Whiterock Quarries, Inc.

In the Matter of WHITERooi QUARRIES , INC. aped UNITED CEMENT, LIME & GYPSUM WORKERS INTERNATIONAL UNION, LOCAL No. 142, AFL Cases Nos. C-P266 and R-;2646.Decided October 30, 1942 Jurisdiction : quarrying, preparation, sale, and distribution- of limestone and allied products. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements ; threats to discon- tinue operations ; promise of wage increase ; circulation of petition urging Board not to certify the union ; interfering with elections. Remedial Orders : cease and desist unfair labor practices. Practice and Procedure : election set aside and representation petition dismissed without prejudice in view of lapse of time between filing of petition and Board's disposition, thereof. Mr. T. Lowry Whittaker, for the Board. - Mr. Oscar Brown, of Philadelphia, Pa., for the respondent. Mr. Joseph J. Knapik, of Bellefonte, Pa., for the Union. Mr. George J. Hadjino ff, of counsel to the Board. DECISION AND ORDER 4 . STATEMENT OF THE CASE On May 10, 1941, United Cement, Lime & Gypsum Workers International Union, Local No. 142, affiliated with the Ameri- can Federation of Labor, herein called the Union, filed with the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Whiterock Quarries, Inc., Bellefonte, Pennsylvania, herein called-the respondent, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 7, 1941, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election.' Pursuant to the Direction, an election by secret ballot was conducted on August 6, 1941, under the direction and supervision of the Regional 133 N. L. R. B 145. 45 N. L. R. B., No. 32. 165 166 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD Director. ' On September 8, 1941 , the Regional Director issued and duly served upon the parties his Election Report. On September 12, 1941, the respondent filed objections to the conduct of the ballot and the Election Report, -and on October 24 , 1941, the Board issued its Sup- plemental Decision and Second Direction of Election ,2 ordering a new election on the ground that the " secrecy of the ballot was. violated by the counting procedure adopted by the Regional Director. On No- vember 21 , 1941, a second election was held. On December 5, 1941, the Regional Director issued his Second Election Report, stating inter alia, ,that 82 votes were cast for the Union and 92 votes were cast against the Union. On December 9, 1941, the Union filed its objections to the Second Election Report claiming interference by the respondent with the employees ' freedom of choice. On January 8, 1942, the Acting Re- gional Director issued his Report on Objections in which he recom- mended that the second election "be declared null and, void, and set aside." Thereafter , charges and amended charges of unfair labor prac- tices were duly filed by the Union , upon which the Board , acting pursuant to Article II, Section 36 (b) 'and Article III, Section- 10 (c) (2), of National Labor Relations Board Rules and Regulations- Series 2, as amended, issued an order on May 7, 1942 , directing a hearing on the said objections to the Second Election Report and a consolidation of both cases. On May 18, 1942, the Board , by its Regional Director , issued its complaint against the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section .8 (1) and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint, the order of con- solidation , notice of hearing on the complaint , and notice of hearing' on, the objections to the Second Election Report were duly served upon the respondent and the Union. With respect to the unfair labor practices , the complaint alleged, in substance, ( 1) that the , respondent had interfered with, te- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by questioning its employees concerning their membership in the Union; by statements disparag- ing the Union; by threats and warnings that the respondent's plant would be closed if the Union won an election conducted by the Board among its employees and by promising a wage increase if the Union did not win said election; by permitting the circulation on the respondent's property during working hours of a petition which' was directed against the Board's certification of the Union as bargain- ing representative of the respondent 's employees ; and by causing 236 N L. R B 395. WHITEROCK QUARRIES, INC. 167 credit to be refused certain employees because they, had filed of&-' davits with the Board; and (2) that the respondent discrimina- torily refused to re-rent or re-lease houses owned by the respondent to certain employees because they joined and assisted the Union. In its answer to the complaint filed on May 30, 1942, the respondent denied''tliat it had engaged in the unfair labor practices alleged. Pursuant to notice, a hearing on the complaint case and the objections to the second election was held from June 1 to 9, 1942, at Bellefonte, Pennsylvania, before William E. Spencer, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by counsel and par- ticipated in the hearing. Full opportunity toy be heard, to examine and cross-examine witnesses, and to 'introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, ,the Trial Examiner denied a motion by the respondent for a bill of particulars, but granted the respondent leave to apply for a continuance if surprised by evidence adduced by the Board. A 2-day continuance was thereafter granted on motion by the respond- ent at the close of the Board's case. At the close of the Board's case, the respondent moved to dismiss the