Nevada Tank and Casing

NEVADA TANK AND CASING 123 All our employees are free to become, remain, or to refrain from becoming or remaining, members in the above-named or in any other labor organization. VENUS PEN AND PENCIL CORPORATION, Employer. 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 Office, Seventh Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. Nevada Tank and Casing and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths & Forgers, Local #10, AFL-CIO. Case No. 2O-CA-2394. August 21, 1963 DECISION AND ORDER On April 29, 1963, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error Was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted below.' i We are not convinced that a clear preponderance of all the relevant evidence warrants overruling the Trial Examiner's credibility resolutions with respect to the alleged unlawful statements made by Plant Manager Walker. Accordingly, we agree with the Trial Ex- aminer's finding that such statements were not made. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (CA 3). We agree, without however adopting the en- tire discussion of the Trial Examiner relating to an employer's responsibility for the con- duct of his supervisors, that in the particular circumstances of this case a finding of a violation of Section 8(a) (1) and (5) is not warranted on the basis of the statements made by Hughes and Griffith to employees We concur, therefore, in the Trial Examiner's con- clusions that there was no unlawful refusal to bargain because of such alleged statements, that the strike following unsuccessful bargaining negotiations neither commenced as nor was converted to an unfair labor practice strike, and that there was no possible unlawful discrimination at the end of the strike with respect to a delay in offering reinstatement to four of the economic strikers who had been replaced However, we find it unnecessary to, and do not, pass upon the Trial Examiner's assumptions arguendo that if Walker made 144 NLRB No 6 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The Board dismissed the complaint.] such statements and Respondent were responsible for the statements of Hughes and Griffith, such statements would still not warrant a remedial order, or his assumption arguendo that if Respondent were responsible for Griffith's statements, such statements had no causal effect In prolonging the strike. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard in Reno, Nevada, on January 15, 16, 30, and 31, 1963, before Trial Examiner Eugene K. Kennedy. The basic issues are whether Nevada Tank and Casing, herein called Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, herein called the Act, and also whether the strike which occurred on September 13, 1962, was an unfair labor practice strike having consequences entitling the striking employees to certain backpay bene- fits, and whether the failure by Respondent to provide such benefits constituted a violation of Section 8(a)(3) and (1) of the Act. Upon consideration of the entire record, including my observation of the witnesses, and after a consideration of the briefs filed by the Respondent and the General Counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY ; THE LABOR ORGANIZATION INVOLVED Respondent is a Nevada corporation with its main office and principal place of business located at Reno, Nevada. It is engaged in the manufacture and distribu- tion of steel tanks and casings. During the year 1961 , Respondent sold and shipped goods valued in excess of $50,000 from its plant in Nevada directly to places outside the State of Nevada and received materials valued in excess of $50,000 directly from suppliers located outside the State of Nevada . It is found that Respondent at all times material has been engaged in commerce and in operations affecting com- merce within the meaning of the Act. International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths & Forgers, Local #10, AFL-CIO, herein called the Union, is engaged in representing employees and is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On January 30, 1962, the Union was certified to represent the following described unit of Respondent's employees: All production and maintenance employees at the Employer's plant in Reno, Nevada, excluding all office clericals, guards, professional employees and super- visors as defined in the Act. Following this certification, representatives of the Union and Respondent engaged in a series of negotiations commencing on February 2, 1962, and terminating on October 12, 1962. The General Counsel makes no claim, nor does the complaint allege, that the content of the negotiations demonstrates Respondent's bad faith in collective bargaining but relies upon extraneous acts coincident with the negotiations as establishing Respondent's breach of its duty to bargain in good faith. Consequently there is no necessity for considering the negotiating sessions except to note that they ended with the parties in disagreement over three issues, the principal one being the failure to agree on a seniority provision, with the secondary issues relating to wages and holidays. At all times material, William Walker was in charge of Respondent's Reno plant. Under him was an individual named C. S. Hughes characterized by Walker as a working foreman. The question of Hughes' supervisory status within the meaning of the Act will be considered below. Hughes, who did not testify, was discharged by Respondent shortly before the strike which began on September 13, 1962. The record reflects Hughes' strong opposition to anyone, including himself, crossing a picket line, and it also reflects he was a union member. The third member of manage- ment hierarchy to whom the General Counsel attributes statements constituting unfair labor practices is Earl Griffith. The nature of his comments