Madix Asphalt Roofing Corp.

In the Matter Of MADIx ASPHALT ROOFING CORP. and INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, AFL Case No. 34-CA-54.-Decided July 7, 191h9 DECISION AND ORDER On January 28, 1949, Trial Examiner John H. Eadie 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 and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner found, and we agree, that, by Foreman Parker's interrogation of employee Weeks on July 29,1948, by Parker's statements to employees Schlingman and Smith on the same date, and by both Parker's and Superintendent Rose's acts and statements on the night of July 31, 1948, in connection with the trailer camp incident, as set forth in more detail in the Intermediate Report, the Respondent has violated Section 8 (a) (1) of the Act 2 We find further, as testified 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Reynolds , and Murdock]. 2 As indicated by the Trial Examiner, the Respondent's apparent contention that it was not responsible for the actions and statements of Parker is without merit in view of the undisputed evidence which conclusively shows that Parker was a supervisor . This evidence, which is not set forth by the Trial Examiner, includes , inter alia, the uncontradicted testi- mony by Respondent President Brewen that Parker "supervised the work in the felt mill," had 15 to 20 employees under his supervision whom he had the authority to transfer , disci- pline, and assign to particular work, and was considered a member of management or a supervisor. We do not , however, adopt the Trial Examiner 's finding that Parker's statement to Schling. man on July 29, that "some of the boys are going to get together and tar and feather Grady [Price] and run him out of town," constituted a violation of Section 8 (a) (1). We reach this conclusion because this utterance was somewhat removed in time and context from Parker's statements to Schlingman earlier in the day, that Grady Price had been fired "because he was a union organizer," and that the Respondent would close the plant before allowing an outsider to organize. 85 N. L. R. B., No. 9. 26 MADIX ASPHALT ROOFING CORP. 27 to without contradiction by employee Weeks, that at the same time that Parker interrogated him concerning his Union membership, Parker also told him that the Company would not hesitate to shut down opera- tions if the Union came in, and that this statement, containing a threat of economic reprisal for union activity, as it did, also constituted a violation of Section 8 (a) (1) of the Act by the Respondent. 2. We also agree with the Trial Examiner's finding that the Re- spondent discharged employees Price, Taylor, Cuthrell and Willis on July 29, 1948, in violation of Section 8 (a) (3) of the Act. The cir- cumstances surrounding their discharge, as set forth in the Inter- mediate Report, clearly show that Price, Taylor and Cuthrell were discharged because of their membership in and activities on behalf of the Union, and that Willis was discharged because of his possible adherence to the Union.3 3. The Association. The Trial Examiner found, and we agree, that the Respondent interfered with the formation and administration of the Association, and contributed support to it, in violation of Section 8 (a) (2) of the Act. We do not agree, however, with his finding that the Respondent's conduct did not amount to domination of the Association. Within an hour or two after the discriminatory discharges on July 29, discussed above, and because, according to his own testimony, he heard that morning that the Union was trying to organize the plant, to which he was opposed, Respondent's President Brewen called a meet- ing of all the Respondent's employees. The meeting was held in the plant during working hours,' and, ll employees were paid for the time spent at the meeting. Brewen told the employees that he did not favor an "outside union" but would be in favor of a "company club"; that if the employees wanted an organization of their own, he would back it up and lend them money to get it started; and that if the Respondent showed a reasonable amount of profit, the employees would be given a Christmas bonus and a week's vacation with pay. Superintendent Rose, Foreman Parker, Purchasing Agent Carlton, and Office Manager Chalk were all present at the meeting during Brewen's talk. At the end of Brewen's talk, either Carlton or Chalk told the employees that a Mr. Stanley Woodland had helped get a union for Morehead City Garment Company, a local shirt factory; that they could use similar bylaws for their organization; and that Woodland would be a good a with respect to Willis , we have held that a discharge is discriminatory even when it is motivated by only a suspicion of union sympathy . Matter of Boreva Sportswear, Ino., 73 N. L. R. B. 1048. 4 The, meeting started at about 3: 30 p. m. and lasted until shortly after 5 p. m. The Respondent's normal quitting time is 5 : 30 p. m. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man to get to help their organization get started., Brewen, Rose, Parker, Carlton and Chalk then left the meeting, after which a vote was taken to form the Association and a president and treasurer were temporarily elected. Another meeting of the Association was held in the plant during working hours s on August 3, a few days later, and all employees were also paid for the time spent at this meeting. Notice of the meeting was, for the most part, apparently passed by word of mouth, but at least one employee was notified of the meeting by Foreman Parker. No officials or supervisors of the Respondent were present at this meet- ing, but it was called with the specific permission of Superintendent Rose. At this meeting, the two officers who had been temporarily elected at the previous meeting were reelected and other officers were .elected. In addition, a paper was provided for the employees to sign, designating their membership in the Association. Shortly after this second meeting at the plant, the officers of the Association retained an attorney, Harvey Hamilton, Jr., to represent the Association, who, in collaboration with Woodland, drew up a set of bylaws modeled along the lines of the bylaws of the similar organiza- tion that had been formed by Woodland at Morehead City Garment Company. Subsequently, the officers of the Association met with Hamilton and Woodland in Hamilton's office and discussed the pro- posed bylaws. Shortly thereafter a meeting of the Association was held at Morehead City Hall, at which time the bylaws were read by Hamilton and discussed, and Woodland made a short address in which he extolled the virtues of "inside unions." About 2 weeks after the August 3 meeting the employees at the plant were told by Foreman Parker to stop work for another meeting of the Association, but the meeting was not held because a rush order had to be taken care of. The president of the Association, however, solicited practically all employees, with the permission of Superintendent Rose, to sign an agreement which made them members of the Association and also designated the Association as their bargaining representative.' Shortly after this incident Hamilton, the attorney for the Associa- tion came to the plant during working hours, and with the assistance of two employees approached all employees who were members of the 6 The record indicates that woodland, who was the manager of a local coal company, had been instrumental in the formation of a similar association at Morehead City Garment Company. ' This meeting lasted from about 5 p. m. to about 5: 30 p. m. This agreement which consists mainly of the bylaws of the Association, is discussed in detail hereinafter. Rivers, the president of the Association, also testified that he had spoken to the employees about the Association on other occasions during working hours with the permission of Rose. MADIX ASPHALT ROOFING CORP. 29 Association and solicited their votes for nominations to the Associa- tion's Plant Councils In the course of this solicitation, Hamilton also answered questions that were put to him by employees concerning the Association and signed up several new employees for the Associa- tion. When the balloting was completed, Hamilton went to an office in the plant and counted the votes. Superintendent Rose testified that -he saw Hamilton walking through the plant and talking to the em- ployees during working hours on this occasion as well as others ; that he didn't question him on any of these occasions or request him to leave despite the general rule to keep persons out of the plant who had no