McCormick Longmeadow Stone Co., Inc.

National Labor Relations Board - Board Decisions

May 30, 1966

158 N.L.R.B. 1237 (N.L.R.B. 1966)

MCCORMICK LONGMEADOW STONE CO., INC. 1237
CONCLUSIONS OF LAW
1. Respondent Valley Forge Flag Company is engaged in commerce within the
meaning of the Act.
2: By discharging George Liberman and removing him as a director because he
testified adversely to Respondent in a Board hearing under subpena of the Gen-
eral Counsel, Respondent has engaged and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
McCormick Longmeadow Stone Co ., Inc. and United Stone &
Allied Products Workers of America , AFL-CIO. Case No.
1-CA-5019. May 30,1966
DECISION AND ORDER
On January 19, 1966, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions and a
supporting brief. The General Counsel and the Charging Party
filed briefs in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exception's and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified herein.
1. We agree with'the Trial Examiner's finding that the Respondent
violated Section 8(a) (1) of the Act by conditioning the grant of a
wage increase and other fringe benefits on the Union's waiving its
right to file objections or charges with the Board.2 We are satisfied
i In view of our Decision here, we hereby deny the Respondent's motion to dismiss the
complaint.
2 For purposes of our decision herein, and contrary to the opinion expressed by the
Trial Examiner, we find it unnecessary to distinguish between those benefits which did
or did not appear to be In response to employee demands, or necessary to reverse the trend
of frequent turnovers among the Respondent's employees. Therefore, we need not consider,
nor do we decide , whether the grant of the fringe benefits in the circumstances of this
case would be unlawful . Nor do we consider the Respondent's failure to request a Simi-,
lar waiver from its employees individually as necessarily indicating bad faith.
158 NLRB No. 126.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent's action in seeking the waiver from the Union
was calculated to interfere with and discourage the employees' choice
of the Union as their union in its efforts to become the bargaining
representative Thus, in the letter of April 12, 1965, when it first
requested the waives from the Union, the Respondent included ex-
tianeous matters which peisuade us that the letter was intended pri-
marily for the consumption of the employees rather than the Union 3
Initially, we note that the letter contained a misstatement of fact with
refeierce to the Respondent's longstanding practice of putting into
effect improved benefits in the early ptrt of each year 4 Throughout
the letter, the Respondent made repetitive references to its interest
in gi anting these benefits because its employees had earned and de-
seived them The Respondent also held out, to its "loyal" employees,
economic advancement and impioved working conditions in the
future Then, after setting forth specific wage and fringe benefits
which it pi oposed to put into effect by April 26, the Respondent
stated that it would be unfair and unfortunate for the employees to
be deprived of these benefits while questions pertaining to the election
were pending before the Board Finally, the Respondent requested
the Union to waive the institution of these benefits as the basis for
filing objections and unfair labor practice charge,,, and concluded
that if the waiver was not given, the employees would be deprived of
these benefits By drafting the letter in this manner, and by sending
a copy thereof to each of its employees, without first affording the
Union an oppoitunity to reply to its request for a, waiver, we find, in
agreement with the Trial Examiner, that the Respondent, on its own
initiative, directed the employees' attention to the union aspect of the
matter We further find that, through this conduct, the Respondent
sought to discredit the Union and discourage membership therein by
announcing a desire to offer immediate benefits to its employees and
then shifting to the Union the onus for not instituting these benefits
2 Foi the additional reasons set forth above, we also find, in agree-
ment with the Trial Examiner, that the Respondent violated Section
8 (a) (3) and (1) of the Act by withholding the benefits which, it had
led the employees to believe, would be forthcoming but for the Union
[The Board adopted the Trial Examiner's Recommended Order J
8 Indeed , the Respondent sent a copy of this letter to each of its employees
4In agreement with the Trial Examiner, we do not accept the Respondent 's contention
that the misstatement , which sets the tenor of the entire letter, was a mere oversight
Such a contention is belled by the care with which the letter was drafted Furthermore,
although the presence of the misstatement in the letter was the subject of considerable
dispute at the hearing Strati A Chipouras the Respondent's president and treasurer and
author of the letter, offered no reasonable explanation to controvert the clear implication
that he was or should have been conversant with the Respondent's past practices in
this regard
McCORMICK LONGMEADOW STONE CO., INC. 1239
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner Frederick U. Reel at Springfield,
Massachusetts, on November 17, 1965, pursuant to a charge filed the preceding
May 20, and a complaint, issued September 3 and amended at the opening of the
hearing, presents the novel question whether an employee violates Section 8(a) (1)
of the Act if during the protracted pendency of a representation election he con-
ditions the granting to his employees of wage increases and other benefits on obtain-
ing a waiver from the petitioning Union of its right to file objections to the elec-
tion of unfair labor practice charges based on the grant of such benefits.
