Cast-A-Stone Products Co.

National Labor Relations Board - Board Decisions

Jul 28, 1972

198 N.L.R.B. 484 (N.L.R.B. 1972)

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cast-A-Stone Products Company and Bricklayers,
Masons and Plasterers' International Union,
AFL-CIO. Case I 1-CA-4704
July 28, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On April 11, 1972, Trial Examiner Sidney J.
Barban issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent herewith.
The Trial Examiner found that Respondent dis-
charged Raymond Leasure solely because he had
been in contact with a labor organization and
Respondent feared that he would attempt to organize
its employees.' However, he concluded that Leasure
was a supervisor and, therefore, that his discharge for
the aforesaid reason was not violative of Section
8(a)(3) and (1) of the Act. We find merit in the
General Counsel's exceptions to these conclusions.
Respondent manufactures precast stone products,
which are used by its employees at construction sites.
Leasure, a stonemason, directed field crews at
construction projects. Such crews never consisted of
more than three employees in addition to Leasure,
and there were usually only one or two employees
working with him. All of them, including Leasure,
normally reported to the plant for instructions every
morning before going to the jobsite. In addition, the
field coordinator frequently visited even distant
jobsites and gave instructions on what was to be
done. The employees other than Leasure were
primarily engaged in cleaning operations which
required little training. The record does not indicate
that, in directing them, Leasure used independent
judgment, rather than simply carrying out instruc-
tions from the field coordinator. It is clear, on the
other hand, that Leasure could not discipline
i No exceptions were taken to this finding
2 In view of the small number of employees on the jobsite, the simple
nature of the other employees' work, the fact that Leasure normally
reported to the plant daily for instructions, and the frequent visits of the
field coordinator to the jobsite to give instructions, we do not view the
absence of any other supervision on the jobsite as requiring a finding that
Leasure was a supervisor See United Electric Co, 194 NLRB No 105
employees who refused to carry out his instructions;
on one occasion when this occurred, Leasure had to
wait for the arrival of Field Coordinator Rush, who
handled the matter without asking Leasure for a
recommendation. While employees received a wage
increase after Leasure had recommended such an
increase, he testified, without contradiction, that he
had been seeking an increase for himself as well as
for the other employees and that an increase was
eventually given to all but one of the employees on
the two field crews. Leasure did hire a helper on one
occasion about a year before his discharge, but he
did not have general authority to hire employees; he
was given such authority on that occasion and at one
other time when he was working alone on a project
and was told that if he needed help he could hire
someone for the duration of the project.
In our view, these facts indicate that Leasure was
acting as the most skilled employee on the jobsite,
rather than as a supervisor within the meaning of the
Act. He had no authority to impose or effectively
recommend disciplinary action, and it is evident that,
in seeking wage increases for the employees, he was
acting as their spokesman rather than as their
supervisor. His direction of employees on the jobsite
was of a routine nature and involved only carrying
out instructions received daily from his supervisors.2
The record does not indicate that his working
conditions differed substantially from those of the
other employees.3 He had no general authority to
hire employees, and his sporadic exercise of such
authority is insufficient to render him a supervisor
and deprive him of the protection of the Act.
Accordingly, we find that at the time of his discharge
Leasure was an employee rather than a supervisor
within the meaning of the Act, and that by
discharging him because it suspected that he had
engaged in or would engage in union activity,
Respondent violated Section 8(a)(3) and (1) of the
Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Trial Examiner's
Conclusions of Law numbered 3 and 4:
3. By discharging employee Raymond Leasure
because it suspected that he had engaged in, or
would engage in, union activity, Respondent has
engaged in an unfair labor practice within the
meaning of Section 8(a)(3) and (1) of the Act.
3 Leasure , like other rank -and-file employees, but unlike admitted
supervisors, was paid by the hour, and apparently shared employee benefits,
but there is a conflict in testimony as to the amount of Leasure's life
insurance coverage While Leasure was permitted to take company trucks
home on weekends, there is no evidence to support the Trial Examiner's
speculation that this privilege was not extended to conceded rank -and-file
employees.
