company. According to the president, John Alexander, Eickhoff was
responsible, among other things, for hiring quarry personnel, for the transfer of employees
from one quarry to another, for arranging work schedules with the foremen, and for
layoffs. In addition , Eichoff himself testified that the quarry foremen made all recom-
mendations for merit raises through him. Alexander conceded that Eickhoff might be
called "a supervisor over the quarries ." To the employees Eickhoff was known as the
Respondent 's "quarry superintendent " In view of these facts I conclude and find that
he was a supervisory employee within the meaning of the Act.
6 A new drifter was delivered to Erne later that same week.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[He] didn't know that the men weren' t satisfied with what they were
getting and if it was just a matter of more money , he figured probably he
could get it, that we wouldn't have to go to all the bother of bringing a union
in to get it; we could keep it on a good family basis, . . . between the com-
pany and ourselves.
Erne testified that he told Eickhoff, apparently volunteering the information,
that a union meeting was in the offing and that he planned to attend.
In a subsequent conversation with Stephen Bogenreif, according to that em-
ployee, Eickhoff expressed surprise that the employees were dissatisfied , referred
to the Union as a "bunch of racketeers," stated that he would much rather talk
to the employees themselves than to a representative , and promised that the Re-
spondent would consider a raise for them. Derald Bogenreif testified that on
the same afternoon Eickhoff spoke to him in a similar vein. In a conversation
with Arthur Derrick, a quarryman, Eickhoff stated ( according to Derrick) that
he had been unaware of any dissatisfaction with the wage rate , that the em-
ployees had no need for the intervention of a third party, and that he felt sure
they would get a raise. According to John Blum, one of the laborers , Eickhoff
assured Blum that he would try to get him a raise. Another laborer, Casper
H. Radermacher, testified that Eickhoff questioned him as to whether he would
be satisfied with a 10-cent increase. Robert Schulte, one of the drifter operators,
was not at the Carnelian on November 17. Eickhoff contacted him on November
21 when making another visit to the quarry. On this occasion , according to
Schulte, Eickhoff stated that he had talked with all the other employees, asked
what Schulte thought about the Union and when the latter said that he was unde-
cided, told him that he (Eickhoff) expected to get the employees a raise and
that the Company would rather deal directly with the men than through a
union.
According to Smart, several hours after the initial incident in the hoist building
Eickhoff returned there. Smart's testimony as to the ensuing conversation was,
in substance, as follows : After a few preliminary remarks, Eickhoff stated, "I
understand that you are bringing the union into this quarry." This was denied
by Smart. Eickhoff then asked whether he belonged to the Operating Engineers
and when Smart responded in the affirmative Eickhoff asked, "Well . . . aren't
they trying to get into this organization here?" Smart replied that it was not
the Engineers but a CIO union that was attempting to organize the quarries.
Eickhoff then suggested that Smart must have "invited" the organizers. Smart
denied that he had extended any such invitation, although he conceded that he
had received a letter from the Union. Eickhoff disclosed that he knew about the
letter and went on to ask Smart whether he could find another job through the
Operating Engineers . This prompted Smart to inquire whether the superin-
tendent was seeking to get rid of him and Eickhoff answered "No, not exactly."
Smart then declared that he proposed to remain and help organize the employees.
At this point Eickhoff observed, "You can be laid off," and Smart countered with
the remark that if laid off he would spend a month of his time trying to organize
the quarries. Eickhoff then left the hoist room but in a few minutes returned
to reassure Smart that they should bear each other no ill will and to promise
that he would "See if I can't get you boys a raise." On November 21, Eickhoff
met Smart again and on this occasion told him that the employees were to
receive a 15-cent per hour raise retroactive to the preceding pay period.'
'Eickhoff testified that he could remember having told Smart of the coming raise on
November 21 but that he could not recall whether he had mentioned it to h1m on
November 17.
COLD SPRING GRANITE COMPANY 793
It is undisputed that on November 21, Eickhoff visited the Ruby Red quarry and
spoke to several of the employees there individually. It is likewise undisputed
that in his conversations at that time , Eickhoff discussed the subject of a wage
increase. There is a direct conflict, however, between his testimony and that
of the employees as to whether he sought to elicit any information from them
regarding a movement to organize the Respondent's quarries. Russell W.
Frickson, a quarryman at the Ruby Red, testified that when Eickhoff spoke to him
on November 21 the superintendent stated :
They are talking of a union coming in. . . . That's the general talk. . . .
We're going to have a general raise among the men.
According to Carl Wellnitz, a dumper operator, about a week before Eickhoff
made this visit to the quarry, Lester Comero, foreman at the Ruby Red, told
him that the Company would try to give the men more wages "to keep . . . the
union away."' His father, Paul Wellnitz, also an employee, testified that about
this same time, Comero asked him "what he thought of the union." When called
as a witness by the General Counsel, Comero testified that at one time in Novem-
ber Eickhoff asked him whether he knew how the employees felt about the Union
and when Comero replied in the negative Eickhoff requested that he endeavor
to get this information.9
Eickhoff also visited the Agate on November 21 and contacted a number of the
employees there.1° According to Aloize Shepersky, Eickhoff told him that :
There had been a lot of talk going around . . . [He] wanted to know if I
had heard about it. I told him I had . . . he told me that there was a gen-
eral raise coming up and wanted to know if I was satisfied with working
conditions and everything, and I told him I didn't have no complaint. He
said he didn't know if they could better working conditions any or not. And
he said they, the company, could build garages for the cars and put in plugs
so they could start better in the winter time... .
Frank Smith, a laborer, testified that on this day Eickhoff asked him what he
thought of the Union and when Smith replied that he was neutral Eickhoff sug-
gested that if he was not satisfied with his wages to "Ask for a nickel or a
dime . . Cold Spring is easy to get along with." According to Alva Bens-
hoof, another laborer, that same afternoon Eickhoff asked whether he had
heard anything about the Union and when Benshoof answered in the affirmative
Eickhoff asked what he thought of it. Benshoof gave a noncommittal response
° Frickson also testified that Comero made a similar remark to him and Wellnitz about
a week later. Comero testified that he had no recollection of having made any such
statements.
9 Comero denied, however, that he made any subsequent reports to Eickhoff on employee
organization.