complaint in its entirety and, in the alternative, to dismiss certain paragraphs thereof. Both motions were denied. At the close of" the hearing the respondent renewed its motion to dismiss the complaint., The Trial Examiner reserved ruling on this motion and denied it in his Intermediate Report. At the close of the hearing, the Trial Examiner granted, without objection, the Board's motion to conform the pleadings to the proof. All parties waived oral argument before the Trial Ex- aminer and made no requests for the filing, of briefs. During the course of the hearing the Trial Examiner made rulings on a num- ber of other motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudical errors were committed. The rulings are hereby affirmed. On . July 18, 1942, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) of the Act and recommended that the respondent cease and desist therefrom and take certain affirmative 'action deemed necessary to effectuate the policies of the Act. He also found that the respondent had not- engaged in unfair labor practices within the meaning of Section 8, (3) of the Act. Thereafter the Union and the respondent filed exceptions to the Intermediate Report. The respondent also submitted a brief in support of its exceptions. Pursuant to notice duly served on all parties, a hearing for the pur- 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pose of oral argument was held before the Board in Washington, D. C.; on September 10, 1942. The respondent and the Union were represented by counsel and participated in the argument. The Board has considered the exceptions to the Intermediate Report and the brief filed in support of the respondent's exceptions,, and, insofar as the- exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Whiterock Quarries,-Inc.,.is a Pennsylvania cor- poration having its principal office in Bellefonte, Pennsylvania, and its plant, which includes 6 quarries, in the vicinity of Bellefonte. It is engaged in the quarrying, preparation, sale, and distribution of limestone, building furnace stone, high calcium lime, and allied limestone products. The principal raw materials and supplies used in the respondent's operations are coal, shipping materials, grease and oil, electrical supplies, and miscellaneous machinery parts and equipment. During the calendar year 1941, the approximate totals value of such materials amounted to $205,484, of which approxi- mately 37 percent represented shipments to the respondent's plant from points outside Pennsylvania. During the same period, the total value of the respondent's finished products amounted to approximately $537,849, of which about 33 percent represented sales and shipments to points outside the Commonwealth of Penn- sylvania. Approximately 188 persons. are employed by the re- spondent. For, the purposes of this proceeding, the respondent admits that it is engaged in commerce, within the meaning of the Act. H. THE ORGANIZATION INVOLVED United Cement, Lime & Gypsum Workers International Union, Local No. 142, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent. HI. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Anti-union statements The Union began organizational activities among the respondent's employees in March 1941, and on April 2, a charter was granted WHITEROCK QUARRIES, INC. 169 to Local 142. On April 23, the Union requested recognition as bar- gaining representative and on May 10 it filed with the Board a petition for investigation and certification. An election was there- after conducted by the Board among the respondent's employees on August 6, 1941. A majority of the ballots cast in this election favored the Union but, upon objections filed by the respondent, the Board voided the election and directed that a second election be held. Accordingly, a second election was conducted by the Board on November 21. The Union failed to receive a majority of the valid votes cast. Most of the anti-union statements attributed to the respondent by witnesses at the hearing were made during the periods immediately preceding each of these two elections. A large number of employees eligible to vote in the elections testified that W. H. Noll, Jr., a member of the respondent's board of directors, sought to influence them to cast their votes against the Union. Lawrence Lowery testified that about a month prior to the first election Noll questioned him as to "How is she going out there?" and that when he replied, "I think she is going all Union," Noll stated : "If it goes union, we will have to close down," and further commented that the respondent could not pay the wage scale demanded by the Union. Paul Faust testified that on the day preceding the second election Noll told him that, if he "would be doing what was right," he would vote for the "company." Noll reminded Faust that he was "pretty well fixed" at that time and suggested that if he wanted to remain "satisfactorily employed," he should vote for the "company." According to this witness, Noll fur- ther stated that the respondent had spent between $18,000 and $20,000 fighting the Union, and that if excessive demands were made by the Union, the respondent's plant would be shut down. Irvin Mulbarger testified that the day before the second election Noll told him that the respondent had spent a large sum combatting the Union, reminded him that he was too old to get a job elsewhere, and warned him that, if the respondent closed its plant, Pleasant Gap would be "nothing but a ghost town." Walter Mulbarger and Harold Sunday both testi- fied that Noll told them that if the Union lost the election the em- ployees would be given a wage increase. Walter Mulbarger further testified that Noll told him that all unions were alike and that the A. F. L. was as radical as the C. I. O. William Bechtol testified that on the day of the second election, before the polls closed, Noll asked him if he had voted and that when Bechtol replied in the negative, Noll stated, "If you vote for the company everything will go along all right but if you vote for the union . . . you might be out of work in 4 or 6 weeks." The testimony of these witnesses was not denied, is mutually corroborative, and we credit it, as did the Trial Examiner. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is the respondent's position that it is not bound by the statements of W. H. Noll, Jr., since it did not authorize them and since Noll's sole connection with the respondent is his position as a director, a non-remunerative office. W. H. Noll, Jr., is the father of Ray Noll, the respondent's secretary, treasurer, and general manager. In part- nership with his brother, Abner Noll, he owns and operates a general merchandise store in Pleasant Gap, a small community and the seat of the major part of the respondent's operations. It was in the vi- cinity of the Noll store that all the conversations in question took place. W. H. Noll, Jr., was one of the original incorporators of the respondent, has served continuously on the respondent's board of di- rectors from the time of its formation, and owns 90 shares, or about 1.9 percent, of the respondent's stock. His position as director clearly identifies him with the management since, in the words of Ray Noll, "The board of directors is the management of the company. All de- cisions are final with them." Ray Noll also stated that the labor -pot- icy of the respondent is determined by the Board of Directors. Noll Jr.'s position with the respondent was a matter of common and gen- eral knowledge in the community of Pleasant Gap and it is obvious that the employees whose choice he sought to influence considered that he was speaking in his managerial capacity. That lie was not ex- pressly authorized by the respondent to make the statements attrib- uted to hint by the Board's witnesses is immaterial.3 The respondent -did not repudiate the statements of W. H. Noll, Jr., and took no action whatever to inform the employees that such statements did not have the respondent's approval. We find, as did the Trial Examiner, that the statements of W. H. Noll, Jr., related above were made in his capacity as a member of the respondent's board of directors and are binding upon the respondent. Other witnesses testified to anti-union statements made to them by Ward Showers, foreman of the lime department, by'Harry Ulrich and Fremont Hile, quarry foremen, and by -Ray Noll, the respondent's general manager 4 Norman H. Grove testified that Foreman Showers questioned him concerning the Union in May 1941 and told, him that Ray Noll, the respondent's general manager, had said that if the plant "went union" he would "shut the place down." Kenneth King testified that in November 1941, prior to the second election, Ulrich, his foreman, told 3 See Swift d Company v. N. L. R. B., 106 F. ( 2d) 87 (C. C A. 10 ), enf'g as mod. Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters & Butcher Workmen of North America, Local No 641, et al , 7 N L. R. B 260. The respondent's counsel , refused to stipulate that Showers, Ulrich, and Rile occupied supervisory positions within the meaning of the Act, but it is clear from all the testimony that Showers. Ulrich, and Rile were in charge of their respective departments and exer- cised all' of the ordinary supervisory functions . They were referred to thioughout the hearing by Ray Noll and other respondent's witnesses as "foremen r WmTEROCK' QUARRIES, INC. 171 him that if the.Union won the election, Ray Noll would shut the plant down and sell the equipment for junk, and that Ulrich repeated this 'statement to another employee, Donald Confer. Confer corroborated King's testimony and testified that Ulrich also declared, "Boys, we are going to have another election . . . The boss has already promised us a 5-cent raise if the Union does not go through." Showers denied that he made the statement attributed to him by Grove or that he uttered any statements against the Union to any employee. Ulrich did not testify.s We, like the Trial Examiner, do not credit Showers' denial and find that he' and Ulrich made the statements attributed to them by the employee witnesses. Theodore Ripka testified that on the day of the second election his foreman, Fremont Hile, accompanied by William Wells, an employee, visited him at his father's farm some 21 miles from the respondent's plant, and offered to'drive him to the polls if he wished to vote. It was Ripka's testimony that both men were drinking and that they offered him a drink. According to Ripka, Hilo stated that, if the company lost the election, he thought Ray Noll would shut the plant down and added that he could "almost guarantee if we will the election you are due for a 5-cent raise." Me admitted that- he accompanied Wells in the latter's car on this occasion and state that he was present when Wells talked to Ripka about the election, but denied that he spoke to Ripka about the election, that he and Wells had any conver- sation about the election, that Wells had revealed to him the purpose of his visit to Ripka, or that he had any knowledge of Wells' intention in this respect. Hile