Upon the entire record,' and after due consideration of the briefs filed by each
of the parties hereto, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY, AND THE LABOR ORGANIZATION INVOLVED
Respondent, herein called the Company, a Massachusetts corporation engaged
at East Longmeadow in quarrying and fabricating stone products, annually ships
products valued in excess of $50,000 directly to points outside Massachusetts, and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
The Charging Party, herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In November 1964 the Union filed a petition for certification as representative of
the production and maintenance employees at the Company's plant. This pro-
ceeding, Case No. '1-RC-8145, is still pending, due to the following circumstances.
On December 2, 1964, the Union filed unfair labor practice charges against the
Company (Case No. l-CA-48l7) together with a waiver permitting the repre-
sentation case to proceed. Shortly thereafter, the Company, the Union, and
another labor organization (Local 98, International Operating Engineers) arranged
for a consent election, which was held December 21, 1964. Of the 34 ballots cast;
2 were challenged and the remainder were divided with 14 for the Union, 2 for
Local 98, and 16 for no union. The two challenged ballots were cast by Com-
misso and Fitzgerald, whose discharges were involved in the unfair labor practice
charge in the prior case. The Regional Director on January 7, 1965, dismissed
the Fitzgerald allegation, but on January 15 issued a complaint based in' part on
Commisso's discharge. The complaint case was pending at various stages through-
out the rest of 1965 until November 8, only 9 days before the hearing in the
instant matter, when the Board sustained the Trial Examiner in finding in the prior
case that the Company had violated Section 8(a)(1) and reversed his dismissal of
Commisso's case, finding the discharge violative of Section 8(a)(3) and (1).2
After the election of December 21, 1964, and some time prior to March 1, 1965,
the Union withdrew its waiver which had permitted the holding of thehe, election
notwithstanding the pending charges in the prior unfair labor practice case. As a
result, the Board's Regional Director advised company counsel on March 1 that
"it will, therefore, not be possible to conduct a runoff election immediately and
we must, under well established Board policy, hold the representation matter in
abeyance until final disposition of the unfair labor practice matter."
B. Events surrounding the Company's correspondence with the Union
relative to granting benefits
The Company experienced a substantial turnover of personnel during the year
preceding April 1965; of the 52 employed at that time, nearly 40 had worked for
1 General Counsel 's motion to correct certain typographical errors in the transcript was
unopposed and is hereby granted.
9The case is still pending in the sense that there may be enforcement or review pro-
ceedings in a court of appeals.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company for less than 1 year. Between December 24, 1964, and April 12,
1965, the Company's employee complement increased from 32 to 52; and as 29
were hired during that period, 9 apparently left. Between April 26, 1965, and
August 2, 1965, the Company hired 42 but lost 50. Company President Chipouras
testified that during the spring and early summer of 1965 several employees left
his employ because he did not grant them wage increases. One former employee,
Dominico Fantone, testified that he asked Chipouras for a raise, that Chipouras
said his hands were tied and he could not giant the raise, and that Fantone then
looked for and found another job, gave Chipouras 2 or 3 weeks' notice, and left
the Company's employ on April 10, 1965.
Also during March 1965 the Company's operations gave promise of expansion
through the acquisition of a new quarry which led to the hiring of additional
employees.
Chipouras at this time desired to increase the wages of his employees and dis-
cussed the matter with his counsel. The latter advised him that to raise wages
while the representation case was pending might expose the Company to unfair
labor practice charges, and also to the possibility that the Union if it lost the
election could file successful objections to the election.
In the light of these circumstances , and 2 days after Fantone left the Company's
employ, Chipouras on the advice of counsel initiated the correspondence with the
Union which forms the basis of this action, Chipouras' letters of April 12 and 26
and May 18, and the Union's letter of April 15 are attached hereto as Appendixes
A through D. Although the letters speak for themselves, I summarize their con-
tents in the next section.
