Little Rock Hardboard Co.

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce 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. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case , it is recommended that the complaint herein be dismissed. Little Rock Hardboard Company and International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO Superwood Corporation of Duluth and International Brother- hood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO. Cases Nos. 26-CA-1208, 26-CA-1222. and 26-CA-1259. Decem- ber 26, 1962 DECISION AND ORDER On September 10, 1962, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding, finding that Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Intermediate Report. Thereafter, the General Counsel -filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel (Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the General Counsel's exceptions and brief, and the entire record in these cases, and, as it finds merit in some of the General Counsel's exceptions, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent con- sistent herewith.' 1. The Trial Examiner found no violation of Section 8(a) (1) of the Act on the ground, in part, that the shift leaders, some of whom were charged with conduct violative of i hat section, were not super- visors within the meaning of the Act. We do not agree. 'A substantial portion of the Intermediate Report consists of extensive quotations from the record and the briefs of the parties for the purpose of setting forth the facts and the Issues of these cases. It does not appear that this practice has resulted in prejudice to any of the parties. Nevertheless, we do not believe that an Intermediate Report which recites and adopts to this unusual extent the allegations of the adversaries in this pro- ceeding Is a desirable exercise of the Trial Examiner's function to provide the Board with his own recitation of the facts and the reasons for his recommended findings 140 NLRB No. 26. LITTLE ROCK HARDBOARD COMPANY 265 At the time the four individuals (Whitfield, Scroggins, Cox, and Halbert) whose supervisory status is in dispute became shift leaders, the Respondents had approximately 43 pro.hlction employees, who worked on 4 shifts in a continuous 24-hour operation. Curtis and Henderson, the plant manager and product Toll foreman respectively, were in general charge of plant operations, and they alone hired and discharged employees. This siu ie situation prevailed when Pierce replaced Curtis. During both periods, Henderson admittedly had little direct connection with the employees regarding the work, and Pierce had none at all. It was through the shift leaders that Pierce and Henderson maintained supervision over the employees. The shift leaders were responsible not only for transmitting work orders, but also for seeing to it that these orders were carried out. They also reported to Pierce or Henderson on the quality of work turned out by employees as well as on their general ability. Moreover, as Pierce testified, he and Henderson were not at the plant at all times and, in their absence, the shift leaders were in charge of production. In addition, the shift leaders were paid at a higher rate than the pro- duction employees,2 shifted employees from one job to another, and, on, occasion, disciplined employees. There is evidence, moreover, that the shift leaders had authority to, and did, effectively recommend hire and discharge. Thus, Shelton and Charles, laid-off employees, were not rehired because of unfavor- able work reports by shift leaders, and Griffin's discharge was de- layed until several days after Henderson had first decided to dis- charge him only because, as stated in the Intermediate Report, "Whitfield had talked him into giving Griffin another chance." The Respondents, in fact, admit that they consulted the shift leaders about which employees to recall after the layoff period. Although the Re- spondents maintain that they likewise consulted some of the senior employees, there is no evidence that the recommendations of these employees were effective recommendations. The Trial Examiner, in concluding that the shift leaders were not supervisors, gave considerable weight to shift leader \Vhitfield's testi- mony that Curtis originally designated the men in question as "super- visors," that Curtis later changed this designation to "shift leaders," and that, while some of them still carried on as supervisors and even though he called himself a supervisor, "still we didn't have the authority of a supervisor." While the Trial Examiner found Whitfield to be "a sincere, credible, and intelligent witness," Whitfield was not qualified to make a legal determination as to statutory supervisory status. We note, moreover, that the Trial Examiner did not refer to Whitfield's explanatory statement that he, Whitfield, did not consider 2 The statement in the Intermediate Report that shift leaders were paid in some cases less than other rank-and-file employees is not supported by the record. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anyone to be a supervisor if "all he can do is recommend." The Inter- mediate Report also states, as evidence that the shift leaders did not have supervisory status, that it was stipulated at the hearing in the representation case, by both the Union and the Respondents, that shift leaders were rank-and-file employees entitled to vote in the election. The fact is, however, that the Union in that case challenged the ballots of the shift leaders on the ground that they were supervisors, and the Regional Director has not ruled on that issue pending a determination by the Board in this proceeding. The Trial Examiner also gave weight, in this matter, to the fact that the shift leaders were "young men in their early twenties." As established in the record, however, Henderson, who had started out as a rank-and-file employee only a year before he became plant foreman, was only 24 years old. In view of the foregoing, including the abnormally high ratio of employees to supervisors that would exist if the shift leaders were found not to be supervisors, leaving Henderson the only supervisor; the fact that the shift leaders direct the work on different shifts, and are in charge of production when Pierce and Henderson are absent; and their authority effectively to recommend hire and discharge, we find that the shift leaders are supervisors within the meaning of the Act.' 2. Because the Trial Examiner concluded that the shift leaders were not supervisors, he made no specific findings as to whether they had engaged in the conduct alleged to be unlawful. On the basis of un- controverted evidence in the record, we find that shift leader Whit- field stated to employees that talk about unions could cause discharge; that Pierce had discharged a number of employees because of the Union's petition ; that anyone connected with Union was a "crazy s.o.b."; and that the Union had "messed up" the employees and had caused them to be deprived of a wage increase. We further find that by this conduct the