H. E. Fletcher Co.

National Labor Relations Board - Board Decisions

Mar 2, 1938

5 N.L.R.B. 729 (N.L.R.B. 1938)

In the Matter of H. E. FLETCHER Co., and GRANITE CUTTERS'
INTERNATIONAL ASSOCIATION OF AMERICA
Cases Nos. C-331 and R-,378.-Decided March 2, 1938
Granite Quarrying Industry-Employee Representation Plan: form and op
eration ; domination of administration ; financial and other support ; recognition
as representative of employees ; disestablished as agency for collective bargain-
ing-Investigation of Representatives : controversy concerning representation of
employees : rival organizations ; refusal of employer to negotiate with petition-
ing union-Unit Appropriate for Collective Bargaining : production employees ;
eligibility for membership in petitioning union ; differentiation in duties ; his-
tory of labor organization in industry and with employer-Election Ordered
Mr. Norman F. Edmonds, for the Board.
Mr. Richard B. Walsh, of Lowell, Mass., for the respondent.
Mr. Martin Witte, of Boston, Mass. , for the Union.
Mr. Edward Fisher, of Lowell, Mass., for the Plan.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 16, 1937, Granite Cutters' International Association of
America, herein called the Union, filed with the Regional Director
for the First Region (Boston, Massachusetts) a petition alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of H. E. Fletcher Co., West Chelmsford, Massachu-
setts, the respondent herein, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.
The Union having thereafter filed charges and amended charges,
the National Labor Relations Board, herein called the Board, by
the same Regional Director, issued its complaint dated September
24, 1937, copies of which were duly served upon the respondent, the
Union, and "Employees of H. E. Fletcher Co., a voluntary associa-
tion functioning under the Employees' Representation Plan for
H. E. Fletcher Co.", herein called the Plan. The complaint, in sub-
729
730 NATIONAL LABOR RELATIONS BOARD
stance, alleged that the respondent was dominating and interfering
with the administration of the Plan, thereby engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7) of the Act. The respondent
subsequently filed an answer, denying the essential allegations of
the complaint, and a motion to dismiss the complaint, alleging that
its business operations do not affect commerce within the meaning of
the Act.' On September 29, 1937, the Plan filed a motion to intervene
in the proceeding, which was granted by the Regional Director on
October 2, 1937.2
On September 24, 1937, the Board, acting pursuant to Article 111
Sections 3 and 10 (c) (2), and Article II, Section 37 (b), of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered a consolidation of the proceedings and authorized the Re-
gional Director to conduct an investigation of representatives and
to provide for an appropriate hearing upon dire notice.
Pursuant to notice duly served upon all parties, a hearing'on both
the petition and the complaint was held at Boston; Massachusetts,
on October 18 and 19, 1937, before Mapes Davidson, the Trial Exam-
iner duly designated by the Board. The Board, the respondent, the
Union, and the Plan were represented by counsel and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the opening of
the hearing, counsel for the respondent renewed its motion to dismiss
the complaint and further moved that the hearing be postponed
pending the disposition of its Bill in Equity on appeal before the
Circuit Court of the United States for the First Circuit, in which
it was praying for an order enjoining the proceedings before the
Board.3 The Trial Examiner denied both motions.
On November 16, 1937, the Trial Examiner filed his Intermediate
Report, in which he found that the respondent had engaged in and
was engaging in the unfair labor practices alleged in the complaint.
He accordingly recommended that the respondent disestablish the
Plan as a collective bargaining agency for its employees.
The respondent filed exceptions to the Intermediate Report and to
various rulings of the Trial Examiner, and on January 26, 1938, the
respondent and the Union presented oral argument before the Board.
The Board has reviewed the rulings of the Trial Examiner on mo-
tions and on objections to the admission of evidence and finds that
no prejudicial errors were committed. The rulings are hereby affirmed.
I The respondent also filed a Bill in Equity in the District Court of the United States
for the District of Massachusetts , praying that the Regional Director be enjoined from
holding a heaiing., This Bill was dismissed by the Court on October 15, 1937
2 The Plan also filed a Bill in Equity similar to the one filed by the respondent The
Court likewise dismissed this Bill
3 On November 16, 1937 , the respondent withdrew its appeal from the Circuit Court.
i
DECISIONS AND ORDERS 731
The Board has also considered the exceptions to the Intermediate
Report and finds them to be without merit.
- Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, 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 respondent's orders. For the purpose of moving
the stone within the plant, the respondent maintains approximately
five miles of trackage over which it operates its own steam engine
and eight or nine freight cars.
The respondent also owns a small quarry at Milford, Massachusetts,
about 40 miles from West Chelmsford. Granite quarried at Milford
is shipped to the West Chelmsford plant for further fabrication. The
record indicates that the Milford quarry is considered by the respond-
ent 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 respondent 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 respondent
also employs two salesmen who maintain headquarters in Massachu-
setts but who occasionally travel outside the State to solicit orders.
From January 1936 to September 11, 1937, the respondent sold
187,891 tons of stone valued at $1,416,995.57. Of this amount, 140,283
tons valued at $780,825.47 were shipped to points within Massachu-
setts, and 47,608 tons valued at $635,507.10 were shipped outside the
State. Shipments outside Massachusetts accordingly amounted to
25.3 per cent of total shipments by tonnage, and 44.9 per cent by
value.4 The great majority of shipments outside the State are made,
4 These figures and percentages are compilations of statistics introduced in the record
by the respondent. There is an unexplained discrepancy of $336 in total sales value and
the sum of the values of sales made within and outside Massachusetts as submitted by the
respondent.
732 NATIONAL LABOR RELATIONS BOARD
F. 0. B. quarry, to customers in New York, Connecticut, Rhode
Island, New Jersey, and the District of Columbia.
• At the time'of the hearing approximately 300 production and main-
tenance workers were employed by the respondent.
H. THE ORGANIZATIONS INVOLVED
Granite Cutters' International Association of America is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership granite cutters using hammers or points on
machines on building, bridge, or edge stone, sawyers, sandblast men,
tool sharpeners, bed setters, and granite polishers.'
"Employees of H. E. Fletcher Co., a voluntary association function-
ing under the Employees' Representation Plan for H. E. Fletcher Co.",
is a labor organization. Prior to May 1937, no employee organization
existed distinct from the Employees' Representation Plan for H. E.
Fletcher Co., and all employees except executives, foremen, and others
having power to hire and discharge, participated in this Plan by vir-
tue of their employment. The record discloses that the voluntary asso-
ciation sprang up in May 1937, apparently as an adjunct to the Plan.
No testimony was introduced to indicate the objects of the association,
its manner of functioning, or its place in the operation of the Plan.
Nor does it appear that an employee is required to join the association
in order to participate in the Plan.5
III. THE UNFAIR LABOR PRACTICES
A. Formation of the Plan and its present operation
In the early nineteen hundreds the Union had organized a consid-
erable number of granite workers and for some years prior to 1922 had
succeeded in negotiating collective agreements with the respondent's
predecessor as well as with many other quarries in New England. In
April 1922, the employers in the industry announced a general wage
reduction and the adoption of the open shop or so-called "American
Plan". This announcement resulted in numerous strikes and lock-
outs which continued until 1923 when practically all of the quarries
in New England renounced their campaign for the open shop and
again entered into collective bargaining contracts with the Union.
The respondent's predecessor and several quarry operators in Ver-
mont, however, still refused to recognize any labor organizations of
their employees. In 1933 the Union called a strike at the respondent's
plant for recognition, but after three months it was compelled to with-
6 The term "Plan", when used in the discussion of events occurring prior to May 1937
herein , denotes the Employees ' Representation Plan. When used in the discussion of
events occurring subsequent to that date, it denotes collectively the Employees' Representa-
tion Plan and the voluntary association functioning thereunder.
DECISIONS AND ORDERS 733
draw when the respondent imported strikebreakers from North
Carolina.
In March 1934 the respondent introduced the Plan to its employees.
The record discloses that Ralph A. Fletcher, the respondent's treas-
urer, and Jack Andrews, now assistant superintendent, called a meet-
ing of the employees in the curb yard, described the Plan, and told
them to appoint a committee to consult further with Fletcher. Fol-
lowing Fletcher's instructions, a committee consisting of two em-
ployees, William Johnson and Carter, called similar meetings in other
,departments and advised the employees in each to nominate a repre-
sentative to a works council. Thereafter representatives were elected
and the Plan began to operate.
