Whiterock Quarries, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1938

5 N.L.R.B. 601 (N.L.R.B. 1938)

In the Matter Of WHITEROCK QUARRIES, INC. and LIMESTONE WORKERS
UNION No. 19450
Case No. C-205.-Decided February 24, 1938
Limestone Quarrying Industry-Interference, Restraint , and Coercion: ex-
pressed opposition to labor organization ; questioning employees regarding union
affiliation and activity :-Discritnination : discharge-Reinstatement Ordered-
Back Pay: awarded , excluding period during which case was closed because of
failure to take exceptions to Intermediate Report dismissing complaint.
Mr. Emmett P. Delaney, for the Board.
Mr. John B. Love, of Bellefonte, Pa., for the respondent.
Mr. Joseph B. Robison, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On April 8, 1936, Limestone Workers Union No. 19450, herein
called the Union, filed a charge with the Regional Director for the
Sixth Region (Pittsburgh, Pennsylvania) alleging that Whiterock
Quarries, Inc., herein called the respondent, had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On May 4, 1936, the National Labor Relations Board,
herein called the Board, by the Regional Director, duly issued and
served upon the respondent and the Union a complaint and notice
of Nearing. The complaint alleged that the respondent had engaged
and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act.
With regard to the unfair labor practices, the complaint, as
amended at the hearing, alleged in substance that the respondent, dur-
ing September 1935, discharged and refused to reinstate 23 of its em-
ployees for the reason that they assisted the Union and engaged in
concerted activities with other employees for the purposes of collective
bargaining; that by such action the respondent discriminated and is
discriminating against such employees with regard to hire and tenure
601
602 NATIONAL LABOR RELATIONS BOARD
of employment and thereby discouraged and is discouraging mem-
bership in the Union; and that the respondent by such action inter-
fered with, restrained, and coerced, and is interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
On May 9, 1936, the respondent filed an answer and objection, in
which it reserved the right to answer the allegations of the com-
plaint, and objected to the proceeding on the ground that the allega-
tions of the complaint did not bring the respondent within the juris-
diction of the Board.
Pursuant to the notice, a hearing was held in Bellefonte, ' Penn-
sylvania, on May 15 and 16, 1936, before David Harrison, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
At the commencement of the hearing, counsel for the respondent
moved to dismiss the complaint on the basis of its answer and ob-
jection theretofore filed. The motion was denied. Thereafter the
respondent took no further part in the hearing. During the course
of the hearing, counsel for the Board made several motions to amend
the complaint in various particulars, including the addition of the
name of Ben Confer to the list of discharged employees. The mo-
tions were granted. On May 16, 1936, the hearing was adjourned to
June 6, 1936, for the presentation of further testimony on behalf of
the Board. Following the decision of the Supreme Court of the
United States in Carter v. Carter Coal Co., 298 U. S. 238, on May 18,
1936, the further hearing was canceled by notice duly served upon
the parties.
Thereafter on June 1, 193,6, the Trial Examiner filed his Inter-
mediate Report, in which he found that the respondent had engaged
in and was engaging in unfair labor practices within the meaning
of Section 8 (1) and (3) of the Act, by the discharge of and refusal
to reinstate 18 of its employees; but that such unfair labor practices
were not unfair labor practices affecting commerce, within the mean-
ing of Section 2 (6) and (7) of the Act. He therefore recommended
that the complaint be dismissed.
On July 9, 1937, after the decision of the Supreme Court in Na-
tional Labor Relations Board v. Jones and Laughlin Steel Corp.,
301 U. S. 1, the Union moved to reopen the proceedings in this
case and to be permitted to file exceptions to the Intermediate Re-
port. After considering this motion and the answer of the respond-
ent thereto, which was filed on July 14, 1937, the Board, on July 28,
:1937, issued an order reopening the case and permitting the filing
i
DECISIONS AND ORDERS 603
of exceptions to the Intermediate Report by the Union. Such excep-
tions were duly filed on August 5, 1937.
The Board has reviewed and hereby affirms the rulings of the Trial
Examiner on the motions made at the hearing. The Board has con-
sidered, and it hereby sustains the exceptions to the Intermediate
Report.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent was incorporated in Pennsylvania on September
20, 1905. Its principal office is located in Bellefonte, Pennsylvania.
and it operates six quarries in the vicinity of Bellefonte for the pro-
duction and distribution of various kinds of lime, building and fur-
nace stone, and allied products. It normally employs from 110 to
115 men, exclusive of clerical employees. It maintains a railroad
siding which connects with the Pennsylvania Railroad.