Respondents interfered with, restrained, and coerced their employees in violation of Section 8 (a) (1) of the Act. We find that the Respondents further violated Section 8(a) (1) by Plant Manager Pierce's admitted remarks at a meeting of the em- ployees on January 17, 1962, that the Union's petition was one of the causes of the layoffs, and his statement on April 2, as established by uncontroverted testimony, that the Union would cause a strike because the Respondents would never negotiate with it. Accordingly, we do not agree with the Trial Examiner's finding that Pierce's interroga- tion of Griffin about his union attitude was not a violation of the Act on the ground, among others, that there was no "pattern of unfair practices." We also do not agree with the Trial Examiner's findings s Monarch Rubber Company, Inc., 129 NLRB 482, 483; The Illinois Canning Co, 120 NLRB 669, 674; Northrup Aircraft, Inc, 120 NLRB 227; General Telephone Company of Michigan, 112 NLRB 46, 48-50; Coastal Plywood & Timber Company, 102 NLRB 300. LITTLE ROCK HARDBOARD COMPANY 267 that Foreman Henderson"-, interrogation of Charles as to what Charles knew about the Union did not constitute a Section 8(a) (1) violation because the conversation was "just as one friend to another one," and that even if this were a "technical violation" it was isolated 4 Accord- ingly, we find that by Pierce's interrogation of Griffin and by Hender- son's interrogation of Charles, the Respondents further violated Sec- tion 8 (a) (1) of the Act. 3. The Trial Examiner concluded that the Respondents did not violate Section 8(a) (3) and (1) of the Act by their layoff of em- ployees on January 17, 1962, their failure subsequently to recall four of these laid-off employees, and their discharge of employee Griffin on April 3. While the Trial Examiner's findings on these issues are not free from doubt, we are unable to conclude on this record that the General Counsel has established the alleged violations of Section 8(a) (3) by a preponderance of the credible evidence. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in connection with their operations as set forth in the Intermediate Report, 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. REMEDY Having found that the Respondent engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action Which we find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in these cases, the Board makes the following: CONCLUSIONS OF LAW 1. Little Rock Hardboard Company and Superwood Corporation of Duluth, North Little Rock, Arkansas, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening their employees with layoff, discharge, and other economic loss for union adherence, and by interrogating them about their union sentiments and activities in a manner constituting inter- See Wendt Sorts Company, 138 NLRB 855 ; Southern Coach & Body !10 , Inc, 135 NLRB 1240. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference, restraint, and coercion, the Respondents have violated Sec- tion 8(a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Little Rock Hardboard Company and Superwood Corporation of Duluth, North Little Rock, Arkansas, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening their employees with layoff, discharge, and other economic loss for union adherence, and interrogating them about their union sentiments and activities in a manner constituting interference, restraint, and coercion, in violation of Section 8 (a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Interna- tional Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at their plant in North Little Rock, Arkansas, copies of the notice attached hereto marked "Appendix." 5 Copies of said no- tice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by the Respondents' representa- tives, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " LITTLE ROCK HARDBOARD COMPANY 269 IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondents violated the Act by conduct other than that found to be violative herein, be, and it hereby is, dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT threaten our employees with layoff, discharge, and other economic loss for union adherence, or interrogate them about their union sentiments and activities in a manner consti- tuting interference, restraint, and coercion. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all such activities. LITTLE ROCK HARDBOARD COMPANY, SUPERWOOD CORPORATION OF DULUTH, Employers. Dated---------------- By------------------------------------- (Representative ) (Title) 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. Employees may communicate directly with the Board's Regional Offices, 22 North Front Street, Memphis, Tennessee, Telephone No. Keystone 4-4151, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by the International Brotherhood of Pulp , Sulphite and Paper Mill Workers, AFL-CIO, the General Counsel of the National Labor Re- lations Board, by the Regional Director for the Twenty-sixth Region (Memphis, Tennessee), issued his consolidated complaint dated March 9, 1962, against Little Rock Hardboard Company and Superwood Corporation of Duluth (herein called the Respondents-"Hardboard" and "Superboard"). In substance the complaint alleges that Respondents had engaged in and were engaging in conduct proscribed by Section 8(a)(1) and (3) of the National Labor Relations Act (herein called the Act). and that such conduct affected and was affecting commerce as set forth in 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 2(6) and (7) of the Act. Respondents' answer admits some of the facts pleaded in the complaint, but denies the commission of any unfair labor practices by Superboard. Pursuant to appropriate notice, a hearing was held before me at Little Rock, Arkansas, on April 17, 1962. All parties were represented at and participated in the hearing, and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral argument, and to file briefs. Briefs have been received from the General Counsel and Respondent Superwood. Upon the entire record in this case, including the admissions in the answer and the stipulations of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondent Hardboard is now, and has been at all times material herein, an Arkansas corporation with its office and principal place of business located in North Little Rock, Arkansas, where it is engaged in the manufacture of building board- During the past 12 months, Respondent Hardboard sold and shipped finished prod- ucts valued in excess of $50,000 directly to points outside the State of Arkansas. Respondent Super-wood is now, and has been at all times material herein, a Minne- sota corporation with its office and principal place of business in Duluth, Minnesota, where it is engaged in the manufacture of building board. During the past 12 months, Respondent Superwood sold and shipped finished products valued in ex- cess of $50,000 directly to points outside the State of Minnesota. At all times material herein, and continuing to date, the Respondent Hardboard has been, and is now, the