Davidson Granite Co., Inc.

In the Matter of DAVIDSON GRANITE COMPANY, INC. and QUARRY WORKERS' INTERNATIONAL UNION OF NORTH AMERICA, BRANCH No. 20 and AMERICAN FEDERATION or LABOR QUARRY WORKERS, LOCAL UNION No. 21976, PARTY TO THE CONTRACT. In the Matter of DAVIDSON GRANITE COMPANY, INC. and QUARRY WORKERS' INTERNATIONAL UNION OF NORTH AMERICA, BRANCH No. 20 Cases Nos. C-1400 and R-1551, respectively.Decided June 4, 1940 Granite Quarrying and Finishing Industry-Interference, Restraint, and Coercion: expressions of disapproval of Union ; threats to curtail company store facilities ; interrogating employees as to union membership ; assistance to rival labor organization: (1) permitting minor supervisory employee to re- cruit members; (2) executing closed-shop contract for favored union organizer 8 days before first membership. meeting and execution by unchartered union not representing majority of employees in appropriate unit; (3) making super- seding or supplemental closed-shop contract with another, chartered union of same affiliation ; intimidation of employee conferring with Board representa- tive-Closed-Shop Contract: with labor organization assisted by unfair labor practices and not being exclusive bargaining representative, held not protected by proviso of Section 8 (3)-Remedial Order: give no effect to contract; with- draw recognition of favored union as exclusive bargaining representative until so certified-Discrimination : discharge of 10 non-members of favored union under closed-shop contract and for membership in disfavored union, held dis- criminatory-Regular and Subtantially Equivalent Employment: not obtained- Reinstatement Ordered: for all discriminatorily discharged employees, except one who declines ; offer three employees living quarters in company houses from which evicted when discharged-Back Pay: ordered, limiting one not rein- stated to computation to date of declination-Investigation of Representatives: controversy concerning representation: refusal to recognize petitioning union because of closed-shop contract with rival-Unit Appropriate for Collective Bargaining: production employees, excluding supervisory employees, paving and granite cutters, truck drivers, clerical employees, engineer, tool boy-Election Ordered: at a time in future to be determined by Board. Mr.'Warren Woods and Mr. John C. McRee, for the Board. McLarty & Cooper, by Mr. Walter G. Cooper, Jr., of Atlanta, Ga., for the respondent. Mr. Joseph Jacobs, of Atlanta, Ga., and Mr. Joseph Kovner, of Washington, D. C., for the Quarry Workers. Mr. Irving S. Nathan, of Atlanta, Ga., and Mr. Joseph Padway, by Mr. J. A. Glenn, of Washington, D. C., for the A. F. of L. Local. 24 N. L. R. B., No. 29. 370 DAVIDSON GRANITE COMPANY, INC. 371 Mr. Dicle Hudson, of Atlanta, Ga., for the A. F. of L. Mr. Sidney Sugerman , of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASES On March 24, 1934, Quarry Workers' International Union of North America, Branch No. 20, herein called the Quarry Workers, filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a pe- tition alleging that a question affecting commerce had arisen concern- ing the representation of employees of Davidson Granite Company, Inc., Lithonia , Georgia, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 18, 1939, the Quarry Workers duly filed a charge with the Regional Director that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of the Act. On June 9, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, ordered an investigation of the matters set forth in the petition and authorized the Regional Director to con- duct it and to provide for an appropriate hearing upon due notice; and acting pursuant to Article III, Section 10 (c) (2 ), and Article II, Section 37 (b), of said Rules and Regulations , further ordered that the representation case and the case upon the charge be consolidated for all purposes. On June 22 , 1939, the Quarry Workers duly filed an amended charge, upon which the Board on June 27, 1939, by the Regional Director , issued its complaint alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and ( 3) and of Section 2 (6) and (7) of the Act. The , complaint, together with notices of hearing thereon and on the petition, was duly served upon the re- spondent, upon the Quarry Workers, and upon American Federation of Labor Quarry Workers, Local Union No. 21976, herein called the A. F. of L. Local. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In respect to the unfair labor practices , the complaint alleges in substance ( 1) that since September 1938 the respondent has threatened and warned its employees against joining the Quarry Workers, has taken reprisals against those who joined it, and has urged them to join the A. F. of L. Local ; (2) that on or before March 31, 1939, the respondent entered into an agreement with the A. F. of L. Local, al- though the latter had not been freely designated as representative by a majority of the employees in the appropriate bargaining unit, whereby membership in the A. F. of L. Local was required as a con- dition of employment ; (3) that on April 17, 1939, the respondent dis- couraged membership in the Quarry Workers by discharging 13 named employees 1 and refusing them reinstatement because they had joined and assisted that union; 2 (4) that, by all the foregoing acts and practices, the respondent interferred with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On July 13, 1939, the respondent filed its answer denying substan- tially all the material allegations of the complaint as to the unfair labor practices , and pleading affirmatively that the respondent had discharged some of its employees on April 17 , 1939, in compliance with the terms of a valid closed-shop contract with the A. F. of L. Local protected by the proviso of Section 8 (3) of the Act. After a postponement granted by the Regional Director on motion of the A. F. of L. Local, a hearing was held, pursuant to amended notices of hearing, at Atlanta, Georgia , from July 17 to 21, 1939, before Mapes Davidson, the Trial Examiner duly designated by the Board; and from August 23 to 26, 1939, before Gustaf B. Erickson, the Trial Examiner so designated to serve in place and stead of Trial Examiner Davidson. At the opening of the hearing , the A. F. of L. Local intervened in the complaint case pleading the validity of its closed -shop contract with the respondent and invoking the protection of the proviso of Section 8 (3) of the Act ; and separately intervened in the representa- tion case setting forth the same matters and denying that a question affecting commerce had arisen concerning representation of the re- spondent's employees in the appropriate unit. At the same session, Trial Examiner Davidson granted the re- spondent's demand for particulars as to the dates of occurrences al- leged in the complaint, but denied the remainder of its demand for 1 At the hearing the names of Rubin Tonias, Henry Williams, and Clifford Tuggles were ordered stricken from the complaint, on motion of the Board's attorneys, thus reducing the number of such discharged employees to 10. 8 The case was tried fully on the broader theory that the named employees were dis- charged and refused reinstatement by further reason of their non-membership in the A. F. of L. Local, the respondent thereby encouraging membership in the latter organiza- tion. DAVIDSON GRANITE COMPANY, INC. 373 further particulars, and the complaint was ordered amended so as to specify the dates furnished accordingly by the Board's attorneys. At this stage and again at the close of the hearing various amendments to the pleadings, concerning dates and names of persons mentioned therein, were made on motions of the parties. The Board, the respondent, the Quarry Workers, and the A. F. of L. Local were represented at the hearing by counsel, and the American Federation of Labor, herein called the A. F. of L., with which the A. F. of L. Local is affiliated, by its general representative; all par- ticipated in the hearing.3 Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties.4 Upon cross-examination of two of the Board's witnesses before Trial Examiner Davidson, the respondent's attorney, for the pur- pose of impeachment, elicited their admissions of previous conviction upon pleas of guilt to charges of certain liquor law violations. Be- cause in objecting to the reception of such evidence, one of the Board's attorneys had argued that the crimes involved were mere infractions of local ordinance, the respondent's attorney later offered in evidence certified copies of the court records of the witnesses' conviction to show the nature of the crimes as violations of the law of the State of Georgia. Trial Examiner Erickson, sustaining the Board's attorney's objection to the admission of- the documentary 3 The A . F. of L. itself was not a party to the proceedings . At the request of Its general representative , however, it was permitted to participate therein . During the first 3 days of the hearing, Trial Examiner Davidson limited its general representative to the making of statements in argument for the record , and required