as well as his supervisory status are reserved for further consideration below. NEVADA TANK AND CASING 125 The strike terminated on November 6, 1962, with its abandonment by the Union without achieving the objectives for which the strike was instituted. The General Counsel contends that the strike was an unfair labor practice strike and that in some instances Respondent practiced unlawful discrimination in delaying reinstatement of some of the striking employees. B. Alleged unlawful activities 1. Statements of Plant Manager Walker Except for the alleged wrongful delay in reinstatement, the unlawful activities of Respondent are predicated on the following charging allegations of the complaint. On various unknown dates in July and August 1962, C. S Hughes bypassed and circumvented the Union, solicited employees to abandon the Union, bar- gained with them individually, and offered to them increased wages in excess of those offered the Union in negotiations; On various unknown dates in July and August 1962, William E. Walker by- passed and circumvented the Union, solicited employees to abandon the Union, bargained with them individually, and offered to them increased wages in excess of those offered the Union in negotiations; On or about September 29, 1962, and various unknown dates in September, 1962, Earl Griffith bypassed and circumvented the Union, solicited striking employees to abandon the Union and return to work, bargained with them individually and threatened them with discharge unless they abandoned the Union and returned to work. An examination of the evidence in some detail is demanded because of the circumstances surrounding the statements on which the General Counsel rests his claim of unlawful conduct on the part of Respondent. Consideration will first be given to the unlawful statements Walker allegedly made in July and August 1962. Employee Dickinson testified that sometime in July 1962, an employee named Zimbra (who died October 1, 1962) and he had a conversation in which Zimbra said, in effect, all the employees preferred to deal directly with Respondent without the aid of the Union. It was on this day Zimbra informed a union representative, who was waiting outside the plant, of the em- ployees' decision to dispense with the Union and deal directly with Respondent. Dickinson went on to testify that on the same day, about 4:30 p.m., he asked Walker if it were true about getting the raise and the Union "going down the road." According to Dickinson, Walker said, "Well, I see no reason why the company and the employees couldn't come to an agreement without the aid of the Union and get the same benefits Perkins employees in Sacramento were getting." i During the pendency of the strike which commenced on September 13, 1962, Dickinson testified that he asked Walker why Respondent could not give the same benefits as Perkins' employees were getting, and Walker replied that Perkins' em- ployees had been working for about 15 years and that was the reason for their increased benefits Employee James Wessman testified with respect to a conversation he had with Walker after Zimbra had told him the employees preferred not to be represented by the Union. Wessman was selected as the spokesman for the employees to deal with Walker instead of the Union. Wessman, after being designated as spokesman for the employees, asked Walker how he wanted to handle the negotiations. Walker told Wessman that he would first have to obtain some kind of release from the Union. This conversation, as far as can be ascertained from the record, occurred on the same day as Dickinson's claimed talk with Walker. About a week later Wessman asked Walker if he had heard from the Union and Walker stated that the Union would not give a release and that his lawyer advised him not to discuss the matter any further with the employees. It is difficult to square Walker's alleged response to Dickinson in the first con- versation with his statement to Wessman about the necessity of obtaining a release from the Union The lawyer's advice not to discuss the matter with employees was given after both conversations and does not present a basis for the different responses. Walker gave the impression of a witness doing his best to answer the questions put to I The significance of the reference to benefits that Perkins' employees were enjoying is that there was a community of interest between the owners of Perkins and Respondent and that Perkins' employees, working in a plant at Sacramento, California, under the terms of a collective-bargaining agreement, were enjoying benefits not available to em- ployees of Respondent This fact was known to Respondent's employees in Reno, Nevada 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him in a truthful manner. In view of the general impression that Walker evidenced as a witness and the pattern of conduct he exhibited over a period of several months in dealing with the Union, it seems highly implausible that he would express the opinion attributed to him by Dickinson under such circumstances while at the same general time informing employee Wessman that he would not negotiate without a release from the Union. Consequently, Walker's denial of the statement attributed to him by Dickinson is credited. Assuming, arguendo, that a conversation about the Union occurred in July between Dickinson and Walker in substantially the manner related by Dickinson, in the con- text of the entire record such a comment by Walker occurring after the employees had already decided to negotiate without the Union would appear, at most, to con- stitute only minimal unlawful interference violative of the Act. As found below, the employees' decision to abandon the Union is not chargeable to any unfair labor practice of Respondent. Again assuming, arguendo, that Dickinson correctly recalled the comments