198 NLRB No. 66
CAST-A-STONE PRODUCTS CO. 485
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce wthin the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(3)
and (1) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Having
found that Raymond Leasure was discriminatorily
discharged, we shall order Respondent to offer him
immediate and full reinstatement4 to his former or a
substantially equivalent position and to make him
whole for any loss of pay from the date of his
discharge to the date of the offer of reinstatement
less his net earnings during that period. Loss of pay
shall be computed and paid in accordance with the
formula adopted by the Board in F. W. Woolworth
Company, 90 NLRB 289, and with interest thereon at
the rate of 6 percent per annum as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB
716.
Because the discriminatory discharge goes to the
very heart of the Act,5 we shall issue a broad cease-
and-desist order which, in the circumstances of this
case, we deem necessary and appropriate to protect
employee rights and to effectuate the purposes of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Cast-A-Stone Products Company, Raleigh, North
Carolina, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Bricklayers, Ma-
sons and Plasterers' International Union of America,
AFL-CIO, or any other labor organization, by
discharging employees or otherwise discriminating
against them in regard to their hire or tenure of
employment or any term or condition of employ-
ment.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist the
Union or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual
aid or protection or to refrain therefrom.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Raymond Leasure immediate and full
reinstatement to his former job or, if this job no
longer exists, to a substantially equivalent position
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay in
the manner set forth in the ^ section entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Notify immediately the above-named individu-
al, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(d) Post at its plant in Raleigh, North Carolina,
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 11, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER KENNEDY, dissenting:
I would affirm the Trial Examiner's Decision in
this matter. The majority's reversal of the Trial
Examiner with respect to Leasure's supervisory
status is unwarranted. See Electric Wiring Inc., 193
NLRB No. 166, and my dissent in United Electric
Company, 194 NLRB No. 105.
4 The Trial Examiner did not pass on whether Leasure 's use of company
time to apply to the Union for other work would justify Respondent in
refusing to employ him further We do not consider this so serious as to
constitute a basis for withholding our customary remedy of reinstatement
and backpay
5 N LR B v Entwistle Mfg Co., 120 F 2d 532 (C A 4), enfg as modified
23 N LRB 1058
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees these rights:
To engage in self-organization
To form , join , or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to
these rights.
WE WILL NOT discourage membership in
Bricklayers , Masons and Plasterers ' International
Union of America , AFL-CIO , or any other
union , by firing employees or otherwise discrimi-
nating against them in regard to their hire or
tenure of employment or any term or condition of
employment.
The Board found that we fired Raymond Leasure
over the Union and that this violated the law.
Accordingly , WE WILL offer Raymond Leasure
his old job back and make him whole for any loss
of pay he suffered , with 6-percent interest , because
we fired him.
All our employees are free to join, or not to join,
Bricklayers , Masons and Plasterers ' International
Union of America , AFL-CIO, or any other union.
CAST-A-STONE PRODUCTS
COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-9211.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was
heard at Raleigh, North Carolina, on January 27, 1972.
The complaint, issued on December 23, 1971, based upon
charges filed by the Charging Party Bricklayers, Masons
and Plasterers' International Union of America, 'AFL-CIO
(herein the Union) on October 14, 1971, alleges that the
Respondent violated Section 8(a)(1) and (3) of the Act by
the discharge of Raymond V. Leasure. Respondent's
answer denies the commission of the unfair labor practices
alleged, but admits allegations of the complaint sufficient
to support the assertion of jurisdiction under current
standards of the Board ($50,000 annual interstate inflow
and outflow). The answer, in response to the allegations of
paragraph 5 of the complaint alleging that the Union is a
labor organization within the meaning of the Act, further
asserts that these allegations are "not admitted." Such
answer does not constitute a sufficient denial within the
requirements of the Board' s Rules and Regulations (Series
8, as amended), and it is therefore found that the
allegations of paragraph 5 of the complaint are admitted.i
Cf. Harvey Aluminum (Incorporated) v. N.L.R.B., 335 F.2d
749, 757-758; N. L.R.B. v. Thompson Products, Inc., 130
F.2d 363, 366; cf. also, Coop'er's Inc. (of Georgia), 107
NLRB 979. Although General Counsel adduced no proof
in support of the allegations of paragraph 5 of the
complaint, official notice may be taken that the Union,
which has many times been before the Board and the
courts, is a labor organization within the meaning of the
Act. See N. L. R.B. v. Thompson Products, Inc. supra;
Cooper's Inc. (of Goergia), supra.
