United Electric Co.

UNITED ELECTRIC COMPANY 665 United Electric Company and International Brother- hood of Electrical Workers, Local Union No. 379. Case 11-CA-4300 December 21, 1971 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY On April 12, 1971, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed its powers in connectlonwith this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. Unlike our dissenting colleague, we are of the opinion that, as found by the Trial Examiner, Coffey and White were not supervisors.2 We are convinced that the Trial Examiner's findings of fact are supported by substantial evidence ,and that his conclusions therefrom are correct. Little purpose would be served in our repeating or paraphrasing the Trial Examiner's cogent analysis of the evidence and his careful rationale leading to his conclusions. However, in the light of the dissent we are impelled to emphasize that, as found by the Trial Examiner, the Respondent is a one-man operation, employing about ' 12 electrical workers referred to as journeymen, apprentices, and helpers. All these employees report to the Respondent's shop every morning, and Bentley, the owner, has visited the projects on an average of once a week. Although as many as 8 or 10 men may have been employed on projects, the record shows that on the smallest jobs White and Coffey have worked with 1 other employ- 1 The date of July 1, 1960, in the Trial Examiner's Statement of the Case is amended to read July 1, 1970. Section 4 of the Trial Examiner's Decision is amended to reflect the fact that White worked 10-1/2 hours and Bolick worked 4 hours on Friday, June 26. ee, and on the largest jobs White has worked on one with 4 other employees and on another with 2 employees. The largest number of employees with whom Coffey has worked are six on one job and three on two others. As found by the Trial Examiner, White and Coffey "worked with their hands all day, every day.,, Nor are we persuaded that the Trial Examiner is incorrect with respect to his conclusions that the record will not sustain a finding that White and Coffey had authority effectively to recommend wage increases or that White's recommendation was effec- tive in the hiring and discharge of Lail so as to bring him within the criteria for a finding of supervisory status as set forth in Section 2(11) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, United Electric Company, Hickory, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. MEMBER KENNEDY, dissenting: Unlike my colleagues, I cannot agree with the Trial Examiner's conclusion that Coffey and White were not supervisors. As the Trial Examiner found, the Respondent is an electrical contractor having crews of up to 10 employees in each working at various sites up to 55 miles away from the principal office. Coffey, White, and another person not here involved each were in charge of a separate crew. Respondent considered each of them as superintendents or job foremen on building and construction projects and referred to them as such in discussions with representatives of general contractors on jobs of which they were put in charge. Coffey and White transferred employees from one crew to another. They also recommended wage increases. In addition, White recommended the hiring of a friend, Lail; was consulted as to Lail's reliability; and played a part in Lail's later discharge. On these facts the Trial Examiner nevertheless found that the authority of Coffey and White was routine, like that of a journeyman over apprentices or a leadman over employees, and that their recommendations were made in a routine manner requiring the exercise of no independent judgment. The above findings and conclusions of the Trial Examiner are, in my view, erroneous. The Trial 2 International Association of Heat & Frost Insulators & Asbestos Workers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189 NLRB No. 124. 194 NLRB No. 105 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner would hold that crews of up to 10 employees were for all practical purposes unsuper- vised most of the time, although they were working at various jobsites several miles away from the main office. In so doing, the Trial Examiner would ignore the industrial realities of the situation. To me it is quite obvious that a crew of seven or more men sent by an employer with equipment and materials to a jobsite many miles away from the employer's princi- pal office to perform electrical work in accordance with plans and specifications, and pursuant to a contract, which work is subject to inspection by local municipal authorities and generally must be per- formed by a licensed electrical contractor, cannot function without a person in charge to responsibly direct such crew. In the performance of any such contract, electric wiring plans must be read, specifica- tions followed, wire and fixtures installed, equipment utilized, and time and materials accounted for. It is clear that in the instant case Respondent recognized this, for it had the practice of designating a "superintendent" to "take a crew of men and a truck and run the job." The situation is totally distinguisha- ble from the journeyman-apprentice or the nonsuper- visory leadman-crew relationship referred to by the Trial Examiner, for it is plain that the direction over the rest of the crew exercised by Coffey and White was of a more than routine nature. Indeed, when Coffey was discharged for disobeying orders to stop assisting the union activities of the rank-and-file employees, Coffey said that Respondent was making a mistake because he, Coffey, was best able to keep the employees working on a job instead of standing around loafing. Because, as found by the Trial Examiner, Coffey and White each "exercised the power of assignment of work, evaluated the capabilities of the employees and ... recommended employment assignments and promotions," and since in my opinion Coffey and White each had authority to, and in fact did, responsibly direct employees on their respective crews, the exercise of which authority was not of a merely routine nature, I would find them both to be supervisors within the meaning of Section 2(11) of the Act, and their discharge not violative of Section 8(a)(3) and (1) of the Act.3 Since I would find no violation in the interrogation and discharge of Coffey and White, I would likewise not find any violation of Section 8(a)(5) based on the Union's alleged card majority. Nor would I find the strike to be an unfair labor practice strike. I would dismiss the complaint in its entirety. 