business there; that he also said nothing on any of these occasions to the employees who were talking to Hamilton instead of doing their work; and that he knew that Hamilton "was on this club [the employees] were supposed to have." Although it was not mentioned by the Trial Examiner, Hamilton visited the plant again during working hours about October 1, 1948, at which time he discussed an election of officers to the Plant Council of the Association with the president and two other leaders of the Associa.tion.o The record indicates that Superintendent Rose also saw Hamilton in the plant at this time and raised no opposition to his presence there or his talking to employees during working hours on what Rose knew to be Association business.,, As already indicated, the formation of the Association was formal- ized by a written agreement signed by the employees, which embodies the bylaws of the Association. The bylaws set forth first that the purpose of the Association is to represent its members for the usual union objectives, including collective bargaining. A so-called Plant Council, elected by the members of the Association, is designated as the governing body of the Association. The basis of representation on the Plant Council is determined by dividing the plant into voting divisions, or voting departments, with each division entitled to elect 1 representative to the Plant Council for each 15 employees, or fraction thereof, in said division. A candidate to be eligible for election to the Plant Council must, inter alia, at the time of his nomination have had at least 3 months' continuous service with the Company, be a member of the Association, and be employed in the voting division which he is to represent. Only members of the Association are en- 9 These nominations and the Plant Council will be explained below in our discussion of the bylaws of the Association. 6 This was testified to by Rivers, the president of the Association, who fixed the time of this incident at about 2 weeks prior to his testimony , which was given on October 14, 1948. 3O Thus, as indicated above, Rose testified that he had seen Hamilton do this on several occasions , and fixed the last occasion as about 2 weeks before his testimony on October 15, 1948, which would coincide with this incident. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD titled to vote for representatives to .the Plant Council, and the Plant Council is vested with the unqualified and unlimited power both to grant and terminate membership in the Association. Plant Council representatives are elected for a term of 1 year, but if the employment of a member of the Plant Council is terminated, or he is appointed to a position which would make him ineligible for election as a repre- sentative, he immediately and automatically ceases to hold office. Like- wise, the termination of the employment of a member of the Associa- tion constitutes a forfeiture of membership in the Association. Apart from this right to vote annually for a division representative, however, there is no provision giving the employees any right to participate otherwise in the affairs of the Association, or any provision for meet- ings of employees with the Plant Council or otherwise. The only provision with respect to meetings is that the Plant Council shall hold regular monthly meetings. Provisions of the bylaws pertaining to employees' organization or procedure may be amended, altered, or repealed by the Plant Council, and the Plant. Council is also empowered to fix the dues of the Association. Finally, all business of the Association, apparently including collective bargaining is transacted in the name of the As- sociation by the Plant Council. Conclusions as to the Association.It thus appears that the Asso- ciation was formed in response to Respondent President Brewen's speech on July 29, in which he not only suggested that the employees form an "inside union,"" but also promised to support it financially and otherwise, and impliedly promised further to give the employees a Christmas bonus and a week's vacation with pay if they followed his suggestion. The Respondent, through either Purchasing Agent Carlton or Office Manager Chalk, suggested further that the employees use certain by-laws for the proposed organization, with which the Respondent was apparently familiar, and which, as will be shown hereinafter, would assure to the Respondent control over such an n It is true , as pointed out by the Respondent , that Brewen referred to a "company club" In his speech rather than to a "union ." That Browen was actually suggesting the formation of a union, and was so understood , however, rather than a recreation club, as contended by the Respondent, is made clear by the supplementary suggestion at this time by either Purchasing Agent Carlton or Office Manager Chalk that the employees use bylaws for the suggested organization similar to those of the union at Morehead City Garment Company, and by the fact that the organization that was formed as a result of the speech was a union. We also find no merit in the Respondent's contention that it is not responsible for any statements made by either Carlton or Chalk. The evidence shows that Carlton buys all materials for the Respondent , is responsible only to Brewen , has a private office 2 doors away from Brewen, has a private secretary , is a stockholder in the Respondent , considers himself part of management, and thus holds a managerial position . The evidence with respect to Chalk shows that he is in charge of the office , has 8 or 10 employees under his supervision whom he has the authority to hire or fire, and accordingly , that he is a supervisor. MADIX ASPHALT ROOFING CORP. 31 organization once it was formed. As a result, the employees formed the Association immediately thereafter on Company time and prop- erty, and shortly thereafter acceded to the Respondent's further sug- gestion with respect to bylaws for the Association. The Respondent subsequently lent further assistance and support to the Association by allowing the Association to hold another meeting in the plant on Company time, with the specific permission of Superintendent Rose, by allowing Rivers, the president of the Association, to transact Asso- ciation business in the plant during working hours on several occa- sions with similar permission; and, contrary to the Respondent' s rule, by permitting Hamilton, the Association's attorney, to conduct Asso- ciation business in the plant during working hours on several occasions with knowledge that that was the nature of his business. Indeed, so far as the record shows, all activities of the Association since it came into being, with the exception only of the meeting of the Association's officers in Hamilton's office and the general meeting of the Association at the local City Hall, have taken place in the plant during working hours with the specific approval of the Respondent in most instances, and at least its tacit approval in the others. It should be noted, moreover, that at least three of these activities in the plant occurred after Hamilton was retained as the Association's attorney,12 and, accordingly, that the Respondent, contrary to the finding of the Trial Examiner, has interfered with the Association since Hamilton was so retained. Also significant in this connection is the fact that Hamilton transacted Association business in the plant during working hours as late as October 1, 1948.13 Thus, the Respondent not only interfered with the Association after Hamilton was retained as the Association's attorney, but interfered with it and assisted it as late as about a week before the hearing in this proceeding started on October 6, 194814 Nor, as already indicated, has the Respondent's conduct been con- fined to thus sponsoring, assisting, supporting, and encouraging the establishment of the Association. Through its suggestion at its July 29 meeting with the employees, its promises of benefit which accom- 12 These were Rivers' solicitation of the employees to sign the agreement of association, Hamilton's solicitation of the employees' nominations for the Association's Plant Council, and Hamilton 's later discussion of an election for the Plant Council with the president and two other leaders of the Association. 2e This was the occasion on which he discussed the Plant Council election referred to in ftn. 14, supra. 