owner of the plant located in North Little Rock, Arkansas. At some time prior to January 8, 1962, the exact date being unknown, Respondent Hard- board entered into negotiations for the sale of the North Little Rock plant to M. S. Opsahl, trustee for Respondent Superwood. Pursuant to, or as part of, the negotia- tions for the sale of Respondent Hardboard's North Little Rock plant to Respondent Superwood, and since on or about January 8, 1962, Respondent Hardboard has ceased operation of the plant, and operation and management of the plant have been undertaken by Respondent Superwood. Since on or about January 8, 1962, Respondent Superwood has operated the North Little Rock plant and has been en- gaged in substantially the same business operations formerly engaged in by Re- spondent Hardboard and has employed substantially the same employees and super- visors as had been employed by Respondent Hardboard. Respondent Hardboard' and Respondent Superwood, and each of them, are now, and all times material herein have been, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, is now, and has been at all times material herein, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background The opening statements of respective counsel to the Trial Examiner will best serve to orient the reader to the facts and issues in this unusual case. Counsel for the General Counsel Langley stated: Now, Mr. Examiner, I would like to point out General Counsel' s position as to these combined cases; first of all, I might mention all three cases are . . really involves the same matter, as you will surmise from the fact they are consolidated. Respondent, Little Rock Hardboard Company, which is men- tioned in the complaint, sometime toward the end of 1961 apparently entered into a series of negotiations with the idea of culminating in an agreement of sale of the assets of Little Rock Hardboard to the Superwood Corporation of Duluth. At the present time as far as General Counsel has been able to as- certain there has been no finalized sale of these assets, and shows, of course, reasons for the joinder of both parties in the complaint. We may develop that further in the course of the hearing. On or about January 6th, of 1962, Super- wood Corporation of Duluth through Mr. Donald V. Pierce, an employee of that company, assumed control of the operation of the plant which was for- merly operated by Little Rock Hardboard Company here in North Little Rock, LITTLE ROCK HARDBOARD COMPANY 271 Arkansas. As a result of that, there was a layoff of some employees and production was curtailed at the plant at that time. On or about January 15, the Union involved herein, the Pulp and Sulphite Workers filed a petition for election at this plant among the employees in the appropriate unit, and this petition was served upon the employer on or about January 17, and on that same date a remaining ten (10) union employees were laid off by either Little Rock Hardboard or Superwood Corporation of Duluth, depending on whom was in control. General Counsel's contentions were that the layoffs were a direct result of the filing of the petition and serving of it upon the employer on that date, in addition to that certain acts of interrogation re- sulted on that same date, it being contention of General Counsel these were prompted by the receipt that morning by the petitions which were sent to the employer by the National Labor Relations Board. Since that date there have been other acts of coercion, interrogation, surveillance and threats which Gen- eral Counsel contends were the direct outgrowth of the petition. Additionally, one other employee, which is the subject Joe Griffin, in 26-CA-1259 was laid off about April 3, 1962, again it being the contention of General Counsel that his layoff was as a result of his union activity or activities on behalf of the Union. At the present time, as you will note in the complaint, some of the employees who were laid off January 17 have been recalled. As of the present time 4 of the 10 additional employees have not been recalled and they are the ones alleged in the complaint that have not been recalled, again it being the contention of General Counsel they were not recalled due to union activities. Just to bring the record up to date also I have herein the petition in the "R" case, of which I am sure the Trial Examiner will take judicial notice of election held April 4, it was held insufficient due to challenges by the supervisor' s complaints are in laid-off category. [Sic.] Respondent Counsel Sutton gave his version as follows: It is the contention of Respondent Super-wood during 1961 there were negotia- tions between Little Rock Hardboard and Superwood Corporation of Duluth for the sale of the assets of the business formerly operated by Little Rock Hard- board Company, that sale has not been consummated as yet, but pursuant to an agreement between the parties of the plant was taken over by Superwood and operated on a more or less trial basis during the month of January 1962. There are still many factors which have not been settled between Little Rock Hard- board and Superwood. Ultimately either Little Rock Hardboard or Superwood will end up running or owning the plant, but as to which it has not been de- termined as of yet. Now, when the Respondent Superwood took over the management of the plant in January 1962, Mr. Donald Pierce was sent down by Superwood to be the new plant manager as he had considerable experience with the Respondent Superwood at other plants in Minnesota and upon his and some other Superwood employees' surveying of the plant it was determined upon the first day I believe that they were at the plant that the plant could not be operated profitably upon the basis that it was being operated. The plant has never been operated properly and it was their decision that a great many factors had to be corrected, probably the most important of which was a complete overhaul of the equipment that was then there. On January 6, some eleven (11) days before the petition for election was ever filed this decision was made to shut down the plant for an extended period of maintenance until it could be determined just how bad a shape the thing was in. On January 17, the control passed under the name of the Respondent Super- wood for this maintenance period and again before any petition for election was filed decision was made to lay off all production employees until the plant could be revitalized by reworking its machines. Now, the employees which were kept during that period were those which it was felt would be most beneficial in the maintenance period, the reworking of the machines. The employees were in- structed as to the reasons for this temporary layoff and were told that if .. . and I might say at this time it was not known by Superwood whether production would be begun again, they thought they could, but the premises was in such poor condition, this was unknown at this time, but the production employees were told that they would be recalled when and if needed and as soon as pos- sible after the