C. The correspondence of April and May 1965
On April 12, 1965, the Company over Chipouras' signature wrote the Union that
the Company had "maintained a long-standing practice of putting improved em-
ployee benefits into effect in the early part of each year," 3 and that it desired to
do so at this time, but that in view of the pending representation proceeding it
was "reluctant to take this action because of the possibility that to do so might
become the basis for the filing of an objection to the conduct of an election or of
an unfair labor practice charge or charges before the National Labor Relations
Board." The Company in the letter enumerated six benefits that it planned to put
into effect on April 26, namely, an across-the-board wage increase of 5 cents per
hour, other merit increases,4 three paid insurance benefits (life, accidental death,
and accident and sickness), and an improved vacation policy. The Company
requested that the Union "waive the establishment of the additional benefits .
as the basis for the filing of an objection to the conduct of an election or of an
unfair labor practice charge ...." The letter concluded that if the Union agreed,
its waiver would make possible the immediate availability of the benefits, but if it
failed "to comply with the request for a waiver . . we doubt that we will be
able to institute the proposed benefits with the result that our employees will be
deprived of benefits which they are properly entitled to receive and which they
should have."
The letter shows on its face that a copy went to the Board's Boston office. In
addition, the Company sent a copy of the letter to each of its employees .5
The Union immediately replied through its counsel in a letter of April 15 that it
did not waive any of its legal rights and that it could not waive any of the rights
of the employees. The letter requested that the Company effectuate the benefits
as stated in its letter no later than April 26, and added that if the Company did
8 Chipouras admitted on the witness stand that the Company had no such practice.
The misstatement in the letter necessarily creates some doubt as to the Company's
good faith.
* The Company' s past practice had been to grant merit increases on the anniversary
date of the particular employees' last increase. It had not given across-the-board in-
creases. In April 1965, approximately three-fourths of the employees had worked less
than 1 year for the Company.
5 The Company in its brief admits a copy of the letter was sent to each employee but
argues that the record is devoid of evidence that any employee received or read a copy.
It may be presumed that the letters were received in ordinary course ; had they been
returned undelivered Chipouras would have so testified.
McCORMICK LONGMEADOW STONE CO., INC . 1241
not do so, the Union would proceed to enforce its rights . The Union sent a copy
of this letter to all the company employees .6
The Company replied to this letter on April 26, stating that the Union had not
responded to the request for waiver. The Company reiterated the statements
made in its earlier letter that it desired to institute the benefits but was reluctant
to do so because of the possibility that such action might lead to objections to the
election or unfair labor practice charges. The Company again requested the
Union "to agree to the procedure for establishing the wage increases and other
improved benefits as outlined in our letter of April 12 ...."
The Union and its counsel did not respond to the letter of April 26, and on May 18
the Company again wrote union counsel complaining of the delay and lack of
response . The Company reiterated in this letter its desire to institute the bene-
fits and its fears that such action might lead to objections to the election or to un-
fair labor practice charges. Again urging the Union to grant the requested waiver,
the Company stated that if it did not receive such a waiver by May 26, it would
construe the Union's silence as a rejection of the proposal, and would then give
consideration to the early establishment of the benefits.
Two days later, on May 20, the Union filed the charge in this proceeding, alleg-
ing that the failure to give the benefits since April 26 violated Section 8(a)(1) and
(3) of the Act. On August 2 the Company instituted the several benefits listed
in its letter of April 12. A month later, the complaint in this case issued , alleging
that the Company violated Section 8(a)(3) and (1) by withholding the benefits,
and violated Section 8(a)(1) by notifying the Union that such benefits would be
withheld unless the Union agreed not to file unfair labor practice charges against
the Company for granting such benefits.?
D. Discussion
Analysis of the problems here raised must begin with the recognition that the
statute as construed by the Board and the courts places the employer in a difficult
position when economic circumstances dictate a revision in his wage structure and
a representation proceeding is pending. The Supreme Court has held that an
employer violates Section 8(a)(1) if "while a representation election is pending,"
he confers benefits "for the purpose of inducing employees to vote against the
union" N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409. The Board has
applied this principle to hold unlawful an employer 's action in granting benefits
after an election , if objections to the election are pending . Ambox, Incorporated,
146 NLRB 1520. On the other hand, in Champion Pneumatic Machinery Co., 152
NLRB 300, the Board distinguished Ambox and held that on the facts in Cham-
pion the benefits there granted were not given for the purpose of affecting the
pending representation proceeding . As recognized in Champion , an election under
this Act may be "pending" for several years, when, as here, a representation pro-
ceeding is held in suspense during the processing through appellate litigation of an
unfair labor practice case which must be resolved before the election in the repre-
sentation case is conducted . In Champion the Board recognized that "Fluctu-
ations in the cost of living or in the labor market or in other factors affecting the
employer's business may well occur during this period rendering wage adjustments
advisable or necessary" and the law does not require "a holding that any such
adjustment made while a second election is pending is automatically an unfair labor
practice."
