Whiterock Quarries, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1942

45 N.L.R.B. 165 (N.L.R.B. 1942)

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