Hilgartner Marble Company

National Labor Relations Board - Board Decisions

Jul 27, 1939

13 N.L.R.B. 1200 (N.L.R.B. 1939)

In the Matter of HILGARTNER MARBLE COMPANY and INTERNATIONAL
ASSOCIATION OF MARBLE, SLATE, AND STONE POLISHERS, RUBBERS,
AND SAWYERS, TILE AND MARBLE SETTERS, HELPERS, MOSAIC AND
TERRAZZO WORKERS HELPERS, LOCAL No. 121 OF BALTIMORE, MARY-
LAND
Case No. C-747.-Decided July 27, 1939
Stone Processing and Ftnshing Industry-Interference, Restraint, and
Coercion: anti-union statements of supervisory employees; threats of shut-
down because of membership and activities in the Union-Company-Dominated
Union: domination of and interference with formation and administration ;
address by respondent's president as a stimulus for the organization of the
company-dominated union ; use of respondent's premises for organizational
meeting of company-dominated union; participation by supervisory employees
in organizing the company-dominated union ; absence of bargaining between
the company-dominated union and the respondent ; disestablished as agency for
collective bargaining-Dtscramination: charges of discriminatory lay-offs of
disproportionate number of union employees not sustained, dismissed.
Mr. Gerhard P. Van Arkel and Cllr. Robert W. Knadler, for the
Board.
Mr. Frederick J. Singley and Mr. Frederick J. Singley, Jr., of
Baltimore, Md., for the respondent.
Mr. Henry H. Freeman, of Baltimore, Md., for the Union.
Mr. Ralph Winkler,, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Marble, Slate, and Stone Polishers, Rubbers and
Sawyers, Tile and Marble Setters, Helpers, Mosaic and Terrazzo
Workers Helpers, Local Union No. 121 of Baltimore, Maryland,'
herein called the Union, the National Labor Relations Board, herein
called the Board, by Bennet F. Schauffler, Regional Director for the
Fifth Region (Baltimore, Maryland), issued its complaint dated
April 4, 1938, against Hilgartner Marble Company of Baltimore
'Incorrectly designated in the complaint as Marble Polishers, Rubbers and Sawyers
Local Union 121 of Baltimore , Maryland , and amended at the hearing.
13 N. L. R. B., No. 113.
1200
HILGARTNER MARBLE COMPANY 1201
City, Baltimore, Maryland, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1)
and (2) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint
and accompanying notice of hearing were duly served upon the
respondent and the Union.
The complaint alleged in substance that about September 17, 1937,
the respondent assisted and sponsored the formation and has since
dominated the administration of Hilgartner Marble Company Em-
ployees' Association, herein called the Association, and that in other
ways it prevented its employees from joining a labor organization
of their own choosing. On April 14, 1938, the respondent filed an
answer denying that it had engaged in any unfair labor practices
within the meaning of the Act.
Pursuant to the notice, a hearing was held at Baltimore, Maryland,
on April 18 and 19, 1938, before Webster Powell, the Trial Ex-
aminer duly designated by the Board. The Board and the respondent
were represented by counsel and participated in the hearing. Upon
second amended charges filed by the Union, and on motion of counsel
for the Board made at the beginning of the hearing, the complaint
was amended to include allegations that the respondent had engaged
in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) of the Act.2 Counsel for the respondent stated
at that time that he had no objection to proceeding with the matters
covered by the amended complaint.3 Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. During the course of
the hearing, the Trial Examiner made several rulings on motions and
on objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On July 7, 1938, the Trial Examiner filed an Intermediate Report
in which he found that the respondent had engaged in and was
engaging in unfair labor practices, within the meaning of Section
2 The amendment alleged that the respondent terminated the employment of and has
since refused to employ the following employees because of their union affiliation : William
Menke, Sr., William Menke , Jr., Bernhard Menke, William Kenny , Joseph Helfrich , William
Brown , George Martin , Charles Kimball, John Thompson, James Harge, Robert Jolley,
Daniel Fletcher , Colonel Gross, Louis Gross, George Lenox, William Polughman , Eugene
Gross, Meredith Dates, and Moses Howell.