examination of witnesses and objections on the A. F. of L. Local's behalf to be made by its counsel alone. On the fourth day of the hearing, Trial Examiner Davidson, according the general representative full status , extended unlimited privilege of participation to him. 4 Dick I-Iudson, general representative of the A. F. of L., was put on the witness stand to testify on the Board's behalf, over his objection that he would prefer to testify from records then not before him, and over the representation of counsel for the A. F. of L. Local that he intended later, as part of its case, to offer I-Iudson's testimony in regular order. Upon the latter representation . further examination' of the witness by the Board's attorneys and cross -examination on the major lines of his testimony in -chief by counsel for the various other parties were reserved . After a 5-week adjournment of the hearing Hudson did not reappear to participate in the proceedings , for further examination or cross-examination , or as a witness on the A . F. of L . Local 's behalf. On August 26, 1939 , upon the respondent 's motion , Trial Examiner Erickson ordered the deposition of Hudson to be taken for all purposes on September 15, 1939, and that the hearing be kept open until then. The witness not having appeared for examination on that day, Trial Examiner Erickson ordered the parties to show cause why the hearing should not be closed. The parties expressly waiving objection to the closing without further evidence from Hudson, the Trial Examiner, on September 27, 1939, ordered the hearing closed. The A. F. of L. Local failed to offer any records in evidence which might correct or vary Hudson 's testimony from recollection . The respondent had full opportunity to rebut by independent evidence such of the witness ' testimony as was unfavorable to its posi- tion. As all parties counsel , except the Quarry workers ( who had made an offer of proof on the record tending to impeach the credibility of Hudson), had conceded in colloquy appearing in the record that their respective contentions had been fully presented and sustained by the evidence received , their failure of opportunity to further examine and cross-examine the witness was not prejudicial. The Quarry workers' offer of proof is hereby rejected. 283035-42-vol. 24-25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proof on the grounds of irrelevancy, directed the proffered docu- ments to be included in the record as rejected exhibits. The :Board hereby overrules Trial Examiner Erickson and directs that the docu- ments in question be, and they hereby are, received in evidence as Respondent Exhibits 23 and 24, respectively, corresponding to those marked Rejected Exhibits 1 and 2. During the course of the hearing Trial Examiner Davidson re- served rulings upon two motions: (1) A motion of the respondent, joined in by the A. F. of L. Local, to strike testimony of Ca)rey Davis, a discharged employee, that he had been told at the local unemployment compensation office that payments to him had ceased because of a report from the respondent that he had obtained other private employment; (2) a motion of the A. F. of L. Local that its withdrawal of certain confidential union records from the Board's and the Quarry Workers' use upon cross-examination of a witness outside the scope of certain limited matters as to which he had testified from such records on direct examination by the respondent, be "without prejudice, and without discredit to the previous testi- mony of the witness . . ." The motions are hereby granted. The Trial Examiners made several other rulings during the course of the hearing upon motions and upon objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iners and finds that no prejudicial errors were committed. With the exception noted, the rulings are hereby affirmed. On September 28, 1939, the respondent's attorneys and on October 9, 1939, the Board's attorneys filed a brief with the Chief Trial Examiner of the Board. The Board considered the briefs so filed. On October 27, 1939, the Board, acting pursuant to National Labor Relations Board Rules and Regulations-Series 2, ordered that the complaint case be transferred to and continued before the Board; that no Intermediate Report should be issued by the Trial Exam- iners ; that Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order should be issued by the Board; and, further, that the parties should have the right, within twenty (20) days from the receipt of said Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board. On March 27, 1940, the Board issued and duly served upon the parties copies of its Proposed Findings of Fact, Proposed Conclu- sions of Law, and Proposed Order. Therein, pursuant to Article II, Section 37, of its Rules and Regulations-Series 2, as amended on March 11, 1940, the Board duly notified the parties of their right, 5 Article II, Sections 36 and 37. 4 DAVIDSON GRANITE COMPANY, INC. 375 tivithin twenty (20) days from the date of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, to file exceptions and to request oral argument before the Board, and that any party might, within thirty (30) days after the date of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, file a brief with the Board. On April 13 and 15, 1940, respectively, the A. F. of L. Local and the respondent duly filed exceptions '6 to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and requested oral argument before the Board in support of their excep- tions. On April 26 and 29, 1940, respectively, the respondent and the A. F. of L. Local duly filed with the Board briefs in support of their respective exceptions. Pursuant to notice duly served upon all the parties, a hearing was held before the Board in Washington, D. C., on April 30, 1940, for the purpose of oral argument. The respondent, the A. F. of L. Local, and the Quarry Workers were represented at and participated in the hearing. - The Board has considered all the exceptions to the Proposed Findings of Fact, Conclusions of Law, and Proposed Order, and the briefs in support of the exceptions, and in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the cases, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Georgia corporation, is engaged in the business of quarrying and finishing granite stone at its quarry in Lithonia, De Kalb County, Georgia. It produces building stone, curb stone, foundation stone, and crush stone or grit. Approximately 10 per cent of the product is in the form of building, curb, and foundation stone, 90 per cent of which is sold and shipped by the respondent, via truck and rail, to destinations outside the State of Georgia. Approxi- mately 90 per cent of the total product consists of grit, all of which is sold by the respondent to Stone Mountain Grit Company, a Georgia corporation also located at Lithonia, Georgia, all of whose capital stock is owned by the respondent's stockholders. Stone Mountain Grit Company sells and ships approximately 90 per cent of this grit to points outside the State of Georgia. The respondent d On April 16, 1940, the respondent duly filed addenda to its exceptions on file. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD produces about 35,000 tons of granite stone and grit annually, of the. approximate value of $100,000. The respondent uses approximately 5,000 pounds of steel per annum for too] making, 90 per cent of which is obtained from States other than Georgia. It also uses about 2,000 pounds of dynamite per annum, which, though obtained from a local supplier, is manufac- tured outside the State of Georgia and is shipped into it. The respondent normally employs approximately 125 persons at the quarry, of whom about 60 are engaged in unskilled manual labor. H. THE ORGANIZATIONS INVOLVED Quarry Workers' International Union of North America, Branch No. 20, is a labor organization affiliated with the Congress of In- dustrial Organizations, herein called the C. I. 0., admitting to mem- bership all quarry workers in and about Lithonia, Georgia, except supervisory and clerical employees, paving and stone cutters, and head sawyers. American Federation of Labor Quarry Workers, Local Union No. 21976, is a labor organization affiliated with the American Federation of Labor, admitting to membership quarrymen at or near Lithonia, Georgia, classified as plug drillers, derrickmen, tool 'sharpeners, channel-bar operators, jack-hammer drill operators, blasters, truck drivers, gang-saw helpers, bedsetters, lumpers, boxers, cranemen, crusher labor, and common labor. Prior to the chartering of said Local Union No. 21976, the American Federation of Labor itself, through its organizer and general representative, acted prospectively for and on behalf of that labor organization. References below to the A. F. of L. as a labor organization are to be understood, within this framework, as involving that affiliated local alone. III. THE UNFAIR LABOR PRACTICES A. The respondent's labor relations Over a period of many years prior to 1938 the respondent and its predecessors in ownership of the business had bargained collec- tively with two units of