The employer 's problem is not only difficult in terms of deciding on a course
of action which will be lawful , but involves him in some peril if he makes the
9 Union counsel states in his brief that "the Union 's response to the Company's letter
might have helped the employees to fully understand the situation ( or the Union 's posi-
tion ). But the Company did not mail copies of that letter to its employees , did not read
it to the employees and did not even mention the existence of a Union response to its em-
ployees." But Charging Party's Exhibit 1, a union leaflet dated May 25, 1965, recited
that "A copy of the April 15th letter the Union sent to Mr . Marshall and your employer
was sent to all McCormack Stone employees explaining the Union's position . .. . 11 As
that leaflet was sent by the Union to the Company 's employees , it seems reasonable to infer
from its contents that the Union also sent them copies of its April 15 letter.
7At the opening of the hearing General Counsel amended the complaint to include an
allegation that the Company notified employees , as well as the Union , of the withholding
of benefits unless the Union waived filing charges, and in so doing violated Section 8 ( a) (1).
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrong choice. If he chooses not to grant benefits, he may lose key personnel. If
he makes the other choice, he then must decide to what extent, if any, he will dis-
cuss the matter with the union involved in the representation case. To bargain with
the union over the matter is not only inconsistent with the employer's position that
the union is not the statutory representative, but may result in his being held to
have violated Section 8(a)(2) and (1) of the Act under International Ladies' Gar-
ment Workers' Union, AFL-CIO v. N.L.R.B., 366 U.S. 731. To institute the
benefits without discussing the matter with the union not only involves the employer
in a possible violation of Section 8(a)(1) under Exchange Parts and Ambox, supra,
but may even lead to a bargaining order based on the theory that his unfair labor
practice prevented a fair election, so that the union's majority may be established
by authorization cards.
To recognize and to appreciate the problems which beset the employer, how-
ever, will serve merely as a frame of reference, and not as in any sense a final
answer, of the issues here raised. The very pitfalls which beset the employer's
path are only there because the competing rights and interests of employees or of
the union must also be safeguarded in the public interest. That a misstep, or even
a lawful action susceptible of being construed as a misstep, may subject the
employer to litigation is simply another aspect of the truism long since stated by
Justice Brandeis that "Lawsuits also often prove to have been groundless, but no
way has been discovered of relieving a defendant from the necessity of a trial to
establish the fact." Myers, et al. v. Bethlehem Shipbuilding Corp., 303 U S. 4l,
51-52. Such decisions as Exchange Parts, supra, arise out of the fact that an
employer's grant of benefits while a representation proceeding is pending may
well have an adverse effect on union organization and may be granted for that
purpose. As held in Champion, supra, each case must stand on its own facts, and
the Board will not find a per se violation in the grant of benefits but will look
to the circumstances.
An employer's legal duty in deciding whether to grant benefits while a repre-
sentation case is pending is to determine that question precisely as he would if a
union were not in the picture. If the employer would have granted the benefits
because of economic circumstances unrelated to union organization, the grant of
those benefits will not violate the Act. On the other hand, if the employer's
course is altered by virtue of the union's presence, then the employer has violated
the Act, and this is true whether he confers benefits because of the union or with-
holds them because of the union.
In the instant case , if the Company had simply instituted the general wage
increase, the record as developed before me would have led me to conclude, as I
did in Champion with subsequent Board approval, that the pay raise was in
response to economic circumstances, that it was designed to keep employees from
leaving for other employment, and that it did not violate the Act. (Of course, it
is possible that had the case been in that posture, General Counsel could have
presented evidence as to the illegality of the action, and it is also possible that the
Board would have found Ambox rather than Champion controlling, particularly in
the light of the Company's recent unfair labor practices in Case No. 1-CA-4817.)
The other aspects of the Company's proposed benefits, notably the broad insurance
program and the improved vacation plan, do not, o;i this record, appear to be in
response to any employee demand, or to have been dictated by any desire to keep
employees from defecting to other employers. On the contrary, had the Company
granted those benefits in April 1965, it would in my view have violated Section
8(a)(1). Under those circumstances, its conditioning those benefits on the Union's
waiving its right to file objections and charges likewise violated Section 8(a)(1).