Fletcher denied that he had initiated the Plan and testified that it
had been formulated by the employees after a petition to organize had
been circulated in one of the departments. He further testified that
after the petition had been presented to him, he summoned a committee
of employees to discuss the matter of collective bargaining, and he
later submitted three representation plans to the committee which re-
vised them into the Plan. John F. Vasselin, called by the respondent,
testified that the employees had first feared to sign the petition because
the unsuccessful strike of 1933 was still fresh in their minds. It was
first necessary for Fletcher to advise the employees that the respondent
would not object if they joined an organization.
Even if we accept the respondent's evidence as true, the record
amply shows that the respondent participated both in the initiation
and the formulation of the Plan. Indeed, on the respondent's show-
ing, the respondent's influence was necessary even before the employees
-developed the temerity to organize an "inside labor organization."
The Plan as put into effect in 1934, with several amendments dis-
cussed below, still operates.6 It provides for a Works Council con-
sisting of six employee representatives, one elected from each depart-
ment, and six representatives appointed by the management, to
engage in collective bargaining and handle grievances. Candidates
for election are required to be employees of the respondent, and elec-
tions, held once a year, are supervised by a committee of three, two
selected by the employee representatives and one by the manage-
ment.7 The Works Council holds regular bimonthly meetings, two-
thirds of the employee representatives and two-thirds of the appointed
representatives -together constituting a quorum. The respondent
provides suitable places for meetings of the Council and its com-
mittees. "Representatives in attendance at any meeting of the Works
Council or its committees, and employees required to attend any
meetings at the request of the Works Council or any of its com-
6 Petitioner's Exhibit No. 5.
7 The respondent has never exercised its right to select a member of this committee.
734 NATIONAL LABOR RELATIONS BOARD
mittees, shall receive their regular pay from the Company for such
time as they are necessarily absent from work for these purposes." s
The operation of the Works Council, as it appears in the Plan,
is not clear. Presumably, however, the Works Council may decide
any matter at issue, only by a two-thirds vote. - When such vote is
not forthcoming, the matter may he referred to the president of
the respondent, and finally to arbitration.
On March 29, 1934, the respondent through its appointed repre-
sentatives on the Works Council, one of whom was Ralph A. Fletcher,
entered into an agreement with the elected representatives whereby
the wage scale was increased by ten per cent. The agreement pro-
vided that it was to continue in effect subject. to 90 days' notice in
writing by either party of a desire for a change.
The Plan thus continued in operation without interruption, the
record failing to disclose any issue that was not settled by the Works
Council.9 Elections of employee representatives were held yearly
and the Works Council met bimonthly in the evening at Fletcher's
office, the employee representatives being paid by the respondent for
the time spent at such meetings. Fletcher was the first chairman of
the Council, being elected by the representatives, and the respondent's.
bookkeeper acted as secretary. From time to time employee -repre-
sentatives held meetings of the employees of their respective de-
partments during lunch hours either in the various departments or
in the commissary hall located on the premises. General meetings
of all employees were never called.
On April 25, 1937, Costanzo Pagnano, business agent of the Union,
came to West Chelmsford to organize the respondent's employees
who were eligible to membership in the Union. Pagnano testified
Chat the men he approached were sympathetic and interested in the
Union, but reluctant to join, fearful that they would thereby jeop-
ardize their positions. Hugh F. Greene, one of the first men whom
Pagnano approached, told Baribeault, an employee representative,
that he intended to solicit members for the Union. The following
day, at Baribeault's invitation, Greene attended a meeting of the
Works Council in Fletcher's office where he was questioned regarding
Union plans.
On April 29 a committee consisting of the president of the Union
and representatives of the Boston Building Trades Council and
a hoisting engineers' local called upon Fletcher, told him that the
Union was organizing, and asked whether the respondent would
8 Petitioner's Exhibit No 5, Article XI (5)
9 Although various departments received wage increases from time to time, no general
wage increase was negotiated from March 1934 until December 1936, when Fletcher
announced that he was "waiving " the agreement and granting a five -per cent general raise.
-DECISIONS ;AND ORDERS 735
negotiate with the Union . Fletcher responded that he was recog-
nizing the Plan as the collective bargaining agency for the employ-
ees, whereupon the committee withdrew.