Upon the entire record in this case, from observation of
witnesses, and after due consideration of the brief of the
General Counsel, the Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
1. THE ISSUES
The General Counsel contends that Respondent dis-
charged Raymond V. Leasure because he had contacted a
union representative and Respondent suspected that he
was or would be involved in an attempt to unionize
Respondent's operations. Respondent asserts that Leasure
was a supervisor, not under the protection of the Act, and
that he was discharged for going to the union hall in
Raleigh, and to another union hall in Durham, North
Carolina, on company time, to seek other employment.
i Sec 102 20 of the Board's Rules and Regulations provide, in pertinent
part,
The respondent shall specifically admit, deny, or explain each of
the facts alleged in the complaint, unless the respondent is without
knowledge, in which case the respondent shall so state, such statement
operating as a denial All allegations in the complaint not
specifically denied or explained in an answer filed, unless the
respondent shall state in the answer that he is without knowledge, shall
be deemed to be admitted to be true and shall be so found by the
Board, unless good cause to the contrary is shown.
CAST-A-STONE PRODUCTS CO. 487
H. THE FACTS
A. The Operations Involved-Leasure's Alleged
Supervisory Status
Respondent manufactures concrete products at a plant
located at Raleigh , North Carolina. These materials are
used in building construction or repair . Respondent's field
employees use these materials at various building sites in
North Carolina, Virginia, and perhaps elsewhere. While
working for Respondent , Leasure was employed as a stone
mason , and was engaged primarily at various building sites
in the field. At the outset of his employment he worked
alone on such sites. Later, both prior to and after the time a
union representation election was conducted at Respon-
dent's operations by the Board in April 1970,2 he worked
with one, two , or three other employees in a crew . During
this time Respondent had two such field crews , another
stone mason , Macey, with a status similar to that of
Leasure, being assigned to the other crew.
The description of the work performed by the members
of such crews is somewhat sketchy. It would appear that
Leasure was the most experience man in his crew and
performed the skilled functions of caulking seams and
patching broken pieces of stone . The other men seem to
have been principally engaged in cleaning operations at
Leasure' s direction , as well as learning caulking and
patching under his instructions . As described by Leasure,
the amount of time he worked with his hands vaned from
job to job, depending on what needed to be done , "if I was
patching or caulking , I work with [my hands] 100 percent
of the time ; but if we was cleaning, I work with them less
because a lot of times I would be down on the ground,
watching what they were doing, spotting dirty panels;
something that needed extra special work done; I would do
something like that there, going up into the rigging over it."
Unless engaged at a distant site , Leasure would report to
Respondent 's plant each morning and receive his instruc-
tions for the day from Respondent' s field coordinator, an
admitted supervisor , who, in Leasure's words, "would tell
us, for instance , what job to go out on, what we had to do
at the job, and what kind of materials we would need." The
men would ride to and from the building site in
Respondent 's truck . The field coordinator visited the
various jobsites frequently. As Leasure stated , "sometimes
he might be out there every day all day for a week or two,
and then at other times , he might be just out once or twice
a week ." On occasions, the field coordinator might not visit
a jobsite for an entire week. While at the site, the
coordinator "might pitch in and do a little work but usually
he just looked the job over and talked about the job, what
had to be done, what was done ." On such occasions, the
coordinator would give Leasure and the men instructions
with respect to the work.
Leasure testified that he did not have authority to
discipline the men who worked with him, nor did he have
any general authority to take any personnel action with
respect to the men , or make effective recommendations
with respect to those matters . Thus he referred to an
occasion upon which he had directed an employee to go to
the top of the building to move the rigging over , and the
employee refused to do so . Leasure could do nothing with
the employee but wait for the arrival of Rush , the field
coordinator . He advised Rush of the incident , but made no
recommendation . Rush talked to the man , and apparently
he performed thereafter . However, on two occasions
Leasure was given authority , or directed to hire unskilled
assistance at the jobsite . In one instance he was told that he
could employ assistance at a distant jobsite for the
duration of the job , but apparently did not do so. On
another occasion , Field Coordinator Wilder told Leasure
to find and employ two men . Leasure hired one, Curtis
Murray, whom he put to work at the site immediately.