of Walker that he attributed to him, inasmuch as they were made in response to a question by Dickinson after the employees had all indicated a desire to dispense with the Union, such comments also arguably constitute a lawful expression of opinion by Walker as to the outcome of negotiations under changed circumstances protected by Section 8(c) 2 The exoneration of Walker, in connection with the statement attributed to him by Dickinson, is based primarily on his credible denial of a statement, that in the context of all of his other conduct and other factors reflected by this record would be an implausible one for him to make. The timing of the alleged comment as occurring after the employees' decision had been made to abandon the Union and the form of the comment as possibly expressing Walker's opinion, if such a comment were made, are mentioned to indicate the equivocal aspect of such a statement constituting interference with the Section 7 rights of the employees. Employee Holmes in his testimony attributed a statement to Walker similar to the one Dickinson related. According to Holmes, about 1 p in. on a day in July 1962, he and Foreman Hughes and employee Zimbra were in a group when Zimbra said, "The union men are supposed to be up tonight and if we can get together with Mr. Walker why we will drop the union." At this point, according to Holmes, Walker came by and laughed and said, "I see you are talking about the union" and went on to say, "Well there is no reason why we can't negotiate among ourselves" and Zimbra replied, "Well alright we can go that route" and Walker replied, "We will see if the union talk dies down. If it does we will see about getting a 10¢ raise in the shop." Walker's denial of this statement is more plausible than Holmes' version. That Walker would initiate such a statement seems highly unlikely. General Counsel's witness, Wessman, when acting as the spokesman for the employees, was informed by Walker that a release from the Union was necessary before negotiations could be begun. The conduct of Respondent in negotiationg with the Union in which Walker participated does not provide a basis for finding Respondent was carrying on a campaign to have the employees disavow the Union. In fact, early in the course of negotiations, Respondent offered a contract which the Union rejected, and when the Union abandoned the strike, Walker took back in Respondent's employ all the striking employees desiring to return If any words concerning the Union were in fact exchanged between Zimbra and Walker in the presence of Holmes and Hughes, I find that Holmes failed to relate them correctly as it seems totally im- plausible that Walker would introduce such comments about the Union in address- ing employees Both the form of the alleged comment and its content do not seem consistent with Walker's attitude toward labor relations expressed on the witness stand and his declination to deal with Wessman as the employees' spokesman until the Union gave a release. Nor is the initiation of these alleged comments in character with the conduct of Walker during several months when the subject of the Union was freely discussed in the plant by the employees Taking the record as a whole, I find that Walker. as plant manager, permitted the employees free discussion concerning union oreanizations during working time, and carefully avoided, as a matter of policy, making any comments that might constitute inter- ference with the employees' right of organization Consequently it is found Walker did not make the comment attributed to him by Holmes. 2 Section 8( c) reads as follows: The expressing of any views, argument, or opinion , or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or he evi- dence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit NEVADA TANK AND CASING 127 Inasmuch as the record reveals that the subject of the Union and the possibility of the wage increase were constant subjects of conversation among the employees for several months and carried on with Foreman Hughes, it may be that Holmes attributed to some comment of Walker a meaning that was expressed either by Hughes or one of the other employees. Walker's denial is credited absolutely to the extent that he initiated a conversation suggesting employees would be better off without the Union. His denial of the conversation as occurring, as related by Holmes, is credited because of the impression of veracity Walker evinced. More- over, Walker's testimony is credited to the effect that he instructed Foreman Hughes two or three times in July not to discuss the Union with the employees. Since Walker certainly did not give the impression of being irrational, it would follow that he would not engage in conduct that he had instructed his foreman to avoid. For the reasons noted, it is found that the evidence falls short of establishing Walker promised employees benefits as a condition for the abandonment of the Union. Nor does the evidence establish that Walker solicited employees to abandon the Union, nor that he bargained with them individually or offered wages in excess of those offered the Union 2. Statements of Hughes and his supervisory status Towards the end of the hearing Respondent amended its answer to deny that Hughes was a supervisor within the meaning of the Act. Walker, when called as a witness for the General Counsel, testified that Hughes had authority to hire, discharge, and discipline employees and to assign work that Walker laid out. He also testified that Hughes spent 40 to 50 percent of his time welding and in addition did other manual work. When called as a witness for the Respondent, Walker estimated Hughes spent about 90 percent of his time in produc- tion work. This estimate is not necessarily inconsistent with his original estimate of 40 percent of time spent by Hughes on welding as