January 17 layoff. Now, there was a period of several weeks where nothing was done in the plant except reworking the machinery that they had out there, trying to get it to where they could make saleable board. Certain employees filed unfair labor practices through the Union in this case and in spite of the fact that they had filed charges and their names were known by the Company as filing the charges they were brought back without any con- 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sideration given to their participation by the Union against the Company, they were brought back when and if needed and replaced in their old jobs when production went back into effect, or actually beforehand , but I might point out that the Respondent, Little Rock Hardboard Company , had operated four shifts, 7 days a week. It has never been the intention of Superwood to operate more than three shifts 5 days a week , and that is all they have ever done, so their force has been reduced from 42 down to around 26, or , correction, rather 37 in the Union down to 26, so someone had to remain laid off. It is our position that these employees were considered carefully, brought back on their qualifi- cations and as needed , of course, with the understanding somebody was going to be left out. We left out the ones that we felt like were of less benefit to the Company and we have our reason for that which we will be happy to state to the Examiner. Now, as to the interrogation we take the position no improper interrogation was done. Mr. Pierce at the union election made a speech to the group of em- ployees, he sent out mailing materials to the employees which we contend was stating his position on the Union . He never requested any of the shift leaders whatever to interrogate or gather information about the Union, and we take the position that no employee has been discriminated against or coerced on account of his union activities The Questions Both General Counsel and Respondent Counsel agree that there are five issues to be resolved in this case. They differ only in language used to spell out their syl- logisms. However, these questions can be reduced to two propositions : ( 1) Did supervisors interrogate and threaten employees in violation of Section 8(a)(1) of the Act? and (2 ) Did management discriminatorily lay off nine rank -and-file em- ployees on January 17 and discharge Joe Griffin on April 3 in violation of Section 8(a)(3)? Supervisors Under the Act The employees alleged as being supervisors within the meaning of Section 2(11) of the Act are General Manager Pierce, Plant Manager Henderson, and shift leaders Jasper N. Whitfield and Willie B. Scroggins The first two, Pierce and Henderson, obviously, and by stipulation, are supervisors within the meaning of the Act. Sec- tion 2 (11) of the Act reads as follows: The term "supervisor" means any individual having authority, in the in- terest of the employer, to hire, transfer, suspend, lay off, recall , promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment The legal yardstick which is controlling in this case is set down in language in N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F. 2d 235 (C.A. 4). The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title. It is a question of fact in every case as to whether the individual is merely a superior workman or lead man who exercises the control of a skilled worker over less capable employees, or is a supervisor who shares the power of management. General Counsel Langley and Respondent Counsel Sutton deal at considerable length in their briefs with this question. The Trial Examiner is in accord with Re- spondent counsel's presentation. The evidence of record does not sustain General Counsel's contention that Whitfield and Scroggins were supervisors. It is obvious that they were only more responsible workmen who had no direct responsibility or author- ity other than that of a "straw boss." Certainly after Superwood Manager Pierce took over they had no authority to hire and fire, to transfer from job to job or opera- tion to operation, nor to discipline employees. Whitfield, a sincere, credible, and intelligent witness properly explained the origin of the term "supervisors" in the following language: The way this "supervisor" got started was February 15, 1961. Mr. Curtis first started calling us "supervisors " before the plant ever went into production, but as soon as it went into production, well, he changed it to "shift leaders," but some of us, some of them still carry on as a "supervisor" . Even though I called myself a supervisor, still we didn't have the authority of a supervisor. [Emphasis supplied.] LITTLE ROCK HARDBOARD COMPANY 273 That these employees did not have supervisory status is further borne out by the fact that it was stipulated at the election hearing by both the Union and Employer that "shift leaders" were rank-and-file employees and, as such, entitled to vote in the election. Also, one of the shift leaders was most active in securing signatures on the union cards. The evidence of record does not indicate that these "shift leaders," young men in their early twenties, were more than "straw bosses" under former Manager Curtis and Plant Manager Henderson. Certainly they had no more, if not less, authority under new Manager Pierce. Pierce did, however, avail himself of their knowledge of their fellow employees-as he did of everyone in selecting his final crew when he reduced the force from 37 to 27 and changed the operation from a 4-shift 7-day week to a 3-shift 5-day week. Any new superintendent would do the same in setting up a new organization. The very operation itself of this plant was only a series of simple mechanical steps in which logs were fed into a chopper, the resulting chips conveyed to a storage hopper, and thence gravity-fed into a chemical treatment vat which emulsified the wood fibers . The resulting wood slurry then flowed into hot steam presses and came out as hard board. This resulting product required only to be sawed and stacked for shipping. The Trial Examiner came to the conclusion on the basis of the evidence of record and from his inspection of the plant that the so-called shift leaders had none of the necessary supervisory indicia. They were paid by the hour-in some cases higher and in other instances lower than other employees-and all did the same kind of produc- tion work. Accordingly, any alleged 8(a)(1) violations on their part could not be imputed either to Hardboard or Superwood. Therefore, it will be recommended that the allegations as to Whitfield and Scroggins be dismissed as being mere personal expressions of opinion as rank-and-file employees. Not only is there no evidence that Whitfield's and Scroggins' alleged antiunion conversations with fellow employees allegedly containing threats or illegal interrogation were prompted by management, but according to Whitfield, company officials were entirely unaware of any such con- versations. Likewise, with reference to the complaint's allegation of surveillance by Whitfield, the same rule