Murray is still employed by Respondent . Leasure also kept
the time for men on the crew . It further appears that
Leasure would advise Respondent of the progress of men
on the job, and has suggested that they be given raises. He
also made vigorous complaints with respect to other
working conditions on behalf of the men and himself. On
some of these occasions Respondent thereafter gave raises
to the men , in one instance to the men of both crews.
Leasure was paid by the hour . The admitted supervisory
force was salaried . Respondent 's president , Claude Smith,
testified that during a period after the departure of Field
Coordinator Wilder , in the summer of 1970 , and before the
appointment of Rush to that position three or four months
later, Leasure was given real supervisory authority, which
he did not have prior to Wilder 's departure . Smith asserted
that he offered to pay Leasure a salary but the latter
refused . It is not clear whether Leasure had lesser
insurance benefits than the supervisory force , as General
Counsel argues. It is noted , however, that except for a brief
period when Respondent thought the privilege was being
abused, both Leasure and the stone mason on the other
crew , Macey, were permitted to take company trucks home
with them after work and during weekends , a privilege
which I am sure was not generally granted to the rank-and-
file employees . Leasure and Macey also had company
gasoline credit cards for use on company business.
B. Events Leading to Leasure 's Discharge
About the last of April 1971, Respondent 's president,
Smith , received a letter from one of Respondent's
subcontractors , Panels, Inc., advising that Leasure had
been seeking employment with Panels . Smith states that he
told Field Coordinator Rush to tell Leasure that he "could
hunt for jobs any time on his own time any time he
pleased ; but not on company time." Rush , however,
testified that he did not talk to Leasure concerning this, but
that Respondent 's vice president , Terry Blankenship, did;
that he heard Blankenship tell Leasure that " if he wasn't
satisfied with the work , he could leave and get him another
job." Leasure indicated that he had a converation with
Blankenship on this subject , but denied that any member
of management at any time spoke to him concerning use of
company time for this purpose.
In the latter part of June 1971 , Smith received a letter
2 The details of the union representation election are not shown by the
record . Leasure voted in the election without challenge The vote was
against union representation
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a firm named Sealants, Inc., located in Raleigh,
advising:
We want to inform you that one of your employees,
Mr. Raymond Leasure, approached us, today, to hire
him for our Company. At the time Mr. Leasure
approached us, he was picking up some material for
your Company, thus we assumed that he was on your
time. We have no desire to hire Mr. Leasure as we do
not feel that he will suit our operation.
Smith gave this letter to Rush with a note added, stating:
"Inform Raymond that if he is not satisfied with his job
here, to go ahead and leave. If we hear of his seeking
employment else where that he will automatically be
discharged." Rush, however, asserts only that he "talked to
Raymond about it, looking for jobs on company time."
Leasure recalled that Rush "brought it up" that Leasure
had been looking for other employment, but, as noted,
denied that the use of company time was mentioned.
Leasure is credited as to this.
In August 1971, Leasure and Murray were working on a
project involving the Duke University Divinity School in
Durham, North Carolina, during which Leasure talked to
certain employees of unionized contractors on the project
about their working conditions. During the morning of one
day, Leasure and Murray packed the scaffolding which
they had been using on Respondent's truck. Apparently, it
was not needed for the small amount of work still
remaining to be done by Respondent on that job, and was
to be transferred to another site. According to Leasure, he
did not then have the materials at hand to complete the
patching which remained. At this point, Leasure took
Murray in the truck into Durham where Leasure visited a
union hall, where he hoped to obtain assistance in securing
employment. The man Leasure sought was not at the union
office and Leasure and Murray left.
Murray testified that at another time, in September 1971,
while on a project in Raleigh, Leasure also took him to the
union hall in Raleigh, where Leasure was also seeking
assistance to secure employment. Leasure seems to recall
that the visit to both union halls took place on the one
occasion in August. It is unnecessary to resolve this
conflict. It is clear that whether on one or two visits,
Leasure turned in time sheets for Murray and himself
which did not deduct for the time spent in these errands. It
is for this circumstance that Respondent states it was
impelled to discharge Leasure. Murray testified that he did
not report these trips to the union halls to anybody.