testified that he accompanied Wells for the pur- pose of visiting a priest and that, after leaving Ripka, Wells carried him to his destination. He admitted that he bought whiskey on the way to Ripka's place and that drinks were shared with Wells and Ripka. Wells, who followed Hile on the witness stand, admitted that the sole purpose of his trip to Ripka was to ask Ripka to vote. In view of Wells' testimony that lie requested I-Iile's permission to go to see Pipka, it is unlikely that Hile would not inquire concerning Wells' purpose in making the visit, or that Wells would not state his purpose. Nor is it likely that Hile would have indulged in drink if he had accompanied Wells in order to see a priest. It is a reasonable inference from the fact that Foreman Hile accompanied Wells that ,their intention was not confined to securing an increase in the number of votes cast" but was to influence Ripka to vote against the Union. The Trial Examiner was impressed with Ripka's testimony as straight- forward and convincing, while Hile's version of the incident was sug-' 5 Ulrich left the respondent's employ on March 11, 1942. The record does not disclose whether the respondent made any effort to have him appear as a witness. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gestive to him of fabrication . We find, as did the Trial Examiner, that Hile made the statements attributed to him by Ripka Harold Johnson' testified that on the day of the second election, before the polls closed , Ray Noll approached him where he was working and asked him if 'representatives of the Union had talked to him, adding that the - employees would get a wage increase if the Union lost the election . - Johnson voted in the election but, according to his testimony, did not vote as he had intended to prior to his conversation with Noll. Although Noll denied that he made the statements attributed to him by Johnson; we find, in agreement wiztli the Trial Examiner , from the demonstrated opposition to the Union of W. H. Noll , Jr., a director of the respondent, and Showers, Ulrich, and Hile, supervisors , that his denial is not to be credited and that he made the statements testified to by Johnson. It is thus ' apparent that the respondent , by urging the employees to vote for the "company" and against the Union ,7 by warning them that if the Union won the election the respondent would probably cease operations , and by assuring them of ' a wage increase in the event the Union lost the election , seriously interfered with the free -choice of representatives in the elections . Even if, as claimed by its general manager, the respondent instructed its supervisors prior to each of the elections to refrain from any and all forms of inter- lerence with or participation in union activities, it would neverthe-, less be responsible for their action 8 We find, as did the Trial Examiner , that the respondent, by the anti-union 'statements of its officers, agents, and supervisors, has interfered with, restrained , and coerced its employees in the exercise of their right to self-organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. 8 Ripka testified that as Wells was leaving Wells told Ripka, "You go in and vote the way you want to " The Trial Examiner found, and the Board concurs in the finding, that such a statement, made in the presence of the employee's foreman- and only after that foreman had indicated the respondent's desire for the Union's defeat, is of little probative value on the issue of the employee's freedom from the respondent's coercive pressure in the election of a collective bargaining representative. 7 See Matter of Sunbeam Electric Manufacturing Co and United Electrical, Radio, & Machine Workers of America (C I. 0.), 41 N L R B 469, decided May 29, 1942, in which the Board stated that an "election is not a contest between a labor organization and the employer of the employees being polled, and participation by an employer in a pre-election campaign as if he were a contestant is in interference with the employees' right to bargain collectively through representatives 'of their own choosing.' " 8 See In the Matter of American Cyanamid Co. and United Phosphate Workers Union No. 22036, 37 N. L R B 578, decided December 13, 1941 Also : Swift & Company v. N. L. R. B , supra; and H. J. Heinz Co. v. N. L. R. B. 311 U. S. 514. WHITEROCK QUARRIES, INC. 173 2. The Shirk petition Following the first 'Board election and while the respondent's objections to the election report were pending before the Board, Clarence Shirk, the respondent's plant electrician, began on October 9 the circulation of a petition among the employees. The petition, addressed to the Board, urged it not to certify the Union as the bargaining representative of the respondent's employees and stated in substance that the interests of National Defense would be jeop- ardized by certification and that the "cooperation and harmony" of the employees would be disrupted when the Union attempted "to impose their unfair ideas on all employees." A copy of the petition, in evidence, bears the names of 97 of the respondent's employees. Lee St. Clair, an employee in the pulverizing department, testi- fied -that the petition was presented to him by Shirk and that he signed it in the plant during working hours, and that Solomon Banford, another employee, signed at the same'time in his presence. Banford did not testify. John Burd, an employee in quarry No. 5, testified that he was summoned to Shirk's office during working hours and that Shirk there presented