Rock Hill Telephone Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rock Hill Telephone Company and Local 3716, Communications Workers of America, AFL-CIO. Case 11 I-CA-6715 February 3, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 9, 1977, Administrative Law Judge Thomas E. Bracken issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 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 Administrative Law Judge and hereby orders that the Respondent, Rock Hill Tele- phone Company, Rock Hill, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See, generally, Isis Plumbing & Heating Co., 138 N LR B 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any of you for support- ing Local 3716, Communications Workers of America, AFL-CIO, or any other union. WE WILL NOT interrogate employees as to why they became involved with a union or who started the Union. WE WILL NOT interrogate employees as to what complaints caused them to seek union representa- tion. WE WILL NOT ask employees to indicate their opinion as to how other employees might vote in a union election. WE WILL NOT tell employees that our problems with the Union will be resolved when we are able to weed out the troublemakers. WE WILL NOT urge employees to report to us what takes place at union meetings, or what information was sought from them by persons indicating a purpose to file objections to the election. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of union activities. WE WILL offer full reinstatement to Frank Peay to the job he held on August 23, 1976, or, if that job no longer exists, to a substantially equivalent one, with backpay plus interest. ROCK HILL TELEPHONE COMPANY DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge: This case was heard at Rock Hill, South Carolina, on February 14 and March 2 and 3, 1977. The charge was filed by Local 3716, Communications Workers of America, AFL-CIO (Union) on September 7, 1976' (amended on February 14, 1977), and the complaint was issued on November 15. The primary issues arise out of an organizing campaign con- ducted by the Union among the employees of the Compa- ny (herein called Respondent), and concern whether the Company (a) unlawfully interrogated and threatened em- ployees during the Union's organizing drive, and (b) discriminatorily discharged Frank Peay, in violation of Section 8(aX)) and (3) of the National Labor Relations All dates are in 1976 unless otherwise stated. 234 NLRB No. 110 690 ROCK HILL TELEPHONE COMPANY Act. The chief controversy litigated is whether, at the time of his discharge, Peay was a supervisor within the meaning of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the brief filed by General Counsel (none having been filed by Respondent), I make the following: FINDINGS OF FACT I. JURISDICTION The Company, a South Carolina corporation, is engaged at Rock Hill, South Carolina, and its environs, in the business of providing residential and business telephone services, from which it annually receives gross revenues in excess of $100,000. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On February 23, 1962, upon a petition filed by the Union (Case 11-RC 1577), the Board conducted an election among the employees of Respondent, which the Union lost by a vote of 28 to 3. Upon objections timely filed by the Union, based on certain conduct by Respondent during the course of the campaign, the Regional Director by Supplemental Decision dated March 27, 1962, set that election aside, and directed a second election to be conducted at a time he determined to be appropriate.2 In late 1975, or early the following year, the Union resumed its efforts to organize Respondent's plant depart- ment employees, and on April 26 filed a petition seeking certification (Case I-RC-4185). A hearing on the petition was conducted on May 13, and on June 2 a Decision and Direction of Election was issued. In the decision, the Regional Director found essentially that "All employees of the Employer's plant department" constituted an appropri- ate unit. The parties were in agreement with the unit found appropriate, but disagreed as to one classification, which was that of Frank Peay. The Regional Director, in issuing the Decision and Direction of Election, made the following finding: Assistant to Installation and Repair Supervisor (Frank Peay): There are approximately 28 employees in instal- lation and repair of whom about half work with key equipment, pay stations, utility crews, or the test board. 2 Although the record is silent as to what occurred as a result of that directive. it does appear that Respondent continued to operate as a nonunion plant 3 None of the objections filed raised any question as to the supervisory status of Frank Peay. ' At the onset of the hearing in the instant case, counsel for Respondent objected to the relitigation of the supervisory status of Peay. contending that the Regional Director, having made the determination in the representation The remaining 12 or 13 employees work on various installation and repair jobs including installing and repairing residential and business telephones. Peay is responsible for assigning work to this latter group of employees, including the authority to take them off of one job and put them on another. There is testimony that in Neely's absence Peay is responsible for all employees in repair and installation; however he is himself a skilled workman and when necessary, such as when there has been a storm or damage to telephone equipment, he can perform regular installation and repair work as well as work on the test board and does so 20 to 25 percent of the time. Peay evaluates the performance of the installation and repairmen, has the authority to rate employees, and recommend merit wage increases. He has the authority to recommend discharge. Peay is assigned a vehicle which he keeps 24 hours a day whereas unit employees come to the plant to get their vehicles and return them to the plant at the end of the day. In view of the foregoing and the entire record, I find that Peay is a