Carolina Marble & Granite Works

In the Matter of FLOYD A. FRIDELL,1 INDIVIDUALLY AND TRADING AS CAROLINA MARBLE & GRANITE WORKS and GRANITE Cu'''r s' INTER- NATIONAL ASSOCIATION OF AMERICA, CHARLOTTE BRANCH Cases Nos. C-392 and R-44.93.-Decided February 14, 1939 Monument Manufacturing Industry--Interference, Restraint, and Coercion: threat of temporary or permanent shut-down in the event of Board interven- tion-Unit Appropriate for Collective Bargaining: all granite cutters, carvers, surface-machine operators, carbo sawyers, lathe operators, sand-blast operators, tool sharpeners, polishers, setters, and rotary and gang sawyers, including apprentices, and excluding foremen-Representatives : proof of choice: compari- son of membership cards and pay-roll list; admitted by respondent-Collective Bargaining: refusal to bargain collectively with union ; remedial order : recog- nition as exclusive representative ; negotiation-Investigation of Representatives: petition for, dismissed , in view of order to bargain. Mr. Reeves R. Hilton, for the Board. Mr. Frank K. Sims, Jr., and Mr. Williaim, Masson, of Charlotte, N. C., for the respondent. Miss Edna Loeb, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On September 24, 1937, Granite Cutters' International Associa. tion of America, Charlotte Branch, herein called the Union, filed with the Regional Director for the Fifth Region (Baltimore, Mary- land) charges alleging that Floyd A. Fridell,' individually and trad- ing as Carolina Marble & Granite Works, Charlotte, North Carolina, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 15, 1937, the Union filed with the Regional Director a petition alleg- ing that a question affecting commerce had arisen concerning the 1 The respondent was erroneously designated in the complaint as A. F . Fridell but the complaint was amended, upon motion of counsel for the Board , to designate the respond- ent correctly. 11 N. L. R. B., No. 25. 249 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation of employees of the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On November 23, 1937, the National Labor Rela- tions Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered the Regional Director to conduct an investigation and to provide for an appropriate hearing upon due notice and, acting pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of the Rules and Regulations, further ordered that the representation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for purposes of hearing and that one record of the hearing be made. On December 2, 1937, the Board, by the Regional Director, issued its complaint and notice of hearing in the consolidated proceeding, copies of which were duly served upon the respondent and upon the. Union. The complaint alleges in substance that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, in that the respondent had refused, and still refuses, to bargain in good faith with the Union as the duly authorized representative of a majority of the respondent's employees in the .appropriate unit, and that the respondent, by such acts and by other acts, had interfered with, restrained, and coerced hill employees in the exercise of the rights guaranteed in Section 7 of the Act. On December 10, 1937, the respondent filed his answer in which he admitted the allegations of the complaint concerning the nature and scope of his business but denied the other material allegations. Pursuant to notice, a hearing was held in Charlotte, North Caro- lina, on December 15 and 16, 1937, before Lawrence J. Kosters, the Trial Examiner duly designated by the Board. The Board and the respondent appeared by counsel, the Union by a representative, and all participated in the hearing. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case and again at the end of the hearing counsel for the re- spondent moved to dismiss the proceeding regarding the unfair labor practices on the ground that the Board had failed to prove its case. The Trial Examiner denied these motions. During the course of the, hearing, counsel for the Board and counsel for the respondent made motions to conform the pleadings to the proof. These motions were granted by the Trial Examiner. The Board has reviewed the rul- ings of the Trial Examiner on these and other motions and on objec- tions to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. FLOYD A. FRIDELL ET AL. 251 On January 15, 1938, the Trial Examiner filed his Intermediate Report, in which he found that the respondent had engaged in the unfair labor practices alleged in the complaint, and recommended that the respondent cease and desist from engaging therein, and that the respondent bargain collectively with the Union. No exceptions to the Intermediate Report have been filed. Upon the entire record in both cases, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an individual engaged in the manufacture, sale, and distribution of marble and granite monuments and cemetery me- morials. His sole plant and place of business is located in Charlotte, North Carolina, where he employs approximately 27 production workers. The chief raw materials used by the respondent in his manu- facturing operations are marble and granite. Approximately 80 per cent of the marble, approximately 90 per cent of the granite, and most of the equipment used by the respondent are shipped to the respondent from points outside North Carolina. In 1937 the total value of the respondent's products was approximately $72,000. Ap- proximately 16 per cent of the finished products are transported by the respondent's trucks to customers outside North Carolina. II. THE ORGANIZATION INVOLVED Granite Cutters' International Association of America, Charlotte Branch, is a labor organization affiliated with the American Feder- ation of Labor, admitting to its membership white granite cutters, carvers, surface-machine operators, carbo sawyers, lathe operators, sand-blast operators, tool sharpeners, polishers, setters, and rotary and gang sawyers, employed by the respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that the granite cutters, carvers, surface-ma- chine operators, carbo sawyers, lathe operators, sand-blast operators, tool sharpeners, polishers, rotary and gang sawyers, employed by the respondent, constitute a unit appropriate for the purposes of collective bargaining. As has been stated above, these classes of employees are eligible to membership in the Union. The respondent does not contend that any other unit is the appropriate one. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his Intermediate Report the Trial Examiner found that only the white employees in the categories listed in the complaint constitute the appropriate bargaining unit. The Union presented no argument that would support the exclusion of negroes from the unit. Further- more, no evidence is found in the record of any differentiation in function which would constitute a basis for such exclusion. Accord- ingly, we find that no such limitation upon the unit would be justified.2 The Trial Examiner further found that the appropriate unit in- cludes foremen who do not have the power to hire and discharge. Neither the respondent nor the Union requests the inclusion of fore- men. We find that the record does not support the finding of the Trial Examiner in this regard and we shall exclude foremen from the bargaining unit. The record shows that employees known as setters are eligible to membership in the Union. The manufacture of monuments is an in- tegrated process. Setters participate in this process and contribute their share of work toward the completion of the finished product. No evidence was introduced at the hearing to show any reason for excluding them from the unit. We shall include setters within the bargaining unit. Apprentices are also eligible to membership in the Union after they have worked for a required period of time at the trade to which they are apprenticed. Although in the early period of their employment their wages are not as large as those of journeymen, apprentices apparently perform the same type of work as do the latter. We shall include apprentices in the unit. We find that all the granite cutters, carvers, surface-machine opera- tors, carbo sawyers, lathe operators, sand-blast operators, tool sharp- eners, polishers, setters, and rotary and gang sawyers, employed by the respondent, including apprentices, and excluding foremen, con- stitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the respondent the fun benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. The only remaining unit problem to be resolved is whether or not C. R. Stevens, R. L. Pinion, and Anderson Davis are within the unit which we have found to be appropriate. C. R. Stevens, an employee of the respondent, is engaged partly in carpentry work, boxing monuments for shipping, and partly in cutting stone.3 The respondent testified that Stevens' wages are lower than those of a full-time cutter and stated that he does not consider 2 Matter of American Tobacco Company, Incorporated, Richmond Smoking Branch and Committee for Industrial Organization, Local 472, 9 N. L. R . B. 579. 8 The record does not indicate what percentage of Stevens ' time is spent in cutting or in doing carpentry Work. FLOYD A. FRIDELL ET AL. 253 Stevens a cutter. The Union has admitted Stevens to its membership, however, which indicates that the Union classifies him as a cutter and desires him to be included in the unit as such. The respondent did not expressly contend that he should be excluded. Accordingly, we shall include C. R. Stevens in the bargaining unit. R. L. Pinion and Anderson Davis, skilled employees of the re- spondent, are designated "tool boys" in the record. They perform work which is apparently identical with that of tool sharpeners, who are included within the appropriate unit. Pinion is a member of the Union, which indicates that the Union desires him to be included. R. L. Pinion and Anderson Davis will be included in the appropriate unit. 2. Representation by the Union of the majority in the appropriate unit A list of the respondent's employees on the pay roll for the week ending September 3, 1937, contains 27 names. Seventeen cards of employees in the appropriate unit, which were presented in evidence, have been checked and found to correspond with the names on the list. Sixteen of such cards are dated August 30, 1937, one, dated September 13, 1937. The record does not indicate the exact number of employees within the appropriate unit. Since, however, on August 30, 1937, the Union represented 16 employees, a majority of the total number of workers then employed by the respondent, it is clear that on that date the Union represented a majority of the employees within the appropriate unit. We find that on August 30, 1937, and there- after, the Union represented a majority of the employees in the appropriate unit. 3. The refusal to bargain On September 1, 1937, a committee of the Union accompanied by Vance Vaughn, an organizer for the Union and chairman of the Char- lotte Branch, met with the respondent, informed him that the Union represented a majority of his employees, requested recognition of the Union as the duly authorized representative, and asked the re- spondent to bargain collectively with the Union. The respondent stated that he did not question the Union's representation of a ma- jority, but asserted that he would have no dealings with the union committee. Vaughn warned the respondent that charges would be fled with the Board if he would not deal with the Union in accord- ance with the Act. The respondent professed ignorance of the provi- sions of the Act and replied that the committee should do as it pleased. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 11, 1937, the union committee sent the respondent a registered letter, reiterating its request for recognition and for col- lective bargaining, and stating that the respondent's failure to reply to the letter would be interpreted as a refusal to bargain with the Union. The letter remained unanswered. On September 18 the committee held a second conference with the respondent. The latter flatly refused to enter into any discussion regarding the proposed collective bargaining agreement submitted to him by the committee, although he had no knowledge of the provi- sions of such agreement. He stated that he was doing all he could for his employees. Vaughn advised the respondent to retain counsel for legal advice concerning the Act and warned him that the Union would have to file charges with the Board. The respondent, in his answer, contends that he is ready and will- ing to bargain collectively with the duly authorized representatives of his employees upon the presentation of proper credentials certify- ing such representatives to be so authorized. The