"Eickhoff was at the Agate on both November 17 and 21 There was no conflict in the
evidence that on one of these occasions he spoke to several of the employees individually.
Eickhoff testified that this happened on November 17. The testimony of Nicholas Schlicht,
foreman at the Agate , however, would indicate that the date was a Tuesday , November 21,
for Schlicht recalled that on the occasion in question Eickhoff mentioned that a fire at
the Respondent 's Rainbow quarry had destroyed the resident foreman's home the preceding
day. It was undisputed that this fire occurred on November 20. Aloize Shepersky, a
quarryman at the Agate, credibly testified that "he [Eickhoff] talked to me the first part
of the week and I got the raise the last of the work ." The checks reflecting this raise were
received by the employees on Friday, November 24 Because of this evidence and the
general credibility findings as to Eickhoff's testimony in connection with this matter which
will appear below, I conclude and find that it was only on November 21, and after Eickhoff
had talked with employees at the Carnelian the preceding week, that he visited the Agate
and spent some time contacting the employees there individually.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and then queried Eickhoff about the prospects of a raise. Schlicht, who was
standing nearby, assured him that that could be arranged." John Pollock, a
drifter operator, testified that Eickhoff asked him "how I stood on the union,"
that he told Eickhoff he felt the Union was "0. K.," and that when he suggested,
"If you don't like the union ... smear a little on the check," Eickhoff told
him, for the first time, "Well, you got a raise coming anyway." Another drifter
operator, Ernest Irwin, testified 12 that the same day Eickhoff and Schlicht ap-
proached him while at work, that during the ensuing conversation Eickhoff de-
clared the Union would do more harm than good, and that after Irwin initiated
the subject of a pay raise Eickhoff stated that it "could be arranged." Irwin
further testified that during the course of this conversation Eickhoff told him
that Benshoof was not in favor of the Union.
On November 24 Eickhoff delivered the biweekly payroll checks to the Car-
nelian and Agate quarries " which reflected pay increases of from 10 to 15
cents per hour retroactive to November 6 for all of the employees. Two weeks
later the employees at the Ruby Red received raises of from 5 to 25 cents per hour
retroactive to November 20"
Early in December, Eickhoff returned to the Carnelian on another visit. On
this occasion, according to Valentine Erne, he asked Erne whether there was-
"any more union talk going on in the quarry."
I shall turn now to the testimony of the Respondent' s witnesses . Eickhoff,
while freely conceding that he had talked with many of the employees at the
three quarries during the period from November 17 to 21, denied that he had
interrogated any of them with respect to their union activities or interests.
As for any discussion of a wage increase, it was his testimony, and that of several
other witnesses for the Respondent, that the raise granted the employees during
this period had been under consideration for some time and had no relation to any
alleged rumors of union organization.
It is clear that in the fall of 1950 the Respondent planned a wage raise for
its quarry employees. In connection with an increase for the personnel at the
three quarries here involved it is likewise obvious that, during the first 2 weeks
of November, Eickhoff conducted a survey among the Respondent's competitors
in the Milbank-Ortonville area to determine to what extent, if any, they had
raised their wage scales 13 Eickhoff testified that during the course of this sur-
vey he learned that some of the other granite companies were providing their
employees with transportation to and from work, and that he brought this fact
to the attention of President Alexander. The latter testified that on November
14 he talked with Eickhoff and concluded that a 15-cent per hour increase should
be granted. Insofar as the matter of transportation was concerned, however,
according to Alexander, he suggested that Eickhoff interview the men to deter-
mine how they felt about it.
As for the incident in the hoist house on November 17, Eickhoff testified that
on this occasion he was checking what he thought to be faulty equipment there
when the employees came into the building to eat their lunch. He conceded
that the men broached the subject of a pay increase but he denied that he told
11 Benshoof credibly testified that 2 or 3 weeks later Schlicht told him that "if the union
was in . there would be shorter hours and less pay, according to what they paid in the
east. . . Schlicht denied making any such remark. His denial is not credited.
11 Irwin's testimony was taken by deposition subsequent to the hearing.
13 Normally, payroll checks were mailed to the quarries from the Respondent's home
office at Cold Spring, Minnesota.
One employee, Ernest Nitz , received no raise.
1s This finding is based upon the credited testimony of Severin F. Rausch, Joe H . Jurgens,
and Fred J . Grams, as well as that of Eickhoff.
COLD SPRING GRANITE COMPANY 795
them a raise was out of the question, or that the Respondent could not afford
a raise. He denied having heard Smart say that if the Company would not
grant a raise the men would have to enlist the support of a union. Eickhoff
testified that he left the hoist room within less than 30 minutes after entering
it and on accosting Larson immediately thereafter told him that because of the
interest the employes had displayed in getting a raise he would see each one in-
dividually. In testifying as to his conversations with the men later that day,
he declared that, except for one conversation with Smart, he did not mention
unions or ask any questions regarding their organizational interests or
sympathies. According to Eickhoff, in these conversations he told the employees
at the Carnelian that he was surprised by the outburst in the hoist room, asked
several whether they were satisfied with working conditions and told all of them a
raise would soon be granted.
As to the conversation with Smart which he had later that day, Eickhoff's
version was substantially as follows : After talking with the employees separately
he returned to the hoist house. There, Smart initiated their talk with a com-
plaint about certain difficulties he had experienced in operating the hoist. When
Eickhoff told him that he would have to be satisfied with the equipment, Smart
declared that he could get a better paying job anywhere. Eickhoff then sug-
gested that he do this and Smart told him that although the Company could dis-
charge him, if it did so, he would "go to work and organize every . . . place
in the territory." After this exchange Smart volunteered that throughout his
employment by the Respondent he had paid dues in the "Forty-niners.""' Eick-
hoff manifested surprise at this disclosure, asked why Smart had not so in-
formed him before and then dismissed the whole matter with the remark, "After
all, what business is it of mine?"
Larson's recollection of events at the Carnelian on November 17 was extremely
vague and incomplete. He testified that when Eickhoff first arrived that day they
had a brief conversation about "the quarry and stone" and that he told Eickhoff
there was something wrong with the pressure switch in the hoist house. Later,
according to Larson, as Eickhoff emerged from the hoist house he told Larson
that since the men had demanded a raise and had asked about company transpor-
tation he would speak to each one individually. Larson testified that later in
the day, Eickhoff expressed the belief as he was leaving the quarry, that "a raise
could be arranged." He further testified, however, that Eickhoff said "nothing
definite" as to whether the employees would, in fact, receive a raise.