3 As the Trial Examiner here observed , his decision in this case is squarely at odds with the decision of Trial Examiner John Gregg in Industrial Electric Company, Case 11-CA-4299, TXD-54-71, issued February 8, 1971 , adopted by the Board on March 11 , 1971, in the absence of filing of a statement of-exceptions, in which on substantially similar evidence in a companion case Trial Examiner Gregg held that the individuals there involved were supervisors within the meaning of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner : This is the third, in the order in which they were tried, of four companion cases in which the respondents are electrical contractors located in Hickory, North Carolina. The other three involve Industrial Electric Company, Case 11-CA-4299; Hickory Electric Company, Case 11-CA-4302; and Electric Wiring, Inc., Case 1 l-CA-4301. Industrial Electric Company is referred to herein as Industrial; Hickory Electric Company, as Hickory; Electric Wiring, Inc., as Electric ; and United Electric, as Respon- dent or United. All four cases began on July 1, 1960,1 when International Brotherhood of Electrical Workers, Local Union No. 379, referred to herein as the Charging Party or the Union, filed an unfair labor practice charge against each company. The charge in this case was amended on August 28. On September 2 the General Counsel of the National Labor Relations Board, by the Regional Director for Region I1 (Winston-Salem, North Carolina), issued complaint in this case . Respondent's answer, duly filed, admitted certain allegations of the complaint and denied others, including the allegation that it had committed any unfair labor practices. All four cases were originally assigned to Trial Examiner John Gregg. Gregg, after hearing Case 1l-CA-4299 and Case 1l-CA-4302, opened the hearing in this case on December 9, then recessed without taking any testimony. Subsequently, this case and Case 11-CA-4301 were reassigned to me. I resumed the hearing in this case on January 4, 1971. Thus, the hearing in this case was held in Hickory, pursuant to due notice , before Gregg on December 9 and before me on January 4, 5, 26, and 27, 1971. The issues litigated were (1) whether two electricians discharged for engaging in union activities were supervisors within the meaning of the Act, (2) whether, under all the circumstances, Respondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize and bargain with the Union, and (3) whether a strike in which Respondent's employees engaged in concert with the employees of Industrial, Hickory, and Electric was an unfair labor practice strike . All parties appeared and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the entire record , including briefs filed by the General Counsel and Respondent, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a corporation with its office and principal place of business in Hickory, North Carolina, is engaged in the business of electrical contracting. During the 12 months r Dates are 1970 unless otherwise indicated. UNITED ELECTRIC COMPANY 667 just prior to issuance of the complaint herein, it performed services valued in excess of $50,000 for enterprises each of which, in the same time period, shipped its products valued in excess of $50,000 directly from the State in which it is located to customers located in other States. On the basis of these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts 1. The relationship of the four cases The Union began a campaign to organize Hickory electrical contractors around June 1. The first meeting was held on June 16. Employees of United, Industrial, Hickory, and Electric attended. Some, if not all, of them signed authorization cards. Other employees signed cards at other times and under other circumstances. On June 25, S. Eugene Ruff, the Union's business manager, sent identical certified letters to United, Industri- al, Hickory, and Electric claiming to represent each company's employees and requesting recognition as their collective-bargaining representative. On June 26 each company refused to accept delivery of the letter addressed to it. On June 27 each letter was returned unopened to Ruff. The Union held a meeting on the evening of June 28. Employees of all four companies attended. After a discussion of the companies' refusal to accept the Union's demand letters and terminations of employees which had taken place around the same time at Industrial and Hickory, a motion to strike was made by Ronald Coffey, an employee of United. It was seconded by Edgar Elmore, an employee of Electric. The vote was taken by show of hands. It was unanimous in favor of striking. The Union held a meeting on the evening of June 30. Ruff instructed the employees on how to conduct themselves on a picket line Picket signs were prepared. There was no discussion of the fact that Coffey and Ronnie White had been discharged that day by United for engaging in union activities. On the morning of July 1 pickets appeared at the office of each company and at various jobsites where the companies were engaged in projects. The strike has not yet ended. On August 31 the Union's attorney wrote to each company. He alluded to the Union's letter of June 25 and reasserted the Union's representation of a majority of that company's employees. He demanded recognition. On September 11 each company sent an identical letter to the Union's attorney acknowledging receipt of his August 31 letter, asserting that it was the company's first notice of the Union's demand, stating that it doubted the Union's claim to represent