Everything said by the Supreme Court in Exchange Parts would apply a fortiori if
the employer not only announced the benefits but made it clear that the employees
would have only him to thank if they received them, and only the Union to blame
if they did not. Manifestly, the Union would have little choice but to write, as
it did here, urging that the benefits be instituted. But if the grant of benefits was
unlawful under Exchange Parts, the vice is not eliminated by seeking the Union's
waiver, for the impact on the employees' exercise of their organizational rights is
not dimicirshed. And in withholding such benefits under these conditions the
employer has not avoided the Exchange Parts violation, for his conduct has at least
as much impact on organizational rights as if he had implemented the benefits.
I further conclude that with respect to the wage increase which could have been
lawfully instituted without reference to the Union, the Company violated the Act
by conditioning its grant of that benefit on the Union's waiver, and so advising all
employees. First, the very fact that the Company directed the employee' s atten-
McCORMICK LONGMEADOW STONE CO., INC. 1243
tion to the union aspect ,of the matter, instead of simply meeting the economic
exigency in a lawful way, eliminates the consideration which underlies the holding
that the wage increase could lawfully be granted, namely that it was unrelated to
any question of employee organization. Second, the right of access to Board chan-
nels should be kept open, and even though a charge based on the wage increase
might eventually prove groundless, the Union should not be forced to waive its
right to file. a charge to test that, question. If the charge would' indeed prove
groundless, the Company-derives ample protection from that fact alone , and if the
charge should prove well founded, the Company manifestly should not be able to
insist on the waiver. In short, the Company should not be able to shift to the
Union the onus of deciding whether the projected action is or is not lawful.
Finally, in withholding the wage increase because of the Union's failure to waive its
right to file a charge, the Company- deprived them of benefits they would have
enjoyed but for their resort to self-organization. This not only interferes with their
right to self-organization and hence violates Section 8(a)(1) but is also discrimina-
tion with respect to a term of employment which discourages membership in a
labor organization, and hence violates Section 8(a)(3).
I find, therefore, that even with respect to the wage increase which the Company
could lawfully have instituted, and a fortiori with respect to the fringe benefits
which under Exchange Parts it could not lawfully have instituted, the Company
violated Section 8(a)(1) of the Act by conditioning the grant of the benefits on the
Union's waiving its right to file objections or charges with the Board , and that the
Company further violated Section 8(a)(3) of the Act by withholding the benefits
from April 26, the date on which it planned to institute them , until August 2 when
it did institute them. The employer's duty in this admittedly difficult situation is to
act as if the Union were not on the scene, granting or withholding benefits without
regard to the organizational efforts of his employees .8
III. THE REMEDY
I shall recommend that the Company cease and desist from its unfair labor prac-
tices; that it make the employees whole for the losses they have sustained as a con-
sequence of the unlawful conduct by making the benefits instituted August 2, 1965,
'retroactive to April 26, 1965, with interest computed as in Isis Plumbing & Heating
Co., 138 NLRB 716, and that it post appropriate notices. Cf. International Ladies
Garment Workers', AFL-CIO, 142 NLRB 82, 83, enfd. in pertinent part 339 F. 2d
116, 132-133 (C.A. 2).
CONCLUSIONS OF LAW
1. By advising its employees that it was withholding certain benefits unless the
Union agreed not to file objections or charges with the Board the Company
-engaged in an unfair labor practice affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By withholding certain benefits from its employees between April 26, 1965,
and August 2, 1965, because of the failure of the Union to waive its right to file
objections or charges, the Company engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend, pursuant to Section 10(c) of the Act, issuance of
the following:
ORDER
Respondent, McCormick Longmeadow Stone Co., Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Advising employees, or the representatives of employees, that it is withhold-
ing benefits unless and until employees or their representative agree not to make
O Throughout this discussion we have assumed that the Union's waiver, had it been
forthcoming, would have been binding. Apparently under this Act basic statutory rights
can be waived , If the waiver is clear and unmistakable . The waiver cases, however, deal
with substantive rights, and a waiver of the right to Board processes may stand on less
secure footing., 'Moreover, the waiver, if obtained would not have prevented individual
employees from filing charges The fact that the Company sought the waiver only of
the Union tends to cast doubt on whether the Company was acting in good faith or was
seeking to put the Union "on the spot."
1244 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
the granting of such benefits the basis of objections to an election or unfair labor
practice charges.