respondent further contends that he has not been presented with such credentials. In view of the testimony in the record, such contentions cannot be sus- tained as justification for the respondent's conduct. It is clear that the respondent did not at any time ask the committee or the Union for credentials. Furthermore, the respondent admitted at the hearing that the committee informed him of its character and mission, and also admitted that he did not question the Union's claim to represent a majority of his employees. We find that on September 1, 1937, and thereafter, the respondent refused to bargain collectively with the Union as the representative of his employees in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment and thereby interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed under Section 7 of the Act. B. Other acts of interference, restraint, and coercion In October 1937, subsequent to the filing of the charges and peti- tion, the Regional Director sent two letters to the respondent advising him that by means of a consent election he might obviate the neces- sity for holding of a formal hearing, and explaining to him the pro- cedure employed. These letters were not answered by the respondent. On or about October 28, 1937, during working hours, the respond- ent told his foreman to "stop the pump." This had the effect of dis- continuing the operations of the plant. Fridell then segregated his white employees and told them of the receipt of letters from the Board. He warned them that if he had to go before the Board con- cerning an election the plant would be closed during his absence for FLOYD A. FRIDELL ET AL. 255 a period of 3 weeks-4 The men were told that theirs was the decision as to whether or not this shut-down occurred. The respondent further warned the employees that his business was unprofitable and that since he was only earning $35 a week, he was thinking of accepting an offer to work for another company at $50 per week. He concluded that he could not "join the Union." Clearly, these remarks of the respondent were calculated to and did engender in his employees the fear that further intervention by the Board in their behalf or any further union activity would occasion either a temporary or perma- nent discontinuance of the plant's operations, and would, therefore, result in loss of employment by them. We find that by his conduct the respondent has interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THE PETITION In view of the findings in Section III above as to the appropriate bargaining unit and the designation of the Union by a majority of the respondent's employees in the appropriate bargaining unit as their representative for the purposes of collective bargaining, it is not necessary to consider the petition of the Union for certification of representatives. Consequently the petition will be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Granite Cutters' International Association of America, Char- lotte Branch, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All the granite cutters, carvers, surface-machine operators, carbo sawyers, lathe operators, sand-blast operators, tool sharpeners, polish- ers, setters, and rotary and gang sawyers, employed by the respondent, 4 The record indicates that the respondent is frequently absent from the city on busi- ness trips and that his absence has never occasioned a shut -down of the plant. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including apprentices, and excluding foremen, constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. 3. Granite Cutters' International Association of America, Char- lotte Branch, affiliated with the American Federation of Labor, was on August 30, 1937, and at all times thereafter has been, the exclusive representative of all the respondent's employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing, on September 1, 1937, and thereafter continuing to refuse to bargain collectively with Granite Cutters' International Association of America, Charlotte Branch, affiliated with the Ameri- can Federation of Labor, as the exclusive representative of the em- ployees in the above-stated unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Sec- tion 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER On the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Floyd A. Fridell, individually and trading as Carolina Marble & Granite Works, Charlotte, North Carolina, and his offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Granite Cutters' Inter- national Association of America, Charlotte Branch, affiliated with the American Federation of Labor, as the exclusive representative of all the granite cutters, carvers, surface-machine operators, carbo sawyers, lathe operators, sand-blast operators, tool sharpeners, polish- ers, setters, rotary and gang sawyers, employed by him, including apprentices, and excluding foremen; (b) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purposes of collective bargaining or other FLOYD A. FRIDELL ET AL. 257 mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with Granite Cutters' Inter- national Association of America, Charlotte Branch, affiliated with the American Federation of Labor, as the exclusive representative of all the granite cutters, carvers, surface-machine operators, carbo sawyers, lathe operators, sand-blast operators, tool sharpeners, polish- ers, setters, rotary and gang sawyers, employed by him, including apprentices, and excluding foremen, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Post immediately notices to its employees in conspicuous places within the plant stating that the respondent will cease and desist in the manner aforesaid, and that the respondent will bargain col- lectively, upon request, with Granite Cutters' International Associa- tion of America, Charlotte Branch, affiliated with the American Fed- eration of Labor, as representative of all the granite cutters, carvers, surface-machine operators, carbo sawyers, lathe operators, sand- blast operators, tool sharpeners, polishers, setters, rotary and gang sawyers, employed by him, including apprentices, and excluding foremen; and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting; (c) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. IT IS FURTHER ORDERED that the petition for investigation and certi- fication of representatives be, and it hereby is, dismissed.