1* The fact that the Plant Council apparently had not yet been elected at this time also serves to explain why there have been no further activities by the Association since the general meeting at the City Hall , as found by the Trial Examiner. As has already been indicated and will be discussed further hereinafter, the bylaws of the Association, which were apparently informally adopted at the City Hall meeting, vest only the Plant Council with authority to hold meetings or to conduct any other Association business. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD panied that suggestion, and its subsequent acts of encouragement in the same general direction, the Respondent induced the employees to use bylaws for the Association which the Respondent must reasonably be held to have known would, and now do, vest the Respondent with effective control over the Association. These bylaws, which now govern the operations of the Association, are essentially similar to the employee representation plan which we considered in our Car- penter Steel decision,',' and which we found assured the employer con- trol over the plan's functions and impaired seriously its capacity to act as a bona fde employee representative. In fact, the bylaws of the Association here include additional provisions which give the Respondent an even greater degree of control over the Association than was vested in the employer in the Carpenter Steel case. The key to the Respondent's control over the Association through the bylaws lies in the fact that the Respondent has the reserved power to control the Plant Council, and the Plant Council in turn has the express power to control the Association. The first measure of the Respondent's control over the Plant Council is provided by the re- quirement that a candidate to be eligible for election to the Plant Council must be an employee with at least 3 months'. continuous service with the Respondent. This requirement not only prevents any non- employee from being elected to the Plant Council, thereby providing effective insulation against any outside influence on the Plant Council, but also gives the Respondent the reserved power to prevent any employee from being elected to the Plant Council by either periodically interrupting his continuous service or terminating his employment altogether. Moreover, even if an employee objectionable to the Re- spondent were to be elected to the Plant Council, the Respondent would still have the reserve power to unseat him by severing his employment or transferring him to another department of the plant.16 As we found in the Carpenter Steel case, the mere existence of such power, whether exercised or not, places an employer in a dominant position over such an organization. That the Plant Council in turn has the express power to control the Association is found in those provisions of the bylaws which : (1) designate the Plant Council as the governing body of the Association; (2) give the Plant Council the unqualified and unlimited power both to grant and terminate membership in the Asso- ciation ; (3) give the Plant Council the power to fix the dues of the n Matter of The Carpenter Steel Company, 76 N. L. R. B. 670. 15 Transfer to another department would have this effect because a Plant Council member ceases to hold office if he is appointed to a position which would make him ineligible for election, and one of the eligibility requirements for election is that he be employed in the voting division which he is to represent. MADIX ASPHALT ROOFING CORP. 33 Association; (4) permit the plant Council to amend, alter, and even repeal those provisions of the bylaws pertaining to employees' organization or procedure; and (5) vest the Plant Council with authority to transact all business of the Association, apparently includ- ing collective bargaining. Furthermore, no provision is made for meetings of the employees with the Plant Council or otherwise in order that the employees may collectively discuss and instruct the Plant Council as to their desires. The only power over the Association not vested in the Plant Coun- cil is vested directly in the Respondent. Thus, only employees of the Respondent can become members of the Association, and only members of the Association are entitled to vote for representation to the Plant Council. The effect of these provisions is, of course, (as in the case of the similar provisions with respect to the election and retention of office on the Plant Council) that the Respondent, through its right to hire and fire, is placed in a position not only to determine the membership of the Association, but also thus to control the compo- sition of the electors of the Plant Council17 Accordingly, the only right to participate in the affairs of the Association which is given to the employees under the bylaws viz, the right to vote annually for representatives to the Plant Council, is subject to defeasance by the Respondent. Thus, the Association was not only created and nurtured through its formative stages by the Respondent, but now, through the by- laws of the Association, remains under the Respondent's control. Under these circumstances, and upon the entire record in the case, we find, contrary to the Trial Examiner, that the Respondent has, in ad- dition to interfering with and supporting the Association, dominated the Association as well. We shall, therefore, in accordance with our established policy under such circumstances, order the Respondent disestablish the Association." ORDER Upon the entire record in the 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, Madix Asphalt 1' If this were not done by the somewhat more subtle method of inducing the Plant Council, through the Respondents control over it, to exercise its express power to grant and terminate membership in the Association. 1e Matter of the Carpenter Steel Company, supra. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roofing Corporation , Morehead City, North Carolina, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of, or contributing financial or other support to, Carteret Roof= ing and Felt Employees Association , or any successor thereto, or any other labor organization of its employees. (b) Recognizing Carteret Roofing and Felt Employees Association or any successor thereto, as the representative of any of its employees for the purposes of collective bargaining with respect to grievances, labor disputes , wages, rates of pay, hours of work, or other conditions of employment; (c) Discouraging membership in International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, or any other labor organization, by discharging or refusing to reinstate any of its em. ployees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of their em- ployment. (d) In any other manner interfering with , restraining , or coercing its employees in the exercise of their right to self -organization, to form labor organizations , to join or assist International Brotherhood of Pulp, Sulphite and Paper Mill Workers , AFL, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities, for the pur- pose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring rilembership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withhold all recognition from Carteret Roofing and Felt Em- ployees Association as the representative of any if its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes , wages, rates of pay, hours of employment , or other conditions' of employment , and completely disestablish said organ- ization, or any successor thereto , as such representative; . (b) Offer to Grady W. Price immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; (c) Make whole Grady W. Price, Early T. Taylor, James B. Cuth- rell, and Edward Earl Willis for any loss of pay they may have MADIX ASPHALT ROOFING CORP. 35 suffered by reason of the Respondent's discrimination against them in the manner set forth in that section of the Intermediate Report entitled "The remedy"; (d) Post at its plant in Morehead City, North Carolina, copies of the notice attached hereto and marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's representa- tive, be posted by the. Respondent immediately upon receipt thereof, and maintained 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 the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply 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 HEREBY DISESTABLISH CARTERET ROOFING AND FELT EM- PLOYEES ASSOCIATION as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or ad- ministration of any labor organization or contribute financial or other support to it. WE WILL OFFER to the following named individual immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights or privileges previously enjoyed, and make him whole for any loss of pay suffered as :i result of the discrimination against him : Grady W. Price ' In the' event that this Order is enforced by a decree of a Court of Appeals , there shall he Inserted before the words "A DECISION AND ORDER ," the words "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 857829-50-vol. 85-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL MAKE whole Early T. Taylor, James B. Cuthrell, and Edward Earl Willis for any loss of pay suffered by them as a result of discrimination against them. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act. All our employees are free to become or remain members of INTER- NATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, AFL, or any other labor organization. We will not discriminate in regard to hire or tenure of employment because of membership in or activity on behalf of any such labor organization. MADIX ASPHALT ROOFING ConPARATION, Employer. By ------------------------------------------ (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. H. Raymond Cluster and Mr. George L. Weasler, for the General Counsel. Hamilton & McNeil, by Mr. George H. McNeil, of Morehead City, N. C., and Mr. E.V. Brooks, of Durham, N. C., for the Respondent. Mr. Harvey Hamilton, Jr ., of Morehead City, N. C., for the Association. Mr. Lewis E. Price, of Plymouth, N. C., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by International Brotherhood of Pulp, Sulphite and Paper Mill Workers , AFL, herein called the Union, the General Counsel of the National Labor Relations Board, ' by the Acting Regional Director I The General Counsel and his representatives at the hearing are referred to as the General Counsel , and the National Labor Relations Board as the Board. MADIX ASPHALT ROOFING CORP. 37 for the Fifth Region (Baltimore, Maryland), issued his complaint, dated Sep- tember 16, 1948, against Madix Asphalt Roofing Corp., herein called the Respond- ent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2) and (3) and Sec- tion 2 (6) and (7) of the National Labor Relations Act, as amended (June 23, 1947, Public Law 101, 80th Congress, Chapter 120, 1st Session), herein called the Act. Copies of the complaint and notice of hearing were duly served upon the Respondent, the Union and Carteret Roofing and Felt Employees Association,' herein called the Association. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent (1) by certain specified acts interfered with, restrained, and coerced its employees in the exercise of their rights tinder Section 7 of the Act; (2) during the month of July lJ48 initiated, formed, sponsored, and fos- tered the Association, at all times since has dominated and interfered with its formation and administration, and has offered to contribute of has contributed to it financial and other support; (3) on or about July 29, 1948, discharged Grady W. Price, Early T. Taylor, James B. Cuthrell and Edward Earl Willis; and (4) discharged said employees, and at all times since said date has refused or failed to reinstate Grady W. Price to his former or substantially equivalent position, because said employees joined or assisted the Union or engaged in con- certed activities with other employees for the purposes of collective bargaining or other mutual aid or protection. In its verified answer, the Respondent admitted the jurisdictional allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Morehead City, North Carolina, from October 6 to 15, 1948, inclusive, before the undersigned Trial Examiner. The General Counsel, the Respondent, and the Association were represented by counsel, and the Union by its representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce incidence bearing on the issues was afforded all parties. At the close of the General Counsel's case, the Respondent moved to dismiss the complaint for lack of proof, and on the same grounds the Association moved to dismiss the allegations of the complaint pertaining to it. The motions were denied. At the close of the whole case the Respondent and the Association renewed their motions to dismiss. The under- signed reserved ruling on the motions. The motions to dismiss are hereby denied. The Respondent and the Association moved to strike all testimony relating to alleged statements of W. C. Carlton and Fred Chalk. Ruling on the motions was reserved. The motions are hereby denied. At the close of the hearing, the undersigned granted over the Association's objection a motion by the General Counsel to conform the pleadings to the proof as to dates and minor variances. Oral argument, in which counsel for the Respondent and the Association participated, was had before the undersigned at the close of the hearing. After the close of the hearing, counsel for the General Counsel and the Respondent filed briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : 0 3 In the complaint the Association was named incorrectly as Carteret Madix Felt Associa- tion. At the hearing the General Counsel moved to amend the complaint as above. The motion was granted without objection. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT a I. THE BUSINESS OF THE RESPONDENT 0 Madix Asphalt Roofing Corporation was incorporated under the laws of the State of North Carolina on July 3, 1947. It owns and operates a plant located at Morehead City, North Carolina, where it is engaged in the manufacture and sale of asphalt roofing products. Its principal operation at the plant is the processing of roofing felt into asphalt shingles and roll roofing. During the 4-month period prior to October 1, 1948, the Respondent purchased raw materials valued at more than $100,000. Of this amount, approximately 90 percent was shipped to the plant at Morehead City from points outside the State of North Carolina. During the same period of time, the plant produced finished goods amounting in value to more than $100,000, of which approximately 25 percent was shipped to points outside the State of North Carolina. On December 31, 1947, the Respondent entered into an agreement with South- ern Felt Corporation. Under -this agreement Southern Felt Corporation under- took to provide the money for the construction and equipping of a plant adjoin- ing the Respondent's plant, to be used for the manufacture of roofing felt. The Respondent agreed to do the actual work of installing the machinery and other equipment in the plant, and to lease the plant upon completion for a specified monthly sum. The actual construction of the building was done by Crane & Denbo, general contractors, who were hired and paid directly by Southern Felt Corporation. All of the employees engaged in the work of installing machinery in the plant were hired and paid by the Respondent, and Respondent was later reimbursed by the Southern Felt Corporation. All this work and all of the em- ployees engaged upon this work were under the supervision of the Respondent. Eighty-five percent of the machinery installed in the Southern Felt plant by the Respondent was purchased and shipped from outside the State of North Caro- lina to the Southern Felt plant at Morehead City, North Carolina. The approxi- mate value of this machinery amounts to $108,000. It is the intention of the Respondent upon completion of the Southern Felt plant to operate that plant in the manufacture of roofing felt, which will be used by the Respondent in its own plant in manufacturing the asphalt roofing products referred to above. The Respondent admitted at the hearing that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, is a labor organization which admits to membership employees of the Respondent. Carteret Roofing and Felt Employees Association is an unaffiliated labor organization participated in by employees of the Respondent. a There are no substantial issues of fact In the case, as to the material Issues. The findings hereinafter made are based upon the credible testimony, after consideration was given to all the evidence. Some of the testimony or evidence Is not set forth or discussed, either for the reason that It is considered immaterial or Incompetent , or that It is not credited. MADIX ASPHALT ROOFING CORP. 39 III. THE UNFAIR LABOR PRACTICES A. Background; sequence of events On the night of July 28, 1948, Louis Price, field representative of the Union, commenced organization of the Respondent's employees. Solicitation of the employees on that date occurred outside the plant at the homes of employees and at a trailer camp where Grady W. Price, Louis Price's brother and an employee of the Respondent, resided. On that night Louis Price obtained signatures of