there was no percentile of time fixed by Walker in his original testimony when Hughes was doing manual work other than welding. Walker also testified that Hughes was an hourly paid employee receiving 10 cents an hour more than the welders and that he was docked for time absent the same as any other employee. Although Walker testified he did not give Hughes authority to assign employees or to give them time off or to hire them, he admitted Hughes had assumed authority in these areas which, as the record indicates, was tolerated by Walker. It is clear and undisputed that Walker accepted Hughes' recommendations as to hiring for at least two employees without seeing them, and also that Hughes made an effective recommendation to fire at least one employee. Although Walker may not have regarded his original testimony as correctly de- picting Hughes' status in Respondent's organization and his subsequent testimony operated to more accurately reflect Hughes' position, nevertheless, the fact remains that the record establishes without question that Hughes had the attributes of a supervisor within the meaning of the Act. Hughes was hired by Walker in the latter part of March 1962. The General Counsel offered testimony through employee Wessman to the effect that in April 1962, in a conversation about the Union initiated by Wessman, Hughes told Wessman that Smith, one of Respondent's owners and a friend of Hughes, had said that Re- spondent's employees would receive a 10-cent per hour wage increase when the union activities died down.3 The General Counsel relies on this testimony as demonstrating that Respondent, acting through Hughes, commenced in April 1962 to undercut the Union The next claimed acts of interference occurred in June when the employees initiated conversa- tions with respect to eliminating the Union.4 A contention that Hughes' remark to Wessman, which the record does not show was repeated to any other employees, planted the seed which blossomed into the rejection of the Union by the employees 3 Respondent's motion to strike this testimony, because it was outside the scope of the complaint, was taken under submission at the hearing The charging allegations of the complaint are limited to July and August 1962 The General Counsel urges that the testimony should be allowed to stand in that it was explanatory of later conduct of Respondent. The motion to strike the testimony is denied on the basis of the statement of the General Counsel as to the purpose for which the testimony was offered However, as will be reflected elsewhere, the theory of the case advanced by the General Counsel is not regarded as being established by the evidence 4 Employee Robison initiated a conversation with Hughes either in late June or early July concerning the Union, and solicited Hughes' opinion Hughes expressed the view that the employees could probably do better by selecting their own committee to negotiate with Respondent. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in July, lacks any supporting evidence. As far as this record goes, the employees became dissatisfied with the Union as its negotiator and initiated the move to deal directly with Respondent Respondent's failure to agree to a contract satisfactory to the Union and to the employees, although it may have resulted in the employees' dissatisfaction and rejection of the Union, is not thereby made unlawful. There are circumstances reflected by the record which bear on the extent of the interference, if any, with the employees' organizational rights Hughes' remarks may have caused. Hughes was discharged shortly before the strike commenced on Sep- tember 13, 1962, and was unavailable as a witness. However, the General Counsel's witnesses have provided some indicators as to the probable impact of Hughes' state- ments on the employees which may be of questionable legality under the Act. Hughes' opinion expressed to employee Wessman, in response to a question by Wessman, was to the effect that the employees could obtain additional benefits without the Union. Employee Robison also testified that in response to his question, Hughes advanced the opinion that the employees would get additional benefits without the Union. In response to Robison's question as to the consequences of an employee crossing the picket line, Hughes stated: He told me that if a person crossed the picket line they would be in disfavor with the Union, and since he was not going to cross the picket line he said that he wouldn't think much of anyone that did cross the picket line. He said that if the strike was resolved and the Union won it would be difficult for the person to get back in favor with the Union after they had once crossed the picket line. Hughes repeated the statement about the consequences of crossing the picket line about the end of July 1962. He stated he was not going to cross the picket line and he didn't think it wise for any employee to do so. Robison also testified that Hughes was a union member. Hughes, before the strike, told employee Benson he would be fired if he crossed the picket line. Employee Miller testified that in early August, during the lunch hour, Hughes said, "If you boys get rid of the union you will have a good raise coming up and the company is going to give you a better wage than this union can get for you." Miller, in relating the circumstances as to how the conversation started, testified: A. Well, I'd say from normal chatter among a bunch of men working in the shop; that is the only thing that happens all the time. Q. Was it over lunch? A. Usually at lunchtime when the bunch was together. Here too it seems probable that Hughes was solicited for his opinion. Viewing the quoted portion of Miller's testimony as a whole, it seems probable that Miller did not recall whether or not Hughes made the comment in response to a