Meanwhile the respondent was taking steps to insure the con-
tinuance of the Plan without ' interruption from the Union. On
April 30 the agreement of March 29 , 1934, was extended to July 1,
1938, with the further provision that unless either party should
signify its desire for a change in the existing wage scale at least 90
days before then , the agreement would extend to July 1, 1939. As
consideration for the extension , the respondent agreed to adjust the
existing wage scale from time to time in accordance with changes in
the cost of living as reported by the Massachusetts Department of
Labor and Industries.10
At a meeting of the Works Council held during the same week,
Fletcher 'telephoned the New York office of the League for Indus-
trial Rights to ask whether the Plan was legal within the meaning
of the Act . He was advised by Williams , the League 's secretary, to
discontinue payments to the employee representatives and thereafter
to charge rent for the use of the commissary hall for department
meetings. Shirley J. Clark, an employee representative and chairman
of the Works Council , testified that the employee representatives
on the Works Council now meet alone one evening a month in the
drafting room and bimonthly with the respondent during working
hours. No rent is charged for the use of the drafting room, and
the employee representatives are reimbursed for time lost from work.
The respondent now charges 35 cents per hour for use of the commis-
sary hall for department meetings.,
Immediately after Fletcher 's telephone conversation with Williams,
Clark called a meeting of the employee representatives to discuss
the subject of dues necessary to defray their expenses under the
Plan. There is some evidence that department meetings were held
and that dues of two dollars a year, payable quarterly , were agreed
upon. The employee representatives thereafter appointed a secre-
tary-treasurer to collect dues, and application cards for membership
in' the employees ' organization under a plan of representation entered
into with the employer " were distributed and signed at the plant, in
many instances, during working hours.
B. Conclusions with respect to the Plan
Since the National Labor Relations Act became effective only on
July 5, 1935 , none of the actions of the respondent which took place
prior to that date could constitute unfair labor practices within the
10 Board 's Exhibit No 6.
736 NATIONAL LABOR RELATIONS BOARD
meaning of the statute. They are important, however, in considering
the significance of the respondent's actions and the operation of the
Plan subsequent to that date.
The Plan as an instrument for collective bargaining is nothing
more than a device foisted by the respondent upon its employees to
give them the semblance, rather than the substance, of collective
activity. The employees were never afforded an opportunity to vote
on the Plan, nor were they ever afforded an opportunity to decide
whether they desired the form of collective bargaining which the
Plan purported to offer. By virtue of their employment they par-
ticipated and still participate in the Plan whether or not they desire
to be bound by its prescriptions. Membership in the association
apparently carries with it no rights or obligations other than the
rights and obligations arising out of their employee status.
Since the inception of the Plan, the respondent's employees have
never met as a group to consider their problems collectively. Limited
in the choice of representatives under the Plan to their fellow em-
ployees, they are denied the right to utilize the services of expert.
outside representatives. They are summoned to meetings by depart-
ments on the respondent's property and invariably accept the deci-
sions of their representatives previously made with the respondent's
approval. Evidence of accomplishment for the workers under the
functioning of this or any other labor organization, which is still
subject to the ultimate direction and influence of the employer, in
no wise determines its independence. Their gratuitous consent to
pay two dollars a year each, in order to participate in a Plan of
which they would remain members even should they choose not to pay
is significant of the hollowness of the relationship between these
representatives and their constituents. The "voluntary association"'
is simply an instrument used solely for the collection of dues to
support the Plan.
The respondent urges that it has eliminated those features of the
Plan which the Act prescribes; that by charging rent for the use of
the commissary hall and by ceasing to reimburse employee repre-
sentatives for attendance at evening meetings, it has legitimized
the fruit of its unlawful conduct. It does not deny, though, that
'employee representatives are still paid for their attendance at meet-
ings during working hours. Even were the respondent to withdraw
all financial support, its power to curtail the activities of the Works
Council, together with the influence it exercises over its employees
through the Council, sufficiently characterizes the Plan as the instru-
ment of the respondent rather than as the representative of the
employees.
The Works Council is plainly the creature of the respondent, sub-
ject to its desires and checked by the procedural restraints embodied
DECISIONS AND ORDERS 737
in the Plan. Composed of equal numbers of representatives of both
employer and employees, the Works Council is limited in its activity
to the requirement of a two-thirds vote of its membership. Nor can
the employees, through their elected representatives amend, alter, or
repeal the Plan since such action would require a three-fourths vote-
of the Council. Any action of the Works Council is therefore always'
predicated upon the approval of the respondent's representatives who,
can frustrate the employees' desires whenever they are so instructed
by the respondent.