approximately 11 employees to cards designating the Union as their collective bargaining agent. He also gave a number of the designation cards to the employees so that they could solicit other employees in the plant on the following day. During the morning of July 29, Early T. Taylor, an employee who had signed a designation card for Price on July 28, and some few other employees solicited employees to sign union designation cards during working hours and during the lunch period. Glenn W. Rose, Respondent's superintendent, learned of the Union's organiza- tional drive at sometime during the morning of July 29. At about 2 p. m. that day, Rose and Ed Parker, foreman at the Southern Felt plant, discharged Taylor, Grady Price, James B. Cuthrell and Edward Earl Willis, all of whom at the time of their discharge had signed designation cards of the Union. At about 3: 30 or 4 p. m. that same day the Respondent directed the employees at both plants to attend a meeting at the Respondent' s shingle plant. All work at both plants was stopped and it appears that all employees were present at the meeting. Chaney C. Brewen, President of the Respondent, made a speech to the employees at the opening of the meeting during which he stated that he was against the Union and that he favored and would support the employees in an organization of their own." After Brewen's speech, Brewen and other officials and supervisory employees who were present withdrew from the meet- ing. The Association was then formed and temporary officers were elected. The meeting lasted until after 5 p. m., and all employees were paid for the time spent at the meeting or until 5: 30 p. m., the Respondent's normal quitting time. B. Interference, restraint, and coercion At about 1: 30 p. m. on July 29, 1948, and before the discharges mentioned above, Ed Parker, foreman of the Southern Felt plant, questioned employee Jefferson Weeks about the Union. In substance, Parker first asked Weeks if he had heard any union talk in the plant and then inquired as to whether or not Weeks was a member of the Union. When Weeks replied that he had never belonged to a union, Parker said, "Well, . . . you realize a union would be against a small organization like this."' The undersigned finds that the above The statements of Brewen at the meeting will be more fully found and discussed hereinafter. " Weeks testified credibly and without contradiction to the above conversation with Parker. Parker did not appear as a witness at the hearing. While the Respondent's defense to the above . and other incidents involving Parker is not clear , Respondent apparently contends that it was not responsible for the actions and statements of Parker . However, the undis- puted evidence in the case conclusively shows that Parker was a supervisory employee within the meaning of the Act. Moreover, employee Leroy Schlingman testified credibly and without contradiction that at about 9 a. m. on July 29 he heard Parker tell George Nelson,. a subforeman or gang leader, that Glenn Rose had told him that union activities were going on and that he ( Parker ) should find out about it ; and that he further heard Parker 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interrogation of Weeks by Parker constitutes interference, restraint, and coercion.' Also on July 29, at about 2 p. in., employee Leroy Schlingman noticed some excitement among employees, and he asked Parker what had happened. Parker replied that Grady Price had been fired "because he was a union organizer", and that the Respondent would close the plant before allowing an outside union to organize. Later that same day, Parker notified Schlingman of the meeting in the Respondent's shingle plant, discussed above, and told him, " Some of the boys are going to get together and tar and feather Grady (Price) and run him out of town." ° It is found that the above statements of Parker constitute interference, restraint, and coercion. At about 7 p. in. on July 31, Rose, Parker, D. B. Willis, a timekeeper for Respondent, and employee Joe Zayzack drove into the trailer camp where Grady Price resided. Louis Price, Donald Hunt, a representative of the Union, James Cuthrell, Earl Taylor and several residents of the trailer camp were present at the time. The four mentioned above got out of the automobile and approached the group. Parker advanced to Grady Price with his hand extended. Price made a motion to shake Parker's hand, but Parker struck Price's hand away. Using profane language, Parker told Grady Price in substance that he gave Price a job with the understanding that he was bringing his child to Morehead City for health reasons; that Price had wronged him by coming to Morehead City and attempting to organize the Union ; and that Price should go out with hiin on the highway as he had "a score to settle" with him. Price replied that Parker should not use profanity, as Price's wife was present. He refused to go out on the highway with Parker and told him, "If you have anything to say to me, you say it here." Parker then said, "Well, we are giving you until 10 o'clock tonight to get your trailer and all your belongings out of Carteret County." Parker turned to Taylor and said, "That goes for you, too." Rose then asked Grady Price if he was going to leave town that night. Price replied in the negative, „tcting that he would be at the trailer camp at 10 p. in.; and Rose stated, "That is all I want to know." Parker thereafter took Taylor and Cuthrell aside and told Taylor to come to his house at 8 p. m. that night, stating "Because at 10 o'clock tonight we are going to tar and feather Price and run him out of town. I got a 30-man mob backing me up with the sheriff." After the conversation between Parker, Taylor, and Cuthrell, and at about 7: 30 p. in., Rose, Parker, Willis, and Zayzack left the trailer camp.' Taylor thereafter went to Parker's home and met Parker. Using profane language, Parker several times threatened to "whip" Taylor. They then went to Glenn Rose's home. Parker, in the presence of Glenn Rose, employee Norwood Rose, Fred Chalk, Respondent's office manager, and several other employees asked say to Nelson, "Let's try to get at the bottom of this and find out what is going on." This testimony clearly shows that Parker was acting under Rose's direction. 6 Considering the Respondent's conduct as a whole , the undersigned believes that Parker's interrogation does not come within the protection of free speech, and that the decision in Max Sax, it/b/a Container Mfg. Co. Y. N. L. R. B., 171 F. 2d 769 (C. A. 7), is not applicable. ' Schlingman testified credibly to the above conversations with Parker. Employee Shade Smith also testified credibly that on July 29 Parker told him that the plant would be shut down if the Union succeeded in organizing the employees. 'The facts related above are not in dispute and are based upon the testimony of Rose, Grady Price, Louis Price, Cuthrell, and Taylor. It is undisputed that at the times men- tioned above Parker was under the influence of intoxicants. MADIX ASPHALT ROOFING CORP. 41 Taylor what he knew about the Union, stating, "I hear that 32 men signed up." Taylor replied that only 31 employees had signed up. The party then left Glenn Rose's house and returned to the trailer camp. Glenn Rose drove one automobile into the trailer camp and upon returning, he remarked to those present, "They are gone." The undersigned finds that by the above acts and statements of Parker and Rose on the night of July 31, the Respondent interfered with, restrained, and coerced its employees.10 In defense of the above conduct of Parker and Rose, the Respondent adduced testimony concerning an incident involving Grady Price, Taylor, Cuthrell, and Norwood Rose, which, occurred in Beaufort, North Carolina, on July 30. It is contended that alleged threats made to Norwood Rose at that time alone caused the incident at the trailer camp on July 31. The undersigned has not related the testimony in this connection or made findings thereon, believ- ing it to be immaterial to the issues in the case in view of the undisputed state- ments of Parker, to Schlingman on July 29 and to those assembled at the trailer camp on Ju]y 31. These statements conclusively show not only that it was planned to run Grady Price out of town before the Beaufort incident occurred, but also that Parker was concerned only about the union activities of Price and Taylor. C. The discharges Grady W. Price : Price was employed by the Respondent from July 5 to July 10, 1948, at which time he quit and returned to Plymouth , North Carolina. He