Schlicht testified that when Eickhoff arrived at the Agate he asked, "Is the
fellows satisfied with the wages? If they got a raise would they be satisfied with
the conditions?" 11 According to Schlicht, he answered in the affirmative, and
in response to a further question as to whether the men would prefer that the
Company provide transportation to and from work Schlicht told Eickhoff that
he felt the men would rather get a larger raise than free transportation. Eick-
hoff testified that he could remember having talked with only Pollock, Benshoof,
Smith, and Shepersky out of the 9 to 10 employees working at the Agate that
day.18 As to all such conversations he stated that he simply informed the em-
ployees that they were about to receive a wage increase. He denied that he made
any reference to a union or that he sought to elicit any information from them
as to union activities on their part.
11 This allusion was not explained at the hearing . In their brief , counsel for the
Respondent describe it as a reference to an affiliate of the Operating Engineers located in
St Paul, Minnesota.
11 As found above, this occurred on November 21.
18 Schlicht testified that, except for two employees, Eickhoff talked with everyone at
-work that morning.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In connection with his visit to the Ruby Red later the same day, Eickhoff testi-
fied that all his contacts with individual employees were substantially the same
as those he had had with personnel at the Agate. Again, he denied having en-
deavored to learn anything about the union sympathies of the meii either at that
time or later.
2. Conclusions with respect to the allegations of interference, restraint, and
coercion
The testimony of the General Counsel's witnesses, if believed, tends to prove
that on about November 17 the Respondent, through Larson and Eickhoff, learned
that the employees at the Carnelian were interested in a union, that Eickhoff,
along with the foremen, then set out on a program of unlawful interrogation and
surveillance to learn more of the employees' desire to organize, and that, in a
studied design to stave off the Union, Eickhoff availed himself of this opportune
moment to announce a forthcoming raise.
The testimony of the Respondent's witnesses, on the other hand, if credited,
would prove that the Company had no knowledge of any union activities among
its employees at the time a raise for the Milbank-Ortonville quarries was put into
effect, and that no supervisor or foreman engaged in any attempt at ferreting out
the organizational interests and sympathies of the men through interrogation,
surveillance, or otherwise.
The undersigned was impressed with the general credibility of the witnesses
presented by the General Counsel in connection with this aspect of the case.
Although some were laid-off employees and perhaps subject to the charge of bias,
others were still working for the Respondent, and some of these were openly
opposed to any union in the Respondent's quarries. Because of their demeanor
and very apparent frankness on the witness stand I would unhesitatingly credit
their testimony if it were uncontradicted.
The principal witness for the Respondent with respect to the questions here
involved was John Eickhoff. In weighing the credibility of his testimony I
have considered it significant that at one point he gave as the reason for his
interviews with the men the desire to determine, at Alexander's behest, whether
the employees would prefer that the Company provide free transportation to and
from the quarries. If that was, in fact, his objective an analysis of the testimony
discloses that he pursued it in a very aimless manner. On November 17, while
at the Carnelian, Eickhoff contacted the 12 employees then on duty and met with
a thirteenth man (Schulte), who was off work that day, the following week.
As to 4 of these employees, Eickhoff testified that he thought he mentioned the
subject of transportation to Valentine Erne and Karels and, further, that he
talked with Anton Erne and Stephen Bogenreif about the matter at a time when
both happened to be together. The latter 2, according to Eickhoff, told him they
preferred cash rather than free transportation. Valentine Erne did not testify
on the subject. Karels credibly denied that Eickhoff had discussed the matter of
transportation with him. Anton Erne, when called as a rebuttal witness,
credibly testified that at the time Eickhoff talked with him Bogenreif was not
present and that Eickhoff asked him no questions about his preferences on
transportation. In his testimony as to 3 other employees Eickhoff could not
recall having talked with 1,19 could not recall discussing transportation with
another .20 and made no mention of having raised the question with a third n He
conceded that in his talks with the remaining 6 employees he had not mentioned
a. Peschong.
20 Dew.
S3 Smart.
COLD SPRING GRANITE COMPANY 797
the subject of transportation.' Eickhoff testified that Schlicht told him that
he knew the employees at the Agate would prefer a cash raise to any plan for
company transportation and that it would be pointless to ask them about the
subject. Despite this, Eickhoff proceeded to meet with the Agate employees
individually. To only 1 of these employees did Eickhoff, according to his own
testimony, mention the matter of transportation. Moreover, although on
November 21 Eickhoff talked with most of the employees at the Ruby Red, he made
no claim to having discussed individual preferences on transportation with any
of them. From the foregoing facts the undersigned concludes that Eickhoff's
alleged interest in learning whether the employees were desirous of free trans-
portation is not an adequate or satisfactory explanation for the manner in
which he sought them out during the period from November 17 to 21.
It is significant that the practice of individually interviewing employees which
Eickhoff methodically carried out at the three quarries here involved was not
followed in any of the other quarries at which the Respondent raised its wages
during this period. Whereas from October 1950 to February 1951 the Respondent
granted increases to employees at seven other quarries, in only one of these, the
Rainbow, did Eickhoff, by his own admission, contact individual employees to
tell them of a forthcoming wage increase. Even in that one instance, he met
with only four particular employees and his principal object in doing so was to
discuss a plan whereby these individuals were to get certain supervisory functions.
Neither then nor at any other time did Eickhoff contact other employees at the
Rainbow quarry or elsewhere, apart from the Milbank-Ortonville area, to inquire
whether they were dissatisfied with working conditions or to announce that a
wage raise was in the offing.
On these facts and from my observation of the witnesses I conclude that the
testimony offered by the employees, as set forth above, and not that of Eick-
hoff,24 Larson, or Schlicht, should be credited. In accordance with these findings
it is my conclusion that on about November 17 the Respondent, through Larson,
learned that the employees at the Carneliall were interested in a union and that
Eickhoff, in turn, on receiving this information proceeded to interrogate them
in an effort to learn more of their organizational activities and interests. This
was followed by similar questioning of the quarry employees at the Agate and
Ruby Red not only by Eickhoff but by Schlicht and Comero. Such interrogation
was, of course, violative of Section 8 (a) (1) of the Act and cannot be considered
as protected free speech. It was, moreover, a related violation of the Act for
Eickhoff to ask that Comero, a foreman, report on the organizational activities
of those under him. Finally, when at the time Eickhoff asked Smart about the
union movement and alleged that that employee must have been one of its
sponsors, his questions as to whether Smart could find another job and his
declaration that Smart could be "laid off" were a plain intimation of reprisal
that can find no shelter under Section 8 (c) of the Act and must be held a fur-
ther violation of Section 8 (a) (1).