applies: he was not a supervisor. Thus, the resolution of the question as to whether he attended the union meeting on the invitation of fellow employee Charles, or attended as an unwelcome supervisor, is not necessary. Never- theless, I find that Whitfield attended the meeting at Charles' suggestion, and was asked to leave because he was not in favor of organizing, and he left forthwith. Uncertainty of Little Rock Operation As General Counsel Langley prefaced his opening statement, there hitherto had been no finalized sale of the assets during the Board's investigation or at the time of the hearing, nor at the end of the hearing had he developed anything further, and as late as June of this year when the briefs were filed, no decision had been reached as to whether the plant would be operated in Little Rock, or elsewhere, or not at all. Or by whom. As a matter of fact when, on January 6, Mr. Pierce came from Duluth, accompanied by three Superwood officials, to look over the operation of Hardboard's sick plant is was probably not Superwood's original intention to operate this plant at all. Pierce testified "that our hope was that we wouldn't, that I wouldn't be operating it." Like several other unclear things in this case is the trusteeship of "Morris Opsahi, acting as trustee for Respondent Superwood Corp., of Duluth." Whether Superwood had an equitable interest in Hardboard apparently is unnecessary to the resolution of the allegations of the case in main, but the relationships do have a bearing on the motivation which activated Respondents, particularly Superwood. The uncertainty of the continuance or discontinuance of the Little Rock operation is best illustrated by Pierce's answer to General Counsel's query, "I believe you stated that you had made the statement something to the effect that the plant might be moved to Greece or something to that effect." Pierce replied that he made the statement on January 17 when he was talking to all of the hourly men in the plant as a group: If we were [moving] we would not know until we could get it back into repair, get it in operating condition. First, we did not know how this fiber from this particular wood would react to the process, whether we could make a good board with the wood that was here, it had never been proven before, and we had to get back into position to do that before we could determine whether we could make a good board or not. We still haven't reached that decision. If it could not be done, there would certainly be no point in trying to produce the board if you can't get a decent price for it, if you can't market it. We would move the machinery out. We are putting in a plant in a little town-we are putting a plant identical to this in Greece and it will be shipped out of here, out 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the United States this fall, the site is being prepared over there now. That is why we are trying to get this in production , get the quality up to see if we can make respectable board. Immediately upon inspecting the facilities and operations on January 6, Plant Manager Pierce, as his first official act, closed down the production line and ordered the layoff of half of the employees . The remainder of his crew he used in repair and maintenance work or in shipping out the inventory on hand. Pierce's order to stop production, after observing the operation , was directed to the demoted former manager, Curtis, and was executed by him . Curtis advised the workers of Pierce's decision in a group meeting, and Pierce had little or no further contact with them until he called them together on January 17 to announce a further layoff. The January 17 Layoff The burden of the Union's charges and General Counsel 's plea is that the layoff of January 17 of 10 employees was discriminatorily motivated because these em- ployees joined or assisted the Union or engaged in other and concerted activity for the purpose of collective bargaining or other aid or protection ; and when employees were recalled , Tom Newman, Carroll Cash, Harold Charles, and Dan Shelton were not included because of their union activity . As heretofore recited employees Harold Charles and Richard Holden procured authorization cards from a representative of the International Brotherhood of Pulp , Sulphite and Paper Mill Workers , AFL-CIO, around the middle of December and by January 15 the Union had received a sufficient number of cards to file a petition for an election among the production and maintenance employees . A copy of the petition sent by the Memphis Regional Director was received by Acting Manager Curtis who picked it up at the post office on January 17. Curtis immediately turned over the letter and petition to Pierce. Pierce next called a meeting of all the men, explained his situation, and laid off 10 employees, 7 of whom he subsequently recalled within 2 weeks. Key to This Case The key to this case is the personal interest of each individual involved or con- cerned. One of the unusual features of this case is the comparative lack of motive of the principal figure involved in the alleged discriminatory discharges and refusals to reinstate, Plant Manager Pierce. He is the one man who had nothing to lose or to gain by cherishing selfish motives or harboring untoward feelings. He, accom- panied by his Duluth associates , had been sent to Lit tle Rock to endeavor to put in operation a rundown , chronically unprofitable , overstaffed pulpboard plant which had been haphazardly run and was producing an inferior product. He did not know whether it would continue to function in Little Rock or be shipped to Greece. In any event, he hoped that "I wouldn't be operating it." He was the sole man who could be completely objective-and he was. (This situation rarely exists in an unfair labor practice case.) Every other person connected possibly and reasonably had a selfish interest in the plant 's continuing operation in Little Rock. Pierce's version of the layoff , which the Trial Examiner accepts, gave his reasons for its occurrence as follows: As each day progressed we had another representative from our Minnesota plant in Duluth . . . who was performing duties as plant superintendent, you might say, temporarily, so we could find all our troubles . Each day there showed up a few more of them and it was so complicated we had too many men running around, there was nobody to supervise them we had . In the meantime on January 9th, 10th and 11th, the plant froze up, we shut off the gas , we were unable to keep it from freezing . It just seemed like everything was going from bad to worse every day instead of for the better , so on the 17th we just realized that we had too many men working who were not properly supervised, we had to start back. By that time the water [froze] we had to do something about the water while we worked on the boiler , and we had started back into the production line and come right down through it. Q. You could not supervise that many men in maintenance work, is that correct? A. No, there was not that many familiar with the