skilled craftsmen in its employ : paving cutters, represented by Paving Cutters Union of North America,' and granite cutters, represented by Granite Cutters International Association, affiliated with the American Federation of Labor. The respondent had no collective bargaining experience with its unskilled 4 The record is not entirely clear as to whether or not Paving Cutters Union of North America was , at-the time of its dealings with the respondent, affiliated with the A . F. of L. DAVIDSON GRANITE COMPANY, INC. 377 laborers, who were Negroes not admitted to membership in either of the craft unions mentioned.8 Early in 1938 the Quarry Workers began an organizational drive in the Lithonia area, where several other quarries were also in work. By June of that year it had signed up to membership about 30 of the respondent's employees. However, it made no claims for recognition upon the respondent. From that month until early in 1939, the Quarry Workers engaged in a strike against a neighboring quarry. Burbon T. Garner, the Quarry Workers' organizer, was kept busy with the strike and with Board proceedings arising therefrom and did not seek out the respondent for bargaining negotiations until March 1939. In the meantime, at about August 17, 1938, when the respondent and Granite Cutters International Association executed a contract covering the granite cutters, Dick Hudson, the latter organization's representative, requested the respondent to enter into an agreement with the A. F. of L. on behalf of the unskilled quarry workers, claim- ing to represent a majority of those employees. J. K. Davidson, Jr., the respondent's vice president, required proof of majority, which Hudson said he would try to produce. At that time there was no chartered union in the A. F. of L. which would admit these employees to membership. Within a few days thereafter Hudson had in hand not more than 26 signed authorizations from the unskilled workers running in favor of the A. F. of L. and by which each signing em- ployee agreed "to be a member of (his) proper Union." Until the following February no action was taken by the A. F. of L. upon the authorizations, no demand was made for recognition or a contract, and no local union organization was formed for the unskilled employees. B. Interference, restraint, and coercion (1) Interference with C. I. 0. organization The respondent, through its officers and stockholders, operates a grocery store for the patronage of its employees, many of whom live 8 There appears to have been one exception in 1907, when the Negroes had a union known as Quarry Workers Union, No. 8178, affiliated with the A. F. of L. John Doughrty, an employee of the respondent and its predecessor since 1898, testified on direct examina- tion by the respondent as to why that union had ceased to function, "well, by the way it gives dissatisfaction .. ., Mr. Davidson (president of the respondent corporation, but then a partner in the business ) just decided . . . that he would fool with no union, because just every time we would get into a kind of busy working, something would happen that night, and then, the next morning, we employees would go out and we would have no job, and it kept up so bad, it was worrying, and the other men in Litbonia were getting along with no union , and he said he would try it . . In its answer the respondent pleaded that its dealings with this early union were an experiment which "did not work, perhaps because of the lack of education and capacity of those then in it. Nearly every morning they had a committee to wait upon the management about trivial grievances. This procedure became so burdensome that it was abandoned." 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in company-owned houses nearby. On occasion the respondent accom- modated its employees with the sale of groceries on credit and with small cash advances chargeable as loans against their pay accounts. .In June 1938, after the Quarry Workers had started a strike against a neighboring quarry, Charles L. Davidson, the respondent's sales manager, addressed a group of its employees as they congregated after receiving their week's pay. Broughtus Swann, an employee called by the Board, testified that Davidson told the men that members of the C. I. O. could no longer have groceries or loans from the respondent, but that others could as usual. Elgin Gordon, another Board wit- ness, testified that at about that time he sought to borrow some money, and was told by Davidson that the strikers at the other quarry were causing the respondent much trouble, and "We ain't going to lend money to nobody that belongs to any organization at all"; adding that if one did not "belong," he could have loans. A third Board witness, Willie Reid, who was at that time in debt to the respondent on his account, asked Davidson whether he might have some groceries on credit. Davidson told him, Reid testified, that he "could get the C. I. O. or somebody else to let (him) have groceries." Explaining the respondent's cautious policy and practice of curtail- ing or discontinuing credits when a reduction of force is in contem- plation, and referring to the local labor strife, Charles L. Davidson testified as follows : "... we did not know but what they might pull a strike at our shop, and so, in order to be cautious, I made a state- ment to all the employees . . . : That they are having some trouble over at the Pine Mountain, and, under the circumstances, we are going to hold down the credits of all employees. I made no distinction among any of the men, but I meant them as a whole; no discrimination whatever." He admitted telling the men that money loans would be refused altogether, while groceries could be purchased thereafter on more limited credit only. Davidson did not specifically deny making the statement ascribed to him by Swann, Gordon, and Reid. We believe their testimony in that regard. By the actions and statements of Charles L. Davidson related above, the respondent expressed its disapproval of the unionization of its employees by the C. I. 0., and its purpose, if they did organize, to cut them off from the facilities for which they had learned to depend upon the respondent. Far from threatening the' respondent with a strike, the Quarry Workers had not then even requested recognition as the representative of any of its employees. Business caution itself played so little part in the respondent's restatement of credit policy that in fact, as far as appears from the pay-roll and deduction sheets in evidence, no material change was effected in practice. The Quarry DAVIDSON GRANITE COMPANY, INC. 379 Workers, however, became quiescent at the respondent's quarry and confined its activity to the strike in the vicinity. The respondent's concern with its employees' possible affiliation with the Quarry Workers did not end there. In August 1938 Charles L. Davidson asked a group of employees how many of them were members of the C. I. O. although Davidson denied doing so after hearing Broughtus Swann testify to that effect,'the respondent did not question Frank Wilson on the subject when the latter was put on the stand in its behalf on other matters, although Swann had placed Wilson in the group interrogated by Davidson. We believe the testimony of Swann on that issue. We find that by threatening members of the Quarry Workers with the curtailment of credit and loans at the company-owned store and by questioning its employees as to their membership in the Quarry Workers, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. (2) The contract of February 28, 1939 In August 1938 Dick Hudson had designated Otis Lee, an em- ployee whose status will be discussed below in connection with the appropriate unit, to take charge of the distribution of A. F. of L. membership cards among the employees. Lee took to this task with substantial results in the beginning, but relaxed his efforts during the several -following months until Hudson, returned from a long business trip, urged him to renew the drive. In February 1939, according to his own testimony, Lee resumed the distribution of A. F. of L. cards, although he appears to have been without continued success in obtaining signatures to them before March 1. Otis Lee's activi- ties on the A. F. of L.'s behalf were carried on within the respond- ent's premises, while the men were at work or having lunch. In February 1939, before any meeting of the enrolled members of the A. F. of L. had been called, Dick Hudson called upon the re- spondent with a- contract already drawn and a batch of membership cards. He presented the latter to J. K. Davidson, Jr., as proof of the A. F. of L.'s representation of a majority of the employees in the unit hereinbelow found to be appropriate for the purposes of col- lective bargaining. Davidson took the cards aside and, with the aid of Norton A. Davidson, the respondent's secretary and treasurer, checked the names on the cards against the pay-roll sheets, accepting Hudson's assurance as to the authenticity of the signatures. Saying, "It looks like you have a majority," the Davidsons went over the pro- posed contract as submitted