The wage raise: As noted above, I am convinced that early in November 1950
the Respondent was considering a wage raise for its employees in the Milbank-
22 Blum, Derald Bogenreif, Derrick, Lubbesmeier, Radermacher, and Schulte.
28 This was Pollock.
24 Mr. Eickhoff was on the witness stand for over 5 days, a trying ordeal for any man,
and throughout this entire period impressed the Examiner most favorably with his alert and
cooperative manner on cross, as well as direct, examination . His version of the events
in question, however, and the subsequent testimony of Schlicht and Larson were not
persuasive , in view of the considerations discussed above and in the light of the testimony
presented by the many sincere and candid witnesses for the General Counsel who were
more convincing.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ortonville area. The amount of the raise and its effective date, however, had
not been settled when Eickhoff arrived at the Carnelian on November 17. Not
until Eickhoff met with the employees individually on that day and interrogated
them as to their union interests did he reveal for the first time the pendency of
a wage increase. Since throughout these meetings with the men at the Carnelian
then and with the employees at the Agate and Ruby Red the following week
Eickhoff coupled his promise that a raise "could be arranged" or that he would
"see what he could do" about a wage increase with a series of questions
designed to uncover the extent of the employees' desire for a union, the manner
in which the raise was announced and its timing must likewise be considered as
coercive and a violation of the Act.
B. The layoffs
In January 1951, the Respondent laid off 14 employees at the 3 quarries here
involved. The General Counsel alleged that the Respondent effected the layoff
after learning that the Stone Workers had opened an organizational drive and in
an effort to discourage the unionization of its employees. The Respondent, on
the other hand, averred that the layoff was necessitated solely by a decline in
business and a shortage of equipment.
For several months after Lowry returned to Ohio in October 1951, there was no
organizer for the Stone Workers in the Milbank-Ortonville area. On January 9,
1951, Ralph Broadwell, an international representative of that union, arrived
in Milbank.26 During the following 2 days he met with Smart and several other
employees for the purpose of planning an organizational campaign. On January
12 Smart told Larson that a representative of the CIO had arrived and that an
attempt would be made to unionize the quarries. Larson asked if Smart thought
the Union could come into the area and tell the quarry owners what to do.
Smart told him that the Union's sole objective was to obtain better working
conditions for the employees. Larson replied that he did not believe the Union
would be successful .^
On January 13 the Respondent laid off eight employees at the Carnelian, four
at the Ruby Red, and two at the Agate. Eickhoff arrived at the Carnelian about
11 a. in., accompanied by Thomas Alexander, vice president of the Respondent,
and Warren Schwindel, the payroll clerk. After Larson supplied them with the
time sheets for the period, Schwindel prepared checks for eight employees desig-
nated for layoff and Alexander countersigned them. At noon that day Eickhoff
handed the checks to each of the employees involved with the statement that the
layoff was necessitated by a shortage of bits and materials.27 At the Agate the
same procedure was repeated, although here Eickhoff had Schlicht deliver the
checks to the employees at the end of the workday.28 At the Ruby Red, Eickhoff
46 On December 10, 1950 , Lowry wrote Smart to tell him that, although he had previously
promised that Broadwell would arrive shortly, because of the approaching holiday season
Broadwell would delay his coming until January . Smart credibly testified that upon
receiving this letter he showed it to Larson as well as a number of his fellow employees.
Larson could not recall having seen it.
m This finding is based on the credited testimony of Smart.
27 This finding is based upon the credited testimony of Derrick, Smart, Schulte, Stephen
Bogenreif , and Derald Bogenreif . Their testimony was in substantial accord with that of
Eickhoff. According to the latter, on the morning of January 13 he told Larson that the
Respondent was compelled to effect the layoff because of a shortage of rock bits and a lack
of orders . The separation notices sent to the men attributed the layoff to a lack of supplies
and material.
23 Frank Smith , one of these employees , testified that on this occasion Schlicht told him
that in the event the Company received any defense work Smith would be among the
first considered for reemployment.
IN, - COLD SPRING GRANITE COMPANY 799
told Comero that a number of men were being laid off that afternoon and that
Comero was among the group .7B He advised Comero, who was suffering from
rheumatism , to take advantage of the time off by having a medical examination
and told him that if he recovered he could return to work. Eickhoff then gave
Joseph Bidinger , one of the employees at the Ruby Red, the checks for the men
who were being laid off, asked that Bidinger distribute them, and thereupon de-
parted with Thomas Alexander and Schwindel.
The Respondent contends that the layoff was dictated entirely by business
necessity. John Alexander testified that in December and January the Com-
pany had experienced a decline in orders for building stone because of defense
production restrictions and that it had become increasingly difficult to obtain
certain highly essential supplies such as tungsten carbide rock bits and replace-
ment parts made of steel. According to Alexander, while on a visit to the quarries
in the Milbank-Ortonville area on December 12, he manifested a growing con-
cern about the business prospects for the coming year in talks with each of his
foremen, insisting that they reduce costs and make greater efforts to economize.
He further testified that for some time prior to January 1951 the Company, in
an effort to reduce operating overhead, had been in the process of establishing
what he described as a "roving crew" policy at its quarries which would permit
the operation of two or more quarries in contiguous areas with only a single
crew, as contrasted with a policy of having separate crews permanently stationed
at each quarry.
Alexander testified that on the evening of January 12 he finally concluded
that a layoff was imperative. That morning he and Erling Anderson, the pro-
duction manager for the Company's finishing plant, visited the three quarries
in the Milbank-Ortonville area. There, according to the testimony of both, they
found enough stone either channeled or cut into "mill blocks" to fill the Re-
spondent's outstanding contractural commitments for granite from those quar-
ries. That same day, a representative of the Timken Roller Bearing Company
had informed Mark Steil, the Respondent's purchasing agent, that because of a
war-borne shortage, the Respondent, as an "unessential user," would get no
more tungsten carbide bits. According to Alexander, after concluding that a
reduction in force was necessary, he decided to put it into effect the following
day when Schwindel, his payroll clerk, reminded him that since January 13
marked the end of a pay period, it would be easier from an accounting standpoint
if the layoff became effective immediately 30 rather than later.