plant to do it themselves, and we did not have enough men to supervise them. Q. Mr. Pierce, was it your decision to cut back your force on January 17th or before January 17th, or after or when? [Emphasis supplied ] LITTLE ROCK HARDBOARD COMPANY 275 A. As I recall, it was the 17th, but we had been talking about it several days. Each day it was getting more complicated. Q. All right. Do you recall whether it was before or after the petition for election was received? A. It was after the petition was received. Q. Did the petition for election prompt your action in that regard in any way? A. It had no bearing on it. Q. Who was retained after January the 17th? A. Those that we felt were best qualified and had the needed experience with the plant. Q. All right. Were there any production employees retained? A. There were. There were production employees with Little Rock Hard- board that we used them to carry on repairs and maintenance. Q. Well, let me ask you this: Is it not correct that your plant foreman, your- self and office clerical and some employees in the shipping department and your four shift leaders were the only ones perhaps the only ones retained? A. Were not the only ones? Q. Were they not the only ones retained? A. I believe that is not correct, yes, sir. Q. Now, how long did this period of maintenance last? A. Well, it continued well on into February. Q. All right. For a period of over a month then you had no production at all? A. That is right. Q When did you begin to take employees back, production employees? A. Well, I believe our payroll shows that we started taking them back even in January, after January the 17th, the 24th I believe we had taken on some, and there were various dates there that we were taking on more. Q. All right, sir. Were any of your plant lay-offs January 6th or 17th, or [employees] recalled thereafter effected in any way by Union activity? A. No. Q. Did you know of the Union activity when you made the shutdown the first time? A. No, I had no idea of it. Q. That was your first day on the job, was it not? A. That is right. Q. Now, you have been operating with new management as far as yourself is concerned and the people above you since January the 17th, have you not? A. Yes. Q. Up until January the 17th you mentioned awhile ago that the employees were paid by Superwood, I will ask you if they were not paid up until that time by Little Rock Hardboard? A. Yes, Little Rock Hardboard payroll checks. Q. All right. Who laid them off on January the 17th, Superwood or Little Rock Hardboard9 A. Superwood. Q. All right, sir. You had operated up until that time under the name of Little Rock Hardboard, had you not? A. That is correct. Q. Now, as to this product that you are producing do you not intend to pro- duce a No. I board which will attract a different type customer from that which you are now selling? A. ; hat is a different type and it could be the same customer, but what we will call it a No. 1 board. Q. Now, awhile ago you mentioned that you were not in 100% production, and I will ask you if time-wise you are in production as much as you anticipate being? A. Yes, that is true. Q. When you say you are not in production 100% you have reference to the shut-downs, etc. you are still experiencing? A. Yes. That is right. Q. Do you ever intend to operate more than three shifts five days a week? A. That is not our intention. Q. Do you feel like that is economically feasible? A. Yes, it is. 681-492-63-vol. 140-19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And you make for efficiency as far as your experience is concerned? A. That is right. Q. What was the criteria for recalling men or hiring new employees by Superwood after January the 17th? A. Well, it was based on the best of my ability to determine if they were qualified, the former Little Rock Hardboard employees, and some consideration had to be given to their . . . How much time they had been with the Company and if they qualified for the job that we had for them, they were hired under the conditions of a sixty day probationary period to see if they could qualify for the job that we had in mind for them. Q. Now, you had knowledge, did you not, that James Sinkley, William Green, Jesse Rogers, Odelle Cole, Lavon Woodwall, John Spear, Robert Moon, Tom Newman, had all filed unfair labor practices charges through the Union, did you not? A. I had received that. Q. Were all these employees asked to come back in spite of this information? A. Did they what? Q. Were all of these employees asked to come back? A. Yes, at one time or another. They were either . . . had already come back or at a later date they were. Q. This decision was made by you in spite of the fact that you had this knowledge through their petition that they had filed? A. That is right. Q. Did the Union charges have anything to do with whether these were called back or not? A. (There was no audible answer from the witness.) Q. Did you recall these employees as soon as you felt like it was feasible, you had something for them to do? A. As soon as we needed them. Dismissal of 8(a)(3) Allegations Manager Pierce impressed the Trial Examiner as a sincere and honest and straight- forward witness. His sole concern was to get the plant in as efficient operation as possible, and to produce a satisfactory, saleable board. As to where and by whom the plant would continue to be operated was not his responsibility. Whether the plant would be union or nonunion, Pierce's formula for recalling the laid-off men was to choose the best qualified on the basis of such information as he had. He explained that he "spent a lot of time talking to Mr. Henderson and the leadmen and those that have been there longer, and worked with the fellows, any of those we could find that worked with them." That the temporary layoff was necessary and not motivated by union animus is sustained by the evidence of record. The reasons for failure to recall Dan Shelton, Harold Charles, Carroll Cash, and Tom Newman were all proper exercise of prerogative of management-absent discriminatory antiunion motives. Other than 20 names listed in the union charge, there is no evidence that Pierce was aware of individual union activities of any or all of his employees, including Shelton, Charles, and Cash. In discharging Shelton, Pierce retained Nelson Markley as the sole maintenance mechanic because Markley was the best qualified and had been with the Company longer. The record is clear that Shelton was an inept mechanic on this job. Charles had a reputation as being one who would not follow instructions, quit his operation when he had produced 40 pressloads of board on 1 shift, would leave his shift before his replacement had shown up to relieve him, and was so unfavorably regarded by the shift leaders that 2 or 3 of them threatened to quit if he were recalled. The Trial Examiner came to the conclusion that Charles was as unreliable as a worker as he was as a witness. Carroll Cash was not recalled because Pierce classified him as an undesirable employee. Cash was said to have been in jail at