him with the petition, which he signed at that time. Shirk admitted that he offered the petition to Earl Hogencamp,'an employee, in his office which was located about 150 feet from the main plant office, and that he also took the petition to several of the respondent's tenant houses and there solicited employee-tenants to sign. Shirk testified that he started circulation of the petition when he heard that the Union had won the-first election because "to my own- estimation, the Union was not the majority, so I got the petition up to find out." He denied that the respondent assisted in the prepara- tion and circulation of the petition and testified that it was drafted by him with the assistance of a local attorney, whose fee he paid out of his own funds. He testified first that the petition, was circulated openly and without concealment but, on further questioning, stated that he attempted to conceal it from the respondent's supervisors. When asked on cross-examination where he had secured the case num- ber appearing on the petition," he replied, "I don't think I have to answer you that," and when instructed to answer, testified that the case number was given to him by "some members of the Local," whose names he first refused to reveal and later could not recall. Shirk testified on direct examination that he offered the petition to Earl Hogencamp, in his office, in the presence of two other employees, and that a discussion concerning the petition took place there. Later, This case number appeared on the Board's order and direction of the first election and was duplicated in the title of the Shirk petition, which copies the title of the Board's case- 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during cross-examination, he gave contradictory testimony on these points. The Trial Examiner found Shirk to be an evasive and unre- liable witness. We agree and find, as did the Trial Examiner, from the testimony of St. Clair and Burd that the petition was freely cir- culated in the respondent's plant during working hours. As, the respondent's plant electrician, Shirk was from time to time furnished with one or more helpers who were directly under his super- vision. He attended to the wiring of the respondent's, tenant houses, read the meters at these houses once a month, and on several occasions was designated to hand to the respondent's tenants "quit" notices. Also, according to his own testimony, he had a house or substation assigned to him, which was located close to the respondent's main office, where he kept his tools and electrical supplies and which he termed his "office." We are, moreover, convinced from the re spondent's opposition to its' employees' choice of the Union as their bargaining representative, as evidenced by the statements of its officers and supervisory employees herein before discussed, from the peculiar wording and tenor of the Shirk petition, from the, relationship exist- ing between the respondent and Shirk, as well as from the circum- stance of the unhampered circulation l of the petition in the plant -during working hours, that the respondent had knowledge of the Shirk petition and sponsored and approved its circulationi. The petition ,was obviously designed to override the results of the election con- ducted by the Board and, thereby to deprive the employees of the benefits of collective bargaining through their freely chosen repre- sentative. We.find, as did the Trial Examiner, that by the circulation of the aforesaid petition among its employees, the respondent interfered with,, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. We find that by anti-union statements, by threats and warnings that the plant would be closed if the Union won the election, by promises of wage increase if the Union did not win the election, and by the circulation of the Shirk petition, most of,which events occurred either on the day of the second election or in the days immediately preceding it, the respondent interfered with the conduct of the second election. We find also that because of such interference the second election was inconclusive as to the determination of - a bargaining representative of the respondent's employees. 0 3. The alleged discriminatory denial of credit As already stated, W. H. Noll, Jr., and his" brother, Abner Noll, owned and operated a general merchandise store in the community of Pleasant Gap, the site of the respondent's major operations. For WRITEROCK QUARRIES, INC. 175 some years the respondent's employees have, through written authori- zations furnished the respondent, arranged to have deductions made from their wages toward the payment of their store accounts. It was undisputed that- similar deductions had been authorized and honored by the respondent in the payment of accounts at other stores and places of business. Ray Noll testified that such deductions had been dis- couraged for several months and had been discontinued completely several weeks prior to the hearing, except in the matter of insurance premiums and similar urgent transactions. The complaint alleged that the respondent caused credit to be refused by the Noll store to certain employees, and in particular to Paul Faust and Richard Royer, because' they filed with the Board, affidavits in support of the Union's objections to the Election Report on second election. It is undisputed that Faust, Royer, and several other em- ployees filed the said affidavits and that copies of the affidavits were furnished to the respondent's counsel on or about January 10, 1942. Of the employees