The administration of a labor organization is the employees' and
not the employer's concern. The respondent unquestionably has made
the Plan its own representative. It controls it today as effectively as
it controlled it in 1934. We find that the respondent dominated and
interfered with the formation of the Plan in March 1934, and that at
all times thereafter it has dominated and interfered with its admin-
istration and contributed financial and other support to it. We shall
therefore order the respondent to withdraw recognition from the
Plan as a collective bargaining representative for any of its em-
ployees, to disestablish it as such representative , and to disavow its
agreement with the Plan.
IV. THE APPROPRIATE UNIT
As we have noted above, the Union admits to membership all
granite cutters using hammers or points on machines, on building,
bridge or edge stone, sawyers, sandblast men, tool sharpeners, bed
setters, and granite polishers. It contends that all of the respondent's
employees who fall within the category of these occupations consti-
tute a unit appropriate for the purposes of collective bargaining.
From the testimony adduced at the hearing in connection with the
examination of the pay roll, the appropriate unit urged by the Union
should include employees classified by the respondent as building
cutters, curb cutters, bridge cutters, tool sharpeners,'-'. carborundum,
rotary, and gang saw operators, set-up men, and sand blasters, exclu-
sive of their apprentices 12
In support of its contention, the Union emphasizes the natural
division in skill and duties of these employees as distinguished from
the skill and duties of other employees. In general, the employees in
the unit described by the Union work directly upon the granite in its
fabrication after the stone has been removed from the quarry proper.18
They are thus distinguishable from quarry men and drillers who
u Including Leyner sharpeners if they work on cutters ' tools as distinguished from
quarry tools
12 Apprentices are given union cards after a six months' probationary period, but are
not accorded voting privileges in the Union until they are accepted as journeymen
" Since none of the employees at the Milford quarry are included within this category,
it is not now necessary to consider whether any of them would or would not be included
in the unit by reason of the isolation of this department from the plant,
738 NATIONAL LABOR RELATIONS BOARD
loosen the stone from the quarry, and laborers, repairmen, derrickmen,
hoist engineers, machinists, riggers, tractor drivers, tool boys, salvage
men, chip pickers, and other workers whose principal duties are con-
fined to the distribution of the quarried stone to the various depart-
ments for fabrication, and to the operation and maintenance of
machines used •for such distribution.
The history of organization activity both in the respondent's plant
and throughout the industry testifies to the reasonableness of the
Union's argument. As previously stated, for a number of years prior
to 1922 the Union had agreements with the respondent's predecessor
covering the employees in the unit it delineates. Pagnano, the busi-
ness agent of the Union, who displayed a thorough knowledge of
union activities at the hearing, testified that approximately 98 per
cent of these employees in New England are covered by collective
bargaining agreements between the Union and their employers. This
testimony was not refuted, nor did the respondent offer any con-
vincing evidence that such employees do not constitute an appro-
priate unit.
We therefore find that all of the respondent's building cutters,
curb cutters, bridge cutters, tool sharpeners, including Leyner sharp-
eners who work on cutters' tools, carborundum, rotary, and gang
saw operators, set-up men and sand blasters, exclusive of their ap-
prentices, constitute a unit appropriate for the purposes of collective
bargaining, and that said unit will insure to employees of the re-
spondent the full benefit of their rights to self-organization and
collective bargaining and otherwise effectuate the policies of the Act.
V. THE QUESTION CONCERNING REPRESENTATION
Following the abortive attempt to negotiate with the respondent
in April 1937, the Union continued to solicit members. By July it
claimed 70 members of the 120 eligible employees. On August 9 the
Union notified the respondent that it had a majority of its employees
in an appropriate unit and requested a conference for the purpose of
negotiating an agreement. After an exchange of correspondence in-
dicating that the respondent would not proceed without a divulgence
of complete details with respect to Union members among its em-
ployees, the Union filed a petition with the Regional Director for an
investigation and certification of representatives.