by Hudson and, with some slight change, agreed to its terms and conditions and then and there executed it on 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's behalf. In the contract, the union was designated as "International Hod Carriers and Building Laborers Union of America, Local Union No. ," herein called the Hod Carriers Union, which Hudson told the Davidsons he was empowered to repre- sent for the employees covered by the agreement. Hudson took away with him the document so signed by the re- spondent alone, and several days later, on February 28, 1939, through the efforts of Otis Lee, convened the first organizational meeting of the A. F. of L. membership. At that meeting the document was read to those assembled, was approved unanimously, and was signed by temporary officers then elected. The contract, to run until April 1, 1940, contained recognition of the Hod Carriers Union as exclusive bargaining representative and the following condition of employment:. Article IV. All persons now or after the effective date of this Agreement shall be required to obtain membership in the Interna- tional Hod Carriers and Building Laborers of America, Local Union No. , within 15 days from the date of signing this Agreement or from the date of their employment, and to remain members in good standing in said organization in order to retain their employment. The imposition of such condition of employment falls substantively within the proscription of the Act, unless immunity can be estab- lished for it under the proviso of Section 8 (3).0 First we consider whether or not, at the time of the respondent's thus affecting a closed shop, the A. F. of L. represented a majority of the employees in the appropriate bargaining unit. The parties have recognized in their dealings, and we find, that all the production employees of the respondent, excluding super- visory employees, paving and granite cutters, truck drivers, clerical employees, the engineer, and the tool boy, have constituted a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, and that said unit insures to the employees the full benefit of their right to self-.organization and to collective bargaining and otherwise effectuates the policies of the Act. The Quarry Workers' attorney contended that four employees, namely, Otis Lee, Ed Stokes, Frank Wilson, and Albert Chapman, are supervisory employees, who, presumably, should be excluded Section 8 ( 3) : "Provided, that nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein , if such labor organization is the repre- sentative of the employees as provided in Section 9 (a), in the appropriate bargaining unit covered by such agreement when made." DAVIDSON GRANITE CO1\ PANY, INC. 381 from a consideration of the unit as it was constituted at the time of the making of the closed-shop agreement. The respondent and the A. F. of L. Local, of which the four are members, dispute their supervisory status and maintain that the Quarry Workers accepts employees in membership who enjoy equal and greater managing responsibilities at quarries in the neighborhood. Considerable conflict in the evidence developed concerning the alleged supervisory status of Otis Lee. He works in the quarry with a gang of 10 to 15 laborers under his supervision, laying out work for them under the immediate direction of John K. Davidson, Sr., the respondent's president. It is his duty to execute orders transmitted or left with him by Davidson and his four sons, who personally attend and inspect operations at the quarry, sheds, and office. As necessity demands, Lee works along with his men manu- ally. He has no power to hire men, discipline them, or discharge them, but he may make recommendations in that regard. In 1938 his rate of pay for this work was no greater than that of the men in his gang; in 1939 it was increased 20 per cent over theirs. The men regard him as their foreman. He calls himself their leader. The respondent denies that his part in management vests him with any authority whatever to represent or bind it outside the limited scope of his actual duties. However, the respondent did hold Lee out and he was looked up to by his fellows as the most important single contact between the management and the workers. The record amply supports the contention that Otis Lee is a super- visory employee identified with the management.'° The record lacks detailed evidence of the duties and status of Ed Stokes, Frank Wilson, and Albert Chapman, as to whom the contention for exclu- sion was not pressed closely. From the scanty evidence adduced on that issue, they do not appear to have had quite the same importance or preferred position as Otis Lee's in the eyes of the respondent or of the other employees. Therefore, we find that Lee was not in the appropriate bargaining unit, and that Stokes, Wilson, and Chapman were, when the closed-shop agreement was made. The respondent's pay roll at February 28, 1939, lists 61 employees in the appropriate unit, excluding Otis Lee. No pay roll for Febru- ary 20 was put in evidence, but from the testimony of Norton A. Davidson it appears that one of those on the February 28 sheet, 10 The contention of the respondent and the A. P. of L. Local for the inclusion of Otis Lee in the appropriate bargaining unit on the authority of Matter of Pine Mountain Granite Company and Quarry Workers' International Union of North America, Branch No. 20, 8 N. L. R. B. i125, is without force. The parties in that case stipulated that the unit should include the head ledge man, with whose duties and status Otis Lee's are comparable. As customary in such cases, the company and the rival unions consenting, the Board adopted the agreed unit. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rubin Tomas, started work on the 25th of that month and that otherwise the pay rolls during those two workweeks were identical. Thus there were 60 employees in the unit on February 20. At the hearing the following colloquy was had between Trial Ex- aminer Davidson and the attorney for the A. F. of L. Local: Trial Examiner DAVIDSON . Let me ask you . Don't the mem- bership cards show the dates on which these men became mem- bers of the union? Mr. NATHAN. Practically all of them do. One or two do not. The A. F. of L. Local produced at the hearing 23 membership cards, excluding Otis Lee's, purporting to have been signed in August 1938 . One additional card is undated , and another is dated March 31, 1939 , over an erasure . Jim Bryant, an illiterate em- ployee in the unit whose name appears on the undated card, testi- fied that his wife signed his name to the card at his direction in August 1938 . Henry Williams, another employee in the unit, testi- fied that he had signed and dated the other card in August 1938. He was unable to explain the erasure of that date and the entry of March 31, 1939 , over it. No other cards produced by the respondent or the A. F. of L. Local bore date prior to March 1 , 1939, or were claimed to have been signed before then , except those of John William Sanders and Rubin Tomas which the respondent , in its brief, con- tends were signed in August 1938. Inspection of the dates on San- ders' and Tomas' cards discloses that they were signed in March 1939. Tomas, an illiterate , testified that he gave the card to Clifford Bullard, a fellow employee , to sign for him "in the summertime" of 1938, but that it was not signed in his presence . When Bullard took the stand he failed to recognize his own alleged handwriting on the card, attributing it hesitantly to still another employee, and made no effort to explain the March 1939 date on the card. The testimony seeking to vary that date was confused and unsatisfactory. As to Sanders' card , he was not produced as a witness by any of the parties. The A. F. of L . Local drew from Frank Wilson, an employee, the testimony that he wrote out Sanders ' card in full at the latter's request, but Wilson failed to fix any date when he did so other than the one in March 1939 which he testified to having written in . There- fore, the contention of the respondent that Sanders' and Tomas' cards were signed in August 1938 , and should be counted with the 25 others above considered , must be overruled. Accepting its grounds of contention in full would nevertheless leave the result unaffected, since 27 members fall short of the necessary majority. The respondent seeks to escape the conclusion to which the last finding leads by arguing that the agreement must have been signed by it sometime in March, during which the membership in the DAVIDSON GRANITE COMPANY, INC. 383 A. F. of L. was considerably enlarged. The respondent predicates this argument on nothing in the record excepting unsupported testi- mony of J. K. Davidson, Jr., that Dick Hudson exhibited at least 50 cards to him whenever it was that the respondent signed. Hud- son himself had set no such figure on the A. F. of L.'s membership at that time, testifying merely that it was a majority of the em- ployees. Hudson fixed the time at February 20. J. K. Davidson, Jr., testified positively that the instrument bore no date when he and his brother signed it. The