Eickhoff testified that on the evening of January 12, after Alexander re-
turned from his visit to the quarries, the company president telephoned him at
his home. According to Eickhoff, Alexander told him that because of the
amount of quarried stone on hand and the bit shortage he had decided that the
time had come to reduce the crews by one-third, with the remainder as a team to
operate only two quarries. He then ordered Eickhoff to select the men he would
prefer to retain and to designate the remaining one-third for layoff. Eickhoff re-
turned to the plant office that evening and from the time sheets selected the crew
members he preferred to keep. Thomas Alexander and Schwindel were likewise
present but took no part in the selection process. Later that evening John Alex-
ander arrived, was shown the list of those whom Eickhoff had selected for re-
tention, and gave it his approval. He then suggested that Eickhoff, Schwindel,
and Thomas Alexander proceed to the quarries the following day to effectuate
the layoff.
29 Thomas Alexander testified that, upon their arrival at the Ruby Red , Eickhoff told
Comero the layoff was due to a shortage of rock bits and materials . Comero testified that
Eickhoff gave him no explanation.
30 This testimony was corroborated by Schwindel.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There were economic reasons for a reduction in force. The volume of building
stone orders received by the Respondent in December was, in fact, considerably
lower than it had been in preceding months. Moreover , for some time it re-
mained at substantially the level reached in January 1951 and then declined
further ei Building granite was the principal product of the Agate and Car-
nelian,^ although at the Ruby Red only about 50 percent of the granite quarried
was sold for construction purposes.31 In this last named quarry, however, the
primary duties of almost half the working force were connected with the opera-
tion of a granite crushing machine which had closed down for the winter 34
3s The Respondent holds a controlling interest in the Texas Pink Granite Company,
located in Marble Falls, Texas. During the period January-June 1951 , the business of
the Texas Pink Granite Company Increased . The General Counsel attacked the validity
of a chart , Respondent ' s Exhibit 47, introduced to depict in graphic form the state of the
Respondent 's business on the ground that it did not include statistics covering the opera-
tions of the Texas Pink Granite Company. This latter company was never named as a
Respondent . Apart from the fact that certain exhibits introduced by the Respondent
carried statistics on orders for Texas Pink stone as well as for Cold Spring granite, there
is little else in the record as to the relationship between the two companies . Conse-
quently, in making findings as to the Respondents ' volume of business I have disregarded
all references to the Texas Pink Granite Company which appear in the transcript.
33 President Alexander estimated that 80 to 90 percent of the output at the Agate and
about 60 percent of the production at the Carnelian was sold as building granite.
33 From Respondent 's Exhibit 48, it appears that although the volume of orders received
for Carnelian and Agate granite of every type ( building, monumental , and mausoleum)
declined in the 6-month period from January to June 1951 , there was an increase in orders
for stone from the Ruby Red. The over-all totals for orders to be filled with stone from
these quarries were as follows :
July-December January-June
1950 1951
Carnelian ----------------.------------------------ $415,555 $126,948
Agate-------------------------------------------- 217,516 147,897
Ruby Red---------------------------------------- 34,742 79,322
Total-------------- ------------------------ 667, 813 354, 167
The Agate , Carnelian and Ruby Red were not the only quarries in the Respondent's sys-
tem which produced building stone . John Alexander estimated that 50 percent of the
output at the Pink, 90 percent at the Rockville , and 98 percent at the Mellen Black, was
sold as building granite. During the period from January to June 1951 there was a slight
increase in orders for Pink granite . There was a sharp drop , however, in orders for stone
from the Rockville and Black quarries . The over-all totals on orders to be filled with
granite from these quarries were as follows :
July-December January-June
1950 1951
Pink--------------------------------------------- $111,257 $121,579
Rockville----------------------------------------- 160,782 82,210
Black-------------------------------------------- 194,235 18,602
Total--------------.------------------------ 466,274 222,391
Neither on January 13, nor later , were any layoffs effected in these three quarries. In May
or June 1951 , according to John Alexander , the Rockville quarry was shut down ; its em-
ployees were transferred to other quarries and to the Respondent's finishing plant at Cold
Spring. No additional employees were hired at any of these quarries during the period
from January to June 1951.
84 The crew of 13 men at the Ruby Red included 5 whose principal duty was to operate
a large granite crusher used in the processing of waste stone into grit , a product made for
sale to poultry farmers, and crushed granite, a substitute for gravel used as concrete
aggregate and in various other ways. Pay records of the 5 employees who operated the
crusher were carried on what was known as the "crusher payroll ." In November the
crusher broke down and no replacement parts were ordered. On December 15 the Respond-
ent notified the Otter Tail Power Company that the crusher would not be used until the
following spring and asked that the motors be sealed . Subsequent to its breakdown and
until the layoff those previously engaged in this operation were employed at general
cleanup work in the quarry or transferred to either the Agate or Carnelian . John Alexander
testified that the production of grit and crushed granite at the Ruby Red had been an
COLD SPRING GRANITE COMPANY 801
Subsequent to the layoff the Respondent consolidated the operation of the
three quarries so that only two crews were needed . Some 3 or 4 weeks after
the layoff the Ruby Red was closed for several months. In May it was reopened
for a few weeks . During this period personnel from the Ruby Red were assigned
to work with the crews then operating the Agate and Carnelian. In May the
Carnelian was closed and its crew shifted to the Ruby Red for a month. At the
end of that period the crew returned to the Carnelian and the latter quarry was
opened again . No replacements were ever hired to fill any of the jobs held by
those who were laid off in January. In August another layoff was effected;
thereafter the Company had only one foreman and four employees left in the
Milbank-Ortonville area n
The Respondent offered a considerable volume of evidence to prove that on
January 12 its management had reason to be, and was, greatly concerned about
an impending shortage of tungsten carbide rock bits. During the course of
the preceding 2 years this type of bit had almost completely replaced an older
type made of steel and known as a "carbon alloy bit." 38 From an engineering
standpoint the tungsten product represented a vast improvement over its prede-
cessor and was approximately 300 percent more efficient than the alloy bit.