question and certainly this testimony does not support a finding that Hughes made the state- ment without being solicited for his opinion. Hughes' opinions about the Union expressed to employees were in substantially all, if not in every, instance, made in response to questions initiated by employees while working or while having lunch. C. The strike There is a hiatus in the record as to what caused the employees to again support the Union and go on strike on September 13, 1962, after having agreed among them- selves to abandon the Union. The record reflects that a meeting was held on September 11, 1962, when the employees voted to reject Respondent's contract offer and to go on strike. At this meeting the union representatives expressed their ob- jection to Respondent's proposed contract primarily because it did not contain a seniority clause and there was also expressed a degree of dissatisfaction with the wage rate and the holiday proposals. The record clearly establishes that the strike vote was taken on the question of whether or not to accept the Respondent's contract offer and the rejection of this offer was coupled with the employees' voting to strike. The General Counsel contends that the strike was an unfair labor practice strike. He relies on the following evidence to establish this. Employee Wessman testified that the union representative advised the employees that the Respondent had made a final offer and the Company would not make a better offer. No one said anything else about a reason for going on strike. Wessman went on to say: A. I felt that we were at a standstill. We could go nowhere the way things stood. We were going to stay with the Union and the company would not bargain with the Union as far as giving in. They would stand on no seniority, they were giving no seniority, which the Union would not settle without seniority, NEVADA TANK AND CASING 129 so we were at an impasse. So the only out was to either quit or go on strike to force the company to bargain with us. Q. And that was your reason for going on strike? A. Yes. Q. Have you any other reason? A. Well, I felt that we were being penalized the 10-cent-an-hour that Perkins was getting because we were negotiating with the Union. The General Counsel also relies on a statement in employee Holmes' affidavit to the effect that the employees went on strike to obtain a contract containing a seniority clause and the same 10 cents per hour that Perkins' employees had received. This affidavit was introduced by Respondent for the purpose of impeaching Holmes in connection with another aspect of his testimony. Although Holmes was a witness for the General Counsel, he was not asked to testify as to why he went on strike. Wessman's testimony appeared to include an afterthought as to the reason he went on strike and it was only after being pressed for some other reason by the questioning of the General Counsel that he advanced as a reason for going on strike that he felt he was being penalized on account of the Union. As to Holmes' affidavit, even if accepted as probative evidence, it contains a statement which negates the General Counsel's position. In his affidavit, Holmes stated: That it is my belief that we would not have received a raise whether the Union was in or not. Thus we went on strike to get the raise and the seniority clause. It is apparent that employee Holmes did not feel he was being penalized on ac- count of the Union and that was not the reason he went on strike. The expression of Wessman as to his partial and subsidiary subjective reason for going on strike cannot on this record be imputed to the other 10 or 11 employees as to their reason for striking. The circumstances attending the strike point overwhelmingly to the cause of the strike as being due to the Respondent and the Union failing to reach an agreement. Wessman's testimony to the effect he felt he was being penalized on account of the Union, in the context of the record, falls far short of the sub- stantial evidence required to establish a causal connection between unfair labor practices and the strike so as to constitute this strike as an unfair labor practice strike. Alternatively, the General Counsel claims that statements by one Earl Griffith converted the strike into an unfair labor practice strike. During the pendency of the strike, Griffith was notified on September 29, 1962, that he was to be appointed foreman effective October 1, 1962. Griffith was not called as a witness. His actions on the morning of September 30, 1962, while visiting the Respondent's plant, are claimed by the General Counsel to constitute unfair labor practices. On the morning of September 30, 1962, while visiting the plant, Griffith became involved in a heated and extended argument with Zimbra, one of the pickets. Employees Cobb and Holmes were also present at the time on the picket line. When the argument was over, Griffith told Cobb and Holmes they could go back to work. He also added a statement to the effect that if the Union won, Cobb and Holmes would be fired on some pretext within 60 days. Assuming, arguendo, that Griffith was a supervisor and an agent of Respondent at the time he made the statements on September 30, the statements to Holmes and Cobb clearly had no causal effect in prolonging the strike. A causal connection between the unfair labor practices and the prolongation of the strike is essential to convert a strike into an unfair labor practice strike. N.L.R.B. V. Scott and Scott, 245 F. 2d 926 (C.A. 9); N.L.R.B. v. James Thompson & Co., Inc., 208 F. 2d 743 (C.A. 2). Since the record lacks any substantial evidence that the strike was caused or prolonged by any unfair labor practice, it is found that the strike was an economic one from its inception and retained that character until its termination. D. Supervisory status of Griffith and the