respondent offered no evidence that the date when its officers affixed their signatures was other than that recollected by Hudson, and indeed, on motion made at the hearing, amended paragraph 16 of its answer so as to allege the granting of recognition to the A. F. of L. and the making of the contract "in the latter part of February 1939," instead of "in the first part of March 1939." We find that it was signed by the respondent on February 20 and on behalf of the Union on February 28, 1939, from which date, by its terms, the contract was to be effective. The respondent makes the further point that the agreement, when- ever signed by it, did not become a contract in the legal sense until the Union signified its acceptance by completing the execution of the document on its part. Dick Hudson, it is true, in explaining his practice of soliciting a signed "proposal coming from the man- agement," characterized the document in question as a "tentative agreement." However, the respondent did not so understand it. In direct examination by the Board's attorney, J. K. Davidson, Jr., testified : Q. Well, did you understand at the time that you signed the contract of the 28th that it was a tentative agreement? A. No, I did not. Q. Not final and binding? A. No. In our view of the Act in its application to this case, it is imma- terial whether or not the document signed and delivered by the respondent on February 20 was a complete contract enforceable at that time against the respondent. If "making an agreement with it labor organization," in the words of the proviso, is taken to mean narrowly the bilateral formation of a contract, and not the mere offer or proposal tendered by the employer to the Union, then there is certainly nothing in the Act which sanctions the respondent's unilateral, discriminatory commitment of February 20. Assuming it to be so, that no contract came into existence until February 28, and that the A. F. of L. on that day had a majority among the employees in the appropriate bargaining unit, the contract is unprotected because, if for no other reason, by forearming Dick Hudson with 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a signed "proposal" to discriminate in regard to hire and tenure of employment in favor of A. F. of L. members, the respondent interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed by Section 7 of the Act, and by so doing assisted that labor organization. Several Board witnesses testified that in the latter part of February 1939 Otis Lee warned them to join the A. F. of L. or they would soon lose their jcbs. Lee denied having so warned them until March or April. It is highly improbable that Dick Hudson, with the re- spondent's closed-shop commitment in hand since February 20, would have withheld such persuasive information from Otis Lee when he directed the latter to gather the employees for the February 28 organ- izational meeting. We give no credence to the A. F. of L. Local's contention that knowledge of the closed-shop contract was imparted to employees only after they had met on the latter date and taken their oaths of obligation. We find that the A. F. of L., in the 8-day interval, fully and openly exploited the unlawful assistance rendered to it by the respondent." The A. F. of L. Local maintains that on February 28, 1939, a majority of such employees attended the first union meeting, ratified and signed the proposed contract, and thereupon the will of the ma- jority was done:. The witnesses who testified to the attendance at that meeting placed it variously at 31 to 40 or more. From memory they attempted to name those present, but were so uncertain as to the presence of numerous particular individuals, many of whom by their independent testimony not only failed to dispel but added to the doubt, that the membership cards are left as the best evidence of the A. F. of L.'s roster at the several dates in question. No explanation was given by the respondent or, the A. F. of L. Local as to why the membership cards of six specified individuals and of others unidenti- fied were signed at various dates between March 1 and April 14, 1939, if the individuals in question are supposed to have been present and to have made up the alleged "majority" attendance at the February 28 meeting. Under all the circumstances, we find that the A. F. of L. had not been designated or selected as collective bargaining representative by a majority of the employees in the appropriate unit on February 20, 1939, or at any time previous to March 1, 1939;,consequently, that the A. F. of L. was not, when the respondent made the closed-shop agreement with it, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to "Cf. International Association of Machinist s V. N. L. R. B. 110 F. (2d) 29, enf'g. Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R . B. 621 ; cert. granted 60 S. Ct. 721. DAVT1)SON GRANITE COMPANY, .INC. 385 rates of pay, wages, hours of employment, or other conditions of employment. Moreover, if the A. F. of L. was not materially and directly aided by the -respondent's acts of interference, restraint, and coercion which we found in Section III, B (1) to have been committed in the summer of 1938, before the A. F. of L. took to this field of organization, there is no doubt that it received substantial assistance thereafter by way of Otis Lee's open activity in enlisting members on company time and premises. The respondent denies knowledge of his activities on the A. F. of L.'s behalf, and denies that he had any right to engage therein for the respondent. In the circumstances of Lee's position and the manner in which he exploited it to solicit memberships for the A. F. of L., we find that the respondent was aware of that activity on his part and, by failing to disavow it, in effect condoned and rati- fied it. The responsibility for Otis Lee's conduct described above must be laid upon the respondent. We therefore find that by Lee's distributing membership cards and soliciting members for the A. F. of L., the respondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act, and thereby assisted the A. F. of L. We find that by making the closed-shop agreement with the A. F. of L., at a time when the latter was not the exclusive repre- sentative of employees in the appropriate bargaining unit covered thereby, to require as a condition of employment membership in that labor organization, which had been assisted by the respondent's unfair labor practices, the respondent discouraged membership in the Quarry Workers and encouraged membership in the A. F. of L., and by so doing interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. (3) The contract of March 31, 1939 Following the execution of the first agreement in the name of "International Hod Carriers and Building Laborers Union of America, Local No. ," Dick Hudson applied for a charter from that International Union. Unsuccessful in that effort, Hudson obtained from the A. F. of L. a Federal Union charter for the employees on March 24, 1939, affiliating their organization directly with the A. F. of L. as American Federation of Labor Quarry Workers, Local Union No. 21976. In the meantime, however, with the closed shop already provided for, Otis Lee intensified his efforts to drive employees into the A. F. of L. fold. Numerous Board witnesses testified that Lee approached them with membership cards, informing them that only A. F. of L. members would be permitted to hold their jobs. Lee admits having 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told that, on about March 1, to Boysie Sheppard, an employee whom he regarded as "kind of hard headed and I was waiting, until along toward the last to mention it to him." Jim Deadwyler's testimony was uncontradicted that between March 1 and 15 Otis Lee spoke to him several times while at work about joining the A. F. of L., the last time saying, in the witness' words, "It would be a help to me, and it just meant the job to me." Tom Lucas testified that when he started his first day's work for the respondent on March 5, Otis Lee told him that if he wanted to work on that job he would have to join the A. F. of L. This testimony, too, was uncontroverted. Gordon Grier, who went on the respondent's pay roll on March 16, testified that Otis Lee that day accosted him at work and told him to join the A. F. of L. or he would lose his job. No cross-examination of this witness was undertaken by the respondent or the A. F. of L. Local, and no effort was made to contradict his testimony. In this renewed campaign Frank Wilson, whom some of the employees regarded as foreman in the grit house, participated with fervor and energy equal to Otis Lee's. The invalid closed-shop agreement made in February was exploited fully by the A. F. of L. to build its membership, so that by the end of March the number of its members was nearly twice what it had been at the end of February. In this the A. F. of L. was aided and assisted as much by the agree- ment itself as by the respondent's unfair labor practices which led up to it. During March 1939, by the continued solicitation of members by Otis Lee, assisted as he was by the