North Carolina Granite Corp.

National Labor Relations Board - Board Decisions

Apr 17, 1952

98 N.L.R.B. 1197 (N.L.R.B. 1952)

NORTH CAROLINA GRANITE CORPORATION 1197
NORTH CAROLINA GRANITE CORPORATION and UNITED STONE AND
ALLIED PRODUCTS WORKERS OF AMERICA, CIO . Case No. 34-CA-341.
April 17, 1952
Decision and Order
On October 17, 1951, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
The Board has considered the stipulation entered into by the par-
ties, the Intermediate Report, the exceptions,i and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner 2
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act as amended , the National Labor
Relations Board hereby orders that the Respondent , North Carolina
Granite Corporation , Mount Airy , North Carolina , and its agents,
successors , and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Stone and Allied
Products Workers of America , CIO, as the exclusive representative of
all employees of the Respondent at Mount Airy, North Carolina,
1 In view of the stipulation of the parties that the entire record in the representation
proceeding ( Case No. 34-RC-232 ) should be considered as evidence in this proceeding,
and because the Respondent adduced no new or additional evidence , the Trial Examiner
accepted as determinative of the Union 's majority representative status and the appro-
priateness of the unit , the Board 's Decision and Certification of Representatives in that
proceeding ( 94 NLRB No. 177).
We find no merit in the Respondent 's contention that, by accepting the Board 's prior
determination in these respects, the Trial Examiner erred in not reconsidering the evidence
upon which that determination was based and the procedure used in establishing that
evidence . As these issues were fully litigated and considered by the Board in the repre-
sentation proceeding , in the absence of evidence which was newly discovered or unavailable
to the Respondent at the time of the representation hearing, it is clear that such issues are
not properly the subject of relitigation in the instant proceeding . See Southwestern
Electric Service Company, 94 NLRB 859, and cases cited therein ; Goodyear Rubber Sun-
dries, Inc., 92 NLRB 1382.
2 As appears in section 1 (a) of our Order , we have adopted the description of the unit
which was set forth in our Decision and Certification of Representatives ( 94 NLRB No.
177) and in the unit finding in the Intermediate Report, rather than the phraseology
employed in paragraph numbered 2 of Conclusions of Law end 1 (a) of the Recommenda-
tions in the Intermediate Report.
98 NLRB No. 184.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding office, clerical, and professional employees, guards, all em-
ployees covered by the contract between Respondent and Granite Cut-
ters' International Association of America, AFL, and supervisors as
defined in the Act, with respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment.
(b) In any manner interfering with the efforts of United Stone and
Allied Products Workers of America, CIO, to bargain collectively
with Respondent on behalf of the employees in the aforesaid bargain-
ing unit, as their exclusive bargaining representative.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Stone and
Allied Products Workers of America, CIO, as the exclusive represent-
ative of all employees of Respondent in the aforesaid bargaining
unit, with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its plant in Mount Airy, North Carolina, copies of the
notice attached hereto and marked "Appendix A." 3 Copies of said
notice, to be furnished by the Regional Director for the Fifth Region,
shall, after being signed by Respondent's authorized representative, be
posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL bargain collectively upon request with UNITED STONE
AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO, as the ex-
clusive representative of all employees in the bargaining unit
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
NORTH CAROLINA GRANITE CORPORATION 1199
described below with respect to wages, rates of pay , hours of
employment , or other conditions of employment and, if an un-
derstanding is reached , embody such understanding in a signed
agreement . The bargaining unit is :
All of our employees at Mount Airy , North Carolina , exclud-
ing office , clerical , and professional employees , guards, all
employees covered by the contract between the undersigned
corporation and Granite Cutters' International Association
of America , AFL, and supervisors as defined in the Act.
WE WILL NOT in any manner interfere with the efforts of the
above-named union to bargain collectively with us, or refuse to
bargain with said union, as the exclusive representative of all our
employees in the bargaining unit set forth above.
NORTH AMERICAN GRANITE CORPORATION,
Employer.
Dated -------------------- By ------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered , defaced, or covered by any other
material.
