The National Lime and Stone Co.

In the Matter of THE NATIONAL LIME AND STONE COMPANY AND LABOR RELATIONS INSTITUTE, A PARTNERSHIP, CONSISTING OF LAWRENCE STESSIN, LEONORE COOL AND OLA C. COOL and UNITED CONSTRUCTION WORKERS, AFFILIATED WITH UNITED MINE WORKERS OF AMERICA In the Matter of THE NATIONAL LIME AND STONE COMPANY and UNITED CONSTRUCTION WORKERS, AFFILIATED `WITH UNITED MINE WORKERS OF AMERICA Cases Nos 8-C-1679 and 8-R-1482, respectively.-Decided June 11, 1945 Mr. Frank L. Danello, for the Board. Marshall, Melhorn, Wall & Bloch, by Messrs. Richard S. Cole and Gig A. Belt, of Toledo, Ohio, for National. Mr. Steven T. Bladek, of East Orange, N. J., and Mr. Paul W. Hardy, of Fairlawn, N. J., for the Institute. Messrs. J. Fred Rausch, Carl C. Schmidt, Jack Sparks, and John Christ- man, all of Columbus, Ohio, for the Union. Mr. Erwin A. Peterson, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On March 23, 1944, United Construction Workers, affiliated with United Mine Workers of America, herein called the'Union, filed with the Regional Director for the Eighth Region (Cleveland, Ohio), a petition alleging that a question affecting commerce had arisen concerning the rep- resentation of employees of The National Lime and Stone Company, here- in called National, at its Carey, Ohio, plant, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, herein called the Act. A hearing on the peti- tion was opened on May 2, 1944, after notice given to all parties, at which time National, the Union, and the attorney for the Board entered into a 62 N. L. R. B., No. 45 282 THE NATIONAL LIME AND STONE COMPANY 283 "Stipulation for Certification upon Consent Election," which was ap- proved by the Board's Regional Director on May 3, 1944. On May 23, 1944, pursuant to the aforesaid stipulation, an election by secret ballot was conducted among all maintenance and production employees of National at Carey, Ohio, including truck drivers and "working foremen" who spend a majority of their time working with tools, but excluding office employees and supervisors who have authority to hire or discharge. At the close of the election, the observers for National and for the Union, and the Board's representative signed a Tally of Ballots which showed that a majority of the employees had voted against the Union.' On May 24. 1944, the Union, by telegram addressed to the Board's Regional Director, protested the election and stated therein that "Briefs are being prepared and will be in your possession in the specified time." On May 30, 1944, the Union filed with the Regional Director its "Objections to Conduct of Ballot and Election Report,"' in which it alleged that certain conduct set forth therein constituted interference with the election and requested a hearing upon the.objections. The Regional Director filed his Report on Objections on July 21, 1944, reporting that there had been substantial interference with the election and recommending "that the objections to the election be sustained and the election be set aside." On July 25, 1944, National filed exceptions to the Regional Director's Report on Objections.' Thereafter, on June 28 and August 21, 1944, respectively, the Union filed a charge and an amended charge alleging that National and Labor Relations Institute, a partnership consisting of Lawrence Stessin, Leonore Cool, and Ola C. Cool, herein called the Institute,' had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act On July 31, 1944, pur- suant to Article II, Section 36 (b), and Article III, Section 13 (c), (2), of the National Labor Relations Board Rules and Regulations-Series 3, as amended, the Board issued an order directing that a hearing be held on the Objections to the Conduct of the Election and that the representation proceeding be consolidated with the unfair labor practice proceeding. On August 21, 1944, the Board, by its Regional Director, issued its complaint against the respondents alleging that they had engaged in and were en- gaging in unfair labor practices affecting commerce within the meaning I The Tally of Ballots disclosed that of 201 eligible voters , 190 cast valid votes, of which 91 were for the Union and 99 against ; there was 1 void ballot and no challenged ballots. ' The Union thereby referred to the Tally of Ballots. 3 In its exceptions to the Regional Director 's Report on Objections and in its brief, National urges that the objections to the election be dismissed because the objections were not filed within the 5-day period required by Article III, Section 10, of the Board's Rules and Regulations , Series 3. We find this contention to be without merit since there was an intervening Sunday and the objections were mailed on the fifth day We also regard the Union's telegram as its original objection to the election and treat the subsequent "objections " as an amendment thereto 4 National and the Institute ate herein jointly referred to as the respondents 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint, accompanied by Notice of Hearing thereon, were duly served upon the respondents and the Union. With respect to the unfair labor practices, the complaint alleges in substance : (1) that the respondents have at all times "consulted each with the other, given advice and assistance and aided and abetted each other in the divers and sundry acts set forth," and have "engaged in a plan and continuous course of conduct" through specified acts, including attempts to influence National's employees to vote against the Union at the election conducted by the Board on May 23, 1944, which interfered with, re- strained, and coerced employees of National in the exercise of the rights guaranteed in Section 7 of the Act; and (2) that National, on or about May 1, 1944, discharged Leeman Litton and has since failed and refused to reemploy him because he joined or assisted the Union and engaged in concerted activities for the purposes of collective bargaining or other mu- tual aid or protection. Separate answers were filed by National, on or about August 28, 1944, and by the Institute on or about August 30, 1944, in substance denying ,the commission of any unfair labor practice. Pursuant to notice, a hearing was held on the consolidated cases at Carey,.Ohio, on September 7 through September 11, 1944, before Charles E. Persons, the Trial Examiner duly designated by the Chief Trial Ex- aminer The Board, National, and the Institute were represented by coun- sel, and the Union by four of its officials. 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, National and the Institute moved that the witnesses be separated. This motion was denied.' At the conclusion of the Board's case, National moved to dismiss the Objections to the Conduct of the Election for failure of proof. This motion was denied. At the conclusion of the hearing, National renewed its motion to dismiss the Objections to the Conduct of the Elec- tion and further moved to dismiss the complaint in its entirety insofar as it referred to National; the Institute also moved to dismiss the complaint insofar as it alleged unfair labor practices against it. The Trial Examiner reserved ruling on these motions and denied then in his Intermediate Report. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. Although we hereinafter dismiss the 5 While we believe that it would have been better practice to have granted the motions for separa• tion of witnesses, it is clear, and we find , that the Trial Examiner's ruling denying such motions did not constitute prejudicial error See Mattrr of Shmtle Biothers Mac/role Company, 60 N T, R P 533, N. L R B v Bu, he Machine Tool Company, 133 F (2d) 618 (C C A 6), N L R B v Quality and Service Laundry, 131 F (2d) 182 (C C. A. 4), edit, den 318 U. S 775. THE NATIONAL LIME AND STONE COMPANY 285 Objections to the Conduct of the Election for failure of proof, for reasons hereinafter appearing, the Trial Examiner's refusal to dismiss such ob- jections does not constitute prejudicial error. The remaining rulings are hereby affirmed. 0 On October 24, 1944, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondents had engaged in and were engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1) and (3) of the Act. Thereafter, the respondents filed exceptions to the Interme- diate Report and briefs to support their exceptions. Pursuant to notice duly served on all parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on April 19, 1945. The respondents were represented by counsel, and the Union by one of its officials; all participated in the argument. The Board has considered the respondents' exceptions to the Intermediate Report and briefs 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 RESPONDENTS The National Lime and Stone Company, an Ohio corporation having its principal office at Findlay, Ohio, operates plants for the production of commercial stone, railroad stone, and other lime and stone products at Findlay, Bucyrus, Carey, and Lima, Ohio. These proceedings are con- cerned solely with the Carey, Ohio, plant, where approximately 200 work- men are employed. The principal raw material used by National is lime- stone which is taken from its quarry at Carey, Ohio. At the Carey plant, National annually manufactures products having a total value in excess of $500,000, of which approximately 30 percent is shipped to points out- side the State of Ohio. National admits that it is engaged in commerce within the meaning of the National Labor Relations Act The Labor Relations Institute, a partnership composed of Ola C. Cool, Leonore Cool, and Lawrence Stessin, has its principal office in New York City, and a Regional Office in Detroit, Michigan. It distributes a semi- monthly publication, entitled "Practical Problems in Labor Relations," to approximately 7,000 subscribers throughout the United States. It main- tains a field staff which performs various services such as wage and salary stabilization, negotiation of contracts with unions, installation of merit rating systems and personnel "set ups," foreman training, job evaluation "The findings in the paragraph above are based on stipulations between the parties incorporated in the record , on allegations in the complaint admitted by National in its answer , and on testimony which is uncontroverted 286 IJECISIODIS OF NATIONAL LABOR RELATIONS BOARD and analysis, labor surveys, and the like! On April 18, 1944, National employed the Institute for the purpose-of making a survey of working conditions at its Carey plant and to investigate the causes of dissatisfaction on the part of its employees. This relationship terms sated on May 24, 1944. II. THE ORGANIZATION INVOLVED United Construction Workers is a labor organization , affiliated with- United Mine Workers of America, which admits to membership em- ployees of National. Ill. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Background; National's and the Institute's attempts to influ- ence the Board's election, to discourage membership in the Union, and to promote the formation of an independent or- ganization There was no labor organization in National's plant from 1934 until 1943. On May 23, 1934, a strike had been called which lasted 11 weeks. The Union, an American Federation of Labor organization, was defeated. In October or November 1943, tinder the leadership of Maurice Gaster, a welder, the employees discussed the desirability of organization. Gaster was mainly instrumental in getting signatures to union cards in November 1943, and again in March 1944. He called a meeting of the employees early in 1944, at which he presided and "tried to outline the duty of the Union and what the benefit would be." At this time, a committee of the employees invited Carl C. Schmidt, a field representative of the Union, to come to Carey and assist in organizing the plant. In the "fore part of March," according to Gaster's testimony, Louis G. Love, National's general manager, called Gaster to Love's car outside National's blacksmith shop and said : "I understand you boys are trying to organize here"; that Love asked Gaster why the employees wanted to organize and Gaster replied that they had been disappointed in that prom- ises to improve working conditions had not materialized ; that Love further said, "I hear that you are organizing in the John L. Lewis outfit" ; and that, when Gaster assented, Love continued : "You know, that is a god- damned blood-thirsty cut-throat outfit." According to Gaster, Love also recounted outrages occurring "in the west" and warned that "Before it is through, when you get that outfit, there will be bloodshed right in this 4 These findings are based on allegations in the complaint admitted by Institute in its answer and on a statement made at the hearing by Steven T. Bladek, an attorney for the Institute. Bladek also stated at the hearing : "Neither it [Institute] or any of its employees represent any unions whatever Again, I repeat, it is solely a management representative organization." 0 THIS -NATIONAL LIME AND STONE COMPANY 287 town." This testimony by Gaster was not denied and we credit it, as did the Trial Examiner. On March 10, 1944, the Union mailed a letter, addressed to Love, asking recognition as the bargaining agent for the employees. When no answer had been received by March 17, the Union repeated its request by telegram. National made no answer to these communications. Thereafter, on March 23, 1944, the Union filed with the Board its petition for investigation and certification of representatives. General Manager Love, as he testified, "had no familiarity whatever with procedures, of modern day rules and regulations." Moreover, the attorney whom he was accustomed to consult was incapacitated. Certain industrialists of Love's acquaintance recommended the Institute. Love had some knowledge of this organization since National subscribed to the Institute's service and he had seen its semi-monthly publication. Love called the Institute's New York office by telephone and arranged to have its representatives come to Carey and investigate the causes of discontent in the plant. The Institute, on or about April 18, 1944, sent two of its agents, Steven T. Bladek and Paul W. Hardy, to Carey. Love, after con- ferring with them in his office, sent them into the plant unaccompanied,- "in the hope that the men would open up and tell them more frankly and freely than if [he] were present." Love also suggested to Hardy and Bladek that they arrange a meeting for the employees, at which no officials or foremen should be present, and "try to develop a general question and answer meeting and see if they could clear up some of the vagueness of the whole thing." Among matters suggested as needing clarification were included seniority, the closed and open shop, maintenance of membership, and the equitable distribution of opportunities for overtime work. The suggested meeting was announced through the medium of notices posted beside the time clock in the plant and was held on the night of April 28, 1944, in the Carey Municipal Build- ing. Hardy conducted the meeting. Bladek was present but took only a minor part in the discussion. Hardy discussed seniority; he asked that the men state their "gripes and belly aches," and the men aired complaints as to sanitary conditions, the lack of proper toilets, drinking fountains, and shower baths. They also raised questions as to the safety of the roof in a portion of the plant and the sufficiency of machine shop space.' During the course of the meeting, Hardy said, with reference to the Union: "You certainly don't want to join any union that is backed by the American First 8 The validity of all these complaints had been recognized by National . A news stoi y, inspired by Love and published on April 6, 1944, in a local newspaper, had announced plans to spend $60,000 for such vnprovements Piogress had been made in all these matters at the time of the hearing 0 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Party s When an unidentified employee at a later meeting asked for a defi- nition of the "America First Committee," Bladek answered that "the American First organization was a subversive group, or Communist."'° About the time of the meeting in the municipal building, Bladek and Hardy called at the home of employee Carlton Jenot. They stated that they had come to Carey "to iron out some difficulties concerning working conditions and things down at the shop" and that they had been referred to Jenot as a Catholic employee. They assured Jenot that their conference with him would be "off the record" and that Love had nothing to do with it." Bladek and Hardy told Jenot, according to Jenot's undenied testimony, that the Union, under John L. Lewis' leadership, "had communist ideas in it" and that, "being a Catholic," he should not "back it up4" and they asked Jenot "to get a group together" for further meetings. Jenot at first demurred, asking why employees of the Catholic denomina- tion should "stick their necks out." However, he arranged that he and employees Henry O'Flaherty and Robert Exlines should meet with Bladek and Hardy. The purpose of this meeting, as understood and as stated by Jenot was, "to start out to iron out the difficulties and then sort of an inde- pendent union be brought out." About 5 days after the first talk with Jenot, Bladek and Hardy, using a company car assigned to Love's use, took the three employees named above to the neighboring city of Findlay. There they had an extensive conference in a restaurant and had a few bottles of beer. Jenot testified without contradiction that Hardy suggested that diffi- culties at the plant could best be resolved by "getting on a more friendly basis" with Love, and intimated that a better contract could be secured from Love through the medium of an independent organization than through the Union. Jenot's testimony was corroborated by O'Flaherty who quoted Hardy's statement as follows : Well, he outlined practically the same thing that Mr. Bladek said at his meeting down there, that he believed we were on the wrong track and that we would do much better by giving up the [Union] and forming an independent, and, he outlined the same plan to us, that we would be saving approximately $1200 a year and getting the same benefits that we would get from the [Union], that he was confident that Mr. ° This quotation is from the undenied testimony of John H Snobarger, which we ci edit Employee Henry O'Flaherty also credibly testified as follows "well, he, [Haidy] made the statement that if the [Union] should win the election, that he would negotiate a contract, and that lie don't believe that lie would consider any organization that was a member of the Aniei ica First Committee " 10 This quotation is from the undenied testuuony of employee O'Flahei ty, which we ciedit ' Love testified that he had been told of a "meeting with a few of the boys to talk over this business" but that his first knowledge of the character of the discussion carne to him at the heming 12 Elsewhere Jenot testified that Bladek said "as a Catholic you [Bladek] didn't think that I should be interested in it [the Union] on account of the Communistic ideas connected with it " THE NATIONAL LIME AND STONE COMPANY 289 Love was not in favor of the [Union], and that he would favor an inde- pendent union. Hardy appealed to O'Flaherty as a fellow Catholic, inferring that the Union was tainted with communism, and reminding him "that the Church is opposed to communism."13 On May 2, 1944, the parties, having been duly notified, assembled for a hearing on the Union's petition for investigation and certification of repre- sentatives, referred to above. At this time, a "Stipulation for Certification upon Consent Election" was entered into by National, the Union, and William O. Murdock, an attorney for the Board. Although Love and B. Clair Lytle, secretary-treasurer of National were present, the stipulation was signed by Hardy as "agent" for National. It provided for an election. to be conducted on May 23, 1944, "at the old plant office.114 Love testified that, 2 or 3 weeks before the election date, "I decided that I myself would try to talk to every man that worked for us at Carey." Accompanied