We find that a question has arisen concerning the representation
of employees of the respondent.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES AND OF THE QUESTION
CONCERNING REPRESENTATION ON COMMERCE
We find that the activities of the respondent set forth in Section
III above, and the question concerning representation which has
DECISIONS AND ORDERS 739
arisen occurring in connection with the operations of the respondent
described in Section I above, have a close , intimate, and substantial
relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VII. THE DETERMINATION OF REPRESENTATIVES
An analysis of the respondent's pay roll which was introduced into
the record shows that approximately 119 employees constitute the
unit we have found appropriate for the purposes of collective bar-
gaining. The Union introduced into evidence membership cards of
63 of these employees, and full opportunity was afforded the re-
spondent and the Plan to compare them with the pay roll. Under
normal circumstances this evidence would justify our certification
of the Union. Here, however, the record does not indicate the exact
number of employees who constitute the unit, and since the 63 cards
show but a small majority of an approximation of the size of the
unit, they cannot be controlling. Moreover, it appears from the
evidence that 52 of the employees who signed cards for the Union
during the months of April, May, and June, also signed cards for the
Plan during the month of July. The evidence in its entirety, raises
some doubt that the Union represents a majority of the employees
in this unit.
It accordingly appears that the question of representation which
has arisen can best be settled by an election among the employees in
the above-described unit. Since we shall order the respondent to
cease recognizing the Plan as the collective bargaining representative
for any of its employees and to disestablish it as such representative,
we shall make no provision for the designation of the Plan on the
ballots.
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 is a labor
organization, within the meaning of Section 2 (5) of the Act.
2. Employees' Representation Plan for H. E. Fletcher Co. together
with its adjunct, Employees of H. E. Fletcher Co., is a labor organ-
ization, within the meaning of Section 2 (5) of the Act.
3. By its domination 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, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (2)
of the Act.
740 NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by 'Section 7 of the Act, the re-
spondent has engaged in and is 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
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of the respondent's employees, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
7. All of the respondent's employees classified as building cutters,
curb cutters, bridge cutters, tool sharpeners, including Leyner sharp-
eners who work on cutters' tools, carborundum, rotary, and gang saw
operators, set-up men, and sand blasters, exclusive of their apprentices,
constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
ORDER
Upon the basis of the 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,
H. E. Fletcher Co., West Chelmsford, Massachusetts, and its officers,
agents, successors, and assigns shall:
1. Cease and desist :
(a) From in any manner dominating and interfering with the ad-
ministration of Employees' Representation Plan for H. E. Fletcher
Co., and its adjunct, Employees of H. E. Fletcher Co., or any other
labor organization of its employees, and from contributing financial
and other support to Employees' Representation Plan for H. E.
Fletcher Co., and its adjunct, Employees of H. E. Fletcher Co., or to
any other labor organization of its employees;
(b) From in any manner giving effect to its agreement with its
employees under Employees' Representation Plan for H. E. Fletcher
Co.;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join or assist labor organizations, to bargain collectively
Through representatives of their own choosing, and to engage in con-
, erted activities for the purpose of collective bargaining and 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) Withdraw all recognition from Employees' Representation
Plan for H. E. Fletcher Co., and its adjunct, Employees of H. E.
Fletcher Co., as the representative of any of its employees for the
DECISIONS AND ORDERS 741
purpose' of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, completely disestablish Employees' Representa-
tion Plan for H. E. Fletcher Co., and its adjunct, Employees of H. E.
Fletcher Co., as such representative, and disavow its contract there-
with ;
(b) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of thirty (30) consecu-
tive days, stating (1) that the respondent will cease and desist as
aforesaid, and (2) that -the respondent will withdraw all recognition
from Employees' Representation Plan for H. E. Fletcher Co., and
its adjunct, Employees of H. E. Fletcher Co., as the representative
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, that Employees'
Representation Plan for H. E. Fletcher Co., and its adjunct, Em-
ployees of H. E. Fletcher'Co., are disestablished as such representa-
tive, and that the respondent's agreement therewith is void and of no
effect;
(c) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with H. E.
Fletcher Co., West Chelmsford, Massachusetts, an election by secret
ballot shall be conducted within fifteen (15) days from the date of
this Direction, under the direction and supervision of the Regional
Director for the First Region, acting in this matter as agent for the
National Labor Relations Board and subject to Article III, Section 9,
of said Rules and Regulations, among the building cutters, curb cut-
ters , bridge cutters, tool sharpeners, including Leyner sharpeners
who work on cutters' tools, carborundum, rotary, and gang saw opera-
tors, set -up men and sand blasters, exclusive of'their apprentices, who
were employed by H. E. Fletcher Co. on August 6, 1937, and who
have not since quit or been discharged for cause, to determine whether
or not they desire to be represented by Granite Cutters' International
Association of America for the purposes of collective bargaining.