H. E. Fletcher Co.

In the Matter of H . E. FLETCHER Co. and WEST CHELMSFORD GRANITE WORKERS UNION Case No. R-3666.Decided May 28, 1942 Jurisdiction : quarrying industry. Investigation and Certification of Representatives : held, no question concerning representation had arisen where petitioning union was found to be a successor to a company-dominated union which previously had been disestablished. Practice and Procedure : petition dismissed. Mr. Robert E. Green, for the Board. Mr. Richard B. Walsh, of Lowell, Mass., for the Company. Mr. James J. Bruin, of Lowell, Mass., for Union II. Mr. Martin Witte, of Boston, Mass. , for the G. C. I. A., and International Hod Carriers, Building and Common Laborers Union of America. Mr. Albert M. Anderson, of Boston, Mass. , for Paving Cutters Union of the United States and Canada. Miss Melvern R. Krelow, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon petition duly filed by West Chelmsford Granite Workers Union, herein called Union II, alleging that a question affecting commerce had arisen concerning the representation of employees of H. E. Fletcher Co:, West Chelmsford, Massachusetts, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Henry J. Kent, Trial Examiner. Said hearing was held at Lowell, Massachusetts, on March 23 and 24, 1942. The Board, the Company, Union II, Granite Cutters International Association of America (A. F. L.), herein called the G. C. I. A., International Hod Carriers, Building and Common Laborers Union of America and Paving Cutters Union of the United States and Canada appeared, participated and were afforded full opportunity to be heard, to examine and cross-examine witnesses and 41 N. L. R. B., No. 89. 420 H. E. FLETCHER CO. 421 to introduce evidence bearing on the issues., The Trial Examiner's rulings made at the hearing are free -from, prejudicial error and are hereby affirmed. On April 6, 1942, the G. C. I. A. filed, a brief which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY H. E. Fletcher Co., a corporation organized in 1924, under the laws of the Commonwealth of Massachusetts, has its principal office and place of business in West Chelmsford, Massachusetts, where it is engaged in the quarrying, cutting, sale, and distribution of granite in the form of paving blocks, building work, curbing, rough granite, and crushed stone. The West Chelmsford plant consists of the quarry proper, a curb yard, stone sheds, service department, and a mill. Granite blocks are freed from the earth, removed from the quarry by cranes and derricks, and transported to the curb yard, mill, or stone sheds, where the stone is sawed, fabricated, and polished to meet the specifications of the Company's Orders.' For the purpose of moving the stone within the plant, the Company maintains ap- proximately 5 miles of trackage' over which it operates its own steam engine and eight or nine freight cars. The Company also owns a small quarry at Milford, Massachusetts; about 40 miles from West Chelmsford. Granite quarried ' at Mil= ford is shipped to the West Chelmsford plant for further fabri- cation. The' record indicates that the Milford quarry is considered by the Company :as` a department of its business, rather than' as a separate plant. With the exception of relatively small amounts- of explosives and coal, which, it procures within'Massachusetts, -the Company requires no supplies other than the granite in its quarries.' 'Sales -are made chiefly to building contractors, the Commonwealth of Massachusetts, and municipalities, orders being secured principally in the-form 'of awards after competitive bidding. The Company also employs two salesmen who maintain headquarters in Massachusetts but who, occasionally travel outside the State-to solicit orders. ' 1, During 1941, the Company's total sales amounted to approximately $850,000 in value, of which approximately 45 percent was sold and shipped to points outside the Commonwealth of Massachussetts. The majority of such shipments were made F. O. B-. ,the .quarry. SiJ , 422 DECISIONS OF NATIONAL"'LABOR' RELATIONS BOARD The Company . admits that it is -engaged in commerce within the meaning of the National-Labor Relations Act" II. THE ORGANIZATIONS INVOLVED . West Chelmsford Granite Workers Union is an unaffiliated labor organization admitting to membership employees of the Company. Granite Cutters International Association of America; Interna- tional Hod Carriers, Building and Common Laborers of America; and Paving Cutters Union of the United States and Canada are labor organizations affiliated with the American Federation of Labor and admit to membership employees of the Company. III. THE STATUS OF UNION II On March 2, 1938, the Board issued a Decision, Order and Direction of Election,' in which inter alia the Board found that the Company, by, its domination of and interference with the administration of Employees' Representation Plan for H. E. Fletcher Co. and its ad- junct, Employees of H. E. Fletcher Co., and by contributing financial and other' support thereto, had engaged in unfair labor practices within the meaning of Section •8 (2) of the Act, and ordered the Company to disestablish said Employees' Representation Plan, and its adjunct. The Board petitioned the Circuit Court of Appeals for the First Circuit for enforcement of its order and on December 18, 1939, the Court decreed enforcement of the Board's orders, On March 25, 1940, the United States Supreme Court denied certiorari .4 In accordance with the Board's order, the Company posted the required notices on April 2, 1940. Subsequent to such disestablishment, an- other labor organization, which bears the same name as Union II, the petitioner herein, sprang up, among-the.employees of the,Company. For convenience, we refer to this organization as Union I. On June 26, 1940, Union I, filed a petition for investigation and certification of representatives. On' July 23, 1940, charges were filed by the G. C. I. A. alleging that Union I was a successor to the Employees' Representation Plan and that the Company had dominated and in- terfered with the formation and administration of Union I. The Company, although not admitting that it had violated the decree of the Circuit Court of Appeals, entered into a stipulation with the I The parties stipulated at the hearing that the findings relating to the business of the Company in the Board's prior Decision , Order and Direction of Election (5 N. L. R. B. 729) substantially describe the activities and operations of the Company at the present time. 2 5 N. L. R. B. 729. 