Rush states that he was alerted to Leasure's visits to the
Union by one of Respondent's subcontractors, Bill White,
who showed Rush a memorandum on a card White had
received from Claiborne Woods, the business manager of
the Union, advising that Leasure had been by to see
Woods and desired "to get into the construction line." The
message further stated that Woods had told Leasure that
he would inquire of White and another concerning
Leasure's request, and noted that this might affect the
relationship between White and Respondent.
Oddly, though Rush had this note in his possession for a
considerable time, and at one point in his testimony
asserted that "after [he] saw this card, he went upstairs and
talked to Mr. Smith, and told him what was going on,"
Smith testified that he did not see the card until several
days later, after Leasure was discharged, when White
showed it to him.
Rush states that after he learned of Leasure's contact
with the Union, through Wood's note to White, he
questioned Murray when Murray and Leasure came to the
plant from a jobsite about 5:45 p.m., on September 14,
1971. According to Rush, in a conversation that lasted 6 to
7 minutes, or longer, he ascertained from Murray that
Leasure had visited union halls on two occasions on
company time. He states that he then went upstairs to see
Smith and acquainted him with the situation, and received
Smith's direction to discharge Leasure. This is supported
by Smith. He then proceeded to fire Leasure, as set forth
hereinafter.
Murray testified in corroboration of Rush's testimony as
to the conversation with Rush on this occasion. From
observation at the hearing, and from study of his
testimony, I am satisfied that Murray has no clear and
independent recollection of this matter.
Leasure, however, testified that on this occasion he
dropped Murray at the latter's car about 100 feet from the
plant, watched Murray get into his car, and, in fact, was
following Murray out of the plant premises when Rush
called him back into the plant. Then followed the incidents
of his discharge described hereinafter.
With respect to this matter, I credit Leasure. His account
of the movements of the participants on this occasion was
direct, detailed, and convincing. I do not have a similar
faith in the reliability of the testimony of Rush and
Murray. One unexplained point, under Rush's version of
the facts, is why Leasure would have remained at the plant
at all, while Rush was interviewing Murray and reporting
to Smith, before calling Leasure into the production office.
There is no evidence Rush asked Leasure to wait, or that
there were any duties then to be performed at the plant. I
am satisfied that he was on the point of leaving when Rush
called him in to be discharged, without at that time having
a prior opportunity to talk to Murray.
C. The Discharge Interviews
Leasure testified that Rush called him into the plant
office as he was leaving the premises on the evening of
September 14. After some preliminary conversation about
work at the jobsite, Rush showed Leasure the card which
White had received from Woods. According to Leasure,
"Rush said , `You talked to the union man, didn ' t you; we
will have to let you go.' and I said, 'I didn ' t talk to him. I
just called him up on the phone.' And he says, `Well , it says
right here that you talked to him,' referring to the card, and
he said, `You know how Claude , Terry and them feel about
this here , and we will have to let you go .... .. There
ensued a conversation about Leasure 's vacation pay, and
the two went up to Smith 's office.
Leasure states that after Smith said he would have to
check into the records concerning the vacation pay, he told
Smith that though he wasn ' t begging for his job back, he
wanted to tell Smith what happened ; that he then told
Smith he was merely investigating whether he could get a
job as a union stone mason at an increase of $70 a week,
and that he wasn't trying to "organize Cast-A-Stone," to
CAST-A-STONE PRODUCTS CO. 489
which Smith replied, "Well, if the union can find [you] a
job . . . they are nothing but a bunch of God Damn
crooks," and that he would leave it up to Rush as to
whether Leasure should be retained or not; and that Rush
replied that he had his wife and family to think about, he
couldn't afford to take the chance, and would have to let
Leasure go. Leasure picked up his final checks at
Respondent's offices the next day.
Rush states that: when he called Leasure into the
production office on this occasion, after asking him about
the progress of the job, he asked Leasure "about having
been to the union hall," which Leasure denied; when he
further told Leasure he had heard that Leasure had gone to
the union hall "on company time," Leasure replied that he
had only telephoned; and when Rush showed Leasure the
card Woods had sent White, Leasure may have admitted
Rush's accusation, but Rush is not sure . In response to a
series of suggestive and leading questions, Rush denied
saying on this occasion, either in words or substance, that
Leasure knew "how Terry and Claude feel about the
union ," but he did say "that Terry and Claude was getting
tired of it, his going on company time." Rush denied that
he knew or suspected that Leasure was engaged in "any
union organizing activities."