wag reemployed by the Respondent on July 19. He worked as a welder in the Southern Felt plant under Foreman Parker . As related above Lewis Price, Grady Price's brother and a field representative of the Union , came to Morehead City on July 28. Grady Price signed a designation card of the Union at that time. On July 29, Grady Price needed some welding rods and went to the Respond- ent's shingle plant for that purpose. He did not ask Parker for permission to leave the Southern Felt plant , as the latter was not present at the time ." At the shingle plant , Price met employee Howard Rivers who was welding at the time.'2 While talking to Rivers about welding rods and welding machines , Superintend- ent Glenn Rose discharged Price, saying, "Get your damn clothes and get the hell out of here." Price asked Rose why he was being fired. Rose replied, "You know as well as I do what the trouble is. . . . You know you have been organizing labor ever since you have been here to my back." After some further conversa- tion during which Rose asked what Price knew about "this union business," Rose said, "Well, I have got your check made out in the office . Now get the hell out of here."'a 0 Grady Price took his wife and child away from the trailer camp and out of Morehead City shortly after the above incident. 10 Glenn Rose testified without contradiction that Grady Price accused him of getting Parker "liquored up" so as to cause trouble, and that he (Rose) replied, "He picked me up at the barber shop, and I had nothing to do with it, whatsoever." The undersigned does not believe that this statement by Rose was sufficient in view of all the circumstances in the case, to relieve the Respondent from responsibility. 11 The evidence conclusively shows that it was the custom of employees in the Southern Felt plant to go to the shingle plant in order to secure tools and supplies, or to go to the lavatory, without asking Parker's permission ; and that the Respondent did not have any rule In this connection. ' Rivers was referred to in the testimony as Stormy Rivers. As will be hereinafter related, Rivers was elected President of. the Association. 11 Price testified credibly to the above conversation. Rose testified that he said, "You know what you are fired for," when asked for an explanation by Price ; and that he did not give Price any other reason. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Price returned to the Southern Felt plant to get his belongings, he met Foreman Parker. Parker told Price to get his clothes and get out of the plant. When Price asked Parker the reason, Parker said, "You know you have been agitating the Union ever since you have been here." Price then said, "In other words, you are firing me for organizing labor, is that true?" Parker replied, "That is correct. Now get the hell out of here, now." Early T. Taylor: Taylor was employed by the Respondent on September 8, 1947. He worked as a welder in the Southern Felt plant under Foreman Parker. He joined the Union on July 28, 1948. During the morning of July 29, Taylor solicited some employees during working hours to sign designation cards of the Union. At about 2 p. in. on July 29, while Taylor was descending the stairs at the Southern Felt plant, he met Superintendent Rose. Using profane language, Rose told Taylor to collect his belongings and get out of the plant, saying, "You know what the matter is." When Taylor asked for an explanation, Rose replied, "Well, you have been trying to organize labor, . . . Your check is being made out in the office." Taylor then followed Rose up the stairs and was present when Rose discharged James B. Cuthrell. Later, Taylor again spoke to Rose and at this time Rose told him that he was being discharged "for drinking too much." 14 While they were talking together, employee Norwood Rose approached them. Upon being asked by Taylor in the presence of Glenn Rose, Norwood Rose stated that Taylor had given him five union designation slips. It does not appear that Glenn Rose made any statement at this time.15 Taylor was reemployed by the Respondent on August 2. James B. Cuthrell: Cuthrell was employed by the Respondent on May 7, 1948. He worked as a machinist in the Southern Felt plant under Foreman Parker. He joined the Union on July 28. At about 2 p. in. on July 29, while Cuthrell was running a milling machine, Glenn Rose and Parker approached him. • Early Taylor followed Rose and Parker and was present during the ensuing conversation. Rose asked Cuthrell what he knew about the passing out of the union designation slips. After considerable questioning of Cuthrell by Rose as to where he had been on the night of July 28, Rose stated that he could prove that a union organizer had been to Cuthrell's home. Cuthrell then admitted this fact and stated that he was in favor of organ- ized labor. Using profane language, Rose told, Cuthrell to collect his belongings and get out of the plant. After further conversation, rose stated, "Well, if you can behave yourself, you can stay on and work." Later, Cuthrell met Rose and asked hint what the trouble was all about. Rose replied, "After this quiets down, blows over, keep in touch with me, and you can come on back to work." Cuthrell was reinstated to his job by the Respondent on August 2. 16 Considerable testimony was adduced by the Respondent concerning the drinking habits of Taylor outside of the plant. Taylor admitted that he did drink when not on the job, and that on several occasions he had requested to be excused from work due to ill effects from drinking the night before. The undersigned has not set forth this testimony for the reason that he believes that it is immaterial to the issues in the case . However, the Respondent's contention in this connection will be discussed hereafter. 15 Glenn Rose testified that during the morning of July 29, Norwood Rose told him that Grady Price and Taylor were organizing the Union in the plant. Although the testimony is not clear concerning the above conversation, it appears that Taylor was attempting to learn from Glenn Rose the identity of the employee who had told him of Taylor ' s union activities. MADIX ASPHALT ROOFING CORP. 43 Edward Earl Willis: Willis was employed by the Respondent on July 1, 1948. He worked as a mechanic's helper in the Southern Felt plant under Foreman Parker. He signed a designation card of the Union during the morning of July 29 at the solicitation of Early Taylor. At about 2: 30 p. in. on July 29, Willis was approached by Parker who asked him if he was in favor of organized labor. Willis replied that he was neither for nor against it, and that he would not "sign to keep it out, or bring it in" the plant. Parker then stated, "If that is the way you feel about it, you are fired." Later, Willis asked Parker the reason for the discharge. Parker told him that if he still felt the same way, he was fired ; and that if he had any different feelings , he could go back to work. Willis was reinstated to his position by the Respondent on August 2. Conclusions Respondent contended that considerable loafing was going on in the Southern Felt plant and that complaints concerning this condition were made by officials of the Southern Felt Corporation. The Respondent contends, in substance, that Price, Taylor, Cuthrell, and Willis were discharged for loafing or not attending to their jobs ; and in addition , it is contended that Taylor was discharged be- cause of his drinking habits. Rose testified to the effect that on about July 28 he had a conversation with Cheney Brewen, president of Respondent; that Brewen brought to his attention the alleged loafing in the Southern Felt plant ; that on the morning of July 29 there was considerable loafing in the Southern Felt plant; and that he discharged three of the above-named employees for the reason that they "weren't doing their jobs." With respect to the discharge of Cuthrell, Rose testified as follows : He was working on a lathe and I talked to him a while and asked him what he knew about the union and he told me he didn't know anything about it, and I asked him if he belonged and he said, "No", and I said, "Aren't you satisfied with your job?", and he said, "I am", and I said, "How about your pay? Are you satisfied with that?", and he told me what he got, and I said, "If you are not satisfied, you can take your tools and go on home." . . . Shortly afterwards, I went back to the office, and I thought that I would make out his time and let him go for the time being. After that about 2 o'clock in the afternoon, he came over to the roofing mill and said