A prospectus issued by the respondent during 1935, in connection
with the sale of an issue of bonds,' states that the appraisal value
of the respondent's property is $936,613.08 and claims a large in-
terstate area as the market for the more important of its products.2
In addition, G. E. Hillegas, the freight agent of the Pennsylvania
Railroad at the station from which the respondent's products are
shipped, testified as to the amount of the respondent's products
which are shipped on that railroad to points within and without the
1 Board's Exhibit No 3.
2 The prospectus states the following with regard to the markets of its various products :
Chemical and Industrial Lime and Spray Lime is marketed from Maine to Vir-
ginia and as far west as Michigan
Crushed stone is confined to Pennsylvania.
Furnace Stone is marketed in Tri-State territory of Pennsylvania , West Virginia
and Ohio.
Pulverized Limestone is sold in States of Pennsylvania , New York, New Jersey,
Delaware , Maryland and West Virginia. Agricultural Hydrated Lime is sold in
same area.
Building Stone , at present , is confined largely to local markets
The prospectus also shows that the lime , which, as opposed to the stone, is sold to a
greater extent on an interstate scale , constitutes the major portion of the respondent's
business . The prospectus states its sales as follows -
Year 1934 First 6Months 1935
Stone-Combined Rinds------------------------------------------------I $88,896 90 I $53,474 43
Lime-Combined Rinds------------ ------------------------------------ 170,426 88 142,681.07
259,323 78 196,156.40
604 NATIONAL LABOR RELATIONS BOARD
State, during August 1935 and March 1936. The figures given by
the witness show that in the first of these months 42 per cent, and
in the second, 20 per cent, of the products shipped went to points
outside of Pennsylvania.3 Hillegas stated that the figures for
August 1935, were average figures for all months but that the per-
centage of intrastate shipments in March 1936, was unusually high,
due to reconstruction work being done after floods which had oc-
curred at this time.
The raw materials used by the respondent consist chiefly of the
limestone which is procured from its own quarries. In addition
it uses a large amount of coal, which is shipped to it chiefly by
truck. Other items, such as shipping materials and machinery, are
procured in large part outside of Pennsylvania.
II. THE UNION
Limestone Workers Union No. 19450 is a labor organization, af-
filiated with the American Federation of Labor, which admits to
membership employees in certain quarries, including employees of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The organization of the Union
In August 1935, a group of the respondent's employees went to
the headquarters of the Union and asked to be permitted to become
members. They were given a petition to circulate, whereby the
signers stated their desire to join the Union.4 This petition was
circulated among the respondent's employees during August and
a Board's Exhibit No 6, a compilation drawn up under the supervision of the freight
agent, shows the following:
Interstate
August 1935
Less than carload lots ------------------------------
Carload lots----------------------------------------
Total----------------------------------------
March 1936
Less than carload lots ------------------------------
Carload Lots---------------------------------------
Total-----------------------------------------
Intrastate
Number of
shipments Pounds
Number of
shipments Pounds
4
22
3,191
9,385,713
11
49
15, 075
13, 049, 026
26 9,388,904 60 13, 064, 101
8
28
12, 240
3,496,000
4
55
16,220
13, 857, 988
36 3,508,240 59 13, 874, 208
'Board 's Exhibit No 5.
DECISIONS AND ORDERS 605
September and was eventually returned to the Union with 56 signa-
tures. On September 26, 1935, 37 men, most of whom had signed
the petition, were formally initiated into the Union, at a meeting held
in the evening of that day.
Some time in September the respondent, by means not disclosed
in the record, procured a copy of the Union petition and the names
of the men who had signed it. It is significant that the last employee
to sign the petition, who kept it for a day without procuring any
additional names, did not join the Union, was never discharged by
the respondent, and at the time of the hearing in the case had been
promoted to the rank of a foreman. At any rate, Ray Noll, the
respondent's general manager, on numerous occasions stated to vari-
ous employees that he knew who had signed the list, and that he
even knew the positions of some of the names on the list. A copy
of the list was shown to at least one employee by the general man-
ager 's mother.