by Bladek, Love assembled the men on many occasions in groups of about 20. Frequently the meetings were held at the time of change of shifts in order that employees from day and night shifts could attend. In all, about 7 or 8 such meetings were held, of which the latest took place "close to the date of the election," and all employees, with the exception of a single group, were reached by this means. The employees were usually directed to assemble by their foremen, and no deductions in pay were in- curred when the meetings were held during working time. At these meet- ings, Love regularly spoke briefly first, then introduced Bladek, typically, as "a man from the Labor Institute that we have got to help us out with this election and this situation here." In answer to a question as to what he said to the employees at these meetings, Love testified: "I will tell as nearly as I can remember. You must remember that I talked many times. I do not speak from notes. I undoubtedly said one thing at one meeting that I did not say at some other meeting. I was talking from my heart to these men. And my exact words I'm not prepared to repeat at this time. I believe I can give you the consensus of all of the talks." The following is a concise summary of Love's testimony as to what he said in these talks : he urged all the employees to vote ; he said that it was a Government-conducted election, that it would he by secret ballot, and that 11 Exlines did not testify Since neither Bladek nor Hardy testified , the testimony of Jenot and O'Flaherty was undenied , and we credit it, as did the Trial Examiner 14 Love testified , and we find , as did the Trial Examiner, that Love consented to this stipulation, despite the fact that he had previously refused a similar request of the Union at a conference of the parties held in his Findlay office, in view of the fact that Bladck and Hardy "strongly advised me to consent to this election " 16 This quotation is from undenied testimony of employee Ned Nve . which we credit, as did the Trial Examiner. Employee Graydon A Knowlton credibly testified that at one of the meetings Love said that Bladek would talk "on a matter pci taming to their Union activity", Jenot ci edibly testified that at one of these meetings Love introduced Bladek "as a competent man to iron out, to explain the Union, the different departments about the Union " 290 1)ECISIONS OR NATIONAL LABOR RELATIONS BO \RD employees should vote according to their owfi desires and convictions, that it did not make any difference to Love how they voted, that there would be no discrimination, and that if a majority wanted a union they could have it; that, according to his personal opinion, they were making a mis- take, that this thing (Union) had been "flashed on them" without much preliminary information, and that if they "were going to have a Union to have the best Union"; that the employees deserved a better union than this Union which "was out organizing the Carey milkers and sugar beet work- ers," and that if they did not want the C. I. 0. or the A. F. L., they could have their own independent union; that the Union did not know anything about the limestone mining industry ; that John L. Lewis was the country's No. 1 undesirable citizen, that the Union was not interested in the eni- ployees' welfare, that Lewis was only interested in their dues. and that the Union could call a general strike and call the employees out on a strike on matters that did not involve them. Employee Graydon A. Knowlton was the only employee who testified as to what Love said at a meeting held at 11 p.m. in the #1 plant on May 17. 1944 According to Graydon. Love said "that if this Union was voted in that lie would fight it at every means at his command ; that he would delay any action taken by the Union in reference to grievances and procedure of any sort ; and that John L. Lewis, the head of the United Mine, was the world's worst citizen, comparable to Adolph Hitler." Employees Ned Nye and John H. Snobarger were the only employees who testified as to what Love said at a meeting held at 2 p.m. in the dolemite mill about 5 or 6 days before the election. Nye testified that Love mentioned the coming election on May 23 and stated that the employees could vote as they saw fit without fear of any discrimination ; that Love said something about an independent union, and added : "I want you to know that I will have no Goddam part of this John L. Lewis ; I will fight them tooth and toenail, have no part of them." Snobarger testified that Love said that he would fight the United Construction Workers Union ; that if they brought them in, lie would fight it tooth and nail ; and that, if the employees formed their own union, the would back it 100 percent. Employee Clem Helfer was the only employee who testified as to what Love said at a meeting held at 4 p.m. in the dolemite mill about a week before the election. He testified that Love said that he was 100 percent for an independent union; that he "wouldn't do a damn thing" for any other union, especially this United Construction Workers Union or anything pertaining to John L. Lewis, who was nothing but a "Goddam anarchist." Employees Carlton Jenot and Homer K. Robinson who attended a meet- ing, held at noon in the machine shop 3 or 4 days before the election, testi- fied that Love there said that he would fight the Union; that the didn't ,,want it there" ; that there would he no discrimination ; but that he would THE NATIONAL L11VI E AND STONE COMPANY - 291 cooperate 100 percent with an independent Union " In his Intermediate Report, the Trial Examiner stated that Love's account of his talk at these meetings was substantially corroborated by employees called as witnesses by the Board.17 However, Love did not spe- cifically deny making the statements attributed to him by the witnesses whose testimony is set forth above. In view of this fact and in view of other undenied and credible testimony as to other statements made by Love, hereinafter set forth in Section III, A, 3, we find that Love expressed him- self more extensively than he admitted and substantially in the phraseology as testified to by Board witnesses Knowlton, Nye, Jenot, Robinson, Helfer, and Snobarger. We credit Love's testimony as to his talk at these meetings only insofar as it is consistent with the testimony of these witnesses. At the close of each of Love's talks to the employees at the seven or eight meetings referred to above, Love introduced Steven Bladek, the Institute's representative, and allowed Bladek to talk to the employees. Bladek did not testify. He did not use notes when he spoke at these meet- ings and what he said was influenced in part by questions asked by em- ployees, After considering the entire record, we find, as did the Trial Examiner from the credible testimony of Board witnesses Knowlton, Nye, Cameron, Jenot, Robinson, Snobarger, O'Flaherty, Drummond, and Gaster,78 that Bladek's remarks were only incidentally concerned with working conditions in the plant. The testimony shows that his chief purpose was to discourage membership in, and votes for, the Union, and to promote interest by the employees in an independent union. Thus, Bladek was care- ful to impress on the employees that Love would deal more generously with such an organization than with the Union. At several meetings he pre- sented an estimate that the annual cost of the Union would be $1,800 and stated that he was prepared to furnish legal and other advice for an inde- pendent organization for an annual retainer of $600. At several meetings, Bladek stated that the employees were making a mistake by organizing the Union and that he did not think the Union was any good, and he assured the employees present that, if an independent union were formed, Love would readily grant a favorable contract, and that they could anticipate wage increases and vacations with pay. In substantiation of the above generalized account, the testimony of several Board witnesses is hereinafter set forth. Knowlton's testimony includes the following account : " Employee James Cameron, who was the only other employee who attended this same meeting and who testified, stated that he arrived late and did not hear much of what Love said 17 Not all employees attended the same meetings and some came late or were not in attendance throughout meetings which they attended. Is Other witnesses testified that they left the meeting early, or that they did not remember what Bladek said, or that they did not pay any attention to what Bladek was saying, or that Bladek confined his remarks to the differences between open and closed shops and other genes al info, matron about unions. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Bladek said Mr. Love had said he would cooperate 100 percent if we brought an independent union in here. He says, `Why not keep this money at home,' that we were to spend out for dues to this other union. * * * He said John L. Lewis was always assessing men besides their general dues. He said that wouldn't happen in this independent set up. He said he would help organize and be the legal adviser for the Union for a period of one year for the sum of $600.00. * * * He said that he could guarantee through the co-operation of Mr. Love to get us a week's vacation with pay. Nye testified that, after discussion of proposed improvements in plant sanitary and safety conditions, Bladek said that "if the employees would organize an independent union, that Mr. Love would go with the boys all the way. * * * You will need legal advice, of course, and I would take over and help you boys out with this independent union for $600 a year." Bladek said, according to Nye, "The boys could snake up their contract and present it to Mr. Love and he would accept them in the independent union and would go with them all the way" * *- * that the dues was so high in the [Union], be much lower in the independent union, be better for all to do that ... without a doubt that Mr. Love would give then a wage increase at once and vacations with pay." O'Flaherty's testimony as to Bladek's remarks reads as follows : Well, lie talked and told us that he thought we were making a mistake by organizing in the [Union], that lie believed that he could offer us an independent union that would give us all the benefits of an affiliated union and that it wouldn't cost as much where he figured that each man paying in $1.50 a year or a $1.50 a month, half of this money going into headquarters, that would amount to about $1800 a year going to the Union, where under an independent "set up he, himself, would represent us, that he would represent us for $600 a year, prac- tically one-third of what it would cost us the other way. And, I believe that he could get a better contract than we could through the [Union] because he was satisfied that Mr. Love would give us the minimum contract allowed under [WLB]. A week or 10 days before May 23, 1944, employee James Cameron approached Superintendent John E. Reynolds and asked for a raise in pay. Cameron testified that Reynolds told Cameron, you "might get a nickel raise is you will vote against the Union." Reynolds testified that, when Cameron asked for a raise, lie was informed that wages were frozen. How- ever, thereafter, Reynolds canvassed with his master mechanic the possi- bility of upgrading Cameron to a "burner"; and, on consultation with Love, Reynolds found that this plan was impractical, since no burners had been TIDE NATIONAL LIME AND STONE COMPANY 293 listed when National had made application to the National War Labor Board for a general wage increase. In view thereof, it was arranged that Cameron be given additional time at overtime rates. At the hearing, Cam- eron agreed that all this had been done, but insisted that Reynolds had promised him an increase in wages and had coupled it with voting against the Union, as he had testified. After considering the entire record, and par- ticularly, the fact that Reynolds is shown to have made other statements similar in character, we credit Cameron'.s testimony, as did the Trial Examiner. Jenot testified that he had a conversation about May 14, 1944, with his foreman, Jerry Kitzler, regarding the Union, as follows : Well, he wanted to know what I thought about it. And I gave my opinion, and, then he said, don't you think some of this stuff could be ironed out by seeing Mr. Love directly? I says, well they didn't do much around here until they did talk Union.... About a week before the election, Jenot had an interview with Love and discussed the Union. Jenot testified, "I told him about the whole thing, that I had connections with certain men and told my opinion of it." Love said, "I would like to see you vote against it [the Union] and encourage the others to vote against it.113 In May 18, 1944, 5 days before the election, a letter was sent to each employee of National through the United States mail. The letter was in mimeographed form, on National's letterhead, and signed by Love as General Manager Love testified, and we find, as did the Trial Examiner, that he "signed the letter and mailed it to the men's homes" but that the letter "was composed for him" by the Institute. The opening paragraph of the letter states that the forthcoming election is to determine whether the Union is to be invested "with the sole and only right to represent you in matters regarding wages, working conditions, etc." After emphasizing the secret character of the election and that the outcome would be deter- mined by the majority of those voting, and that the employees could vote without fear or favor, the letter states that "a failure to vote is the same as a vote for the choice you do not want." The remainder of the letter dealing with National's wage policy and with a final appeal to the voters is set forth in full : I do not know what the U. C. W.-U. M. W. desires, for I have not seen their demands, but I do know that our Company has established rates which are higher than the average in the vicinity. These rates are as high as we can pay under present Wage Stabilization laws, but I do want it known that the Company has filed Form No. 10 with the 1e Jenot's testimony as to the incidents involving Kitzler and Love, above, is tmcontiovcrted, and we credit it, as did the Trial Exanuner. 294 DECISIONS OF NATIONAL LABOR RELATION S BOARD National War Labor Board asking for wage increases. Furthermore, we have every confidence that the Board will act on said application in the immediate future, and as soon as approval is secured , we will be in a better position to grant meritorious increases. Meanwhile, the law forbids us to put through the increases, and this should be borne in mind by all of our employees. It might be well to point out to all of you that while our personnel has decreased by 317o in the last five years, our pay roll was increased by $500,000.00 Working conditions have and are being improved constantly. I know also that each of you can have a sympathetic hear- ing for your own personal problems, and adjustments have and will be made that are fair all around. One more thing I would like to suggest. This is an important election. For many of us it is the most important one we have ever voted in. It bears directly on your welfare and that of those dependent on you. To what kind of leadership are you going to entrust your future with the Company ? Is it unselfish or is it not. Is it interested in your personal, individual welfare, or is it self -seeking ? On the basis of its past record, is it open and above-board and dependable, or don't you know? These are questions you should think about and AND THEN VOTE ! 2. Alleged acts of interference by National and the Institute on the day of the election The attorney for the Board contends that acts of the respondents on the day of the Board election, May 23, 1944, constitute interference, restraint, and coercion which affected the election results. Since the election was con- ducted in -rooms in' National's office building from which the desks of Superintendent Reynolds and of other officials had been moved across a hallway, it was inevitable that officials of National in performance of their duties on election day would at times be near the polling place. All parties understood, when arrangements for the election were made, that business would continue as usual. General Manager Love visited the polls at 5 :30 a.m. on election morning to "make sure all was in order for the election The polls were first opened for an hour and closed at 6:30 a.n1. Thereafter Love had breakfast with the Board's Field Examiner, Milton A. Shahani. who was in charge of the election. Love expressed fear that some employee', might not vote since they had no previous experience with Board elections. Shaham called Love's attention to the fact that numerous election notices were posted in the plant and suggested that Love make inquiry at the polls in the afternoon as to the number who had voted. Love came to the polling place about 3 p.m. At that time, no one was about the polling place except THE NATIONAL Ll-NIE AND STONE COMPANY 295 Shaham and the official observers. Love inquired as to how many had voted and, after some hesitation, was given the figure with Shaham's approval.' About 6 o'clock a.m. on election day, Love and Superintendent John E. Reynolds met Snobarger and Nye as they were going to work. Love asked them : "Did you vote yet ?" Snobarger replied that he had ; Nye, that he would vote at 2 o'clock.' Between 4:30 and 5 :00 p.m., Nye entered'the polling place and reported privately to Gaster, a union observer, that "Mr. Love was standing on the scales watching who went into the voting place and whether or not they went in."' Gaster reported Nye's statement to the other observers. Shaham and Gaster made an inspection and found that Love was not in the vicinity of the polling place. Several Board witnesses testified that officials of National and Bladek were in the vicinity of the polls while the election was in progress. However, the record does not indicate that they were guilty of any improper action or utterance which might have affected the conduct or the result of the election. Under the circumstances, we find, as did the Trial Examiner, that the respondents engaged in no unlawful conduct on the day of election. 3. Interference, restraint, and coercion subsequent to the election On the day following the election, and after the Union's defeat had been publicly announced, Love approached employees Gaster and O'Flaherty with a proposal that they undertake the solicitation of membership in an independent union. O'Flaherty's testimony regarding this incident reads as follows : A. He asked me or he told me that he found the boys an independent Union and he asked me if I would be willing to get a few books and find out if I could get signers that would be in favor of having an independent Union. He says, I promise the boys and you an independent Union and I mean to keep my promise, if they want it. And I told him that I wouldn't care to go ahead with anything like that alone. He wanted to know who he could possibly get or who I would want to help me out on that and I would not be in favor of anything like that unless the boys in the shop, the ones that had backed up the Union would be in favor of it. So. he said, how would Mr. Gaster suit you? I said, do you think you can get him to agree? He said, I do. So, he left me.... as These findings are based on Love's credited testimony- He was cut roborated by official observers, O'Flaherty for the Union and Wallace W Shaffer, for National. 21 These findings are based on indented testiinaiy of Nye and Snobarger which we credit 2 This quotation is from testimony of O'Flaherty, a union observer, whose testimony in this respect was corroborated by the testimony of Wallace W Shaffer, a company observer at the election. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. That is Maurice Gaster, is that correct, the welder? A. Yes. In about an hour lie came back with Mr. Gaster. Q. And'what did Mr. Love say to both you and Mr. Gaster? A. Well; I asked him how he got Mr. Gaster to agree and he said that wasn't hard. So then he says, you two fellows work together, said if we could get the boys in the shop to agree, that this is what he wanted to do. So he left us and told us to get busy. Gaster testified that he was told on the day after the election that Love wished to see him; that, when he reported, Love took him in an automobile away from the noise of the plant and said: "Now, that you were as a leader in this United Construction Workers, I want you to get in and lead for an independent union"; that Gaster asked, "what if I don't" that, thereupon Love replied, according to Gaster's testimony : "I won't hold anything against you, for what you have done but I will hold everything against you from now on"; and that, Gaster replied "something to the effect that we would go back and see what the boys would say, or talk to somebody else." Gaster and Love then returned to the plant and were joined by O'Flaherty who had "little books ready to start out to form an independent union."" According to Gaster's testimony, Gaster and O'Flaherty asked whether Love proposed to cooperate "with this independent union" and that Love replied: "Yes, [I] would cooperate 100 percent." Gaster further testified that he asked, "Now, do we work on our own time to sign these boys up, or on Company time ?" and that Love replied : "Goddam it, you signed the boys up on Company time in this other union, you might as well sign them up on the Company's time in the independent union."" Love testified frankly about these interviews with O'Flaherty and Gas- ter. His version is in substantial agreement with the testimony. It reads : A. The morning after the election I went to Mr. O'Flaherty, Henry O'Flaherty and I said to him: Now, Henry, that episode is over, the United Construction Workers have lost this election. It looked a little naive now. Let's get this thing settled one way or the other and get back-to business , attend to business. Now, the next thing, do the boys want an independent union? I am not going to ask someone that has not been active in union ac- tivities to find out. You have been, Gaster has been. I am going to ask you two fellows to find out whether they want an independent union. * * * Now, O'Flaherty, according to my recollection, said that he would 23 Drummond credibly testified that in the group meeting that he had attended just a few days before the election, Bladek proposed "to have cards got out and they would help us " 24 Quotations in this paragraph are from Gaster 's testimony. His testimony was undemed and we credit it, as did the Trial Examiner. THE NATIONAL LIME AND STONE COMPANY 297 be willing to contact the men if Maurice Caster did. I then went and talked to Maurice. He was apparently willing to and I left there. When I went to Maurice to see if he wanted to contact the men regarding forming an independent union, I believe I got him in my car and drove away. There was a lot of noise and activity out there. I drove out on the road, out there on Patterson Street, I think I am correct on that. Maurice seemed quite ill at ease. In fact, I will say he was scared and badly scared. He started talking to me about having his chin out and being out on a limb, that these so-and-sos left him in the lurch instead of backing him up in the election the day before. I said, forget that stuff, Maurice, that election is over and there isn't anything that has gone on in the past but that will be forgotten. It will have no effect on any rela- tions between us at all. But, I said, I am anxious to get this busi- ness cleaned up and settled in some way so that we can forget it and get back to work again. It is what you do in the future that will make your record with the Company, not what you have done in the past. I said, do you want to go and find out how many boys want an independent union? He said, yes, he did. And, that set- tled it. A meeting of the employees was held that evening, as O'Flaherty, Gaster, and Love testified, and the discussion then held made it clear that the em- ployees were not interested in joining an independent union; and there- after the matter was dropped. Employee Carl Dible testified that, several weeks after the election, he approached Superintendent Reynolds "on the job at the new crusher plant," and asked him for a raise, and that Reynolds replied that "on ac- count of the Union he couldn't give [Dible] no raise." Dible further testi- fied that Reynolds said "that the only thing he could see in his mind for us to do would be to get rid of Maurice Gaster, Homer Robinson, and Carl Schmidt, because they were head of the Union." Dible reported his con- versation with Reynolds to Gaster who, as chairman of the union group in the Carey plant, protested to Reynolds. Gaster asked Reynolds whether he had told Dible that it would be necessary to get rid of the three union lead- ers in order to obtain a pay raise. Gaster's uncontradicted testimony in regard to their conversation, reads : I asked Mr. Reynolds if he had said that, Be said, `No, I didn't say that. I said, Get rid of the Union.' And I said, `Well, if you have got anything against me, why don't you can me?' And he said, `I have nothing against your work.' I said, `Well, what have you got against me?' And he said, `The Union.' 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reynolds, testifying later as a witness for National. -stated that he had told Dible that "wages were frozen and there couldn't be anything done about it." Reynolds further testified-that, when Dible asked why a raise could not be granted, he, Reynolds, had told Dible "that -there had been complaints come in . . protesting the election that we had on May 23, and our request for an increase in wages would be held up until these com- plaints were cleared " Since there was no specific denial of Dible's testi- mony that Reynolds had advised the ousting of the prominent union lead- ers, and since Dible's statement is supported by Gaster's testimony, which is undenied, we credit Dible's testimony, as did the Trial Examiner. We also credit Gaster's testimony as to his conversation with Reynolds. Gaster also testified without contradiction that about the last of June 1944, Love assembled the employees in the blacksmith shop and told them that the proposed raise, long under consideration by the National War Labor Board, would be delayed` because charges had been filed by the Union. Upon the entire record we are convinced, and we find, that by their entire course of conduct, the respondents intended to, and did, interfere with, restrain, and coerce National's employees in the exercise of the rights guaranteed in Section 7 of the Act,' and thereby interfered with the con- duct of the election and the exercise of a free choice of representatives by National's employees on May 23, 1944' In agreeing with the Trial Exam- iner, as we do, that the totality of the respondents' conduct was coercive and violative of Section 8 (1) of the Act, we have not overlooked the contention that the letter and statements, mentioned above, are expressions of opinion and thus privileged by the constitutional guaranty of freedom of speech However, we think it clear, and we find, that the record viewed as a whole establishes that the respondents have overstepped the legitimate ^ Gaster's version of what Love said is: "Now, all you fellows wanted a union so Goddamned had, that caused a delay in the raise you were to get , on filing charges I There is no contention , as such, that National is not responsible for the conduct of the Institute or that the Institute is not an employer within the meaning of the Act. However, as indicated above, among other things, National employed the services of the Institute shortly after the Union had filed its petition for investigation and certification of representatives ; General Manager Love authorized the Institute's representatives , Bladek and Hardy, to go among the employees and speak to them; Love introduced Bladek and Hardy to assembled groups of employees in National 's plant, thereby sponsoring talks of the Institute 's representatives to the employees on such occasion; and Paul Hardy signed the stipulation for consent election, mentioned above, as "agent" for National Under all the circumstances , we find that the Institute acted in the interest of National and is therefore an employer within the meaning of Section 2 (2) of the Act, and that National is also responsible for the acts and statements of the Institute . See Matter of Sun-Tent-Lnebbert Company, 37 N L. R B 50; and Matter of Holtville Ice and Cold Storage Company, 51 N. L R. B 596. 