a majority, suggesting an amicable Labor Board election as the best method of resolving the dispute, and referring the Union's attorney to its attorneys, who were the same for each company. On September 21 the Union's attorney wrote to each company. He pointed out that the four letters he had received were identical and concluded that they had been written by company counsel. He took issue with each company's assertion that it had no knowledge of the Union's claim to represent its employees prior to his letter of August 31. He pointed to the strike as obvious proof of the employees' support of the Union. He expressed his regret at the company's seeking to prevent its employees from enjoying union representation. On October 1 the law firm representing all four companies sent identical letters to the Union's attorney on behalf of each company. These letters chided the Union's attorney for communicating directly with the law firm's clients despite the wording of the September 11 letters, continued the argument over whether Ruff's June 25 letters constituted a legal demand for recognition, reasserted each company's doubt of the Union's majority, and renewed the suggestion of an election. Neither the Union nor the management of any of the four companies has filed a petition for a Labor Board representation election. 2. What happened at United United could not meet its payroll on Friday, June 26. Consequently, Charles Bentley, the owner, asked his employees to wait until Monday. They reluctantly agreed. On Monday, June 29, 9 of United's 12 electricians failed to report for work. After a phone call by one of their number and Bentley's assurance their checks were ready, they appeared at the office in a group and demanded them. Bentley refused to give the checks to them on the ground that the men were demanding to be paid in a group while he had always paid them off individually. On Tuesday, June 30, the men enlisted the help of a Federal or state official.2 The official telephoned Bentley. Bentley told him the checks were ready and he would give them to the men if they came to the office. The men went to the office. Bentley paid them off in a group, all but Ronnie White and Ronald Coffey. He told Coffey and White he wanted to talk to them. Coffey and White were reluctant to talk with him unless a policeman who had been called to the office was also present. Consequently, Bentley, White, Coffey, and the policeman went into Bentley's office. Bentley asked his wife to leave the room and closed the door behind her. Bentley asked Coffey what he thought about the Union. Coffey said he thought it was a good thing. Bentley asked Coffey if he was going to support the Union and vote for it. Coffey said he was. Bentley turned to White and asked, "What about you?" White said he was for the Union also. Bentley told White and Coffey they could not engage in union activities because they were his superintendents. He asked them why they were leading the men against him. He demanded that they be loyal to him. White and Coffey said 2 The record is unclear whether the men visited an office of the Labor Department's Wages and Hours Division located in Hickory or the office of a state agency 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would stick with the Union. Bentley fired them. He called his wife into the office and had her prepare their paychecks. Coffey said this was the first Job he had ever been fired from. He said that he thought Bentley was making a mistake because he was the best employee Bentley had. He said he could keep men working on ajob and did not let them stand around loafing. Bentley said Coffey was fired now, as far as Bentley was concerned. By this time, White's and Coffey's final checks were ready. As they left, they told Bentley they thought they would take a few days off and then contact Bentley the following week. They never did. 3. The supervisor issue The key issue in this case is whether, as Respondent contends, White and Coffey were supervisors within the meaning of the Act when they worked for United. The record reveals the following facts about their duties, authority, and responsibility: United is a one-man operation. It is owned and operated by Charles Bentley. It employs around a dozen electricians of varying skills. They are referred to in the record as journeymen, helpers, and apprentices, although there is no indication of any hard and fast distinctions between these categories. The difference, apparently, is in the degree of skill expected of the individual and the consequent level of his pay, although, once again, there is no indication of either the wages paid any particular individual or the range of wages paid all the employees United engaged in building and construction work, factory work, and service work. Building and construction work is doing the work of an electrical subcontractor in the construction of new buildings. Factory work is doing electrical contracting work, for example, the electrical work required to install a new machine, in existing factories. Service work is doing electrical construction or repair work for private customers, such as installing an appliance in a home. All United's electricians report to its shop each morning and are dispatched to jobs from there. They are dispatched singly or in groups of varying sizes, depending on the number of men needed on a particular job that day. "Dispatched" does not mean that Bentley, each morning, has to tell each man specifically where to go that day. Rather, in some instances, a particular man or group of men go to the same job fairly regularly for a period of days or weeks depending on the stage thatjob is in. The pattern on United's building and construction jobs is the usual one for craftsmen in that field. When work begins on a contract, only one or two men are involved Then, as the project advances, the size of the crew gradually grows until as many as 8 or 10 men may be working at one time. As the project nears its end, the crew size tapers off On the other hand, men are switched from job to job