Cast-A-Stone Products Co.

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.