Noll was also kept well-informed of the further activities of the
Union. He knew in advance when its meeting was to be held, and
knew approximately which of the employees were appointed to the
committee which was to deal with him. Moreover, he took pains to
let the employees know that he had this knowledge.
The discharges discussed in some detail below took place through-
out the month of September, but most of them occurred between
September 23 and 27. On the last of these days Noll called a meet-
ing of all the employees, which was attended also by a large number
of those who had been discharged. Noll made a long speech, which
included several highly uncomplimentary remarks about certain of
the more active Union men. He stated that he could not run the
quarry if he had to abide by Union rules, and that it would be im-
possible for the respondent to pay wages every two weeks, as the
Union would require. He made clear that he knew which employees
had signed the petition and that he intended to dismiss them all.
Finally, he stated that those who had signed need not return to work
the following Monday. Following this meeting, the Union appears
to have abandoned all activity except on behalf of its discharged
members.
B. The discriminatory discharges
The complaint, as amended, alleges the discriminatory discharge
of 23 employees. Seventeen of these employees testified in detail as
to the circumstances of their discharges. It should be noted, how-
ever, that the respondent failed to deny in its answer any of the aver-
ments of the complaint. It thereby admitted that all of the employees
606 NATIONAL LABOR RELATIONS BOARD
named were discharged and that their discharges- were for union
activity.5
All of the men who were discharged during September 1935 had
signed the petition or in some other manner indicated sympathy to-
ward the Union. None of them were ever told that their work was
unsatisfactory. All were replaced by new men almost immediately.
The respondent's intention to discharge its active union employees
on a mass scale can be clearly seen from the facts above described;
and can be seen further in the incidents surrounding some of the
individual discharges, which will now be considered in chronological
order.
Claude McClintie. Claude McClintic was hired by the respondent
in April 1935. He signed the petition in August. On September 7,
he was told by his foreman that he was no longer needed, and was
given his checks for the back pay that was due him. No explanation
of his dismissal was ever given him by the foreman or by Noll, whom
he saw when he returned to Bellefonte to get his last check.
Milford Herman. Milford Herman worked for the respondent for
four years. He signed the petition in August 1935. On September
11 he was given his back-pay checks by his foreman and told he was
no longer needed. He went to see Clair Hazel, the superintendent,
to discover the reason for his discharge. Hazel laughed, and told
him that some of his supposed friends had "cut" his "throat".
Ben Confer. Ben Confer started to work for the respondent in
June 1928. He signed the petition in August 1935. On September
17 he was discharged by his foreman, who was unable, however, to
state the reason for this action. He went to the superintendent,
who told him that he was being discharged because he had made
too many complaints about the delay in paying wages, although heZT,
was forced to agree that the complaints were justified and that
Confer's work was satisfactory.
Charles Clapper. Charles Clapper was hired by the respondent on
January 18, 1935. He signed the petition in August. He was dis-
6 The respondent ' s answer contains only three points , which challenge the jurisdiction'
of the Board , but do not deny any of the allegations of the complaint The answer was-
prefaced as follows :
Whiterock Quarries , Inc., reserving unto itself the right to answer the averments
of fact contained in a certain Complaint , * * n now makes answer and prelimi-
narily objects thereto, * * *
Article II , Section 10 , of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended , provides that the respondent shall have the right
to answer a complaint within five days, and that , "Any allegation in the complaint
not specifically denied in the answer , unless respondent shall state in the answer
that respondent is without knowledge , shall be deemed to be admitted to be true and'
may be 'so found by the Board ." Section 18 provides , "The right to make mo-
tions * * * shall not be deemed waived by the filing of an answer or by other
participation in the proceedings before the Trial Examiner or the Board ." Sectiorn
28, after providing for the making of objections with respect to the conduct of the
hearing, provides that, "No such objection shall be deemed waived by further partici-
pation in the proceeding."
DECISIONS AND ORDERS 607
charged on September 23 by his foreman, who referred him to Clair
Hazel for the reason. Hazel told him he was being discharged be-
cause he was dissatisfied and because he had signed the petition.
Richard Alterio. Richard Alterio worked for the respondent for
three or four years. On September 24, 1935, he was asked by Hazel
whether he had signed the petition. He replied in the affirmative,
and was thereupon told that there was no more work for him.
Gibson Baney. Gibson Baney started to work for the respond-
ent in March 1929. He signed the petition on about September 17,
1935. On September 24 his foreman told him that he had been
ordered to discharge him. The previous day, Hazel had asked him
why he had signed the petition and had told him that those who had
done so were going to be laid off.