question as to whether he acted as agent of Respondent The question of Griffith's supervisorial status on the morning of September 30, 1962, will next be considered. The record stands uncontradicted that although he was notified of his appointment as foreman on Friday, September 29, 1962, he did not commence his supervisorial duties until Monday, October 2, 1962. Conse- quently, it is improbable that Griffith had Respondent's authorization to offer em- ployees their jobs or to make threats which would be binding on Respondent by virtue of Griffith's supervisory status. However, there is also a question as to 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether Respondent was responsible for placing Griffith in a position where he had apparent authority to speak for Respondent. Although Griffith had previously been a foreman, there is nothing, as far as this record goes, imputable to Respond- ent with reference to Griffith's conduct on September 30. Griffith did not tell Cobb or Holmes he was a foreman and there is nothing to suggest that they knew of Respondent's action in informing Griffith of his promotion on September 29, effective as of October 2. In short, Respondent did nothing to cause the employees, including Cobb and Holmes, as of September 30, to regard Griffith as occupying a position of apparent authority and, as far as this record goes, Griffith appeared to Cobb and Holmes merely as one of two employees who did not go out on strike. The General Counsel cites The Yale & Towne Manufacturing Company, 135 NLRB 926, and Peter Kiewit Sons' Co., 106 NLRB 194, as establishing that Griffith was actually a supervisor on September 30, 1962, although he did not commence to act as such until October 2. An examination of these cases shows that they are not in point as they concern a determination as to which employees should be incor- porated or excluded in the bargaining unit on the basis of their anticipated duties in a representation proceeding. Consideration should also be given to the fact that the threats attributed to Griffith followed immediately a bitter argument with Zimbra, in which Griffith accused Zimbra of calling him a "scab son of-a-bitch." Respondent's action in reemploying any of the striking employees who desired to return offsets an inference that Re- spondent would treat striking employees vindictively, and that Griffith was voicing Respondent's policy in making threats. Although the statements by Griffith were made prior to the end of the strike, with the advantage of hindsight, the action of Respondent in reemploying the strikers demonstrates that Griffith was probably, in fact, not expressing Respondent's policy in his comments to Cobb and Holmes. Consequently it is found that the record does not establish by sufficient evidence that Griffith was acting as an agent for Respondent when he made the statements to Cobb and Holmes, and Respondent is not responsible for his statements. The finding that there is insufficient evidence to establish that Griffith was acting as an agent of Respondent on the morning of September 30, 1962, does not depend on whether or not, in a technical sense, Griffith was a supervisor at that time. As will be de- veloped in connection with Hughes' statements, the fact that an individual is a super- visor and makes statements that would be unfair labor practices if attributable to the employer, does not necessarily make his employer responsible for such statements. E. Questions of discrimination in connection with reinstatement of employees The General Counsel offered evidence indicating that three employees were not reinstated until about a week after their application following the termination of the strike, and also contends that employee Miller was never offered reinstatement. The General Counsel's position with respect to Miller is difficult to understand insofar as he contends that Miller was never offered reinstatement by Respondent. The record reflects that on November 7, Miller, in the company of another employee, Carroll Beets, was in the presence of Walker and Walker offered Beets his job back and told Miller to check with him a couple of days later. Miller testified that he did so, and no additional subject was mentioned in the later conversation with Walker. However, on cross-examination he admitted that he did tell Walker he was going to try for unemployment compensation. He denied telling Walker that he was going to look for a job in California. Walker testified that Miller told him he was not too interested in getting a job as he would just as soon leave Nevada and draw unemployment compensation insurance and that he was trying to get work in California. Miller later admitted going to work in California about 2 weeks after the strike and that he was working there at the time of the hearing. The record also indicates without contradiction that about November 20, 1962, Miller received a communication from the Nevada Unemployment Commission stating that his job was available and this information was read to him over the telephone by his wife when he was in California. A registered letter dated November 21, 1962, was also sent to Miller's address by Respondent which offered him reinstatement but which was returned unclaimed. It seems perfectly apparent that Miller preferred to work in California when he did not return in response to his wife's telling him Walker had informed the Nevada Unemployment Commission that Miller's job was available. This, taken with Re- spondent's action in sending a registered letter to Miller offering him employment, makes his claim of not being offered reinstatement untenable. In any event, with respect to Miller and the other three employees, the record is clear that Respondent had replaced them and that the strike was not caused or pro- NEVADA TANK AND CASING 131 longed by