(b) Withholding benefits from its employees because they or their representative
decline to waive the right to make the granting of such benefits the basis of objec-
tions to an election or unfair labor practice charges.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Make its employees whole, in the manner described in the portion of the
Trial Examiner's Decision entitled "The Remedy," for any losses suffered between
April 26 and August 2, 1965, by virtue of the withholding until the latter date of the
six benefits then instituted.
(b) Preserve and, 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 records necessary to analyze the
amount of backpay due under the terms hereof.
(c) Post at its plant at East Longmeadow, Massachusetts, copies of the attached
notice marked "Appendix E." 9 Copies of such notice to be furnished by the
Regional Director for Region 1, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to
comply herewith.1°
O In the event that this Recommended Order is adopted by the Board, the words, "an
Order" shall be substituted for "a Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order be enforced by a decree of a United
States Court of Appeals , the words "a Decree of the United States Court of Appeals,
Enforcing" shall be inserted immediately preceding "an Order."
10 In the event that this Order is adopted by the Board, this provision shall be modified
to read, "Notify said Regional Director , in writing , within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
McCORMICK LONGMEADOW STONE CO., INC.
GRANITE CUT STONE CONTRACTORS MARBLE
LIMESTONE Producers of BLUESTONE
LONGMEADOW BROWN SANDSTONE
East Longmeadow, Mass.
Telephone LAurel 5-7746
April 12, 1965.
United Stone and Allied Products
Workers of America, AFL-CIO
Scampini Building
Barre, Vermont 05641
Gentlemen:
It appears that it will take a long time before there is a final decision by the
National Labor Relations Board concerning the election among our employees
which took place on December 21, 1964.
Although we have maintained a long standing practice of putting improved
employee benefits into effect in the early part of each year, we may be prohibited
by law from making changes in the wages, hours or working conditions of our
employees while the election is under consideration by the Board. We desire to
make some improvements for our employees effective at this time not only because
it is customary but also because our employees have earned these benefits and they
deserve them.
We have recently obtained approval for a new quarry operation at Redstone
Lake. With the proposed opening of the new quarry, there is reason to view the
McCORMICK LONGMEADOW STONE CO., INC. 1245,
future development and growth of our Company with some optimism and we
believe that our loyal employees can look forward to economic advancement and
improved working conditions as our Company expands.
While the matters involving the status of the election are pending before the
Board, the needs and desires of our employees are entitled to consideration and
attention. Accordingly, beginning with April 26, 1965, we plan to institute
improvements for all our employees as follows:
(1) An across-the-board wage increase of 5 cents per hour
(2) Other selective additional wage increases based on merit
(3) A minimum of $2,000.00 of life insurance for each employee paid for by
the Company
(4) A minimum of $2,000.00 of accidental death and dismemberment insurance
for each employee paid for by the Company
(5) Weekly indemnity protection for accident and sickness for each employee of
a minimum of $40.00 per week for 26 weeks paid for by the Company and
(6) 3 weeks vacation with pay for employees who have been in the continuous
employ of the Company for 20 years or more
As has been our policy in the past, the welfare of our employees is a matter of
primary importance to our Company and it would be unfair and unfortunate for
our employees to be deprived of these improved benefits while the questions per-
taining to the election are under consideration by the Board.
We agree with the statement in one of your recent circulars that it is better for
our employees to receive benefits than for the Company to spend money on legal
fees. The proposal in this letter is for the purpose of achieving that result.
Notwithstanding the several sound reasons to put these improved benefits into
effect immediately, we are reluctant to take this action because of the possibility
that to do so might become the basis for the filing of an objection to the conduct
of an election or of an unfair labor practice charge before the Board.
For these reasons, we request the United Stone and Allied Products Workers
of America, AFL-CIO to waive the establishment of the additional benefits as
described in the fourth paragraph of this letter as the basis for the filing of an
objection to the conduct of an election or of an unfair labor practice charge or
charges before the National Labor' Relations Board. If you agree that the estab-
lishment of these improved benefits will not be the basis for the filing of objections
or charges, your waiver to that effect will make it possible for us to make these
benefits available to our employees promptly and without delay. In the event that
you fail to comply with the request for a waiver as outlined in this letter, we doubt
that we will be able to institute the proposed benefits with the result that our
employees will be deprived of benefits which they are properly entitled to receive
and which they should have.
At your first convenience and by return mail, if possible, will you let us have
your answer to this request.