John Simpson and Melvin Snare. John Simpson and Melvin
Snare both started to work for the respondent in April 1935. The
latter was laid off for a two-month period between June and August.
On September 24 both were told by their foreman that they were
discharged because they had signed the petition. They saw Hazel
at the respondent's office. He told them that if they did not draw
all the pay,that was due them, they might be taken back later.
When they went back two weeks later they were told that they could
not be rehired, since they had joined the Union.
George Zeleznick. George Zeleznick started to work for the re-
spondent in 1926. He signed the petition on September 15, 1935.
On the morning of September 24,'upon being asked by the superin-
tendent whether he had signed the petition, he denied that he had
done so. That evening he was discharged by his foreman who gave
as the reason that he was dissatisfied with his job. The foreman
mentioned that he had signed the petition. Zeleznick saw Hazel
two weeks later and was told that the respondent "was laying them
all off for signing that paper. That's why you got laid off."
John Zeleznick. John Zeleznick worked for the respondent for
nine years. He signed the petition in August 1935. On September
24 he-was discharged by his foreman for "dissatisfaction on the job
and signing the Union paper." Previous to that date he had been
accused by Hazel of having signed the petition, but had denied
doing so.
William A. Duck. William A. Duck worked for the respondent
for two and one-half years. He signed the petition on about Sep-
tember 22, 1935. On September 25, while at the store which is owned
and managed by W. H. Noll, father of the respondent's general man-
ager, he was shown his name on a copy of the petition, and told by
W. H. Noll that he had as good as lost his job, since all the men who
had signed were to be laid off. That night, his foreman told him he
had been replaced and that "You know why."
608 NATIONAL LABOR RELATIONS BOARD
Lester Poorman. Lester Poorman worked for the respondent for
five years, during a period of seven years. He signed the petition
on August 26, 1935. On September 25 he was asked by Hazel
whether he had signed the petition. When he admitted he had,
Hazel assured him that he would be laid off. That evening he heard
that he had been discharged, but he reported for work the following
day, nevertheless. Hazel refused to put him to work, saying that he
had orders not to let any of the Union men work.
Boyd J. Rachau. Boyd J. Rachau started to work for the respond-
ent in 1921. He signed the petition late in August or early in Sep-
tember 1935. On September 25 he was called into the office by Ray
Noll and discharged. The reason given him was that he was dis-
satisfied with his working conditions.
Joseph Mango. Joseph Mango worked for the respondent for nine
years. He signed the petition on September 18 or 20, 1935. On
September 25 Hazel asked him whether his name was on the Union
paper. He said it was not, but Hazel assured him it was, and that
he had seen it. The following day he was laid off by his foreman,
who told him it would only be for u few days, "If you will use your
head." However, he was never rehired.
Byron Detwiler. Byron Detwiler worked for the respondent for
six weeks. He did not sign the petition, but he became a member of
the Union on September 26, 1935. He was discharged the following
day. On September 28 Hazel told him that if he procured a state-
ment from the Union to the effect that he had not been associated
with it, he could return to work; but he refused to do so.
Lloyd B. Fry. Lloyd B. Fry started to work for the respondent
on May 11, 1934. Some time in August 1935 he signed the petition.
At the meeting called on September 27 he heard Nolls' announce-
ment that all who had joined the Union need not return for work.
Since he had joined the night before, he did not return. He was
given his back pay a week later.
John Musser. John Musser started to work for the respondent
on May 14, 1935. He signed the petition on about September 1. He
was discharged on September 27, and was told at the time that the
reason for his discharge was his having signed the petition.
Anthony Alterio, Lewis Dorman, Henry H. Hay, Homer Saxion,
Sam Tanallia, and Earl Waite. Six of the men alleged in the com-
plaint to have been discriminatorily discharged did not testify at
the hearing. However, as noted above, the failure of the respondent
to deny tl,e allegations of the complaint constitutes an admission that,
as alleged in the complaint, "The Respondent discharged and refused
to reinstate the above-named individuals * * * for the reason
that the above-named individuals assisted a labor organization known
as Limestone Workers Union No. 19450 and engaged in concerted
DECISIONS AND ORDERS 609
activities with other employees at the plant and quarries of the
Respondent * * * for the purpose of collective bargaining and
other mutual aid and protection." The evidence of the respondent's,
firm intention to extirpate all signs of Union activity at its quarries,
lends added support to the allegations of the complaint. It is not
necessary to give in detail the evidence as to these six men which
appears in the record.