3 Counsel for the respondent requested additional time, however, for the filing of an
amended answer. This was granted by the Trial Examiner , and after the hearing the
respondent filed a "Motion Ne Recipiatur " and an amended answer. Pursuant to notice
issued by the Trial Examiner the hearing was reopened on June 13 , 1938, at Baltimore,
Maryland, to allow the parties an opportunity to present additional evidence regarding the
allegations in the amended complaint . Although notified, the respondent made no appear-
ance at the reopened hearing.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (1) and (2) and Section 2 (6) and (7) of the Act, but that it
had not committed unfair labor practices within the meaning of
Section 8 (3) of the Act. The Trial Examiner also denied the re-
spondent's motion to dismiss the complaint which had been made at
the conclusion of the Board's case, and upon which he had reserved
ruling. He recommended that the respondent cease and desist from
its unfair labor practices, that it withdraw recognition from the
Association as the bargaining representative of its employees, and
that it disestablish the Association as such representative. He further
recommended that the allegations in the complaint with respect to
the discriminatory discharges be dismissed.
Thereafter, the respondent filed a brief and exceptions to the In-
termediate Report. Pursuant to notice duly served on the parties,
a hearing for the purpose of oral argument was held on January 26,
1939, before the Board, in Washington, D. C. The respondent ap-
peared by counsel and the Union by a representative and both par-
ticipated in the hearing. The Board has considered the exceptions to
the Intermediate Report, and, save as consistent with the findings,
conclusions, and order below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Hilgartner Marble Company of Baltimore City, a Maryland cor-
poration, is engaged in the business of sawing, cutting, and polishing
block marble at Baltimore, Maryland. The respondent receives from
points outside the State of Maryland approximately 50 per cent of
the raw materials used in its business operations. Approximately
80 per cent of the marble shaped and polished by the respondent is
installed in construction work outside the State of Maryland. The
respondent's gross income for the calendar year 1937 was approxi-
mately $480,000.
II. THE ORGANIZATIONS INVOLVED
International Association of Marble, Slate, and Stone Polishers,
Rubbers and Sawyers, Tile and Marble Setters, Helpers, Mosaic and
Terrazzo Workers Helpers, Local Union No. 121 of Baltimore, Mary-
land, is a labor organization affiliated with the International Build-
ing Trades Department of the American Federation of Labor. The
Union admits to membership the shop employees of the respondent.
The precise limits of its jurisdiction do not appear in the record.
Hilgartner Marble Company Employees' Association is an unaffil-
iated labor organization. It admits to membership all shop em-
ployees of the respondent.
HILGARTNER MARBLE COMPANY 1203
III. THE UNFAIR LABOR PRACTICES
A. The formation of the Association; interference, restraint, and
coercion.
The Union started its campaign among the respondent's employees
by distributing leaflets announcing a meeting on September 10, 1937.
Twenty of the respondent's employees attended this meeting. By
October 14, the Union had a membership of 28 employees. There-
after, no other employees became members of the Union.
On September 16, 1937, Henry Drier, the plant superintendent,
called the employees together during working hours to listen to an
address by Andrew H. Hilgartner, the president of the respondent.
Hilgartner testified that he had been aware of the distribution of
the Union leaflets and of the unrest that prevailed among the em-
ployees, and that he had, therefore, "wanted to talk to them ." Hilgart-
ner announced that the employees were free to join any organization
of their own choosing and that he had no intention of influenc-
ing their choice. He observed, however, that he could not under-
stand why "we would appoint any outside union or let an outside
union influence our minds," and he urged that "we men have gotten
along fairly good together down here, so I can't see why we could
not get together hereafter." During the course of his speech he also
referred to a plant that had closed down as a result of union activities.
In explanation of his speech, Hilgartner testified that the em-
ployees "should be cautioned in taking any steps . . . that no matter
which way they went, they might still have the plant closed because
of some ruling or operation of the law over which they had no juris-
diction . . ." He further testified that "if there was any dissatisfac-
tion on their part ... I did not see the reason why they could not
take it up at the present time."
Although the testimony is conflicting with respect to the origin
of the idea of the Association, the initial steps in its formation were
not taken until after Hilgartner had addressed the employees .4 on
the day of the speech or on the following day, Ed Driscoll, a fore-
man in the waxing and polishing department, prepared a petition
bearing the following caption : "We, the undersigned desire a shop
organization at Hilgartner Marble Co.'s Plant." Driscoll, Jr., the
foreman's son, circulated the petition among the employees during
working hours and succeeded in obtaining 63 signatures to it.