Very truly yours,
MCCORMICK LONGMEADOW STONE CO., INC.,
CERTIFIED MAIL NO. 684931
RETURN RECEIPT REQUESTED
cc: Mr. Bernard L. Alpert
Regional Director, First Region
National Labor Relations Board
24 School Street
Boston, Massachusetts 02108
CERTIFIED MAIL NO. 684932
RETURN RECEIPT REQUESTED
APPENDIX B
McCormick Longmeadow Stone Co., Inc.
East Longmeadow, Massachusetts
Gentlemen:
Strati A . Chipouras,
STRATI A. CHIPOURAS,
Treasurer.
April 15, 1965.
Your letter of April 12, 1965 , addressed to the United Stone and Allied Proaucts
Workers of America, AFL-CIO, has been referred to me for a reply.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not waive any of the legal rights of the United Stone and Allied Products
Workers of America, AFL-CIO, and we cannot, as you must have been advised,
waive any of the legal rights of the employees of your Corporation.
We request that those wage increases and additional fringe benefits you plan to
institute on April 26, 1965 be effectuated no later than that date. In the event you
fail to accede to our request, we shall forthwith proceed to enforce our rights before
the National Labor Relations Board and/or any other appropriate forum.
These benefits, although inadequate, do constitute a basis for collective bargain-
ing of improved benefits at an appropriate time.
Very truly yours
ANGOFF, GOLDMAN, MANNING & PYLE,
RDM/h
Robert D. Manning.
APPENDIX C
McCORMICK LONGMEADOW STONE CO., INC.
GRANITE CUT STONE CONTRACTORS MARBLE
LIMESTONE Producers of BLUESTONE
Longmeadow Brown Sandstone
East Longmeadow, Mass.
Telephone LAurel 5-7746
April 26, 1965.
Robert D. Manning, Esq.
Angoff, Goldman, Manning & Pyle
44 School Street
Boston, Massachusetts 02108
Dear Mr. Manning:
This will acknowledge the receipt of your letter dated April 15, 1965 in reply to
our letter dated April 12, 1965 addressed to the United Stone and Allied Products
Workers of America, AFL-CIO, pertaining to a proposed course of action for
establishing improved benefits for our employees.
Our letter of April 12th did not in any way constitute a proposal to engage in
collective bargaining negotiations. On the contrary, since a majority of our employ-
ees have not indicated a desire that we do so and while various aspects of the elec-
tion are unresolved and pending, such negotiations may well be prohibited by the
law.
The sole purpose of our letter of April 12th was to present a proposed course of
action to enable us to put into effect some improved benefits for our employees.
We made the single and clear request that the Union waive the establishment of
the proposed additional benefits as the basis for the filing of an objection to the
conduct of an election or an unfair labor practice charge or chaiges before the
National Labor Relations Board. Your letter of April 15th did not respond to that
request.
We concur in the observation in one of the recent circulars distributed by the
Union that it is better for employees to receive additional benefits than for the
Company to spend money on legal fees. For your information, there is enclosed a
copy of the circular dated March 11, 1965 in which thi Union states that "... Mr.
Chipouras should have given his employees a wage increase rather than spend the
high fees for the type of representation Mr. Marshall has given him ..." and that
. the money spent in legal fees could be better spent on you, the McCormick
Stone employees . "
The purpose of the proposal in our letter of April 12th was to provide our
employees with wage increases and other benefits now rather than having them
wait until the issues pertaining to the election have been decided. Notwithstanding
the several sound reasons to put these improved benefits into effect immediately and
our strong desire to do so, we are reluctant to take this action because of the pos-
sibility that the establishment of these benefits might become the basis for the filing
of an objection to the conduct of an election or of an unfair labor practice charge
before the Poard.
To bring about the immediate establishment of the improved benefits without
incurring the risk of additional legal fees and expenses, we propose the waiver out-
lined in our letter of April 12th to the Union. Immediately upon the receipt of a
waiver by the Union to the effect that the establishment of the proposed wage
increases and other additional benefits will not be the basis for the filing of objec-
MCCORMICK LONGMEADOW STONE CO., INC. 1247
tions or unfair labor practice charges, these wage increases and other benefits will
be put into effect promptly and without delay.
The welfare of our employees is a matter of great importance to us and it would
be unfortunate and unfair for the employees not to have the advantage of the wage
increases and the improved benefits while the questions pertaining to the election
are under consideration by the Board. The continued refusal by the Union to com-
ply with the request in our letter of April 12th will serve only to deprive our
employees of wage increases and other benefits which they have earned and which
they are entitled to have.