filing affidavits, only Faust and Royer testified that they had been denied credit by the Noll store. Faust testified that he had traded at the Noll store for about 21/A years, when, on February 24, 1942, he receive a notice signed by Ema- dine Moore, clerk at the Noll store and daughter of W. H. Noll, Jr., that he would not be granted further credit. The notice stated that the reason for terminating his credit was that he had failed to make a; payment on his account at the time it fell due. Faust admitted that he had failed to make the payment and that this was the first time he had "skipped" a payment in his dealings with the Noll store. He further testified that he had been informed by the respondent that it was dis- continuing its practice of allowing deductions to be 'made from wages for the purpose of paying store accounts but was unable to recall whether he had received such advice before or after the notice from the Noll store. There is no evidence that, after receiving the notice from the Noll store, Faust made any effort to have credit extended. Rover testified that, in January 1942, Emaline Moore refused to sell him certain merchandise on credit.- According to Royer, Emaline Moore told him that she did not "figure" he deserved a favor from the store after swearing out the affidavit against her father. Rover testi- fied that he had been accustomed to buy on credit from the Noll store and had never before'been refused such terms. He admitted that be, owed the store $8 or $10 at the time credit was denied him, but stated that he had owed larger amounts on prior occasions without having his credit impaired. Emaline Moore did not testify. The only other testimony which might be construed to support the allegation of the 'complaint was a statement of John C. Butts, an employee, that following the first election, W. H. Noll, Jr., told him 176 DECISIONS OF NATIONAL,. LABOR RELATIONS BOARD that if he voted for the Union his credit would be cut off. According to Butts, credit was denied him at the Noll store about a month prior to the hearing in the instant case. On cross-examination, however, he admitted that he had "lost" his credit at the Noll store on two prior occasions and that he owed the store $13 when his credit was stopped the last time. When, on the last occasion; he asked W. H. Noll, Jr., why the store did not grant hifn further credit, Noll replied that he would first have to meet his outstanding bill. Butts was not one of those who filed an affidavit with the Board,_ and, since he did not become a member of the Union until May 1942, it appears improbable that Noll would have singled him out as the object of the threats to which Butts testified. We, like the Trial Examiner, do not credit Butts' testimony. on this point. We are of the opinion that the allegation of the complaint that the respondent, through the agency of the Noll store, caused the credit of the employees to be denied because they filed affidavits with the Board, has Ilot been established. 'We concur in the opinion of the Trial Ex- aminer that the isolated remark of Emaline Moore, made to Royer at the' time he was refused credit on a small purchase, is not sufficient to support a conclusion that said denial of credit is properly attributed to the respondent. There is no evidence that Emaline Moore was au- thorized by the respondent to make such a statement , or that she made the statement in behalf of the respondent . We find, as did the Trial Examiner, that the respondent did not deny Paul Faust, Richard Royer, and certain other employees credit at the Noll store because they filed affidavits with the Board. ' B. The alleged discriminatory refusal to re-rent The respondent owns several houses which it has for some years rented to its employees. As of January 1, 1942, there were 18 employee-tenants occupying these houses. The houses are normally leased on 'an annual basis, the leases expiring on April 1 of each year. It has been the respondent's practice, on or about January 1 of each year, to serve on all tenants of such houses a quit notice, requiring the renewal of existing leases or removal from the houses on or before March 31. The complaint alleged that the following employee lessees were refused renewal of their .leases as of April 1, 1942, because they had joined and assisted the Union : James Mitchell Peter Rose Albert Alterio Ransler Baney Vance Alterio Joseph Corege Harris Bechdel George Kurtz James Tenalio WHITEROCK- QUARRIES, INC. 177 It is not disputed that all the respondent's tenants received quit notices on or about January 1, 1942. All but one of these notices were served on the tenants by Clarence Shirk, plant electrician, accompanied by John Tressler, an employee. It was stipulated that the respondent in 1942 refused to re-rent or re-lease to all the employees named above except Peter Rose and Joseph Corege, and it is not disputed that these two employees failed to re-lease the properties they occupied. It was further stipulated that nine other employees were granted a renewal of their leases. We shall consider the facts as to each of the employees as to whom discrimination is alleged. , James Mitchell occupied a tenant house which was located on one of two farms owned by the respondent. The farm was leased in 1941 to Andrew Rockey, a non-employee. It was Ray Noll's undis puted testimony that in 1941 the barn and certain other properties on the Rockey farm burned down and that Rockey refused to re-rent the farm in 1942 because of the lack of a barn on the premises. Joseph