threat of the closed- shop agreement, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. . On March 22, 1939, Burbon T. Garner, the Quarry Workers repre- sentative, asked J. K. Davidson, Jr., on the telephone for an ap- pointment to discuss a proposed contract for that union's members. Davidson said he would see Garner the next day but that there was no need for a meeting as he "already had a contract with Dick Hudson, the A. F. of L. representative." On March 23 Garner and Davidson met at the quarry office. The former submitted a written form of contract with the request that they negotiate upon its terms. Davidson said he could not transact such business with Garner since, as the latter quoted him, "I am under obligations to Dick Hudson, and I could not talk to you at all about a contract." He offered to keep a copy of the proposed contract, and no more. Garner in- sisted that he represented a majority of the employees as evidenced by authorization cards then in his hand. Davidson asked for their names, but since he would not enter ' into a bargaining conference anyway, Garner declined to reveal their identity except to the DAVIDSON GRANITE COMPANY, INC. 387 Board's Regional Office where the cards could be inspected. Garner then asked if the respondent would consent to an election to deter- mine representatives, to which Davidson answered in the negative. Garner said he was left with no alternative but to proceed before the Board, and he departed. On March 24 the Quarry Workers filed a petition for investigation and certification. On March 29 the Regional Director notified the respondent by letter of the filing of the petition and of its contents. On March 31 the Board's Field Examiner visited the respondent's place of business to conduct a preliminary investigation of the matters contained in the petition. J. K. Davidson, Jr., related to him that the respondent had made the February 28 contract with Dick Hudson, which he said was then in the latter's possession. He explained that the contract was intended to stabilize relations with and fix the wage scale for the production workers for the ensuing year, just as relations and wages were governed with the craft workers. Davidson mentioned nothing to the Field Examiner about any contract signed subsequent to that of February 28. The admitted fact is that upon receipt of the A. F. of L. Local's charter shortly after March 24, and several days before March 31, Dick Hudson came to J. K. Davidson, Jr., with a new document purporting to be a contract in substantially the same form as that of February 28, but in the name of the newly chartered A. F. of L. Local instead of that of the Hod Carriers Union. The exclusive recognition and closed-shop provisions were precisely the same in both documents. Hudson requested the return of the February 28 instrument and the respondent's execution of the new, then un- dated one. He offered the explanation that the Hod Carriers' charter had not come through, but that he had succeeded in obtain- ing one for the A. F. of L. Local. Without further proof of ma- jority or negotiation, the respondent, by J. K. Davidson, Jr., and Charles L. Davidson, executed the new contract and turned it over to Hudson with its counterpart of the old contract. Later, on March 31, after the Board's Field Examiner had come and gone without a word from the Davidsons of the new agreement recently signed by them, the A. F. of L. Local held a meeting, had their charter installed, elected permanent officers, and executed the new contract. Dick Hudson understood that the March 31 contract merely sup- plemented and made permanent the contract of February 28, the apparent problem of party-signatories being wholly an internal, jurisdictional affair of the A. F. of L. J. K. Davidson, Jr., on the other hand, when he signed the second contract, understood it to supersede the first entirely. In view of our findings respecting the 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earlier contract, the one of March 31, 1939, a fortiori, falls outside the pale of the proviso of Section 8 (3). If it was only supplemental to the earlier. agreement, they collapse together; if it was super- seding, it is nevertheless without protection since the A. F. of L. Local was assisted not alone by the respondent's unfair labor prac- tices which underlay the first agreement, but by the unfair labor practices which inhered in the very making of that agreement, and by those in which the respondent engaged during March. Hence, we find that by the making of the closed-shop agreement of March 31, 1939, the respondent further interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Between April 1, and 4, Charles L. Davidson went out to the quarry, singled out Broughtus Swann, a Quarry Workers' member, and said he understood that Swann had had Garner, some em- ployees, and the Board's Field Examiner out to his house on March 31, and had made false statements and accusations against the re- spondent. Swann testified that he denied having told any lies to the Field Examiner and would repeat to Davidson what he had related to the Field Examiner. He further testified that Davidson said, "God damn it, you go up there and you go to work, and don't you say a damn word to any of them unemployment men up there. I got your God damn number anyhow, if you get up and swear before the Labor Board about me, God damn you, I am going to send you to the chain gang." Davidson testified that what he told Swann was: "Now, let me tell you this. If you tell a lie on the company, you black son-of-a-bitch, I will put you in the jail." The net effect of this conversation between Davidson and Swann, whose ever version one accepts, was to intimidate Swann and discour- age concerted activity of the employees for their mutual aid and protection. By Davidson's threat to Swann the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. The discriminatory discharges On April 1, 1939, Dick Hudson, as representative of the A. F. of L. Local, called upon the respondent in writing to fulfill strictly the closed-shop provision of the contract within 15 days. The respond- ent posted a copy of the communication upon the premises. Word of the impending discharge of non-members of the A. F. of L. Local spread rapidly among the employees. Members of the Quarry Workers rushed to their organizer, Burbon T. Garner, for advice. He told them that the international union with which their local was affiliated was short of funds and probably could not feed them DAVIDSON GRANITE COMPANY, INC. 389 if they were discharged; that they should join the A. F. of L. Local at once so as to hold their jobs while he proceeded before the Board 12 This most of them did during the next few days, but few took the ritual obligation of membership or paid the dues necessary to give them "good standing." On the morning of April 17 a committee of the A. F. of L. Local delivered to the respondent a list of its members and of non-members with the demand, reenforced with a simultaneous stoppage of all work in the quarry, that the non-members be discharged 13 J. K. Davidson, Jr., went down to the quarry with the committee and addressed the assembled employees. Explaining that the respondent was acting under the compulsion of a closed-shop agreement, and at the A. F. of L. Local's request, Davidson read off the list of and discharged the 10 non-members as follows : Cortez (variously known as Cartez, Cartee, or Cortee) Swann; Broughtus (also known as Brodus) Swann; Grady Shoemake; Thomas Shoemake; Boysie Sheppard; Tom Lucas; J. C. Lucas; Ozzie (also known as Arzee) Ellis; Gordon Grier; and Carey Davis (also known as C. D. Jackson). While the others returned to work, these discharged employees departed from the respondent's premises with this hollow assurance from Davidson.: "Boys, this is no fight of ours, and you will have to be off until such time as you affiliate with the union with which we have a contract." On April 18 the respondent served notice upon Broughtus Swann, Ozzie Ellis, and Boysie Sheppard to remove at once from the company-owned houses which they had been occupying. The no- tice read in part, "We will need the house you are now occupying for employees at the quarry." The respondent contends that it caused these men to vacate in accordance with previously expressed warnings, over a period of many months, that their continued mis- conduct of one sort or another in their living quarters would lead to their removal. We do not believe that anything but the termina- 12 The respondent argues that by so advising its members the Quarry workers waived objection to and acquiesced in the closed-shop contract. Apart from the question of the Quarry workers' power privately to waive the violation of public law, which in no event could estop the Board from proceeding to discharge its duty as the government 's delegated enforcement agency, the coercive circumstances under which the advice was given nega- tive the idea of acquiescence. 