to me, "Are you letting me go?", and I said, "Yes, for a couple of days until we get these boys straightened out, and find out what is wrong, and if you come back in a couple of days I will give you your job back." The Respondent's reasons for the discharges are not plausible. Considering the claim that there was considerable loafing in the plant on the morning of July 29, nevertheless, according to Rose's own testimony he discharged Cuthrell who was at work and ignored other employees who allegedly were standing around talking. There was no contention that Guthrell had been soliciting employees on behalf of the Union during that morning. Although there is a great deal of testimony concerning the drinking habits of Early Taylor, there is no evidence that he had been drinking at or about the time of his discharge. When Rose discharged Price, it is significant that he did not ask Price why he was talking to Rivers or why he was in the shingle plant. The conversation between Parker and Willis at the time of the latter's discharge has been related above. The undisputed statements by Parker in this case clearly show that Willis was dis- charged because of his possible adherence to the Union. There also is no con- 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tention that Willis during the morning of July 29 solicited any employees to sign designation cards of the Union. From all the evidence in the case, the conclusion is inescapable that the Respondent discharged Price, Taylor, Cuthrell, and Willis on July 29, 1948, because of their membership in or activities on behalf of the Union and for that reason alone ; and the undersigned so finds. D. The Association 1. The meeting of July 29 During the afternoon of July 29 and after the discharges referred to above took place, a meeting of all the Respondent's employees was called by Brewen, Re- spondent's president. The meeting started at about 3: 30 p. in. and lasted until shortly after 5 p. in. All employees were paid for the time spent at the meeting. Brewen told the employees that he did not favor an "outside union" but would be in favor of a "company club."' He stated that if the employees wanted an organization of their own, he would back it up and lend them money to get it started. He further stated that if the Respondent showed a reasonable amount of profit, the employees would be given a Christmas bonus and a week's vacation with pay. W. C. Carlton, Respondent's purchasing agent ; Fred Chalk, Re- spondent's office manager ; Glenn Rose and Parker were present at the meeting during Brewen's talk. At the end of Brewen's talk, either Carlton or Chalk made the suggestion that the employees could get the bylaws used in the formation of an independent union at the Morehead City Garment Company and that a Mr. Stanley Woodland would be able to help out in this connection" Brewen, Carlton, Chalk, Rose, and Parker then left the meeting. A vote by raised hands was then taken to form the Association and a president and treasurer were elected in the same manner. Howard Rivers was elected presi- dent and employee Richard Quinn was elected treasurer. As to the reason for calling this meeting, Brewen testified, ". . . That morning (July 29), I heard that a union was trying to organize in our plant, and prior to this time there had been several employees coming to us, wanting to start a recreation club, baseball club, and so on, etc., and we had gone into it to some extent, not very much, and preferring not to have a union in the plant, I called the employees together and suggested that they go ahead with this recreation club. This is the reason I called this meeting." 2. The meeting of August 3 Another meeting of the Association was.also- held in the shingle,plant of the Respondent on August 3 at about 5 p. in. Notice of the meeting was passed by word of mouth. Foreman Parker notified at least one employee, J. O. Weeks, of the meeting. At this meeting, the two officers who had been elected at the previous meeting were reelected and other officers were elected. 16 Brewen testified that he used the expression, "company club." Witnesses for the General Counsel, the Respondent, and the Association testified that Brewen mentioned "recreation club," "association," "company club," and "athletic club." Brewen appeared to the undersigned as a reliable and credible witness and is convinced that he used the term noted above. "The evidence reveals that Woodland was the manager of a coal company in Morehead City, who had been instrumental in the formation of an independent organization at the Morehead City Garment Company. MADIX ASPHALT ROOFING CORP. 45 During the course of the meeting, a blank scratch pad was provided for em- ployees to sign, designating their membership in the Association. This meeting ended at about 5:30 p. in., and during the meeting operations of both plants were completely shut down. All employees attending the meeting were paid for the time they spent at the meeting. 3. Formation and activities of the Association Shortly after the second meeting at the plant, officers of the Association decided to retain Mr. Harvey Hamilton, Jr., to represent the Association. After Hamil- ton was retained, in collaboration with Woodland, he drew up•a set of bylaws largely modeled on the bylaws of the organization formed by Woodland at More- head City Garment Company. After the bylaws were drawn up in rough form, there was a meeting of the Association's "council" in Hamilton's office. At this meeting, Woodland was present and the bylaws were discussed. On a Friday night at some time following the meeting of the Association's Council, there was a general meeting of the Association held at Morehead City Hall, at which time the bylaws were read by Hamilton and discussed by the employees present. At this meeting, Woodland made a short address. On at least two occasions after the meeting of August 3, business of the Asso- ciation was carried on'in the plant during working hours. On one occasion, the employees at the Southern Felt plant were told by Foreman Parker to stop work as there was to be a meeting of the Association. Due to the fact that employees in the shingle plant were busy getting out an order, a meeting was not held, but the employees were presented with a paper for signing. This paper was a desig- nation of the Association as bargaining representative of the employees. On another occasion and after the bylaws of the Association had been drawn up in final form, Hamilton appeared at the plant during working hours. In the company of two employees, he approached employees in the Southern Felt and shingle plants who were members of the Association and solicited their votes for nominations to the Association's Council. At this time, Hamilton also answered such questions as were asked of him and signed up several new employees for the Association. Hamilton then went to an office in the shingle plant and counted the votes. Glenn Rose testified that, he saw Hamilton walking through the plant and talking to the employees during working hours ; that the general rule was to keep persons with no business in the plant out of the plant; and that he did not ask Hamilton what he was doing in the plant or request him to leave. There have been no further activities on the part of the Association since the meeting at the City Hall. It has not had any dealings with the Respondent or any of its officials. It has not sought recognition as the bargaining agent of the Respondent's employees, nor have any grievances been handled through its grievance machinery. CONCLUSIONS The above evidence conclusively shows that the Association was formed In response to Brewen's speech on July 29, and that the Respondent has contributed support to it. Two meetings of the Association were held on the Respondent's premises and the employees were paid in full for the time spent at the meetings. The Association's attorney was permitted to transact the Association's business at the plant and during working hours. That the purpose of starting the Asso- ciation was to prevent the self-organization of employees is implicit in the testi- 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony of Brewen himself. The meeting on July 29 was called by Brewen upon his discovery that the Union was attempting to organize the plant and the meet- ing followed within an hour or two the discharge of four adherents of the Union because of their activities on behalf of the Union. The undersigned finds that the above conduct of the Respondent. was in vio- lation of Section 8 (a) (1) and (2) of the