often, and the size of the crew on a particularjob varies from day to day, even when the project is at its peak. Sometimes a man works on more than one job on one day. When assignments are changed, the switch is usually made by Bentley in the morning. However, it is not unusual for Bentley's superintendents to swap men from crew to crew according to the exigencies of the day In the period just prior to the strike, Bentley considered Ronnie White, Ronald Coffey, and Gary Williams his superintendents or job foremen on building and construc- tion contracts. However, they had no such formal job title or titles. Ronnie White went to work for United in late 1968, a few months after it was founded. He advanced to superintendent status in March 1970. At that time, Bentley asked White why he did not have his heart in his work. White said he was unhappy because he had not had a raise lately. Bentley said, "Well, Ronnie, the reason you haven't got a raise is you've gone as far as you can go as a helper or an apprentice or whatever, as far as money's concerned. You been at this long enough, you're a good electrician, you can do the work. But you've got to get out here and take a crew of men and a truck and run the job to get more money. " White said, "Well, I'd like to try it." Bentley said, "Well, I've got ajob coming up pretty soon. It's a smalljob and I believe you could do a goodjob on it." Shortly thereafter, when United started work on the Claremont Elementary School contract, Bentley placed White in charge of it. Coffey was hired by United in November 1969. The record does not reveal precisely when or how he became a superintendent in Bentley's estimation, although it hap- pened soon after he was hired. In Williams' case, the record does not reveal when he went to work for United or when or how he became a superintendent. White was in charge of the Claremont School job and then, for a week or two just before his discharge when it started up, of the Ashworth Dental Clinic job. Coffey was in charge of the recently started King's Mountain Restaurant job at the time of his discharge. Prior to that he had been in charge of the Arthur Smith Restaurant job in Charlotte, North Carolina. Before that he had been in charge of the Fred Smith Hosiery Millsjob. The Claremont Schooljob is 10-12 miles from Hickory. King's Mountain is 35-40 miles from Hickory. Charlotte is approximately 55 miles from Hickory. Other building and construction contracts on which United worked in the 6-month period preceding the strike were Catawba Valley Technical Institute and Western Piedmont Community College in Morganton. Since Gary Williams was the only other employee considered by Bentley to be a superintendent, I assume he was in charge of both of them. Being in charge of a project for United meant simply that White or Coffey or Williams, as the case may be, was the man with whom the general contractor or the architect or the owner/builder or inspectors, as the case may be, dealt on a day-to-day basis in connection with United's carrying out of its contract. The superintendents worked with their hands all day, every day. To the extent that such directions were necessary, they told other United employees on the jobs what to do and how to do it. In issuing such instructions, they took into consideration the skill and state of training of the various employees on the job. Bentley visited the various projects, on an average, only once a week. The smallest multiple number of United employees on a job which White or Coffey was in charge of at any one time was two, White or Coffey, as the case may be, and one other. The largest numbers on the various projects on any UNITED ELECTRIC COMPANY one day were Claremont School, five (White and four others); Ashworth Clinic, three (White and two others); Fred Smith Hosiery Mills, seven (Coffey and six others); Arthur Smith Restaurant, four (Coffey and three others); King's Mountain Restaurant, four (Coffey and three others). The Catawba Institute and Western Piedmont College projects were roughly comparable to Fred Smith Hosiery Mill in magnitude. Both White and Coffey suggested raises on occasion to Bentley for the men with whom they worked. Sometimes the men got raises. Sometimes they did not. Around the time Bentley put White in charge of the Claremont School job,3 Benny Lail, a friend of White who had recently been released from military service, asked White whether he thought Bentley might hire him. White and Lail stopped in at United's shop on a Saturday morning to see Bentley. Bentley interviewed Lail and told him to return on Monday for a decision. He asked White whether military service had made Lail more reliable than he had been when Bentley had worked with him in the past White said he thought Lail had changed. On Monday morning Bentley put Lail to work. He lasted only 3 months. He was unable to get along with the other men. First Coffey and then Williams refused to work with him. Bentley then asked White one morning to take Lail with him. White said, in view of their relationship as friends, he would rather not. Bentley fired Lail that morning. 4 The Union's majority On June 25, the day Ruff, the Union's business manager, mailed a letter to United requesting recognition, United had 12 electricians in its employ,4 viz, Albert Birdsong, Jimmy Allen Bolick, Phil Bowman, Sonny Bowman, Ronald Coffey, Earl Greene, Charles Jonas, Jr., Bill Martin, Richard Watson, Ronnie White, Gary Williams, and Thurman Allen Woodie. Ruff had in his possession valid cards signed by Bolick, Phil Bowman, Coffey, Greene, Jonas, Martin, White, and Woodie authorizing the International Brotherhood of Electrical Workers to repre- sent them for purposes of collective bargaining with their employer. For reasons unexplained in the record, Bolick and White did not work on Friday, June 26, the day United refused delivery of Ruff's letter. White was not discharged until June 30. Therefore, he was still employed by United as of June 26. There is no basis in the record for finding that Bolick was not still an employee