13 The respondent claims that the unanimity of stoppage of all employees excepting the 10 non-members who were discharged proved the A. P. of L. Local's overwhelming majority on that date and the approval by that majority of the closed shop. That event may rather have proved the effectiveness of the respondent's unfair labor practices. Since the contract was invalid in its inception, as we have found, for lack of a then majority and because vitiated by unlawful assistance, it cannot be validated before the effects of the unfair labor practices are shown to have been dissipated by the execution of the remedy herein provided. 283035-42-vol. 24-26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Swann's, Ellis', and Sheppard's employment on the day before caused the respondent to remove them from their homes. Upon the entire record we find that the respondent discharged the 10 named employees on April 17, 1939, and refused them rein- statement, because they had joined and assisted the Quarry Workers and because they were not members of the A. F. of L. Local, thereby discriminating in regard to their hire and tenure of employment, discouraging membership in the Quarry Workers, encouraging mem- bership in the A. F. of L. Local, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. About a week after his discharge, J. C. Lucas returned to the quarry and asked J. K. Davidson, Jr., for reinstatement on the ground that he had just become "obligated" as a member in good standing of the A. F. of L. Local. Refused reinstatement, he re- mained without work or income to the time of the hearing. He testified that he does not desire reinstatement. Each of the 10 discharged employees had been earning $.25 an hour, for an average of about $10 a week, at the time his employ- ment was terminated. Thereafter, to the time of the hearing, they worked irregularly at odd jobs, if at all, and earned but a few dol- lars, if anything. The respondent called G. M. Johnson as a witness in the granite business in Lithonia to testify that Grady Shoemake and Cortez Swann were then and had since April or May 1939 been working at his quarry on a piece-work basis, earning regularly $.30 per ton for an average weekly pay of perhaps $9 or $10 each. The witness testified that he kept no records of their work or pay, and therefore could produce no positive proof of Shoemake's and Swarm's earnings. On cross-examination the witness testified that the men at his quarry work when and as they please. Shoemake and Swann work as a team, receiving $.30 a ton for the product of their joint effort when it is sold. If a purchaser of the rubble they make takes a truck-load from them, they receive a ticket which Johnson redeems. He testified as to his work relations with the men, "They work for themselves so they can quit whenever they want to, and work when- ever they want to." If no rubble purchasers come along, the men may continue piling it up in the prospect of future sales, but with- out receiving any pay for the work done. If the relationship there existing between the men and Johnson was not truly that of inde- pendent contractors and owner, at any rate Shoemake and Swann did not obtain employment substantially equivalent to that which they had held at the respondent's quarry before their discharge. None of, the other discharged employees obtained substantially equivalent employment after their discharge. DAVIDSON GRANITE COMPANY, INC. 391 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with its operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in and is engaging in unfair labor practices by interfering with, restraining, and coercing its employees in various ways in the exercise of the rights guaranteed by Section 7 of the Act; and by discriminating in regard to its em- ployees' hire and tenure of employment, thereby encouraging mem- bership in the A. F. of L. Local and discouraging membership in the Quarry Workers. We shall order the respondent to cease and desist from its unfair labor practices. We have found that the respondent aided, encouraged, and assisted the A. F. of L. Local by various unfair labor practices. In order to restore the status quo and to permit the employees full freedom in self-organization, without hindrance by reason of the respondent's unfair labor practices, we shall order the respondent to withdraw recognition from the A. F. of L. Local as the exclusive representative of the respondent's employees for the purposes of collective bargain- ing, unless and until the A. F. of L. Local shall have been certified as such by the Board. In addition, we have found that the closed-shop agreement between the respondent and the A. F. of L. Local, integrated with or super- seding the closed-shop agreement with the Hod Carriers Union, was made with a labor organization which had been assisted by the respond- ent's unfair labor practices, and which was not the representative of the employees as provided in Section 9 (a) of the Act in the appropri- ate collective bargaining unit covered by the underlying preliminary agreement when made. We shall order the respondent to cease and desist from giving effect to the contract of March 31, 1939, as well as any extension, renewal, modification, or supplement thereof, and any underlying or superseding contract which may now be in force. Nothing in this Decision and Order should be taken to require the respondent to vary those wage, hour, and other such substantive fea- tures of its relations with the employees themselves, which the respond- ent may have established in performance of the invalid contracts as extended, renewed, modified, supplemented, or superseded. We have found, too, that the respondent discriminatorily dis- charged 10 employees on April 17, 1939, and refused them reinstate- 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inent, under color of an invalid closed-shop agreement and because of their membership in and activities on behalf of the Quarry Workers. In accordance with our usual custom, we shall order the respondent to offer full and immediate reinstatement to their former or substantially equivalent positions to such of those employees, excepting J. C. Lucas who does not desire it, as have not since been fully reinstated. We shall order the respondent to make whole the said 10 employees for any loss of pay they may have suffered by reason of their re- spective discriminatory discharges, by payment to each of them, except J. C. Lucas, of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings 14 during said period; and by payment to J. C. Lucas of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to July 18, 1939, when he testified at the hearing that he no longer wished reinstatement, less his net earnings, as before defined, during said period.- We shall also order the respondent to offer to Broughtus Swann, Ozzie Ellis, and Boysie Sheppard, upon their reinstatement, im- mediate occupancy of their former or substantially equivalent living quarters in the company-owned houses from which they were re- quired to move as a consequence of their discriminatory discharge. VI. THE QUESTION CONCERNING REPRESENTATION- As found in Section III B (3) above, the respondent on March 23, 1939, questioned the Quarry Workers' claim of designation by a ma- "By "net earnings " Is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his un- lawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440 . Monies received for work performed upon Federal , State, county , municipal, or other work- relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other govern- ment or governments which supplied the funds for said work-relief projects. 15 The respondent , appealing to the discretion of the Board , urges that back pay should not be awarded to the discharged employees because the respondent relied and acted in good faith ( 1) upon an alleged statement by the Board's Field Examiner , during the investigation on the petition on March 31, 1939 , that the respondent was "one of the best companies" he had ever investigated ; ( 2) upon the failure of the Regional Director , to whom on April 10 it mailed on request a copy of the posted closed-shop notice , to intervene in protest against the respondents projected course of action. The respondent would have us apply the principle followed in Matter of Decatur Iron & Steel Co. and Steel Workers Organizing Committee on Behalf of Amalgamated Association of Iron, Steel and Tin Workers of North America, 17 N. L. R. B. 1073 . The circum- stances of the instant case, particularly in view of the fact that no charge was pending at the times referred to and that no affirmative action was taken by the Regional Director or Field Examiner which could reasonably have misled the respondent , do not warrant a departure from the rule of awarding back pay. - DAVIDSON GRANITE COMPANY, INC. 393 jority- of the employees as their bargaining representative, and de- clined to negotiate with that union on the ground of the existence of a closed-shop contract with the A. F. of L. Local which the respond- ent regarded as valid and expressly protected under the Act. We find that a question has arisen concerning the representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen occurring in connection with the operations of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. VIII. THE APPROPRIATE UNIT We find, as we did in Section III B (2)I above, that all the pro- duction employees of the respondent, excluding supervisory em- ployees, paving and granite cutters, truck drivers, clerical employees, the engineer, and the tool boy, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act, and that said unit will insure to the employees the full benefit of their rights to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES At the hearing the Quarry Workers and the A. F. of L. Local each produced proof of its designation as representative by a ma- jority of the employees in the appropriate unit. In view of our findings with respect to the coercive effect of the respondent's unfair labor practices to discourage membership in the one labor organi- zation and to encourage it in the other, we believe the question concerning representation can best be resolved in an election by secret ballot. Since the respondent has, by engaging in various unfair labor practices, interfered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circum- stances permit a free choice of representatives unaffected by the respondent's unlawful acts. At the time of fixing the election date, we will also specify the date on the basis of which eligibility to vote in the election shall be determined. 