27 In its Objections to the Election , the Union alleged that National interfered with the election by conduct which took place on the day of the election. As found above, however, National did not interfere with the election by any conduct which occurred on the day of the election . National contends that the election should not be set aside since the proof does nct support the Objections to the Election. We find no merit in the contention The complaint alleges, as we have found above, that, by various other conduct , National interfered with the election . We shall set aside the election in order to remedy such unfair labor oractices 'I'1J E NATIONAL L1 itALL AND STONE COMPANY 299 bounds of free speech and have departed from the minimum neutrality requirements imposed upon an employer by the Act.' Certain of the re- spondents' anti-union statements are clearly objectionable in themselves, for example, Superintendent Reynold's offer of a bribe.in the form of a pay raise to.James Cameron, conditional upon his voting against the Union General Manager Love interrogated Maurice Gaster as to union organiza- tion among National's employees and warned that union organization would result in bloodshed in the community. These incidents occurred prior to the election. The Institute, before the election, and National, both before and after the election, directly sought to organize an inside union among National's employees. Thus, before the election, among other things, for example, Love told the employees that he would "fight" the linion "tooth and nail" and "back" an inside union "100 percent"; Bladek advised the employees that National would enter into a contract more favorable to the employees if they were represented by an inside organiza- tion than if they sought to bargain through the Union, and Bladek offered to furnish his legal services to such an inside organization at a considerable savings to the employees. After the election, among other things, Love asked Gaster and O'Flaherty to organize an inside union; and Superin- tendent Reynolds told Carl Dible that he could not obtain a requested raise in pay because of the Union and suggested that the employees oust three individuals from positions as union leaders. It is clear, and we find, that the respondents' numerous statements,' set forth hereinabove, viewed in the light of the specific statements referred to in this paragraph and the dis- criminatory discharge of Leeman Litton, set forth in Section III, B, infra, in their totality amounted to more than the kind of employer persuasion sanctioned by the Constitution. Indeed, we are of the opinion, and we find, that in its campaign against the Union, National sought to, and did, use its economic power as an employer to intimidate its employees in the exercise of the rights guaranteed by the Act, the coercive effect of which conduct was not neutralized by National's formal assurances, made on several 28 N. L R B v. Trojan Powder Co , 135 F (2d) 337, N L R. B v Sunbeam Electric Mfg Co , 133 F. (2d) 856, N. L. R. B. v Norman H. Stone, 125 F. (2d) 752; Reliance Mfg Co v N L R B. 125 F (2d) 311; Peter? Schweitzer Inc v. N L. R B , 44 F. (2d) 520; N L R B v M. E Blatt Co, 143 F. (2d) 268. Cf. N. L. R. B v. Mt. Clemens Pottery Company, 147 F (2d) 262 See also Matter of Agar Packing and Provision Corporation, 58 N L. R B 738; Matter of Tomlinson of High Point, The, 58 N L R B 982; and Matter of R R Donnelly and Sons Company, 60 N L R B 635. 28 The attorney for the Board contends that certain statements, made by Working Foreman Carey Garn to employee Graydon A Knowlton with reference to alleged statements by Love regarding National's records as to participants in the 1934 strike, constitute unfair labor practices within the meaning of Section 8 (1) of the Act. We find, as did the Trial Examiner, no merit in this contention. Garn, as a working foreman, was eligible to vote in the Board election The extent of his authority is not such as to warrant a finding that National is responsible for his statements 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasions during diatribes against the Union, against reprisals for union activity." B. The discriminatory discharge Leeman Litton vas hired on November 3, 1943, by Acting Superintend- ent Carpenter, and assigned to work as a pop, or secondary, driller under Foreman Robert Draper. Litton was discharged on April 29, 1944, under circumstances hereinafter related, allegedly "for cause." For the first 2/ months of his employment, Litton was on the night shift. Thereafter he was transferred to day work. Before coming to the Carey, plant, he had been employed as a coal miner in Kentucky Litton testified without con- tradiction that, on numerous occasions, Draper had said that Litton "was as good a worker as he had."" When questioned as to the character of Litton's work, Draper testified, Well, his work, when he was willing to work, made tip his mind to work, was, I would say, as good as [the other pop drillers] ; when he intended to do us a day's work. Elsewhere Draper stated that Litton "had reported to work, I would say most every morning. He was steady." Reynolds gave a similar estimate of Litton's ability, saying in response to the question, "Was he [Litton] a good pop driller ?" As far as I know, he was when he wanted to work. That was the report that came to me. - Soon after the transfer to day work, Litton asked Superintendent Reynolds for an increase in pay from 66 to 68 cents an hour. The other pop drillers were getting the higher rate. At first, Reynolds refused the request for an increase saying, as Litton testified, "the War Labor Board wouldn't accept no raise and he couldn't give me none." Litton, thereupon, asked for his release saying, "If I am doing the same work the other men are doing, I am going to have the same pay." Reynolds then said, "Your work is satis- factory and I have to have you and I can't let you go." Next day, Litton returned to the plant and Reynolds said, "Well, if you go on back to work, I will give you the 2 cent raise."32 Litton had been a member of the United Mine Workers while employed in Kentucky coal mines. The record makes it clear that he was whole- heartedly in favor of the Union. He testified that, after union activity had started in January 1944, he was the most active leader of the employees 30 Matter of Agar Packing and Provision Corporation, 58 N L R. B 738, Matter of Julius Cohn, d/b/a Comas Manufacturing Company, 59 N L R B. 208, Matter of American Needlecrafts, Inc, 59 N. L. R B 1384; and Matter of R R. Donnelly and Sons Company, 60 N L R B 635 31 Employee John Drummond corroborated this testimony He testified that he had heard Draper praise Litton's work "lots of times" by saying "Him [Litton] and Earl Galt were the best drillers that we ever had down there " We credit the testimony of Litton and Drummond 33 Reynolds did not testify as to the incident Litton's testimony therefore is uncontroverted, and we credit it. THE NATIONAL LIME AND STONE COMPANY 301 in the quarry. This assertion is corroborated by the credited testimony of another member of his gang, Drummond, who testified, "Leeman Litton talked the hardest for it [the Union], because he had experience with it. He claimed he had worked under unions." Drummond and Litton testified that, in talking for the Union, on occa- sion Litton became engaged in argument about the merits of unionism with his foreman, Draper. Drummond testified that the first of these arguments occurred "on the rock pile"; and that the following occurred there : Bob [Draper] asked him, asked us all if we thought the Union would benefit us any. And Leeman says, "Why wouldn't it?" He said, "It did where I worked down in the mines. I don't see why it won't here." As to the result of this argument, Drummond testified : And it seemed to me [that Draper] was pretty mad about it. He said he would never take another bawling out like Leeman gave him down on the work pile, or he would be going up the hill.33 The drillers were accustomed to eat their lunch in a small shanty where Draper had a desk and stored caps and fuses. Drummond further testified that, on coming to the shanty and finding that the employees had been having a union meeting, Draper would usually inquire, "Well, how did things go with the meeting?" On such occasions, an argument between Litton and Draper would ensue. As Drummond phrased it, "Of course, Leeman would be for it and he [Draper] would be against it. And some of the others might say a word or two." Asked what Draper said, Drum- mond answered, I don't just remember all the words he said. I knowed he wasn't for it from the way he talked , He didn't think it would benefit us any ; we wouldn't get so much overtime if it comes in. Drummond testified that Draper said to Litton, with reference to his union activities : You will keep on here until you will be the head crow and I'll go to the gang. Draper further said to Drummond, according to Drummond, that, "it was the Kentucks that started the union and when they got rid of them everything would be all right." Drummond estimated the frequency of the arguments between Litton and Draper in the following statement : I couldn't say. Sometimes maybe once or twice or three times a day, and sometimes it would run all week and there wouldn't be anything said 34 3 When Draper was asked at the heating, "Did he [Litton] ever bawl you out>", Draper replied, "Well( [I] think that was the idea of the thing, he thought he was bawling me out." a4 National does not contend that it discharged Litton because he discussed union matters during working hours. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Litton testified that, about "the last of January," Draper asked Litton whether he was a member of the Union. Litton also testified that, on an undated occasion, Draper told Litton, in Litton's words • "I was just a little too active in the union." , When called as a witness for National, Draper stated that he had never engaged in conversation either with Litton or with the other employees about the Union. Draper admitted that he had heard Litton say "lie thought the union a good thing" but denied having argued to the contrary In resolving this conflict in testimony, the Trial Examiner characterized Drummond as a forthright and credible witness and stated that he was influenced by the circumstantial and persuasive character of his testimony After considering the demeanor of the witnesses and the entire record, the Trial Examiner rejected the denial by Draper of Drummond's and Litton's testimony. We do likewise. Draper and Litton agree in their testimony that they had engaged in a controversy about noon-hour work and pay, as hereinafter appears. The drillers had been accustomed "to shoot their charges" after 11 :30 a.m., when the shovel operators and other employees in the quarry ceased work to eat. Shooting took about a half hour, after which the drillers ate lunch and returned to work They had been paid in full for all time between the starting and the closing hours of the day without deduction for the lunch period Draper changed the work-day schedule for members of his gang to include a full hour for lunch without pay for the lunch hour. Litton was the leader in getting the members of Draper's work gang to demand in concert a return to the original schedule. In presenting the matter to Draper, Litton said, "If we had a union there I thought that could be settled a little better, we could have more convenience" ; Draper opposed the, demand saying, "the poor class of people were keeping John L. Lewis up, and John L. Lewis was getting all the money, not the labor people." Draper's testimony as to Litton's role in this controversy substantially agrees with Litton's account. Draper testified : Well, the morning that this came up about the noon hour, he has all the rest of the boys around him, called them all in, and I went over to see what was wrong And, that was the trouble, he was the spokesman for the gang. Well, he said the [that] he wanted the noon hour, wanted pay for this hour that he just took off He wanted pay for it, wanted straight time That if he had to go home to get his lunch, take off time to eat lunch, he would have to go home and stay. That was the ^vay he put it After referring this matter to Superintendent Reynolds, Draper acceded to the demand of the employees. 