on June 26. Therefore, regardless of whether Coffey and White are included in the units or excluded as supervisors and regardless of whether the Union's demand for recognition is considered to have been made on June 25 or 26, the Union represented a majority of unit employees when it demanded recognition. The respective counts are 8 out of 12 or 6 out of 10.6 The eight card signers and Gary Williams were involved in the June 26-30 pay dispute with Bentley. The eight card signers have participated in the strike since it began July 1, 3 Whether before or after is unclear in the record 4 Its only other employee was Linda Bradshaw, an office clerical 5 The complaint alleges, Respondent admits, and I find appropriate for collective bargaining a unit composed of all United's employees other than office clericals, guards, and supervisors within the meaning of the Act 669 picketing United as well as other companies. Williams returned to work sometime after July 2. B. Analysis and Conclusions 1. The discharges and the interrogation Charles Bentley admittedly discharged Ronnie White and Ronald Coffey on June 30 because they were engaging in union activities. The questions he asked them in the course of the discharge interview about those activities and their future intentions obviously are the sort of interroga- tion which, if directed to employees, constitutes restraint and coercion and is thus an independent violation of Section 8(a)(1) of the Act. Therefore, whether Respondent has violated Section 8(a)(1) and (3) turns on whether White and Coffey were employees or supervisors within the meaning of the Act, I find that White and Coffey were not supervisors within the meaning of the Act. In reaching this conclusion I have not overlooked the fact that Trial Examiner John Gregg held as follows in his decision in the Industrial Electric Company? companion case: I have considered the testimony of Moore and Ray both of whom I credit as straightforward, in finding that Bolick and Story were vested with supervisory authority by the Respondent, and actually carried out such authority. Meyers Bros. of Missouri, Inc., 151 NLRB 889, 899. I am also persuaded by the fact that I do not believe that the Respondent would have left approxi- mately six employees on a major unit of production without supervision for the periods of time indicated on this record, and I am convinced that the Respondent relied on the immediate supervision by Bolick and Story of their units on the Morganton and Drexel projects during this period of time. The record shows that both Bolick and Story exercised the power of assignment of work, evaluated the capabilities of the employees and effectively recommended employment assignments and promotions in all of which they acted not in a merely routine or clerical manner but in the exercise of independent judgment. I was not convinced by the testimony of Bolick in which he attempted in a contrived manner to portray his relationship to the crew on the project as that of a highly skilled technical leadman who merely gave advice when queried and made no recommendations. In any event I am thoroughly convinced from the testimony of record that Bolick and Story had and clearly exercised the authority to responsibly direct their daily work activity and were in fact supervisors within the meaning of the Act. I have not read or relied on the record made before Trial Examiner Gregg in Industrial in weighing this issue. However, I have no doubt that Respondent's brief to me is accurate when it states: The evidence in the instant case concerning the supervisory status of White and Coffey was very similar United employs no guards 6 Even if the demand is limited to June 26 and Bolick is dropped from the unit, of course, the Union still had a majority The respective counts would than become 7 out of I I or 5 out of 9. 7 Case I I-CA-4299, TXD-54-71, issued February 8, 1971 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the evidence of supervisory status submitted in the Industrial Electric Company case, supra, where the Trial Examiner held that the individuals were supervisors within the meaning of the Act (TXD 15, lines 26-46). In concluding that White and Coffey were not supervi- sors within the meaning of the Act, I have taken into consideration the record made before me in Electric Wiring Inc, Case 11-CA-4301, the fourth and last of these companion cases.8 I have today issued my Decision (TXD-186-71) in that case In it I find, on the basis of evidence very similar to that in this case, that some, although not all, of Electric's so-called superintendents or job foremen are supervisors within the meaning of the Act. I have not overlooked that fact either. As discussed in that decision, my finding in Electric Wiring is based on clear and uncontroverted evidence that individuals found to be supervisors effectively recommend- ed the hiring of employees. There was no evidence that those whom I found not to be supervisors ever attempted to exercise any such authority. Their roles in all other respects were similar to White's and Coffey's. Whether, unlike them, White and/or Coffey possessed authority "to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees . . . or to adjust their grievances, or effectively to recommend such action" is the question to which I turn first. The evidence in this area falls into two categories, Benny Lail and pay raises. With respect to the first, Ronnie White played a part in both the hiring and the firing of Benny Lail. Bentley hired Lail after asking White's opinion as to whether military service had changed Lail's attitude toward work. However, Bentley was acquainted with Lail even before White brought him into United's shop to see Bentley about a job. Bentley interviewed Lail personally before telling him to return on Monday to find out whether Bentley would hire him. I do not think this rises to the level of a recommendation by White to hire Lail so effective that Bentley substituted White's judgment for his own. I in especially persuaded to this view of Lail's hiring