On September 17, Oster, who was an employee in the coping de-
partment, addressed the employees during the lunch hour in the
* Gilson Hoeflich , the vice president of the Association, testified that there was some
discussion of a shop union a few weeks prior to Hilgartner ' s speech . Alfred Oster, one
of the active participants in the organization of the Association , testified that he
conceived the idea of a shop union a few days after the speech.
120,4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop yard for the purpose of proceeding with the organization of the
shop union. On September 20, the first meeting of the Association
was held at Big Gun Hall. Forty-five employees, including Fore-
man Driscoll, attended and elected officers.
The organizing efforts in behalf of the Association received some
assistance from Superintendent Drier. On September 21, Drier
called Bernhard Menke, an employee, into his office and advised him
that Hilgartner preferred the Association. Drier told Menke "to
tell the men not to join up [with the Union], that Andy [Hilgartner]
would never stand for it, that he would close the plant down, and
everybody would be out of work." He also told Menke that "Hil-
gartner would recognize the shop union, but would not recognize
the outside union."
At a meeting of the Association on October 4, a constitution and
bylaws were adopted and a resolution was passed to notify the
respondent of the existence of the Association. Several days later,
a committee representing the Association conferred with Hilgartner.
It submitted a list of the Association's members to him, and requested
recognition as the representative of the respondent's employees.
Hilgartner's response is contained in the minutes of the October 18
meeting of the Association : "In regard to the motion that the last
meeting was to inform A. H. Hilgartner of the existence of the shop
union, the motion was carried out and Mr. Hilgartner stated that
it was a good thing, and he was well-pleased with the report that had
been handed him." Up to the time of the hearing, the Associa-
tion had not thereafter approached the respondent.
B. Conclusions
Although the employees of the respondent may have considered
the formation of a "shop union" prior to the advent of the Union, it
is apparent that Hilgartner's speech crystallized their thoughts and
provided the initial impetus in organizing the Association. His
attempt to discourage an "outside union" from "influencing our
minds," and his advice "to get together" had but one meaning. In
the words of Oster, one of the founders of the Association and its
recording secretary, the respondent "did not want to be bothered
with any outside organization." 5
The evidence unmistakably establishes that the respondent's course
of conduct was calculated to discourage the organizational activities
of the Union and to impose on its employees an organization of the
respondent's rather than the employees' choice. The initial steps
5A. Dir. Hilgartner said he didn ' t see why we needed any outside help to tell us how
to work, that we always got along without outside help
Q. What did that mean to you? What did you take that to mean'
A. He didn't want to be bothered with any outside organization.
HILGARTNER MARBLE COMPANY 1205
in the formation of the Association which followed almost immedi-
ately after Hilgartner's speech, Foreman Driscoll's participation in
the preparation of the petition, Driscoll, Jr.'s open circulation of the
petition in the shop during working hours, Oster's use of the respond-
ent's premises to explain to the employees the plan for a shop union,
Foreman Driscoll's presence at the first meeting of the Association,
and Superintendent Drier's statement of Hilgartner's hostility
toward the Union all had the effect of foisting the Association upon
the employees. The complete absence of collective bargaining
negotiations between the Association and the respondent is evidence
of the subservience of the Association to the respondent. Having
successfully obstructed the organization campaign of the Union', the
mere recognition of the Association as a "good thing" was all that
was required of the respondent.
In support of its claims of impartiality the respondent points to
that part of Hilgartner's speech in which he told the employees :
"You men are free to join any organization you want, the C. I. 0.,
the A. F. of L., for your representative * * *. I am not trying
to influence you in any way whatever." It is apparent, however,
that Hilgartner's warnings against the employees' choice of an out-
side labor organization, together with the support that the respond-
ent gave to the organization of the Association, nullified and ren-
dered meaningless his assurance that he was not trying to influence
them. The respondent also urges "that the plant is small and closely
knit; that employees, their sons, and grandsons, are all in the employ
of the respondents; that the president of the respondent, who has
succeeded his father, is known to most of his employees by his first
name. From all this grows a feeling of intimacy and dependence
not found in the usual business organization, which resulted in the
address to the employees * *." Under such circumstances, how-
ever, Hilgartner's statements of opposition to outside unions and of
preference for a shop organization exerted a heightened influence
upon the employees. "* * * the voice of authority may, by tone
inflection, as well as by the substance of the words uttered, provoke
fear and awe quite as readily as it may bespeak fatherly advice. The
position of the employer, where, as here, there is present, genuine and
sincere respect and regard, carries such weight and influence that his
words may be coercive when they would not be so if the relation of
plaster and servant. did not exist." 6
We find that the respondent has dominated and interfered with
the formation and administration of the Association and has con-
tributed support to it and that it has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
° Natzonal Labor Relations Board v . The Fall. Corporation , 102 F (2d) 383 (C C. A.