Rosage, also a non-employee, thereafter agreed to rent the farm provided the house occupied by Mitchell were made available for Rosage's son, who assisted Rosage in farming. The respondent refused to renew Mitchell's lease, leased the farm to Rosage, and the house formerly occupied by Mitchell was thereafter occupied by Rosage's son. Mitchell, who occupied the respondent's house for 3 years,--testified that he was requested by Shirk to sign the petition referred to above, that Shirk told him, "if you don't sign, probably you will have to move in the spring," and that he replied that he did not want to sign the petition as he was a member of the Union. Shirk denied the statement attributed to him by Mitchell. It was Mitchell's testimony that, upon vacating the respondent's house, he was compelled to move to a house which was more distant from his work and for which he had to pay a higher rental. Peter Rose and Albert Alterio occupied adjoining houses in the town of Pleasant Gap. According to the testimony of Ray Noll, the respondent had planned for several years to convert these properties into a general office building, and that it was pursuant to these plans that Rose and Alterio were refused the re-rental of their houses. Rose moved to a house which he had bought in Pleas- ant Gap, and the house- formerly occupied by him was thereafter used by the respondent for the storage of office equipment. Alterio, upon the expiration of his lease, sought to obtain possession of a house which he owned at Bellefonte and which was then occupied by a tenant. Unable to secure possession of his own house, Alterio has remained in the respondent's house, without a renewal of his lease. According to Noll, the respondent has been delayed in its plans 493508-43-vol. 45-12 178 - DECISIONS- & NATIONAI^`LAB'OR-1!ELATIONS BOARD to convert the property into a general office building by Alterio's continued occupancy of the house. George Kurtz occupied a small house in Pleasant Gap. According to his testimony, he had been seeking a larger house and prefers the house he now occupies to the one that he vacated following receipt of the respondents quit notice. It was Noll's testimony that the re- spondent intends to dispose of the house and use the lot on which it is situated for additional stock piles. A stock pile is presently located 75 feet from this property. This house has not been re-rented. Harris Beehdel occupied a house which was close to the respondent's quarry at Jacksonville . He leased the house on or about September 1, 1941, for a 7-month period. According to Noll, he advised Bechdel at the time the lease was executed that he might not be permitted to occupy it beyond the 7-month period, since the house was intended for the use of the quarry foreman. Bechdel testified ,that he later voluntarily left the respondent's employ 'for a better position. Al- though refused a renewal of his lease , he has continued to,occupy the respondent's house, as, he has not secured another house convenient to his new job. According to Bechdel, he advised the foreman under whom he worked while in the respondent's employ that he was a mem- ber of the Union, but his testimony does not indicate whether he made the disclosure before or after he was refused the re-rental of his house. Joseph Corege occupied a house in Pleasant Gap. After receiving the quit notice , he bought the house from the respondent and continued to occupy it. It was his testimony that he was satisfied with his purchase, although he would have preferred to continue to rent the ,property. Ransler Baney and his mother occupied one of the houses. When Noll was requested by Mrs. Baney to re -let the house , he told her that he had received an offer for its purchase from Robert Breon and sug- gested that they might be able to rent the house then occupied by Breon. The Baneys , pursuant to this suggestion , secured the Breon ' house, and the respondent furnished them with a truck for moving their household goods . Breon did in fact purchase the house formerly occupied by the B'aneys. James Tenalio occupied a house in Pleasant Gap, which, according to Noll, was built by the respondent of concrete blocks and in a rec- tangular shape, with a view to converting it eventually into a store- room or office. After Tenalio vacated the house, it' was converted into a, storeroom for electrical equipment . The respondent furnished Te- nalio with a truck and driver for moving his household goods from the, respondent's premises. Vance Alterio occupied a house across the street from Tenalio. This property is adjacent to properties which, according to Noll, the WHITEROCK QUARRIES, INC. 179 respondent-plans to convert into a general plant office and is the only space available for parking in connection with the proposed office. The house , since being vacated by Alterio, has been partly dismantled. All of the employees refused the re-rental of the houses , with the exception of Ransler Baney, were members of the Union in 1941. Baney signed an application for union membership in February 1942, and paid 50 cents at that time , but according to Ream, presi- dent of the Union Local, has not been at any time and is not now a full-fledged union member . On the other hand, all of, the employees who were granted new leases , with the exception of Harry Keller and John Butts, were not members at the time the leases were re- newed. Keller and Butts each applied for Union membership and paid a 50 cent fee, in 1941, and became full -fledged members in May 1942. It also appears that the