15 These quotations are from Litton's testimony His statements at the healing were not specifically denied and we credit them, as did the Trial Examiner TILE NATIONAL LIME AND STONE COM t'AN I 303 About 3 weeks before his discharge on April 29, 1944, Litton refused to assist in drilling a ditch to provide drainage for a low area in the quarry. The job was conceded to be a wet and disagreeable one. Rubber boots were furnished by Draper. Nevertheless, the men who did the drilling were drenched by sand and water thrown up by the drills. According to credible testimony of Drummond, Drummond and Driller Earl Galt also refused this assignment.' Neither Drummond nor Galt were disciplined for their refusal.' Draper algo testified that Litton had requested that he be not assigned "clean up" work in the crusher pit. Like the Trial Examiner we credit this testimony. However, the record does not show any actual refusal of such an assignment by Litton. On the contrary, Draper testified, "I had him in the crusher pit a few times." In carrying on operations in the quarry, it was desirable that the drillers be qualified to drive a 1 / ton Ford truck which was used to transport a compressor, which furnished air for the drills, to bring supplies and materials to the operators, and to convey employees away from areas of danger when blasts were set off. Litton had never operated a motor vehicle When Draper suggested, in March 1944, that he would give Litton lessons in driving, Litton refused saying, as he testified, "No, you won't because I won't drive it. I never drove one and I might wreck it." Draper then en- listed the aid of Drummond who instructed Litton at odd times After about a month's experience. driving an average of a half hour a day, Litton had an accident which resulted in damage to the truck. On April 27; 1944, in the evening, Litton, driving the truck, followed Drummond, who was driving another vehicle, up an incline which led from the quarry pit to the ground level Near the top, Litton passed Drummond on the right, in accordance with quarry custom, and failing to turn back left into the roadway, the truck turned sharply to the right and ran into a parked vehicle. The damage to the Ford truck was extensive, involving repair expense of approximately $400 for parts and labor. Litton testified that the truck was in bad condition, that it could not niake a right turn, and that the brakes were no good and "just wouldn't hold" on the day of the wreck. Drummond, who was experienced in han- dling the truck, described its condition as follows : Well, the motor seemed to run if you could get it to going The starter didn't seem to work. Everytime we had to push it to start it. And the steering wheel would always lead off to the right. The wheel was loose. You were driving along and it would head for the ditch and if 36 Draper denied that any other employee than Litton had refused The Trial Examiner rejected this denial . We do likewise. 11 The record does not disclose their union status 304 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD you didn't catch it you would run into something . It is that way yet. * -k n The brakes would work if you got time enough to work them and watch. For a short distance it would hold it. At the hearing Draper described the truck as in "fair mechanical condi- tion" and added, "there wasn't anything wrong with the truck that I know of, other than it was a '41 truck."' - The truck was wrecked near the close of the day on Saturday, April 27, 1944. Mechanic Wilford Stombaugh witnessed the accident from a dis- tance and reported the matter to Superintendent Reynolds by telephoning his house. Draper, that evening, questioned Drummond as to how the accident happened. Draper told Litton "I hate it because you wrecked it. Parts [are] hard to get." Litton replied "Well, Bob, I hate it as bad as you do. I told you I never did want to drive the truck in the first place." Draper said nothing at this time by way of reprimand or warning that Litton might be disciplined. On the Monday morning following, after a discussion between Reynolds and Draper, it was decided to discharge Litton. At the hearing, Draper stated the following reason for the discharge : Well, my opinion is that he could have been discharged long before We had plenty of reasons, plenty of things we could discharge him for. And this wrecking of the truck was my idea of why. In his testimony Reynolds assumed responsibility for the decision to dis- charge Litton, and stated the following reasons for Litton's discharge: On account of these complaints that had arisen before this accident of the truck more than anything else. In fact, my mind probably was made up before that from these reports of causing disturbances and everything in the productioi^of the quarry. Reynolds further testified that he had "thought of" discharging Litton before his talk with Draper on April 29, 1944, but had refrained from doing so because Draper "needed men so bad. And we wanted to keep [Litton] and try and make a good employee out of him ®s Reynolds summoned Litton on Monday morning and gave him his pay and a release. Although Litton asked the direct question, "Why did you fire me ?", he was given no explanation. The next morning Drummond, who was disturbed by reports that Litton as Since, as we hereinafter find, the wrecking of the truck was not the reason for Litton's dis- charge, with an exception hereinafter noted, it is unnecessary to determine whether Litton was negligent or to make a determination as to the mechanical condition of the truck . We do find that the truck was an old vehicle and that its condition made it difficult to handle with safety. 30 There was no showing at the hearing that National was in less need of men at the time of Litton's discharge or that it had a replacement for him. THE NATIONAL LIME AND STONE COMPANY 305 had been discharged for wrecking the truck, told Draper, according to Drummond,- "I don't want to drive no more trucks or compressors" ; and Draper replied, "You go ahead the same as you have. That has nothing to do with it "'° Drummond was not convinced and carried his doubts to Reynolds who, according td Drummond, also assured him that "the wreck- ing of the truck didn't have anything to do with firing [Litton]." Drum- mond further testified that he pressed the inquiry by saying "Then, why did you fire him ?" and that Reynolds said, "It is other things that was the cause of it." Drummond then suggested, according to his testimony; Bob [Draper] tried to put him [Litton] in the water hole one day and he refused to drill. Then Bob knew about the union. I think the whole thing together was it. and that Reynolds answered, "You got that about right." In his testimony, Reynolds admitted telling Drummond that "other things" than the wreck- ing of the truck were responsible for Reynolds' decision to discharge Litton. At the hearing Reynolds asserted that by the reference to "other things" lie meant "the reports that came to me from Mr. Draper ... concerning [Litton's] attitude at work." However, Reynolds did not deny that Drum- mond had referred to Litton's union activities nor did Reynolds explain or otherwise refute this testimony by Drummond. We credit Drummond's testimony as to his conversations with Draper and Reynolds as to the cause of Litton's discharge. , It thus appears that Litton was an acceptable employee until he became an active union protagonist. He was a good pop driller. Although Draper categorically denied that he had discussed unionism with his employees; he testified that one cause of complaint against Litton was that he "was more or less of an agitator all the way through. He antagonized the rest of the men." It is clear, however, that Litton's activities as an agitator consisted of his leadership in the concerted activities of the employees in the controversy over noon-hour work and pay. In view of Foreman Dra- per's and Superintendent Reynolds' statements to Drummond, immediately ,following Litton's discharge, that the wrecking of the truck had nothing to do with Litton's discharge, and in view of Reynold's refusal to answer Litton's question as to why he was being discharged, we find, as did the Trial Examiner, that the emphasis now placed by National on the truck incident is unconvincing. It was clearly an accident. Litton was engaged in an assigned duty. He was known to be an inexperienced driver and was operating an old truck, at best, difficult to handle. The record shows that numerous accidents occurred in the plant and while the damage in the bulk of them was not as extensive as that involving Litton, the em- ployees responsible therefor were neither discharged nor otherwise dis- 40 Draper did not testify with respect to this aspect of the case. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciplined.i1 We are convinced and find that, absent his union and concerted activities , Litton would not have been discharged and that National seized upon the truck accident as an excuse for its illegal action and used the accident as a convenient occasion to rid itself of Litton We find, as did the Trial_ Examiner, that Litton's refusal to per-form assigned tasks because they were disagreeable in character cannot be con- doned. However, at the time of his discharge, this incident was some weeks in the past . He was not reprimanded for such conduct or Warned that persistence in such refusal would result in discharge Neither Galt nor Drummond, who refused to work in a water hole, as (lid Litton, were reprimanded or otherwise disciplined for such refusal The record shows that Draper, Litton's immediate supervisor, was openly anti-union and that he resented Litton's pro-union activities. Superintendent Reynolds, who was responsible for the decision to discharge Litton and who has been found above to have engaged in anti-union acts and utterances, later admitted to employee Drummond that Litton' s union activities led to his discharge. These were the supervisors responsible for Litton' s discharge Upon the entire record and, particularly in view of National' s anti-anion conduct-ill other respects set forth above in Section III, A, we find, as did the Trial Examiner, that, by discharging and thereafter failing to reinstate Leeman Litton, in substantial part, because of Litton 's membership and activity in the Union and because of his concerted activities , National dis- criminated with respect to hire or tenure of employment, thereby discour- aging membership in the Union and concerted activities of employees, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. In addition, we find that National interfered with, restrained, and co- erced its employees in violation of Section 8 (1) of the Act by the following statements more specifically set forth in this section: (1) Draper's state- ment to employees that the Union would not benefit them and that they "wouldn't get so much overtime if [the Union] comes in"; (2) Draper's statement to Drummond that "it was the Kentucks that started the Union and when they get rid of them everything would be all right" ; (3) Draper's statement to Litton that he "was just a little too active in the Union"; and (4) Reynolds' admission to Drummond that Litton's union activities led to his discharge 41 Mechanic Stombaugh was a qualified witness as to these matters in view of his employment as a motor vehicle repairman He testified as to such accidents, "No, they are damaged all the time Always there is something happens. " When asked if the employees responsible were discl,a, ged Stombaugh replied, "Why, no You wouldn't have enough men on the job That i, just-that is an everyday occurrence , you might say " In this connection Drummond credibly testified that during the 1-year period of his employment by National , he noticed four or five trucks or bulldo7eis [which had been involved in accidents] "smashed up , [and] sitting around " TL-tE NATIONAL LIME AND STONE COMPANY 307 IV THE EF1'ECT OF Tlli' UN i \IR LABOR PIL\C'I'ICES UPON COMMERCE The activities of the respondents set forth in Section II I. above, occur- ring in connection with the operations of the respondents described in Section I, above, have a close, inti late, and sub,tantial relation 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 com- incrcc V THE REMEDY Having found that the respondents have engaged nn certain unfair labor pi actices, we shall order that they cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act We have found that, by discharging Leeman Litton and thereafter fall- ing to reinstate him. National discriminated with respect to hire or tenure of employment in violation of Section 8 (3) of the Act We shall therefore order that National offer Leeman Litton immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. We shall-- further order that National make Leeman Litton whole for any loss of pay that he may have suffered by reason of the discrimination against hum by payment to him of a stem of money equal to the amount which lie normally wbuld have earned as wages from the date of his discharge to the date of National's offer of reinstatement, less his net earnings" during said period VI 1,141" PETITION Since we have found that National and the Institute, by unfair labor practices, have interfered with the conduct of the election and the free choice of representatives by National's employees at the election of May 23, 1944, we shall set aside and vacate the election. In view of the fact that over a d ear has elapsed since the Union pled its petition for certification. we -shall dismiss that petition without prejudice to the filing of a new petition L-pon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following, '2 Since the record does not disclose that the Institute his a g'netal pulic) of epgaguig in imfan Libor piactiee, in its iei,itions with it, clients we shall not, vulice the 'I'mil Examntei, older the lustitute to ce.ui. aid drIist ftow engaging it unfair lahoi pi.ictiec. in the interest of any emplover other than Nationai i i•i By "net earning," m nicant eat nings lea. expens s, such as fit ti,tnspoitatwu room, and board incurred by in employee Ili connection kith obtaining work and working eisewhcre than for National, which would not have been uuuued but fm his unlawful dtschaige and the consequent necessity of his seeking employnicnt cisewhetc See Hatter of Crossett Lambda Company and United Brotherhood of Carpenters and Joine,, of .Inicrita, Linibei and Saitnntll llotke,s Union, Local 2590, 8 N I, R B 440 Monies iate,ved lot work performed upon Federal, State, county, municipal, or other work-relief projects shall lie considered as earnings See Republic Steel Corporation v. Y L R B, 311 U. S. 7. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF L.\Nv 1. United Construction Workers, affiliated with United Mine Workers of America, is a labor organziation, within the meaning of Section 2 (5)' of the Act. 2. Labor Relations Institute, a partnership consisting of Lawrence Stessin, Leonore Cool, and Ola C: Cool, is an employer, within the meaning of Section 2 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Leeman Litton, thereby discouraging membership in a labor organization and concerted activities of employees, National has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing National's employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affect- ing commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The election of May 23, 1944, is null, void, and of no effect. ORDER Upon the basis of the,above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that : A. The respondent, The National Lime and Stone Company, Carey, Ohio, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employ- ees by discharging or refusing to reinstate any of its 'employees or by dis- criminating in any other manner with respect to hire or tenure of employ- ment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist United Construction Workers, affiliated with United Mine Work- ers of America, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the Board finds will effectuate the policies of the Act : THE NATIONAL LIME AND STONE COMPANY 309 (a) Offer Leeman Litton immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges; 1 (b) Make whole Leeman Litton for any loss of pay that he may have suffered by reason of National's discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to the date of National's offer of reinstatement, less his net earnings during said period; (c) Post at its plant at Carey, Ohio, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Eighth Region, shall, after being duly signed by National's representative, be posted by National immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by National to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps National has taken to comply herewith. B. That the respondent, Labor Relations Institute, a partnership con- sisting of Lawrence Stessin, Leonore Cool, and Ola C Cool, and their agents, successors, and assigns, when acting separately or in concert with The National Lime and Stone Company as agent for or in the interest of The National Lime and Stone Company, shall; 1. Cease and desist from in any manner interfering with, restraining, or coercing the employees of National in the exercise of the right to self- organization, to form, join, or assist United Construction Workers, affili- ated with United Mine Workers of America, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargain- ing or other mutual aid or protection, as guaranteed in Section 7 of the Act 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Immediately send notices in writing through the United States Mail to all employees of The National Lime and Stone Company, Carey, Ohio, stating that Labor Relations Institute will not engage in the conduct from which it is ordered to cease and desist in paragraph B, 1, of this Order; (b) Notify the Regional Director for the Eighth Region, in writing, within ten (10) days from the date of this Order, what steps the Labor Relations Institute has taken to comply herewith The election of May 23. 1944, among the employees of The'National Lime and Stone Company, Carey, Ohio, to determine representation for a 310 DECISIONS ON NATIONAL LABOR RE'LATION'S BOARD the purposes of collective bargaining is hereby set aside and vacated MR GERARD D. REILLY, concurring: T concur in the results - APPENDIX A No'rici'. -ro ALL LAIPLOv FES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that \\/e will not in any manner interfere mtli, restrain, or coerce our employees in the exercise of their right to self-organization, to forum labor organizations, to loiin or assist United Construction Workers. affiliated with United Mine Workers of Anmerica, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges pre- viously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination Leeman Litton All our employees are free to become or remain members of the above- named union or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of em- ployment against any employee because of membership in or activity on behalf of any such labor organization Ti-II: NTA'rioNyL LIME AND STONE COMPANY (Emp1o_t'cr) (Repiesentative) (Title) Dated ------------------------------------------ NOTE-Any of the above- named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material