Act. However, the undersigned does not believe that the Respondent's conduct amounted to domination of the Asso- ciation. From all the evidence, it appears that the Respondent has not interfered with the administration of the Association since Hamilton was retained as its attorney. Accordingly, it will be recommended that the Respondent cease and desist from interfering with or supporting the Association, and from recognizing the Association unless and until it is certified by the Board ; it will not be recom- mended that the Respondent disestablish the Association 18 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in Section III, above, occurring in connection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, the undersigned will recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The undersigned finds that the Respondent has discriminated in regard to the hire and tenure of employment of Grady W. Price, Early T. Taylor, James B. Cuthrell, and Edward Earl Willis. The Respondent has reinstated Taylor, Cuth- rell, and Willis. Therefore, it will be recommended that the Respondent offer immediate and full reinstatement to Price to his former or substantially equiva- lent position 'e without prejudice to his seniority or other rights and privileges, and that the Respondent make Price, Taylor, Cuthrell, and Willis whole for any loss of pay they have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of such discrimination to the date of reinstatement, in the cases of Taylor, Cuthrell, and Willis, and to the date of the offer of reinstatement, in the case of Price, less his net earn- ings 28 during said period. It has been found that the Respondent has interfered in the formation of the Association and has contributed support to it, in violation of Section 8 (a) (2) of the Act. It will be recommended that the Respondent cease and desist from 18 Matter of Hershey Metal Products Co., 76 N . L. R. B. 695; Matter of James R . Kearney Corp., 81 N. L. R. B. 26. 19 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wherever possible,, but if such , position is no longer in existence, then to a substantially equivalent position." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 20 Matter of Crossett Lumber Co ., 3 N. L. It. B. 440 , 497-498. MADIX ASPHALT ROOFING CORP. 47 interfering with or supporting the Association, and from recognizing the Asso- ciation unless and until it is certified by the Board. It has also been found that the Respondent has engaged in certain acts of interference, restraint, and coercion, in violation of the rights guaranteed em- ployees under Section 7 of the Act. Because of the Respondent's unlawful conduct and the underlying attitude of opposition to the purpose of the Act revealed thereby, the undersigned is convinced that the unfair labor practices found are closely related to the other unfair labor practices proscribed by the Act, and that a danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The preventive purpose of the Act may be frustrated unless the order of the Board is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent the recurrence of unfair labor practices and thereby to minimize industrial strife which burdens and obstructs commerce and thus to effectuate the policies of the Act, the undersigned will also recommend that the Respondent be ordered to cease and desist from interfering with, restraining, or coercing its employees in any other manner, in the exercise of the rights guaranteed them by the Act. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, and Carteret Roofing and Felt Employees Association, unaffiliated, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Early T. Taylor, Edward Earl Willis, James B. Cuthrell, and Grady W. Price, thereby discouraging membership in the International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with the formation and administration of Carteret Roofing and Felt Employees Association, and by contributing support to it, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Madix Asphalt Roofing Corpora- tion, its agents , successors, and assigns, shall : 1. Cease and desist from : (a) Interfering with the administration of, or contributing financial or other support to, Carteret Roofing and Felt Employees Association, or interfering with the formation or administration of, or contributing financial or other support to, any other labor organization of its employees ; (b) Recognizing or in any other manner dealing with Carteret Roofing and Felt Employees Association or any successor thereto, as the collective bargaining 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of any of its employees, unless and until such organization shall have been certified as such representative by the Board; (c) Discouraging membership in International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, or any other labor organization by discharging or refusing to reinstate any of its employees, or in any other manner discriminat- ing in regard to their hire and tenure of employment or any term or condition of employment ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Withhold recognition from Carteret Roofing and Felt Employees Associa- tion as the collective bargaining representative of any of its employees, unless and until this organization shall have been certified as such representative by the Board; (b) Offer to Grady W. Price immediate and full reinstatement to his former or substantially equivalent position 21 without prejudice to his seniority and other rights and privileges; (c) Make whole Grady W. Price, Early T. Taylor, James B. Cuthrell, and Edward Earl Willis for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to them of sums of money equal to the amounts determined in the manner set forth in the section entitled "The remedy" above; (d) Post immediately in conspicuous places in Respondent's establishment at Morehead City, North Carolina, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Office of the Fifth Region, shall, after being duly signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof, and maintained 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Fifth Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith. It is further recommended that, unless the Respondent shall within twenty (20) days from the date of the receipt of this Intermediate Report, notify said Regional Director in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, 21 See footnote 19, supra. MADIX ASPHALT ROOFING CORP. 49 within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeo- graphed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. 'In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 28th day of January 1949. JOHN H. EADIE, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 withhold all recognition from CARTERET ROOFING AND FELT EM- PLOYEES ASSOCIATION as the collective bargaining representative of any of our employees, unless and until such organization shall have been certified as such representative by the National Labor Relations Board. WE WILL NOT recognize or in any manner deal with CARTERET ROOFING AND FELT EMPLOYEES ASSOCIATION, or any successor thereto, as the collective bargaining representative of any of our employees, unless and until such organization shall have been certified as such representative by the Board. WE WILL NOT interfere with the administration of or contribute financial or other support to CARTERET ROOFING AND FELT EMPLOYEES ASSOCIATION, or interfere with the formation or administration of or contribute financial or other support to any other labor organization. WE WILL offer to the following named individual immediate and full em- ployment at the same or substantially equivalent position to which he would be employed, without prejudice to the seniority or other rights or privileges he would have enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him: Grady W. Price 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole Early T. Taylor, James B. Cuthrell, and Edward Earl Willis for any loss of pay suffered by them as a result of discrimination against them. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act. All our employees are free to become or remain members of INTERNATIONAL BROTHERHOOD OF PULP , SULPHITE AND PAPER MILL WORKERS , AFL, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment because of membership in or activity on behalf of any such labor organization. MADI% ASPHALT ROOFING CORPORATION, Employer, By -------------------------------------4--= (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.