Respondent's unfair labor practices and, consequently, Respondent did not breach its obligations under the Act when it delayed offering reinstatement to three employees until openings occurred for them. F. Discussion and concluding findings To summarize the findings based on the probabilities presented by this record, it is found that there is no support for a finding that Plant Manager Walker engaged in any undertaking to undermine the Union during the course of negotiations .5 The conduct of the negotiations which I find reflected good-faith bargaining on the part of Respondent and also the reemployment of the strikers after the termination of the strike are not activities that would be consistent with a finding that Respondent was covertly engaging in a campaign to rid itself of the Union and union adherents. Turning now to the general question as to whether statements by Hughes are binding on Respondent, it will be recalled in connection with Griffith's activities, an observation was made that an employer is not necessarily bound by the acts of a supervisor in considering the question of whether an unfair labor practice has been committed. This observation finds support in the wording of the Act and in Board and judicial precedent. Section 8(a)(1) of the Act reads: "It shall be an unfair labor practice for an employer-(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; . . . ." [Emphasis supplied.] Section 2(2) of the Act provides- "The term `employer' includes any person acting as an agent of an employer, directly or indirectly. . . . ... [Emphasis supplied.] The term "agent" is defined by Section 2(13) of the Act as follows: "In deter- mining whether any person is acting as an `agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling." In addition, in Section 2(11) of the Act, there is a definition of "supervisor" which does not include in its definition the term "employer" or "agent." It may be observed from the above-quoted sections of the Act that, although Congress saw fit to separately set out and to define the term "supervisor," it did not include that term within its definition of "employer," nor in its definition of the term "agent." From that it may be concluded that an "employer" is not responsible for all the acts of his "supervisors" which might ordinarily constitute unfair labor practices. On the other hand, an "employer" is responsible for the acts of its "agents" constituting unfair labor practices whether or not they are also supervisors. The cases treating this question can be reconciled on the basis that certain circum- stances will operate to relieve an employer from responsibility for acts of his super- visor. These circumstances are such as to demonstrate in a given context that the supervisor was not acting as ostensible agent for the employer Some of the circumstances include situations where the supervisor may be included in the bargaining unit, or may have voted in a Board election, and thus would not appear to bespeaking as the voice of management, and hence not as an agent of the employer. The supervisor may be also clearly acting for himself or in a manner in- consistent with the conduct or policy of the employer. The supervisor may hold a very minor position or may be identified as friendly to the employees and regarded as one of the employees rather than a part of management. Such factors alone or in 5 The General Counsel points to a previous Board case, Nevada Tank and Casing Com- pany, 131 NLRB 1352, as a factor in discrediting Walker and in establishing Respondent's lack of good faith While in appropriate cases it is proper to take into account prior cases involving a respondent, it is, of course, also true that a prior finding of a violation of the Act will not necessarily stigmatize a party in all future proceedings Here the record shows Respondent bargained in good faith and offered a contract to the Union, and also reinstated striking employees when it had no obligation to do so on the termination of the strike. With respect to Walker's credibility, I find that his involvement in a prior case does not detract from his credibility in this case His prior experience taken in con- nection with Respondent's efforts at bargaining in this case makes plausible Walker's denial of statements attributed to him which might be considered violative of the Act. The impression was obtained during the course of Walker's testimony that he was ex- tremely careful in not breaching his obligations under the Act and because he had been involved in a labor controversy prior to this occasion, he appeared to have become edu- cated as to the proper role that a manager might play in labor relations matters 727-083-64-vol. 144-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD combination may, in a proper context, establish that a supervisor was not acting as an agent of the employers Stating the proposition another way , there are factors which may dispel the ap- parent authority bestowed by the capacity of supervisor and thereby in a particular situation the supervisor does not appear to be acting as an agent of the employer. It is obvious that this question only arises in connection with situations where there is a difference as to whether a supervisor is clothed with apparent authority to commit an unfair labor practice. It would be the exceptional situation where the issue was whether the supervisor had actual authority to commit an unfair labor practice. In the instant case, although Hughes has been found to be a supervisor, there are other circumstances which make it unlikely that he was speaking on behalf of Respondent, and thus he did not have apparent authority to speak for Respondent, and thus his statements are not imputable to Respondent . The Restatement of Agency, Section 27, reads: Creation of Apparent Authority: General Rule Except