The principal source of supply for this new type bit which the Respondent used
appears to have been the Timken Roller Bearing Company.87 In the fall of 1950
the restrictions brought on by the defense effort and a threatened shortage of
tungsten carbide bits led Kennard Cook, Timken representative for the area,
to impose a rationing plan on all his granite quarrying customers 38 It is undis-
puted that later and on the afternoon of January 11, Cook telephoned Purchasing
Agent Steil to say that he had bad news regarding the future supply of tungsten
bits and that he wanted to meet with representatives of the Respondent the
following morning." Steil told John Alexander of the call. The latter asked
that his place at the meeting be taken by one of the other members of the family
since he planned to visit the quarries in the Milbank area the next day. The
following morning Cook met with Steil, Eickhoff, and Thomas Alexander. There
Cook told them that it appeared unlikely that the Timken Company would be
unprofitable venture and that these byproducts had been difficult to sell . Sales records
introduced at the hearing corroborated this testimony. In 1950 sales of grit and crushed
granite from this quarry totaled $11 ,091.24 , but during the first 6 months of 1951 they
were down to $513.50.
35 During the spring and summer season for several years prior to 1951 , the Respondent
operated its quarries on a 53-hour week basis. Throughout the winter the quarries were
cut back to 48 hours. In connection with Respondent 's argument that at the time of the
layoff business was declining , it is significant that during the spring and summer of 1951,
in contrast with the schedule of former years, the quarries were never in operation for
more than 48 hours per week.
88 Eickhoff testified that by October 1950 the steel bit was used in only about 5 percent
of the work for which rock bits were needed . For all other purposes it had been replaced
by the tungsten bit.
'T Several other concerns made the tungsten carbide type of bit and the Respondent had
experimented with some of their models. Eickhoff testified , however, that to use any type
other than the Timken brand required a modification or retbreading of the drifters on
which the bits were used . Throughout 1950 the Company purchased only the Timken
brand of tungsten bits.
33 This finding is based on the credited testimony of Bert Gilmer , president of the Delano
Granite Company, and Mark Steil.
3e Steil was likewise the purchasing agent for the Cold Spring Equipment Company, a
subsidiary of the Respondent engaged in selling supplies to the granite industry. In his
capacity as purchasing agent for both companies Steil used the same office and made no
effort to keep a record of the amount of time spent on the business of each . Steil testified
that the complete stock of such items as bits for both the Granite Company and the Equip-
ment Company was kept in one place without segregation He further testified that
approximately 60 to 70 percent of the bits purchased by the Equipment Company were in
turn issued to the Granite Company, the balance being sold to other firms in the industry.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able to ship the Respondent any more tungsten bits, that he had nothing in
stock for them at his Minneapolis warehouse, and in the future "in all proba-
bility there would be no [ tungsten ] bits for non -essential users" such as granite
quarries. Eickhoff mentioned that the Respondent had only about a 2 months'
supply of bits on hand and then asked Cook if he would take an order for the
old type steel bit. The latter stated that he did not know whether deliveries
could be made even of that kind. Eickhoff then suggested that under the cir-
cumstances it seemed advisable for the Respondent to place immediately a large
order for the carbon alloy bit, the only possible substitute. The Timken repre-
sentative would not consider taking such an order that particular day. However,
he told both Eickhoff and Steil that he would return to the area on the following
Wednesday, January 17, to discuss the matter. The following week, Cook did
return to Cold Spring and on that occasion Steil ordered 25,000 alloy bits from
Timken at a cost of approximately $12,000.40
Later that month it developed that Cook's information had been too pessimistic,
for Steil testified that on about January 25, Timken sent the Respondent some
tungsten bits and later resumed shipping this type of bit in accord with the
rationing agreement of the preceding fall. I am convinced, however, that on
January 12, the Respondent's management had reason to be, and was, alarmed at
the prospect of being unable to obtain any further supply of tungsten carbide bits-
Steil's testimony, which was corroborated by that of several other witnesses, was
uncontradicted. Equally persuasive to the Trial Examiner, is the fact that during
this period the purchasing agent placed an order for $12,000 worth of outmoded
steel bits," a step which he hardly would have taken unless firmly convinced that
in the immediate future the more efficient tungsten carbide type would be
unavailable.
The Respondent denied any knowledge of the arrival of a union organizer in the
Milbank area on the eve of the layoff. John Alexander testified that he did not
learn of the Stone Workers' interest in the three quarries here involved until
June 1951 when the Union filed a representation petition with the Regional Office
of the Board.47 This I find completely incredible not only in the light of the
findings above in connection with the events of November but also because the
original charge was filed and served upon the Respondent in January, an amended
charge in February, and the complaint in May. John Alexander further testified
that he had no knowledge of the Union at the time of the layoff. To me this
testimony is of dubious credibility. In any event, the Respondent's foreman at
the Carnelian was well aware of the fact that an organizer for the Stone Workers
had returned to the area. Although Larson and Schlicht denied they had ever
heard of Broadwell or the CIO in the period preceding the layoff, their denial was
not persuasive. On the other hand, Smart's testimony that he told Larson of
Broadwell's arrival on January 12 was convincing and is credited." Upon the
40 Steil placed this order through the Cold Spring Equipment Company.
The foregoing findings are based largely on the credited testimony of Steil who impressed
the Trial Examiner as a frank and honest witness. Cook was not called as a witness by
the Respondent. Except for an extended cross-examination of Steil, the General Counsel
made no attempt to refute his testimony. Upon the conclusion of the Respondent' s case-
In-chief the General Counsel indicated that in connection with his rebuttal case he would
file an application to take Cook's deposition, Cook not being available at that time. At no
subsequent date, however, was any such application ever received by the undersigned.
A' This entire order was received by the Equipment Company on April 30, 1951.
42 Case No. 18-RC-1158.
" Furthermore, it should be noted that the Board and the courts of appeals have held
that an employer's knowledge of employee union activity may sometimes be inferable from
the fact that the plant is not large and is the center of activity in a small community.