Intermediate Report and Recommended Order
Upon a charge duly filed by United Stone and Allied Products Workers of
America, CIO, herein called the Union, the General Counsel of the National
Labor Relations Board, herein called respectively the General Counsel and the
Board, by the Regional Director for the Fifth Region (Baltimore, Maryland),
issued a complaint on August 14, 1951, against North Carolina Granite Cor-
poration, herein called the Respondent, which alleged in substance that the Re-
spondent, since June 16, 1951, has refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate unit, although
the Union had been certified by the Board on June 11, 1951, as the exclusive
representative of the employees in such unit, and by such refusal has engaged
in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint, charge, and notice of hearing were duly served upon
Respondent and the Union.
Respondent's answer admitted the allegations of the complaint as to its busi-
ness and the scope thereof, but denied that it is engaged in commerce ; admitted
its refusal to bargain collectively with the Union as alleged, admitted certain
proceedings by the Board in Case No. 34-RC-232 involving Respondent, but de-
nied the representative status of the Union as. certified by the Board in the
above case and denied the commission of any unfair labor practices.
The case was originally set down for hearing on August 29, 1951, but on
August 27, 1951, the hearing was postponed indefinitely by the Regional Director.
On September 4, 1951, the parties entered into a stipulation in which they waived
notice and hearing, and the taking of testimony before a Trial Examiner, and
agreed to submit the case to a Trial Examiner of the Board for consideration
and preparation and issuance of an Intermediate Report upon a stipulated record.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties further stipulated that the entire record in the case before the
Trial Examiner shall consist of the charge, the complaint and notice of hearing,
Respondent's answer, the order postponing hearing, affidavits of service of the
foregoing documents, the entire record in Case No. 34-RC-232 (hereinafter
called the representation proceeding), involving Respondent and the Union, a
statement regarding Respondent's refusal to bargain with the Union attached
to the .3tipulation, and the stipulation itself. The parties reserved their rights
to file briefs or proposed findings of fact and conclusions of law, or both, with
the Trial Examiner, and also reserved all other rights to which they would
be entitled in a proceeding involving a complaint containing the allegations
above set forth, except to the extent waived in the stipulation. None of the
parties have filed briefs, proposed findings of fact, or conclusions of law with
the Trial Examiner.
Upon the entire record in the case, as stipulated by the parties, I make the
following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation having its principal office and place
of business at Mount Airy, North Carolina, where it is engaged in the quarrying,
manufacture, sale, and distribution of granite. In the course and conduct of
its business, Respondent annually purchases materials and supplies valued
in excess of $200,000, of which approximately 60 percent originates outside
the State of North Carolina and is shipped directly to its place of business
therein. Respondent annually sells finished products valued in excess of
$1,000,000, of which approximately 80 percent is sold and shipped from its place
of business aforesaid to other States. I find that Respondent is engaged in
commerce within the meaning of the Act, and that it will effectuate the policies
of the Act for the Board to assert jurisdiction herein.'
II. THE LABOR ORGANIZATIOI4 INVOLVED
United Stone and Allied Products Workers of America, CIO, is a labor
organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
1. The appropriate unit
In its Decision and Certification of Representatives issued June 11, 1951,2 in
the representation case, the Board found, Respondent now admits, and I therefore
find, that all employees of Respondent at Mount Airy, North Carolina, excluding
office, clerical, and professional employees, guards, all employees covered by the
contract between Respondent and Granite Cutters' International Association of
America, AFL, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act. I further find that this unit will afford Respondent's employees therein
the full benefit of their right to self-organization and collective bargaining, and
will otherwise effectuate the policies of the Act.
2. The Union's majority representation in the appropriate unit
Pursuant to a stipulation of Respondent and the Union for certification upon
consent election, dated October 18, 1950, and filed in the representation case,
1 See Stanislaus Implement and Hardware Company, Limited, 91 NLRB 618.
2 94 NLRB No. 177.