by this testimony of Bentley on cross-examination. Q. Did that happen on any other occasion with Mr. White that he brought someone by and recommended them to you? A. Yes, sir. Q. Who else did he recommend? A. He brought a boy by the name of Allen or something or other, I forget his last name. This is another case similar to Lail. Q. That would have been toward the end of 1968? A. I would say on up in `69. Q. Well, what about January of `69? A. No, I'd say June or August of `69. This similar incident occurred long before Bentley told White in March of 1970 that he would have to run jobs if he wanted to make more money than a helper or an apprentice. There is no contention by Respondent that White was a supervisor within the meaning of the Act I Trial Examiner Gregg issued his decision in Hickory Electric Company, Case 1l-CA-4302, TXD-129-71, on March 9, 1971 It contains no before that conversation. If White could recommend a friend for a job before his status changed, the fact that he did so after has no significance in deciding whether the change boosted him into a supervisory position. White's role in Lail's discharge is equally insignificant. The fact that Bentley decided to get rid of Lail after White said he would prefer not to work with him falls far short of establishing that White's and not Bentley's judgment was the operative cause of Lail's departure. Both White and Coffey mentioned to Bentley from time to time that they thought one or another of the men working with them deserved a raise. But there is no indication in the record of which men got raises, if any, and which did not. Absent more detail about such incidents, especially about how Bentley went about dealing with White's and Coffey's suggestions, this record will not sustain a finding that White and Coffey had authority effectively to recommend raises for employees. The question of whether White and Coffey were supervisors within the meaning of the Act at the time of their discharges must turn, in the final analysis, on whether they had authority, in the interest of Respondent, responsibly to direct other employees. And that question, in turn, hinges on the nature of the authority and responsibili- ty they were given by Bentley when he placed them "in charge of" building and construction jobs. In the part of the Industrial Electric Company decision which I have quoted above, Trial Examiner Gregg finds, on the basis of the record made before him, that men in assignments similar to White's and Coffey's had to exercise their independent judgment in overseeing the work of other electricians on the projects they had been placed in charge of. My disagree- ment with Trial Examiner Gregg, if disagreement it be, is that I cannot, on the basis of the record made before me, find that White and Coffey ever acted in a more than routine manner insofar as their relationship with other employees on the project was concerned. Unlike Trial Examiner Gregg, I have no problem with credibility of any of the witnesses who testified before me. While Bentley, on the one hand, and White and Coffey, on the other, placed a different emphasis on the facts they testified about and while White and Coffey resisted admitting, in so many words, that they were "in charge of" projects, there is no serious disagreement between them about what White and Coffey did. As set forth in the section entitled "Facts-The supervisor issue" above, White and Coffey told other men on the job what to work on and, in so doing, took into consideration what the other men were capable of doing. But it is equally clear that the amount of such direction was minimal. By and large, when the crew came on the job or started a new phase of it, the men set to work to do what obviously had to be done. As men "in charge," White's and Coffey's main function was to deal with those over United, i.e., the general contractor or the architect or the like, on behalf of United, rather than with those under United; i.e., the other electricians on the job. White and Coffey both worked alongside the other men. On most days that they worked on projects they had been placed in charge of, there was only a handful of men reference to any supervisory issue UNITED ELECTRIC COMPANY 671 with them. On many days they did not work on such projects at all. Trial Examiner Gregg based his supervisor conclusion on the finding that the men who worked for Industrial "exercised the power of assignment of work, evaluated the capabilities of the employees and effectively recommended employment assignments and promotions." In this case, it seems clear to me, White and Coffey did all these things (except effectively recommend promotions) but did them in, a routine manner requiring the exercise of no independent judgment. Their relationship to the men who worked on United projects with them was not that of supervisor and subordinates. It was, rather, that of journeyman and apprentice or, at the most, leadman and crew. Finally, the most significant part of the record in this case, insofar as this issue is concerned , is Bentley's account of his conversation with White at the time he promoted White in March. Bentley did not tell White that he was going to be a "superintendent" or "job foreman." (In fact, Bentley never told either White or Coffey that he had such a title although he did refer to them in that manner in discussions with such persons as general contractors' representatives on jobs they were put in charge of.) He told White that he was going to have to "take a crew of men and a truck and run the job to get more money." But the money that White wanted more than was the pay of "a helper or an apprentice or whatever." The implication is inescapable that the promotion Bentley had in mind, at a time long before supervisory status for White and Coffey became a defense to serious and expensive unfair labor practice charges leveled against Bentley's company, was a promo- tion to journeyman electrician, not to supervisor. For the reasons stated, I conclude that Ronnie White and Ronald Coffey were not supervisors within the meaning of the Act. Therefore, Respondent violated Section 8(a)(1) of the Act when Charles Bentley, the owner, interrogated them and Section 8(a)(3) and (1) of the Act when he discharged them on June 30. 