At your first convenience and by return mail, if possible, will you advise whether
the Union is willing to agree to the procedure for establishing the wage increases
and other improved benefits as outlined in our letter of April 12th addressed to
the Union.
Very truly yours,
MCCORMICK LONGMEADOW STONE CO., INC.,
Strati A. Chipouras,
STRATI A. CHIPouRAs,
Treasurer.
CERTIFIED MAIL NO. 684933
RETURN RECEIPT REQUESTED
cc. Mr. Bernard L. Alpert
Regional Director, First Region
National Labor Relations Board
24 School Street
Boston, Massachusetts 02108 (with enclosure)
CERTIFIED MAIL NO. 684934
RETURN RECEIPT REQUESTED
United Stone and Allied Products
Workers of America, AFL-CIO
Scampini Building
Barre, Vermont 05641
CERTIFIED MAIL NO. 684915
RETURN RECEIPT REQUESTED
APPENDIX D
MCCORMICK LONGMEADOW STONE CO., INC.
GRANITE CUT STONE CONTRACTORS MARBLE
LIMESTONE Producers of BLUESTONE
Longmeadow Brown Sandstone
East Longmeadow, Mass.
Telephone LAurel 5-7746
May 18, 1965.
Robert D. Manning, Esq.
Angoff, Goldman, Manning & Pyle
44 School Street
Boston, Massachusetts 02108
Dear Mr. Manning:
This will have reference to our letter dated April 26, 1965 pertaining to our pro-
posed course of action for establishing improved benefits for our employees.
Our original proposal for the establishment of these improved benefits was
received by the Union almost five weeks ago and three weeks have passed without
a reply to our letter to you. The long delays by the Union result in an unwar-
ranted injustice to our employees who are being unfairly deprived of wage increases
and other benefits which they have earned and which they are entitled to.have.
The sole purpose of the proposal in our letter dated April 12, 1965 was to pro-
vide our employees with wage increases and other benefits now rather than hav-
ing 'them wait until the issues pertaining to the election have been finally, decided.
Notwithstanding the several sound and valid reasons to put these improved benefits
into effect immediately and our strong desire to do so, we are reluctant to take this
action because of the possibility that the establishment of these benefits might
become the basis for the filing with the National Labor Relations Board of an
objection to election of of an unfair labor practice charge. If such objections or
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges are filed, we will have to spend money for additional legal fees and
expenses and we would much prefer to use that money for the benefit of our
employees.
There is really no good reason for the Union to hedge or continue to refuse to
waive the establishment of the proposed additional benefits as the basis for the fil-
ing of objections or of an unfair labor practice charge or charges. It is clear and
obvious that the issues in the pending cases before the Board may not be decided
for a year or more . It is both unfair and unreasonable for the Union to take a
position which will require the employees to wait for the wage increases and other
.benefits until these questions are finally resolved.
In the event that we do not receive a letter from you or from the Union not later
Than May 26, 1965, containing the waiver outlined in our letter to the Union dated
April 12, 1965, we will take your silence as a final rejection by the Union of our
proposed course of action for establishing improved benefits for our employees We
shall then give careful consideration to the early establishment for our employees
of the wage increases and other improvements as outlined in our earlier letters to the
Union. Our consideration will include the possibility of referring this matter to the
National Labor Relations Board in the interest of making available to our employees
the wage increases and other improved benefits which they are entitled to have.
Very truly yours,
MCCORMICK LONGMEADOW STONE CO., INC.,
Strati A. Chipouras,
STRATI A. CFIIPOURAS,
Treasurer.
CERTIFIED MAIL NO. 684993
RETURN RECEIPT REQUESTED
cc. Mr. Bernard L. Alpert
Regional Director , First Region
National Labor Relations Board
24 School Street
Boston, Massachusetts 02108
CERTIFIED MAIL NO. 684994
RETURN RECEIPT REQUESTED
United Stone and Allied Products
Workers of America, AFL-CIO
Scampini Building
Barre , Vermont 05641
CERTIFIED MAIL NO. 684995
RETURN RECEIPT REQUESTED
APPENDIX E
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL make the benefits we instituted on August 2, 1965, retroactive to
April 26, 1965.
WE WILL NOT make the granting of benefits to our employees conditional
on their waiving, or on any union's waiving, the right to file objections or
charges with the National Labor Relations Board.
MCCORMICK LONGMEADOW STONE Co., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 223-3358.