7th 1939)
187930-39-vol 13--77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act. We further find that the
respondent , by virtue of Hilgartner 's speech and brier's statements
to Menke , has interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
C. The lay-offs
The complaint, as amended, alleged that the respondent discrimi-
natorily terminated the employment of 19 employees on November 15,
17, and 19, 1937, because of their affiliation with the Union. The
respondent contends that the lay-offs were due to a decline in busi-
ness tnd a consequent curtailment of business operations.
That lay-offs were necessary was admitted by all witnesses. The
respondent contends that the basis for the lay-offs was not the union
affiliation of the employees, as alleged in the complaint, but rather
the relative efficiency of the workers, the amount of available work,
and other factors. Although the seniority of the employees played
no part in the determination, the record discloses that it had never
been the respondent's practice to lay off or reemploy according to strict
seniority rules. None of the witnesses testified that on the basis of the
respondent's practice of reducing its force, he was entitled to be kept
on instead of others. A number of the union employees named in
the complaint testified that they had no complaint against the
respondent because of their lay-off, and at least two of them testified
that they expected to be called back to work when business conditions
improved.
In addition to the 19 Union members, 25 members of the Associa-
tion were also laid off. Thus although approximately 30 per cent of
the employees were union members, about 40 per cent of the
employees laid off were union members. While a wide disproportion
of lay-offs of union members is entitled to great weight in determin-
ing the issue of discrimination, such disproportion is not shown in
the instant case.7 We find that the respondent has not discriminated
in regard to the hire or tenure of employment of the 19 named
employees to discourage membership in a labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
• We find that the activities of the respondent set forth in Section
III A and B above, occurring in connection with the operations of
the respondent set forth in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
'See Matter of United States Smelting, Refininq iC Mining Company and Bingham
Underground Miners ' Union No. 2 of the International Union of Mane , Mill and Smeltev-
Workers, 10 N L R 13 1015
HILGARTNER MARBLE COMPANY 1207
several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has dominated and interfered
with the formation and administration of the Association, and has
contributed support to it, we shall order the respondent to withdraw
recognition from the Association and to disestablish the Association
as the collective bargaining representative for any of its employees.
We shall further order the respondent to cease and desist from its
unfair labor practices and to take certain other action which we deem
necessary to effectuate the purposes and policy of the Act.
We have found that the employees named in the complaint were
not discriminatorily laid off. We shall, therefore, dismiss the com-
plaint as to these employees.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLusIONs OF LAW
1. International Association of Marble, Slate, and Stone Polishers,
Rubbers and Sayers, Tile and Tarble Setters, Helpers, Mosaic and
Terrazzo Workers Helpers, Local Union No. 121, of Baltimore, Mary-
land, and Hilgartner Marble Company Employees' Association are
labor organizations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Hilgartner Marble Company Employees' Association and
by contributing support thereto, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (2) of the Act.
3. 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 (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 unfair labor practices, within
the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, Hilgartner Marble Company of Baltimore City, and its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Hilgartner Marble Company Employees' Association or with
the formation or administration of any other labor organization of
its employees, and from contributing support to Hilgartner Marble
Company Employees' Association or to any other labor organization
of its employees ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
yesentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Hilgartner Marble Company
Employees' Association as a representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment, and completely disestablish Hilgartner
Marble Company Employees' Association as such representative;
(b) Post notices immediately in conspicuous places in its plant and
• maintain such notices for a period of at least sixty (60) consecutive
days stating that the respondent will cease and desist in the manner
set forth in 1 (a) and (b) and that it will take the affirmative action
set forth in 2 (a) of this Order ;
(c) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED , that the complaint, in so far as it alleges that
the respondent has engaged in unfair labor practices within the mean-
ing of Section 8 (3) of the Act, be, and it hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.