2. The refusal to bargain Respondent argues that it has not violated Section 8(a)(5) of the Act on several grounds. All are without merit. First, it contends that September 1, the day it received a demand letter from the Union's attorney, and not June 25 is the crucial date for determining whether the Union represented a majority of United's employees. This position is based on two separate aspects of the case. Respondent would find Ruff's June 25 letter an equivocal demand in that it was couched in teems of an all-employee unit without specifying any exclusions such as supervisors. The all- employee unit for which Ruff requested recognition on June 25 was an appropriate one for collective bargaining. Respondent had no supervisors within the meaning of the Act other than the owner, Bentley, and no guards at all. The fact that Ruff did not specifically exclude Linda Bradshaw, United's lone office clerical employee, is a minor deviation from the unit description found appropriate in footnote 5 above and not significant enough to render the demand legally insufficient. The other aspect on which Respondent relies is its refusal to accept delivery of Ruff's letter on June 26. The letter was enclosed in an envelope clearly marked as coming from "International Brotherhood of Electrical Workers, Local Union 379, 2121 Commonwealth Ave., Room 101, Charlotte, N.C. 28205." Mrs. Bentley was working in United's office on June 25 because Miss Bradshaw was on vacation. I do not credit Bentley's story that his wife refused to accept delivery of Ruff's letter of her own volition. However, the point is not important . Whether she did it because her husband had told her not to accept any letters from the Union or whether it was her own idea, Respondent is chargeable with the legal consequences of that act. One legal consequence is rejection of the Union's demand for recognition in a unit appropriate for collective bargaining at a time when the Union represented an uncoerced9 majority of the employees in that unit. To permit Respondent to prevail in its argument that it did not reject the Union's demand because, not having opened the letter and read it, it was unaware that the Union was demanding recognition would turn the National Labor Relations Act into a game which the clever player could use to frustrate rather than implement the national policy of encouraging collective bargaining. Respondent also contends that an order to bargain is inappropriate under the Gisselio principle, relying, once again, on its contention that no violations of Section 8(a)(1) and (3) of the Act resulted when Bentley interrogated and discharged White and Coffey on June 30. The key finding of this decision, i.e., that White and Coffey were not supervisors within the meaning of the Act, disposes of that argument. The outrageous nature of the violation commit- ted when Bentley discharged White and Coffey for engaging in union activities because they thereby put their own interests as employees ahead of his interests as their employer, especially when viewed in the light of Respon- dent's total rejection of the principle of collective bargaining evidenced by its inexcusable refusal even to receive a letter from the Union its employees wanted to represent them, puts this case in the extreme category the Supreme Court had in mind when it said in Gissel that an order to bargain is an appropriate remedy for unfair labor practices so pervasive and outrageous that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be held. I find, therefore, that Respondent violated Section 8(a)(5) and (1) of the Act when, on June 26, it refused the Union's demand for recognition as the representative of its employees for purposes of collective bargaining and persisted in that position thereafter. 3. The nature of the strike Employees of United, Industrial, Hickory, and Electric voted to strike on June 28 because all four companies had refused delivery of the Union's demand letters and because two of them, Industrial and Hickory, had discharged 9 The finding that white and Coffey were not supervisors within the meaning of the Act disposes of any contention that the authorization cards Ruff had in his possession on June 25 were tainted because supervisors had participated in the organizing campaign. 10 N LR.B v G,ssel Packing Co , 395 U S 575. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. The fact that White and Coffey had not yet been discharged when that strike vote was taken cannot keep the strike which began on July 1 from being attributable to United's unfair labor practices. United's refusal to bargain, implicit in its refusal of the Union's demand letter on June 26, was a major part of what triggered the strike. To say that the strike was not also triggered by the illegal discharge of White and Coffey on June 30 because the strikers did not specifically say to each other that they felt aggrieved by this particular act would ignore the real world in favor of a legal fiction. Therefore, regardless of the outcome of the Industrial and Hickory cases and Trial Examiner Gregg's findings therein that the strike is an unfair labor practice strike, I find that the strike which Respondent's employees have participated in since July 1 was caused, in part, by Respondent's unfair labor practices. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. United Electric Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local Union No. 379, is a labor organization within the meaning of Section 2(5) of the Act. 3. All Respondent's employees other than office clericals, guards, and supervisors within the meaning of the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times on and after June 25, 1970, the Union has been and is now the representative for the purpose of collective bargaining of the employees in the unit described above within the meaning of Section 9(a) of the Act. 5. By refusing, on June 26, 1970, to accept delivery of the Union's letter requesting recognition as representative for the purpose of collective bargaining of the employees in the unit described above and by refusing then and at all times thereafter to recognize and bargain with the Union, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By discharging Ronnie White and Ronald Coffey on June 30, 1970, for engaging in union activities Respondent has violated Section 8(a)(3) and (1) of the Act. 7. By interrogating employees about their union activities and desires on June 30, 1970, Respondent has violated Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and remedy them. Because the manner in which it dealt with the efforts of its 31 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in employees to organize themselves demonstrates its disdain for their statutory rights, I will recommend that Respon- dent be ordered to cease and desist from any violations of its employees' Section 7 rights. In order to remedy the discriminatory discharge of Ronnie White and Ronald Coffey, I will recommend that Respondent be required to offer them reinstatement with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In order to remedy Respondent's illegal refusal to bargain with the Union, I will recommend that Respondent be required to bargain collectively, upon request, with the Union as the duly designated representative of its employees and, if an understanding is reached, embody it in a signed agreement. Since the strike in which some of its employees have participated since July 1, 1970, was caused in part, by Respondent's unfair labor practices, I will recommend that, upon their unconditional applications, Respondent offer reinstatement to Jimmy Allen Bolick, Phil Bowman, Earl Greene, Charles Jonas, Jr., Bill Martin, and Thurman Allen Woodie, discharging, if necessary to make room for them, persons hired by Respondent on and after July 1, 1970, with backpay computed as specified above for any period in excess of 5 days between their respective unconditional applications and Respondent's offers of reinstatement. Finally, I will recommend that Respondent be required to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ii ORDER Respondent, United Electric Company, its officers, agents, successors, and assigns, shall: 1. Cease,and desist from: (a) Discharging its employees in order to discourage membership in International Brotherhood of Electrical Workers, Local Union No. 379, or any other labor organization. (b) Interrogating its employees about their union activities or desires. (c) Refusing to recognize and bargain with International Brotherhood of Electrical Workers, Local Union No. 379, as the exclusive representative of its employees in the unit found appropriate herein. (d) In any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Ronnie White and Ronald Coffey immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and pay them for the earnings they lost as a result of their June 30, 1970, discharges, plus 6 percent interest. (b) Upon application, offer Jimmy Allen Bolick, Phil Bowman, Earl Greene, Charles Jonas, Jr., Bill Martin, and Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes UNITED ELECTRIC COMPANY 673 Thurman Allen Woodie immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, discharging, if necessary to make room for them, persons hired on and after July 1, 1970, and, in the event more than 5 days elapse between applications and offers, pay them for earnings lost as a result of Respondent's failure to reinstate them by the fifth day after their applications, plus 6 percent interest. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Upon request, bargain collectively with International Brotherhood of Electrical Workers, Local Union No. 379, as the exclusive representative of the employees in the unit found appropriate herein and, if an understanding is reached, embody such understanding in a signed agree- ment. (e) Post at its shop in Hickory, North Carolina, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 Dated at Washington, D.C. 12 -In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 13 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " organization, by interrogating employees about their union activities and desires, and by refusing to recognize and bargain with the union of your choice: WE WILL offer Ronnie White and Ronald Coffey immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and pay them for the earnings they lost as a result of their June 30, 1970, discharges, plus 6 percent interest. WE WILL, when they apply, offer Jimmy Allen Bolick, Phil Bowman, Earl Greene, Charles Jonas, Jr., Bill Martin, and Thurman Allen Woodie immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, discharging, if necessary to make room for them, persons we have hired on and after July 1, 1970, and, in the event more than 5 days elapse between applications and offers, pay them for earnings lost as a result of our failure to reinstate them by the fifth day after their applications, plus 6 percent interest. WE WILL NOT discharge or discriminate against any employee for supporting International Brotherhood of Electrical Workers, Local Union No. 379, or any other union. WE WILL NOT interrogate you about your union activities or desires. WE WILL NOT unlawfully interfere with your union activities in any way. WE WILL, upon request, bargain collectively with International Brotherhood of Electrical Workers, Local Union No. 379, as your exclusive representative and, if an understanding is reached, embody such understand- mg in a signed agreement. The unit appropriate for such bargaining is: All our employees other than office clericals, guards, and supervisors within the meaning of the National Labor Relations Act. Dated By APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging employ- ees in order to discourage membership in a labor UNITED ELECTRIC COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina, 27101, Telephone 919-723-2300.