the time of recalling employees, had a known criminal record, and, according to the ac- cepted testimony of Mrs. Mitchell, secretary, came into the plant on February 2 in an intoxicated condition and used foul and abusive language to her and threatened salesman Sanders. It was stipulated that Tom Newman was offered reinstatement, but refused it Accordingly, it will be recommended that the 8(a)(3) allegations in the complaint be dismissed as to the 10 above-named employees allegedly ter- minated on January 17, and the refusal to reinstate the last 4, Cash, Charles, Shelton, and Newman. LITTLE ROCK HARDBOARD COMPANY 277 Discharge of Joe T. Griffin The discharge of Joe T. Griffin presents the most difficult aspect of this case. Be- cause General Counsel Langley and Respondent Counsel Sutton have so concisely set forth their respective but conflicting contentions in their voluminous briefs the Trial Examiner will set them forth as written. According to General Counsel the evidence clearly establishes that the layoff of Joe Griffin on April 3, 1962, was the direct result of his union activities: The facts in the case of Joe Griffin are equally clear in establishing the real reason for his layoff on April 3, 1962. It has been shown that Griffin was asked about his Union feelings when he was originally interviewed by Pierce for the job. After expressing his feeling as being with the Company against the Union, he was hired. Thereafter, he changed his mind, joined with the Union, and attended a meeting at which he was seen by Whitfield, a supervisor of the Re- spondent. The next day, he attended a meeting of the employees, at which a speech was made by Pierce concerning the coming election the next day. Dur- ing this meeting, he made his changed feeling known to Pierce by his comments to him, if in fact these feelings were not already known by his attendance at the meeting the previous night. The next day, he received word that he was being laid off by the Respondent Superwood. The supposed reason for this layoff was that he had left his station, and had let a vat run over half full with water. The Respondent spent a great deal of time advancing various aspects of Griffin's performance which it claimed were substandard; however, it should be noted that in spite of this alleged substandard performance by Griffin, he was retained, and in fact given various opportunities to train in several different jobs. It was not until such time as his feelings regarding the Union became known to Respondent Superwood that any question of his work performance was raised. General Counsel submits that the evidence clearly indicates that the layoff of Griffin was motivated by the discovery of his prounion feelings, and additionally as a final thrust on the part of Respondent Superwood to defeat the Union in the election on the following day, by demonstrating that it could and would terminate anyone who was outspoken in favor of the Union. It is therefore respectfully submitted that the Trial Examiner should find that the layoff and subsequent refusal to recall Joe Griffin was in violation of Section 8(a)(3) of the Act, and enter an appropriate order providing for his rein- statement. Respondent counsel contends that the evidence fails to establish that the layoff of Joe Griffin was the result of his union activities: Joe Griffin was hired on February 19, 1962, on a 60-day probationary basis. This was understood by Mr. Griffin as he admitted on cross-examination. Al- though he had been given an opportunity to try out at three different jobs in the plant, it is alleged by General Counsel that his discharge on April 3 was based upon Union activity. We feel that it is necessary to point out only one factor in refuting this charge. By his own statement, Mr. Griffin infers that he led Pierce to believe that he was antiunion on the day that he was hired. He states that he remained more or less against the Union until he was visited at his home by Union representatives on March 31. However, the evidence clearly reflects that 10 days beforehand, he had been sent a letter of warning by Mr. Henderson stating that he was not properly doing his job. He was laid off 2 weeks later for exactly the same reasons that had been set out in the letter. Mr. Henderson, the man who laid Griffin off, explains in detail why Griffin was laid off on pages 165-167 of the transcript. Henderson had already made up his mind to fire Griffin several days before he was in fact fired and changed his mind only after Mr. Whitfield had talked him into giving Griffin another chance. Griffin admitted himself that he could not do all of the duties that he was expected to do. We submit that the General Counsel has failed to establish that Joe Griffin was fired for Union activity but that the evidence clearly reflects that he was discharged before his probationary period expired for the reason that he had failed to qualify in a single one of the three job opportunities that he was given. Certainly, Pierce, with the advice of legal counsel, would not have discharged Griffin on the day before the election if his discharge had not been prompted solely for reasons other than Union activity. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standing alone and taken literally, either of the above versions by counsel would be determinative of Griffin's discharge. However, there are underlying factors which bear on the motivation and are not evident from a reading of the cold, literal testi- mony appearing, on this point, in the record. The character and the states of mind of the persons involved are controlling. Pierce's attitude has heretofore been de- scribed. He was primarily and solely interested in getting this plant into efficient operation but was not concerned about its continued operation in Little Rock. Henderson had the same desire of efficient operation, but in Little Rock because his job depended on that. Henderson was a young man of 24 who had started out as a rank-and-file employee only a year before. Originally employed as control operator and working at "just a little bit of everything until October when Mr. Barry left," he became production foreman in charge of the production line and quality control until he was "held responsible for the rest of the plant too." This particular responsibility entailed operation of the two most expensive machines in the plant, defibrator and refiner, valued in excess of $100,000. Someone was required to be in constant attendance when the machines were in operation. Henderson had received his last promotion when Superwood took over. Hender- son was a sincere and forthright witness and the Trial Examiner was convinced that he was motivated solely by the necessity to make good in fulfilling his responsibilities or suffer discharge at the hand of Pierce. That he took his responsibility seriously is evidenced by the fact that shortly after Griffin's assignment as defibrator operator Henderson personally wrote Griffin a formal warning, stating: You ran the defibrator chest full of fiber yesterday, 3-20-62 after your