8 108 F ( 2d) 459 (C. C. A. 1). 309 U. S. 678. J H. E. FLE`T'CHER, ' co. 423 Board in which it agreed to post notices in its plant and to distribute copies of such notices to its employees individually. These notices, which provided that the' Company (1) would not dominate, or inter- fere with the administration of, or contribute financial support to 'Union I and (2) would not recognize Union I as the representative of-any of its employees'and would completely disestablish it as such representative, were posted by the Company in its. plant on August, 28, 1940, and remained posted until November 13, 1940. Copies of the notices were also distributed to the employees. By order of the Board on September 11, 1940, Union I was allowed to withdraw its petition. On September 14,1940, the G. C. I. A. withdrew its charges. At the hearing in the instant proceeding, in addition to the usual investigation, evidence was received on the issue of whether the peti- tioner herein, Union II, is a successor to or continuation of Union I, the organization heretofore disestablished. We turn first to a con- sideration of the evidence bearing on this issue. Harold C. Franklin is the president of Union II. He was also president of Union I and had been an employee representative of the Employees' Representation Plan in the last year of-its existence, prior to disestablishment. Some time in September of 1941 Franklin and one Carl Fox, an employee of the Company, consulted James J. Bruin, an attorney, with respect to the formation of a new labor organization. They brought with them the constitution and bylaws of Union I. Bruin testified that he went over the constitution and bylaws paragraph by paragraph and used them as a "form" for the constitution and bylaws he drew for Union II. Two documents intro- duced in,evidelice by the G. C. I. A., and admitted by Bruin to be, the constitutions and bylaws *of Unions I and II, are identical in their terms, with 4 minor differences.5 A second meeting was held in Bruin's office and was attended by 12 to 15 men, representatives of each department of the Company. Bruin, submitted to them his proposed draft of the constitution and bylaws for Union II. There- after organizational meetings of employees were held on undisclosed dates. At one of these meetings the constitution and bylaws were adopted.(, An employee from each department was appointed some- time during the organizational period, to distribute application cards and solicit for membership. Union II used application cards which remained from Union I's original supply. When these cards had been depleted, sheets of paper with the form of the cards typed at the head of each sheet were substituted. At a meeting held on or about 5A comparison of these two documents reveals, curiously enough, that the document purporting to be the constitution and bylaws of Union I is a carbon copy of the document introduced as the constitution and bylaws of Union II, with the exception that page 1 of the latter has been retyped. ° It appears that this meeting took place some time in the fall of 1941. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 30, 1941, officers were elected. Franklin and Joseph M. Silva, vice president of Union II, testified that the membership of Union I and Union II is substantially the same. Although the constitution and bylaws provide for dues, none have been collected, and no assessments have been made. The funds for necessary expenditures have been raised by "passing the hat" at the various meetings.' Bruin testified that he had not been paid for his professional services, but that an arrangement had been made that he would await the eventual outcome before setting a definite fee. Upon the foregoing facts, we find that Union II is merely a contin- uation of Union I and is therefore the same organization which the Company agreed, by the terms of the notices posted in its plant, to refrain from recognizing and to disestablish completely "as repre- sentative of any of its employees for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment." It follows that Union II is incapable of acting as the representative of the Company's employees for the purposes of collective bargaining and that the petition for investigation and certification filed by Union II must be dismissed.8 ORDER The National Labor Relations Board hereby orders that the peti- tion for investigation and certification of representatives of employees of H. E. Fletcher Co., West Chelmsford, Massachusetts, filed by West Chelmsford Granite Workers Union be, and it hereby is, dismissed. 4 At the time of the disestablishment of the Employees ' Representation Plan there was a balance in the treasury of $200. This money was transferred on June 8, 1940, to Union I and has since been returned to the members of Union I. 8 The intervening labor organizations in this proceeding have requested that no election be held. .