Stokely Foods, 91 NLRB 1267, 1270-1271, enforced 193 F. 2d 736 (C. A. 5) ; Jasper
National Mattress Company, 89 NLRB 75, 77; N. L. R. B. v. Angwell Curtain Co., 192 F.
2d 899 (C. A. 7) ; N. L. R. B. v. Abbott Worsted Mills, 127 F. 2d 438, 440 (C. A. 1) ;
COLD SPRING GRANITE COMPANY 803
foregoing facts it is my conclusion, and I find, that on January 12 the Respondent,
through Larson, learned of the arrival of Broadwell as an organizer for the
Stone Workers.
Conclusions with Respect to the Alleged Discriminatory Layoff
There are a number of factors which lend support to the General Counsel's
allegation that the layoff was discriminatory. These include, of course, the
timing of the action, the apparent haste with which it was effected, the fact that
over a long period of time no other layoffs had ever been made,' the fact that no
layoffs were effected at any of the other quarries operated by the Respondent,
and, of course, the background of interference, restraint, and coercion that has
been discussed above.
On the other hand, there is much to support the denial of this allegation and
the affirmative defense advanced by the Respondent. In the midwinter period
the Respondent experienced a decline in the volume of orders for building granite,
the principal output of the Agate and Carnelian, and in December at the Ruby
Red the crusher operation on which 5 out of 13 men were employed was shut
down. Subsequent to the layoff the Respondent's "roving crew" policy, adopted
at some of its other quarries, was, in fact, adopted in the Milbank-Ortonville
area and no replacements were hired to fill the positions left vacant by those laid
off. It is also clear that on January 11 and 12 the Respondent was greatly dis-
turbed about the likelihood that it would no longer be able to obtain tungsten
•carbide bits for its quarrying operations. The testimony of its purchasing agent
was most convincing and no other explanation appears for the fact that on Janu-
ary 17 Steil invested over $12,000 in an obsolescent type of steel bit as a substitute
for the far more desirable tungsten carbide type. Having all these factors in
mind it is conceivable that when the president of the Company reached the con-
clusion that a layoff should be made he would adopt the suggestion of his payroll
clerk that it be made on January 13 since from an accounting standpoint that
was the most convenient time to effectuate the decision. Of significance, too, is
the fact that, apart from the one exception which I shall discuss below, the em-
ployees selected for layoff had not been active in any union movement and had
had no contact with the Stone Workers. Consequently, in the light of the fore-
going facts, although the issue is certainly not free from doubt, I am not con-
vinced that the General Counsel has sustained the burden of proving by a prepon-
derance of the credible evidence that the layoff on January 13 was, in itself, dis-
criminatory. Furthermore, with the exception of Mearle Smart, I have not been
persuaded that any of those designated for layoff were selected for discriminatory
reasons.
The Dismissal of Mearle Smart
Smart's case stands on a different footing. Smart was the only employee who
had been an active proponent of the Stone Workers. Throughout the period
from November through December he had contacted employees at all three quar-
ries in an effort to arouse interest in unionization. That the Respondent was
aware of these activities and his union sympathies almost from the beginning is
N. L. R. B. v. Entwistle Mfg . Oo., 120 F. 2d 532, 535 ( C. A. 4). The record in the present
case presents another example of why such an inference may be valid . Most of the
employees at the quarries here involved lived in 4 small nearby towns, the population of
which ranged from 300 to 5,000 . Larson conceded on cross-examination that he knew
that the men were interested in a union from "gossip and rumor" he heard "on the
streets of Milbank and Ortonville" and Schlicht testified that he had heard rumors that
the employees at the Carnelian were trying to organize a union.
"Neither Larson , Eickhoff , nor Alexander could recall any other similar layoff in the
preceding 12 years of company history.
2433055- 53-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear. On November 17 Eickhoff told Smart that he understood Smart was trying
to bring a union into the Carnelian and intimated that Smart could be laid off
for such activity.
Smart was an employee of the Respondent for over 6 years, and from Novem-
ber 1946 until his dismissal he was the hoist operator at the Carnelian. As a
skilled hoist man, Smart received top pay in the quarry. Only one other em-
,ployee at the Carnelian had this type of experience and he had it to only a
limited degree. This was Valentine Erne who for some while prior to the layoff
had been acting as a relief man for Smart. At the time of the layoff Eickhoff
elected to keep Erne. The Respondent did not allege that Smart was inefficient 45
and no explanation was offered for retaining in his stead the relief man who had
far less experience than he. In view of the foregoing facts and in the absence of
any reasonable explanation as to why Erne, the relief man, was retained, whereas
Smart, a more experienced hoist operator, was dismissed, I conclude and find
that Eickhoff's selection of Smart stemmed from a desire to eliminate from the
quarries a known union advocate whose contacts with the Stone Workers had
become a matter of concern to the Respondent from the time that Eickhoff first
learned of them in November. West Texas Utilities Company, Inc., 94 NLRB
1638 (Coplen).
C. The alleged unlawful interrogation of employees by Respondent 's counsel
In May 1951 Curtis L. Roy and John H. Dorsey, Jr., attorneys with the law
firm serving as counsel to the Respondent, investigated the case in preparation-
for trial and in so doing interviewed many of the employees then working at the
Agate and Carnelian quarries. At the hearing the General Counsel alleged that
the Respondent's counsel had themselves violated Section 8 (a) (1) of the Act
by their interrogation of certain employees during this period.
In support of this charge the General Counsel presented four witnesses. The
first two testified with respect to conversations had with Mr. Roy. One of these
was John Pollock who stated on direct examination that when interviewed by
the company attorney he was asked whether he belonged to the Union and also
questioned as to the name of the union representative. George Albright, another
employee, testified on direct examination that the same attorney asked him "What
I thought of the Union." Mr. Roy, on taking the witness stand, credibly denied
asking any such questions either directly or indirectly during the course of his
pretrial interviews with these employees. Pollock was a loquacious witness and
some of his testimony on cross-examination was sharply in conflict with the an-
swers given on direct. During cross-examination he stated that company counsel
never asked how he "stood" on the union or whether he belonged to a union and
he went on to testify that he had volunteered much of the information he had given
the attorney." On cross-examination Albright likewise contradicted his previous
testimony. Neither Pollock nor Albright was a convincing witness in connection
with this phase of the case and from my observation of them at the hearing I
would give little weight to the accuracy of their recollection on this particular
matter.