NORTH CAROLINA GRANITE CORPORATION 1201
an election by secret ballot was conducted on October 26, 1950, among the em-
ployees of Respondent in the appropriate unit aforesaid under the direction of
the Regional Director for the Fifth Region . There were no objections to the
conduct of the election . The tally of ballots certified by the representative of
the Board to the parties indicated that 68 votes were cast for the Union, and
66 against it, and 4 ballots were challenged by the Union on the ground that the
prospective voters were supervisors and therefore ineligible to vote. As the
challenged ballots were sufficient to affect the results of the election , the Regional
Director conducted an investigation , as a result of which he filed a report on
December 4, 1950 , recommending that the challenge to the ballot of Haywood
Gates be sustained , the challenges to those of Charles Felts and Alexander Marvin
Wilson be overruled , and that a hearing be held regarding the status of Joseph
Edgar Eaton in the event his ballot was still determinative after the ballots of
Felts and Wilson were counted . Both Respondent and the Union filed exceptions
to the Regional Director 's report . On January 3, 1951 , the Board directed that a
hearing be held to determine whether or not the 4 challenged voters were super-
visors as of the eligibility date for the election . After a full hearing before a
hearing officer of the Board, in which both parties participated , the hearing
officer filed his report on April 6, 1951, recommending that the challenge to the
ballot of Felts be overruled , and that the challenges to the ballots of Gates,
Wilson, and Eaton be sustained . Thereafter Respondent filed timely exceptions
to the recommendations of the hearing officer with . respect to Gates, Wilson, and
Eaton ; no exceptions were filed regarding his recommendation as to Felts. After
due consideration of the report, exceptions thereto and the entire record in
the matter , the Board on June 11, 1951, sustained the challenges to the ballots
of Gates, Wilson, and Eaton and , in the absence of exception thereto , adopted
the hearing officer 's findings that Felts was not a supervisor and was eligible to
vote in the election . Since Felts' ballot could not affect the results of the election,
the Board concluded that it need not be opened and counted ; and, since the
Union had secured a majority of the valid votes cast in the election , the Board
certified the Union as the exclusive bargaining representative of all the employees
In the above unit pursuant to Section 9 (a) of the Act . The Respondent having
adduced no evidence to show the contrary , I take judicial notice of the Board's
prior determination , and find that the Union has been since October 26, 1950,
the duly chosen representative of a majority of Respondent 's employees in the
appropriate unit aforesaid and that , pursuant to Section 9 (a) of the Act, the
Union has been at least since June 11, 1951 , and now is , the exclusive representa-
tive of all employees in such unit for purposes of collective bargaining with
respect to rates of pay, wages , hours of employment , or other conditions of
employment.
3. The request of the Union , and refusal of Respondent , to bargain
The parties stipulated , and I find , that on or about June 16, 1951 , and there-
after, the Union sent letters to Respondent requesting it to bargain collectively
with the Union pursuant to the Board 's certification of the Union aforesaid,
and that on July 14, 1951, Respondent sent the Union a letter acknowledging
receipt of the requests to bargain , and stating, "We do not agree that a majority
of these employees ever voted that they wished to be represented by your
Union , and the Board's ruling that they did seems to us a very unfair decision.
We intend to appeal from the Board 's ruling and, therefore , do not agree to
any of the requests contained in your letters." This letter indicates that Re-
spondent has refused to bargain with the Union solely in order to secure an
appropriate review of the Board 's findings and determination in the representa-
tion proceeding . I conclude and find that on or about June 16, 1951, and at
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all times since, Respondent has refused to bargain collectively, upon request,
with the Union as the exclusive representative of all employees of Respondent
in the unit aforesaid in violation of Section 8 (a) (5) of the Act, and that
Respondent has thereby interfered with, restrained, and coerced its employees
in the exercise of their statutory rights in violation of Section 8 (a) (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of Respondent set forth in Section III, above,-occurring in con-
nection with its operations 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.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
we shall order it to cease and desist therefrom and to taken certain affirmative
action which will effectuate the policies of the Act.
Having found that Respondent refused to bargain collectively with the Union
as the exclusive representative of its employees in the appropriate unit described
above, I shall recommend that Respondent bargain collectively, upon request,
with the Union as such representative and, if an understanding is reached,
embody such understanding in a signed agreement.
Upon the basis of the above findings of fact and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. United Stone and Allied Products Workers of America, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All employees of Respondent at its Mount Airy, North Carolina, plant,
excluding office, clerical, and professional employees, guards, all employees cov-
ered by the contract between Respondent and Granite Cutters' International
Association of America, AFL, and supervisors as defined in the Act; constitute
a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
3. United Stone and Allied Products Workers of America, CIO, was on June
11, 1951, and has been at all times since, the exclusive representative of all
employees in the aforesaid unit for purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
4. By refusing on June 16, 1951, and at all times thereafter, to bargain col-
lectively with United Stone and Allied Products Workers of America, CIO, as
the exclusive representative of all employees in the aforesaid unit, Respondent
has engaged in, and is engaging in, unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, Respondent has engaged in,
and is engaging in, unfair labor practices within the meaning of Section 8 (a)
(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.
[Recommendations omitted from publication in this volume.]