Shirk petition , through which the respondent might have gained knowledge of the union prefer- ences of its employees, was signed by all the employees who were granted the renewal of their leases , with the possible exception of Curtin Dunklebarger ,10 while of those refused such renewal only Baney signed the Shirk petition . However, such inferences as might be drawn from these facts as to comparative union activity are in- sufficient to overcome the respondent 's explanation of the circum- stances under ., which the employees were refused re -rental of the houses. - It appears that none of the houses in question has been rented to any other employee and that, where the houses were offered for sale, the tenants were afforded an opportunity to purchase. Bech= del's case is clearly without merit, since it was not disputed that, at the time he leased the house, he was definitely advised that the lease would not be renewed . The respondent's explanation that the properties occupied by Kurtz, Vance Alterio, Rose, Albert Alterio, and Tenalio, are to be converted from dwellings to use in connection with the operation of the respondent's plant, pursuant to an existing plan, must be credited , as it is uncontradicted , plausible, and entirely consistent with the facts . The, salve is true with respect to Ray Noll's testimony that he was authorized - in the fall of 1941 to .sell the property occupied by Ransler Baney, and the houses , but, not the lots, of properties occupied' by Kurtz, Vance Alterio, Albert Alterio, and Peter Rose. While it was Mitchell's testimony that Shirk threatened that if he did not sign the petition he might be required to vacate his house, the respondent's explanation of the circumstances under which Mitchell was refused the re-rental of his house 'is persuasive. Furthermore, it is unlikely that had the respondent been motivated by its desire to be rid of its union em- ployees, it would have cooperated with them in securing other dwell- 10 The naive "Civifin Dinklebai ger" appears`on the petition. 180 'DECISIONS OF- NATIONAL LABOR RELATIONS BOARD ings, as it -did in the case- of Baney,, or would have sold them its properties, as it did in the case of Corege, or would have furnished them with facilities for moving, as it did in the cases of Tenalio and Baney. There was no showing that any of the employees denied re-rental of their houses were forced thereby to relinquish their jobs. Upon all the evidence, we find, in agreement with the Trial Ex- aminer, that the respondent did not refuse to re-rent or re-lease its tenant houses to the employees because'they joined and assisted the Union. - IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed in Section I, above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, we shall order that, it, cease and desist there- from and take certain affirmative action which we deem necessary to effectuate the policies of the Act. Having found that the respondent did not deny credit to certain employees because of their union activity and that it did not discriminatorily refuse to re-rent or re-lease its dwellings to certain other employees, we shall dismiss the complaint in these respects. Since we have found that the respondent, by its unfair labor prac- tices, has interfered with the conduct of the election and the free choice of representatives by its employees at the election of November 21, 1941, we shall set aside and vacate the election. In view of the fact that almost a year and a half has elapsed since the Union filed its petition for certification, we shall dismiss that petition without prejudice to the institution of a new proceeding at any time. Upon the basis of the above findings of fact and the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Cement, Lime & Gypsum Workers International Union, Local No. 142, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- WHITEROCK QUARRIES, INC. 181 spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent.has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. The election of November 21, 1941, is null, void, and of no effect. 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 respondent, Whiterock Quarries, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from in any manner interfering with. restrain- ing, or coercing its employees in the exercise of the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of, their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post immediately in conspicuous places at its plant and at each of its quarries in Centre County, Pennsylvania, and maintain for a period of at least sixty (60) consecutive days from the-date of posting, notices to its employees stating that it will not engage in the conduct from which it is ordered to cease and desist; (b) 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. IT IS FURTHER ORDERED that the complaint, insofar as it alleges violations of Section 8 (1) and (3) of the Act, by causing credit to be denied and by.refusing to re-rent houses, be, and it hereby is, dismissed. _ AND IT IS FURTHER ORDERED that the Second Election of Novem- ber 21, 1941, be, and it hereby is, declared null and void and set aside, and that the petition for investigation and certification of representatives of employees of Whiterock Quarries, Inc., filed by the United Cement, Lime & Gypsum Workers International Union, Local No. 142, AFL, be, and it hereby is, dismissed without preju- dice to the filing of a new petition. Mn. WM. M. LEISERSON took no part in the consideration, of the above Decision and Order.