for the execution of instruments under seal , or for the conduct of transactions required by statute to be authorized in a particular way, apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which reasonably interpreted , causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him. Applying the above definition to the facts at hand, Hughes ' apparent authority to speak on behalf of Respondent is negated by Hughes ' own actions in identifying him- self as a union supporter and announcing that in the event of a strike he would be, in effect, with the Union and against Respondent. Other factors to be taken into account are that Hughes was himself an hourly paid employee receiving but 10 cents an hour more than many of the other employees. He worked to a considerable extent with the employees and had his lunch with them as a regular matter, and for a period of several months worked in an atmosphere where the Union and related topics were major subjects of conversation among the employees. Another factor in weighing how Hughes ' conduct would normally appear to a third person is that the record reflects on substantially all, if not every, occasion, when Hughes indicated he believed the employees would be better off without the Union, that it was in response to a question asked of him by an employee . Hughes' expression of his opinion in such a context would be more likely regarded by the employees as coming from one of the "bunch" than an expression of Respondent's policy. Further, Hughes himself was fired 3 days prior to the inception of the strike , and the only reason suggested for his discharge by this record was his open statements that he would, in effect, be on the side of the Union in the event of a strike. Therefore, in this case Hughes' lack of apparent authority to speak on behalf of Respondent was because Hughes, himself, by his statements made it clear that he was expressing his own rather than Respondent 's views. So also Griffith did not have ap- parent authority to bind Respondent because Respondent did not take any action that was known to the employees that would indicate Griffith had such authority. Consequently, in view of the circumstances which have been indicated attending the statements of Hughes and Griffith , it is found that it has not been established that either of them made statements imputable to Respondent which would constitute un- fair labor practices. Assuming, arguendo, that Respondent was technically responsible for the state- ments of Hughes and Griffith, in the context of this record taking into account the circumstances under which the alleged unlawful statements were made , no remedial order is indicated. 6 A sampling of representative cases lends support to this analysis : N L R B v. Rock- well Manufacturing Company (DuBois Division), 271 F. 2d 109, 118 (CA 3) ; NLRB. v Miami Coca-Cola Bottling Co, 222 F 2d 341, 345 (C.A 5) ; N L.R B v. The Houston Chronicle Publishing Company, 211 F. 2d 848, 855 (C.A 5) ; NL.R.B v. Hinde & Dauch Paper Company, 171 F 2d 240, 241 (C.A. 4) ; N.L.R B. v. Scullin Steel Company, 161 F 2d 143, 149 (C A. 8) ; N L.R.B v. Shenandoah-Dives Mining Company, 145 F. 2d 542, 547 (CA. 10) ; NLRB. v. Clinton Woolen Manufacturing Co , 141 F 2d 753, 757 (C.A. 6) ; L. B Woods, et at., d/b/a Breckenridge Gasoline Company, 127 NLRB 1462, 1463; Nassau and Suffolk Contractors' Association, Inc, and its members, 118 NLRB 174, 181; Montgomery Ward & Company, Incorporated, 115 NLRB 645; Indianapolis Newspapers, Inc., 103 NLRB 1750, 1751 PLUMBERS & FITTERS LOCAL 761, ETC. 133 As indicated above, the alleged unlawful statements of Walker to the employees, even if they were actually made, despite a finding here to the contrary , do not warrant a remedial order in view of their isolated character and because they would not reasonably be calculated to have a significant effect on the employees' organizational rights. Middletown Manufacturing Company, Inc., 141 NLRB 234. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Nevada Tank and Casing is a Nevada corporation engaged in commerce and in a business affecting commerce within the meaning of the Act. 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths & Forgers, Local #10, AFL-CIO, is a labor organization within the meaning of the Act. 3. Respondent Nevada Tank and Casing has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDATION Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint be dismissed in its entirety Plumbers & Fitters Local 761 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, AFL-CIO and Matt J. Zaich Construction Co. Plumbers & Fitters Local 761 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fit- ting Industry of the United States and Canada, AFL-CIO and Zarubica Company International Union of Operating Engineers , Local Union No. 12, AFL-CIO and Matt J. Zaich Construction Co. and Zarubica Company. Cases Nos. 21-CD-134-1, 21-CD-134-2, and 21-CD- 135. August 21, 1963 DECISION, DETERMINATION OF DISPUTES, AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act following the filing of charges under Section 8(b) (4) (D) of the Act. A hearing was held before Hearing Officer Ben Grodsky on January 8, 9, 11, 15, 17, and 21, 1963. All parties appeared at the hearing 1 and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. 'Associated General Contractors of America, Southern California Chapter (hereinafter referred to as the AGC ), and the Southern California District Council of Laborers and its Affiliated Local Unions (hereinafter referred to as the Laborers), intervened . Inter- national Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths , Forgers and Helpers , Local No. 92 (herein the Boilermakers ), after having intervened , later withdrew on the ground that it would be bound by any subsequent Joint Board determination. 144 NLRB No. 12.