We find that by discharging the employees named above, who are
listed in Appendix A, the respondent has discriminated against its
employees with respect to hire and tenure of employment for the
purpose of discouraging membership in the Union, and that by such
act the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. EFFECT OF 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 de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
The employees who were discriminatorily discharged are entitled
to reinstatement with back pay. The Intermediate Report in this
case, which recommended the dismissal of the complaint, was filed
on June 1, 1936. Because of the failure of the Union to file excep-
tions to the Intermediate Report, the case became closed, and re-
mained so until reopened by an order of the Board on July 28, 1938 .6
Although the Trial Examiner was mistaken in finding that the re-
spondent's unfair labor practices did not affect commerce, within
the meaning of Section 2 (6) and (7) of the Act, the respondent
should not be required to grant back pay for the long period during
which no action in the case was being taken.7 Our order for back
pay will therefore be for the period between the dates of the dis-
charges and June 1, 1936, and the, period between July 28, 1937,
and the respondent's offer of reinstatement.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
6 Article II, Section 36, of National Labor Relations Board Rules and Regulations-
Series 1, as amended.
Cf. Matter of Cherry Cotton. M1l18 and Local No. 18211, United Textile Workers of Amer-
ica. 4 N. L. R B. 731.
610 NATIONAL•LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Limestone Workers Union No. 19450 is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of the employees listed in Appendix A, and thereby discourag-
ing membership in or affiliation with the Union, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. The respondent, by interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, 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.
ORDER
Upon the basis of the above 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-
spondent, Whiterock Quarries, Inc., and its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist :
(a) From in any manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the National
Labor Relations Act;
(b) From discouraging membership in Limestone Workers Union
No. 19450 or any other labor organization of its employees by dis-
charging or refusing to reinstate any of its employees or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any terms or conditions of their employment.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to the persons listed in Appendix A immediate and
full reinstatement to their former positions, without' prejudice to
their seniority and other rights and privileges ;
(b) Make whole the persons listed in Appendix A for any loss
of pay they have suffered by the respondent's discriminatory acts,
by payment to each of them of a sum of money equal to that which
he would normally have earned during the periods from the date of
his discharge, as stated in Appendix A, to June 1, 1936, and from
DECISIONS AND ORDERS 611
July 28, 1937, to the date of the respondent' s offer of reinstatement,
less any amount earned by him during said periods, which he would
not have earned if working for the respondent;
(c) Post immediately in conspicuous places at or near the quarries
which it is operating, and in its office, notices to its employees stat-
ing that the respondent will cease and desist as aforesaid ;
(d) Maintain said notices for a period of at least thirty (30)
consecutive days from the date of posting ;
(e) Notify the Regional Director for the Sixth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
APPENDIX A
Employee Date of Discharge
Anthony Alterio------------------------------------------ September 26, 1935
Richard Alterio------------------------------------------ September 24, 1935
Gibson Baney--- ----------------------------------------- September 24, 1935
Charles Clapper------------------------------------------ September 23, 1935
Ben Confer---------------------------------------------- September 17, 1935
Byron Detwiler------------------------------------------, September 27, 1935
Lewis Dorman------------------------------------------- September 23,1985
William A. Duck----------------------------------------- September 25, 1935
Lloyd B. Fry-------------------------------------------- September 27,1935
Henry H. Hay------------------------------------------- September 24, 1935
Milford Herman-----------------------------------------. September 11, 1935
Joseph Mango-------------------------------------------- September 26, 1935
Claude McClintic------------ _--------------------------- September 7, 1935
John Musser--------------------------------------------- September 27, 1935
Lester Poorman------------------------------------------ September 25, 1935
Boyd J. Rachau------------------------------------------ September 25,1935
Homer Saxion ------------------------------------------- September 25, 1935
John Simpson-------------------------------------------- September 24, 1935
Melvin Snare-------------------------------------------- September 24, 1935
Sam Tenallia--------------------------------------------- September 9,1935
Earl Waite----------------------------------------------- September 25,1935
George Zeleznick----------------------------------------- September 24, 1935
John Zeleznick-------------------------------------------- September 24, 1935