shift leader, Jack Whitfield told you to run the Vat not over half full. You also left your station for fifteen minutes without telling your shift leader. This must not happen again. To do so, will be cause for termination. ---------------------------------------- (I ARoLD HENDEaso*r, Plant Manager) This is 10 days before there was any evidence that Griffin had become pro- union, and before Griffin had been importuned on March 31 by two union of- ficials to change his sentiments from the company to the union cause. It will be noted that Henderson personally directed Griffin's discharge, in which Pierce concurred. This plant previously may have been a haphazardly run operation, but it was the only available one and supplied their jobs. This is illustrated by elderly Whitfield's remark to a fellow employee that this was the only job he had and the only work he could do. With the Trial Examiner, Griffin made the im- pression of being a somewhat flighty person if not an unstable employee. Under the compulsion that Henderson was working, Griffin would not have lasted long- Union or no Union. That he was a "pop-off" is shown by his taking issue with Pierce over the construction of union contract regulations in a meeting in which he was the newest employee-and probably the least informed. Henderson recom- mended his discharge for cause and Pierce effected it. The Trial Examiner finds that union animus did not enter into the decision to discharge Griffin as is required to be established by a preponderance of the evidence of record, and it will be recom- mended that that allegation be dismissed. The 8(a)(1) Allegations The allegation of interrogation of employees by supervisors has heretofore been dealt with in the cases of Whitfield and Scroggins and they were found not to have been supervisors, therefore management was not accountable for their alleged anti- union activities. There remains one instance charged to Superintendent Pierce that he interrogated Griffin at the time of employment by asking what his feelings were about unions. Griffin's testimony in this connection was: Well, during the interview Mr. Pierce asked me what I thought about a Union, and I told him I hadn't had any experience with one, and had never worked with one, then he explained to me that a bill . . . a petition was before the Board, he didn't say what Board and 4 didn't know that they were trying to get a Union in the plant, and then he asked me what I done . what I thought about it. Well, I said, I worked with the Company, for the Company and not against it. General Counsel argued that this testimony stands uncontradicted in the record, and therefore clearly shows that this witness was interrogated concerning his union feelings prior to his being hired by Respondent Superwood. Respondent counsel argued that the general rule as established by many cases is to the effect that inquiring of applicants for employment as to their feelings about a union is not LITTLE ROCK HARDBOARD COMPANY 279 unlawful in itself, and that other evidence must be introduced to show a pattern of unfair practices or discriminatory use of the information received (citing cases). With this latter view, under the facts of this case, the Trial Examiner is in accord. As a matter of fact, it is inconceivable to this Trial Examiner that a superintendent of Pierce's experience would have laid himself open to a charge of an implicit violation of the Act at this time of organizing activity-certainly not after having received the Board's petition, and presumably was acting on advice of competent counsel. The Trial Examiner is convinced, as is more likely, that when Griffin applied for a job his qualifications were inquired into, among which was whether or not he was a member of a union rather than what he thought about the Union. And when advised by Griffin that he had not had any experience with any union, Pierce very likely alerted him to the fact that a petition for an election had been filed by the Union and was a matter of controversy here. In any event, I do not find this interrogation actionable here. Accordingly I recommend that this count in the complaint be dismissed. General Counsel stated: [T]he testimony of Harold Charles was that on the morning of January 17, 1962, the same morning that the petition arrived in the mail, he was approached by Harold Henderson, plant foreman, and was asked what he knew about the Union, his testimony in this regard being as follows: Well, he asked me about what I knew about the Union, I told him that I could tell him a lot but that I wouldn't, I didn't want him or employees either one mad at me, I didn't want, you know, didn't want to have him, well either one of them mad at me about it. Henderson's testimony in this action was: "It was just like he said, I asked him and he declined to answer but I also told him it was just as one friend to another, and not as the company trying to find out." General Counsel stated that the Board has held that a supervisor may not divest himself of his supervisory status in a con- versation with an ordinary employee merely as the result of his intention to speak "man to man" rather than as supervisor to employee. See for instance, Humble Oil & Refining Company v N.L.R.B., 113 F. 2d 85 (C.A. 5). See also in this regard the case of J. S. Abercrombie Company, 83 NLRB 524, where, in comment- ing on the employer's contention that a statement by a supervisor was nothing more than an expression of opinion, the Board stated that rather than determin- ing the effect of the statement by any purported intent, it would consider the substance and context of the statement and the position of the speaker to be more significant factors. Even though Henderson admitted that the language used was as testified to by Charles, it differs from the "man to man" doctrine urged and in this case was "just as one friend to another one." Even if looked upon as a technical violation, the Trial Examiner does not believe that it would effectuate the purpose of the Act to issue a cease-and-desist order in this isolated instance. Obviously, the instance in which employee Holden and Henderson engaged in a conversation in which Holden, who originated it, asked Henderson about the union activities and Henderson re- plied, "What are you asking me for? Aren't you in it?" was but "kidding," and "I explained that to him" is not an actionable violation. Accordingly it will be recom- mended that the complaint be dismissed as to the counts of interrogation. Conclusions I am persuaded that the evidence does not preponderate in favor of the position taken by the General Counsel. I find that Respondents were not motivated by union animus. Accordingly, I shall recommend that the consolidated complaint be dismissed. CONCLUSIONS OF LAW 1. The operations of Respondents Little Rock Hardboard Co. and Superwood Corporation of Duluth affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDATIONS In view of the foregoing findings of fact and conclusions of law, it is recommendcd that the complaints be dismissed in their entirety.