Two other witnesses whom the General Counsel called told of being interviewed
by Mr. Dorsey. Russell Frickson, one of these witnesses, stated that the company
attorney inquired as to his opinion of the union, whether he had signed a union
card, and whether he had paid dues. Humphrey Paulson, the other such witness,
45 President Alexander and counsel for the Respondent conceded that the Company
was making no charge as to the qualificaitons of the employees who were laid off.
4e When confronted with the statement be had given to the company attorney, Pollock
testified "a lot of things in here [the statement] he never asked me at all, I told him "
COLD SPRING GRANITE COMPANY 805
stated that he was asked what he "thought" about the Union. Mr. Dorsey testi-
fied at length as to his conversations with both these employees and in doing so
flatly denied asking for either the individual's personal opinion on unions or
inquiring whether the employee had himself joined or signed a card. His denials
are credited. Paulson's recollection was extremely vague and most inconclusive.
Even on direct examination he could not recall how any specific inquiry had been
phrased and he remembered few other details as to what transpired during the
incident in question. Frickson's testimony as to this phase of the case, although
more credible than Paulson's, was no more persuasive.
At the hearing it was apparent that while testifying as to their meetings with
company counsel both Frickson and Pollock frequently interjected their own
opinions. As a result, it is difficult to tell from the testimony of either precisely
what information the company attorneys sought to elicit and how much of it
these employees supplied of their own volition. Although the undersigned has
previously found other portions of their testimony worthy of credence, as noted
above." I do not feel that the testimony of Frickson and Paulson in this context
merits the same regard. From my observation of all those who appeared in con-
nection with this phase of the case I am convinced and find that counsel, in the
guise of preparing a defense to the allegations of the complaint, did not exceed
the bounds of legitimate inquiry. The credible testimony here involved reveals no
more than a thoroughgoing effort on the part of able and diligent attorneys to
learn the facts "within the li'nits of the issues raised by [the] complaint" solely
for the sake of preparing a defense to the charges made against their client.
May Department Stores, 70 NLRB 94, 95, enforced, 162 F. 2d 247 (C. A. 8),
cert, denied, 332 U. S. 808; Joy Silk Mills, 85 NLRB 1263, 1288-1292, enforced
185 F. 2d 732, 742 (C. A. D. C.), cert. denied, 341 U. S. 914.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that the Respondent has engaged in and is engaging in
unfair labor practices, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Further, since it has been found that the Respondent has discriminated in regard
to the hire and tenure of employment of Mearle L. Smart it will be recommended
that the Respondent offer him immediate and full reinstatement to his former
or substantially equivalent position,9e and make him whole for any loss of pay he
may have suffered by reason of the Respondent's discrimination against him by
payment to him of a sum of money equal to that which he normally would have
earned as wages from the date of his layoff to the date of the Respondent's offer
of reinstatement, less his net earnings during said period 49 Loss of pay shall he
computed on the basis of each separate calendar quarter or portion thereof during
the period from the Respondent's discriminatory action to the date of a proper
411. e , with respect to conversations had with Eickhoff
4" The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch,
65 NLRB 827.
"Crossett Lumber Company, 8 NLRB 440.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer of reinstatement. The quarterly periods, herein called quarters , shall begin
with the first day of January, April, July, and October . Loss of pay shall be
determined by deducting from a sum equal to that which Smart would normally
have earned for each such quarter or portion thereof, his net earnings , if any,
in any other employment during that period. Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter.6° It will
also be recommended that the Respondent, upon reasonable request, make avail-
able to the Board and its agents all payroll and other records pertinent to an
analysis of the amount due as back pay.
The unfair labor practices found above reveal on the part of the Respondent
such a fundamental antipathy to the objectives of the Act as to justify an infer-
ence that the commission of other unfair labor practices may be anticipated in
the future. It will be recommended, therefore, that the Respondent be ordered
to cease and desist from in any manner interfering with, restraining , or coercing
its employees in the exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, CIO, is a labor
organization admitting to membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of employment of Mearle
L. Smart, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in the unfair labor practices alleged in
the complaint of discriminating in regard to the hire and tenure of employment
of William Anderson, John P. Blum, Derald Bogenreif, Stephen Bogenreif,
Arthur Derrick, Anton Erne, Ernest Irwin, Derald Magnuson, Ernest F. Nitz,
Casper Radermacher, Robert Schulte, Frank Smith, and Carl C. Wellnitz.
6. Counsel for the Respondent did not violate Section 8 (a) (1) of the Act
by interrogating employees in preparation of the case for hearing.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in UNITED STONE AND ALLIED PRODUCTS
WORKERS OF AMERICA, CIO, or in any other labor organization of our em-
ployees, by discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
50 F. W. Woolworth Company, 90 NLRB 289, 291-294.
APEX TOLEDO CORPORATION 807
WE WILL NOT interrogate our employees concerning their union affiliation,
activities , or sympathies , threaten them with discharge , reprisal , or economic
loss because of their union affiliations , activities , or sympathies , or promise
them economic benefits in order to discourage their union membership or
activity.
WE WILL NOT in any manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self -organization , to form , join, or
assist UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA , ClO, or any
other labor organization , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , 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 employment , as authorized in Section 8 (a) (3) of the National
Labor Relations Act.
WE WILL offer to Mearle L. Smart immediate and full reinstatement to his
former or substantially equivalent position without prejudice to seniority or
other rights and privileges previously enjoyed , and make him whole for any
loss of pay suffered as a result of discrimination against him.
All our employees are free to become, or refrain from becoming , members of the
above-named union or any other labor organization , except to the extent that this
right may be affected by an agreement in conformity with Section 8 (a) (3) of
the Act. We will not discriminate against any employee because of membership
in or activity on behalf of any such labor organization.
COLD SPRING GRANITE COMPANY,
Employer.
Dated -------------------------- By -----------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.
APES TOLEDO CORPORATION and LOCAL 12, INTERNATIONAL UNION,
UNITED AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA , CIO. Case No. 8-CA-546. December 8, 1952.
Decision and Order
On April 28, 1952, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, and sup-
porting briefs.'
I The Respondent's request for oral argument is hereby denied , as the record , Including
the exceptions and briefs , in our opinion , adequately presents the issues and the positions
of the parties.
101 NLRB No. 148.