394 DECISIONS Ob' NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Quarry Workers' International Union of North America, Branch No. 20, and American Federation of Labor Quarry Workers, Local Union No. 21976, are labor organizations , within the mean- ing of Section 2 (5) of the Act. 2. By discriminating in regard to hire and tenure of employ- ment of its employees , thereby encouraging membership in Ameri- can Federation of , Labor Quarry Workers , Local Union No. 21976, and discouraging membership in Quarry Workers' International Union of North America, Branch No . 20, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3.) of the Act. 3. By assisting American Federation of Labor Quarry Workers, Local Union No. 21976, and in other ways interfering with, re- straining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce , within the meaning of Section 2 (6) and (7) of the Act. 5. A question affecting commerce has arisen concerning the rep- resentation of employees of Davidson Granite Company, Inc., Lith- onia, Georgia , within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 6. The production employees of the respondent, excluding super- visory employees , paving and granite cutters, truck drivers, clerical employees, the engineer, and the tool boy, constitute a unit appro- priate for the purposes of, collective bargaining , within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Davidson Granite Company , Inc., Lithonia, Georgia, its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Quarry Workers' International Union of North America, Branch No. 20, or encouraging member- DAVIDSON GRANITE COMPANY, INC. 395 ship in American Federation of Labor Quarry Workers, Local Union No. 21976, or discouraging or encouraging membership in any other labor organization of its employees , by discriminating in regard to hire or tenure of employment, or any term or condition of employ- ment of its employees; (b) Recognizing American Federation of Labor Quarry Workers, Local Union No. 21976, as the exclusive representative of its em- ployees for the purposes of collective bargaining, unless and until that labor organization shall have been certified as such by the National Labor Relations Board; (c) Giving effect to its contract of March 31, 1939, with Ameri- can Federation of Labor Quarry Workers, Local Union No. 21976, or to , any extension , renewal, modification , or supplement thereof, or to any underlying or superseding contract with said Local Union No. 21976 which may now be in force; (d) Urging, persuading, intimidating, or coercing its employees to join American Federation of Labor Quarry Workers, Local Union No. 21976, or not to join Quarry Workers' International Union of North America, Branch No. 20, or to join or not to join any other labor organization of its employees; (e) In any other manner interfering with, restraining , or coerc- ing its employees in the exercise of the rights to self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in con- certed activities , for the purpose of collective bargaining or other mutual aid or protection , as guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from American Fed- eration of Labor Quarry Workers, Local Union No. 21976, as the exclusive representative of its employees for the purpose of dealing with it concerning grievances, labor disputes , wages, rates of pay, hours of employment, or other conditions of employmeit , unless and until that labor organization shall have been certified as such by the National Labor Relations Board; (b) Offer to the following employees : Cortez (variously known as Cartez, Cartee, or Cortee) Swann; Broughtus (also known as Brodus) Swann; Grady Shoemake; Thomas Shoemake; Boysie Sheppard ; Tom Lucas ; Ozzie ( also known as Arzee ) Ellis; Gordon Grier; and Carey Davis (also known as C. D. Jackson) immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; 396 DECISIONS " OF NATIONAL LABOR RELATIONS BOARD (c) Make whole, the employees named in paragraph 2 (b) above of this Order, and J. C. Lucas, for any loss of pay they have suf- fered by reason of their respective discharges, by payment to each of them of a sum equal to an amount determined in the manner set forth in the section entitled "The remedy" above, deducting, how- ever, from the amount otherwise due to each of said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amount so deducted to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Offer to Broughtus Swann, Ozzie Ellis, and Boysie Sheppard, upon their reinstatement, immediate occupancy of their former or substantially equivalent living quarters in the company-owned houses from which they were required to move as a consequence of their discharge; (e) Immediately post, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicu- ous places throughout the quarry, grit house, and sheds, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in para- graphs 1 (a), (b), (c), (d), and (e), of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respond- ent's employees are free to become or remain members of Quarry Workers' International Union of North America, Branch No. 20, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of his membership or activity in that organization; (f) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with the Davidson Granite Company, Inc., Lithonia, Georgia, an election by secret ballot shall be conducted at such time as the Board DAVIDSON GRANITE COMPANY, INC. 397 shall hereafter direct, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent of the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations , among the production 'employees of Davidson Granite Company , Inc., Lithonia, Georgia, employed by the respondent during a pay-roll period which the Board shall in the future specify, including those employees who shall not have worked during the pay-roll period chosen because they were then temporarily laid off or were ill or on vacation , but excluding supervisory employees , paving and granite cutters, truck drivers, clerical employees, the engineer, the tool boy, and any employees who after the eligibility date shall have quit or been discharged for cause, to determine whether they desire .to be represented for the purposes of collective bargaining by Quarry Workers' International Union of North America, Branch No. 20, affiliated with the Congress of Indus- trial Organizations ; by American Federation of Labor Quarry Workers, Local Union No. 21976, affiliated with the American Feder- ation of Labor; or by neither. MR. WILLIAM M. LEISERSON , concurring : I concur in the result reached by the majority of the Board, but I am of the opinion that the alleged closed-shop agreement with the Hod Carriers' Union was no agreement at all. The Hod Carriers' Union did not negotiate the agreement ; it did not authorize the .alleged temporary officers to sign the agreement in its behalf ; the employees never were members of the Hod Carriers' Union, and this union was never a party to the alleged agreement. Any attempt to enforce the provision of Article 4 of the agreement requiring em- ployees to be members of the Hod Carriers ' Union would clearly constitute a violation of the Act. It is immaterial whether the respondent 's agreement of March 31, 1939, with the A. F. of L. Local was supplemental to or superseded the alleged agreement with the Hod Carriers . By arming Hudson with the earlier instrument the respondent assisted him, in the in- terim between the execution of the two documents, to recruit mem- bers in the new Local that was later formed . By this means it was sought to make effective the closed-shop provision of the abortive agreement with the Hod Carriers. Under the circumstances the second agreement must also be held to be of no effect.