Neither Rush nor Smith testified concerning the conver-
sation with Leasure in Smith 's office. Insofar as there is a
conflict between the testimony of Rush and Leasure as to
the conversations set forth above, Leasure is credited.
III. ANALYSIS AND CONCLUSIONS
1. The Supervisory Issue. The issue of supervisory
authority among employees working at remote locations
often presents difficult and close questions. For example,
compare Electric Wiring, Inc., 193 NLRB No. 166 with
United Electric Company, 194 NLRB No. 105. Thus the
relationship of an experienced journeyman to his helper or
helpers may well not be that of a supervisor to employees,
although the helpers may be completely under the control,
direction, and instruction of the journeyman. Similarly,
truckdrivers are rarely considered as supervisory merely
because they have a helper on the truck, or even in those
cases in which the driver has authority in remote locations
to hire a helper on the spot to assist in loading or
unloading. The resolution of the issue in each case is
essentially a factual problem.
In the present case, however, the facts concerning the
work done by the helpers on thejobsite, whether simple or
complex, routine or vaned, is rather sparse, as is the
evidence as to the relationship between the stone mason
and the helpers. It is clear that the stone mason is the only
one regularly in charge at remote locations and that he
regularly observes and directs the work of the helpers, and
keeps their time. But there is no evidence as to the amount
of discretion which he exercises, or whether his relationship
to the helpers is routine and repetitive, directing merely
simple activities of the helpers in accordance with
proscribed instructions from his supervisors. It seems
evident, from the one example given, that the stone mason
can direct the helpers to perform tasks which are more
than routine. However, where the helper refuses the
assignment, it is evident that the stone mason has no
authority to discipline the recalcitrant helper, or require the
performance of the work. While the particular stone mason
whose status is here involved, Raymond Leasure, on
occasion has suggested wage raises and other improved
working conditions for the helpers and himself, it is far
from manifest that Respondent gave these effective weight.
On the other hand, Leasure has been given authority, on
occasion, to hire helpers on his own discretion, and in one
instance did hire a helper on a permanent basis, and put
him to work without any immediate clearance from any
other superior. This helper, Murray, continues to be
employed by the Respondent. On the basis of this record, I
believe that this evidence of authority to hire, in conjunc-
tion with the other indicia of responsibility reposed by
Respondent in Leasure, is sufficient to tip the scales in the
direction of a finding of supervisory authority. See, e.g.,
Electric Wiring, Inc., supra. It is therefore found, though
the issue is close , that at the times material herein Leasure
was a supervisor within the meaning of Section 2(11) of the
Act, and was therefore not an employee within the
protection of Section 8(a)(l) and (3) of the Act.
2. The Reasons for the Discharge: The finding that
Leasure was a supervisor within the meaning of the Act at
the time of his discharge necessitates a recommendation
that the complaint in this matter be dismissed and disposes
of the issues raised in this matter. However, because of the
closeness of the supervisory issue, and in the event that I
state my findings on the merits. On the basis of this record,
it is found that at the time that Leasure was discharged,
Respondent did not then know that he had visited the two
union halls on company time, but terminated him on the
basis of the memo from Woods, the union representative,
to White, then in Respondent's possession, showing that
Leasure had been in contact with Woods seeking employ-
ment with a union contractor. Though the memo showed
that Leasure was seeking employment elesewhere, Respon-
dent's president, Smith, had previously advised his supervi-
sors that he did not object to this unless such activities
involved company time. While Respondent's attitude on
the subject may have hardened after that, it is not claimed
that Leasure would have been terminated solely for seeking
other employment. In the circumstances, therefore, and on
the entire record, it is found that Respondent discharged
Leasure solely on the basis that he had been in contact
with a labor organization, and because of its concern that
this might lead to an attempt to organize its employees. I
do not pass upon whether Respondent's subsequently
acquired information that Leasure had misused company
time in his activities might serve to justify Respondent in
refusing to further employ him.
On the basis of the foregoing findings of fact, and the
entire record in this case, the Trial Examiner makes the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Raymond V. Leasure was at all times material a
supervisor within the meaning of Section 2(11) of the Act.
4. Respondent's discharge of Raymond V. Leasure did
not violate the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is hereby recommended that the complaint in this matter
be dismissed in its entirety.