supervisor within the meaning of Section 2(11) of the Act and shall exclude him. United States Gypsum Company, 120 NLRB 906, 908-909 (1958). The election so directed was conducted on June 30, at which 17 votes were cast for the Union, and 57 against. Timely objections filed by the Union were either with- drawn by it, or found to be without merit by the Regional Director,3 and on August 6 the Regional Director certified that the Union was not the collective-bargaining represen- tative of the employees involved. B. The Instant Complaint General Counsel, taking the position that Frank Peay is not a supervisor4 within the meaning of the Act, contends that a number of statements made to Peay by admitted supervisors of Respondent constituted violations of Section 8(a)(1) of the Act. In addition, General Counsel relies on some statements made to employees other than Peay, as violations of the Act. All of these incidents are detailed below in the order that they are alleged in the complaint and amendments thereto. 1. The alleged 8(aXI) incidents (a) As noted above, the hearing in the most current representation proceeding, Case I l-RC-4185, was held on May 13. Peay testified that prior thereto, on May 6, he was summoned to the office where Operations Manager Bill Gaillard, an admitted supervisor, asked him what his feelings were about the Union. Peay replied that, if the Union were successful, overtime compensation and insur- ance benefits would be better. Gaillard then asked if Peay case that Peay was a statutory supervisor, was precluded from taking an inconsistent position in the complaint issued in the unfair labor practice proceeding. On the basis that the law is clear that a finding in a representation case that a person is a supervisor has no binding force in a subsequent complaint, where, as here, independent violations of Sec. 8(aX I) and (3) of the Act are involved, I overruled the objection; Greenbrier Hotel, 216 NLRB 721 (1975); Suburban Homes Corp., 173 NLRB 497 (1968). 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had attended union meetings. Peay replied that he had and that Gaillard probably knew the names of all others that had done so. Gaillard admitted that he had a conversation with Peay in the first week of May, but claims that Peay, not he, initiated the conversation. Gaillard denied that he asked Peay concerning his views of the Union, on whether he attended union meetings, but admitted that he was then aware of Peay's activity on behalf of the Union. Neither witness impressed me as being forthright, partic- ularly in questions relating to Peay's duties as a crew chief. Peay constantly minimized his duties, whereas Gaillard maximized them out of all proportion. However, Peay did impress me, in testimony on subjects other than his duties as a crew chief, as an unemotional, blunt witness, stating the facts in rapid fire order as he remembered them. I resolve the conflict by crediting Peay. (b) Peay testified that on or about August 15 Donald E. Bushue, plant superintendent and an admitted supervisor, approached Peay at his work station on the test board 5 and asked that Peay come with him to the office. There Bushue asked Peay why he had become so involved with the Union. Peay replied that it was chiefly because of the lack of overtime pay, and Respondent's failure to provide adequate insurance, which issues he had not been able to resolve with the Company. Peay then added it was not he who had started the Union, and when Bushue asked who did start it Peay declined to provide that information. Bushue admits that he had a conversation in his office with Peay sometime in August and that he asked Peay why he had permitted himself to get involved "in this thing." Bushue denied that he used the word "Union," but gave no testimony as to what he meant by "this thing." Bushue denied that he asked Peay whether he had started the Union, or who did start it. Bushue did not impress me as an objective witness, who was trying to state the facts as he remembered them, but testified as an advocate to advance his employer's cause. To the extent that Bushue's testimony is in conflict with that of Peay, I credit Peay. (c) Peay testified that on August 23 he was called to the office where he found Gaillard, Tommy Williams, and Dan Armstrong.6 Gaillard stated that he was calling Peay in for the purpose of separation, and said that although he knew that Peay had not started the Union he wanted to know who did start it. Peay replied that he would not answer that question, that the situation had already cost him his job, and that he did not want it to cost anyone else their job. Gaillard admitted that he called Peay to the office and told him that the purpose of the meeting was to separate him, unless he would resign, which Peay refused to do. According to Gaillard, Peay stated that he had worked hard for the Union, having brought it to a vote, and was glad that he had done so, but that one thing he had not done was to start the Union and bring it in. Gaillard admitted that he then commented, "[IIf you didn't who did? You've done everything else." Gaillard claims that he 5 Peay was transferred from his position as crew chief to that of a test board operator on May 10, as set forth in detail in sec. B,2, below. 6 Williams testified that he was employed by Respondent as a staff supervisor and Armstrong testified that he was the assignment supervisor. 7 By amendment to the complaint on the first day of the hearing, General Counsel alleged the supervisory status of John Workman, Tommy Williams, did not bring up the subject of the Union, that Peay did so, and that he did not tell Peay that he knew he had not started the Union, or ask who had done so. To the extent that Gaillard's testimony in this area conflicts with that of Peay, I credit the latter. (d) In late May or early June, Clyde Polk, Jr., an installation and repair employee, testified that he was riding to a job with his supervisor, John Workman. 7 Workman asked Polk to furnish him with a list of those employees who would vote for or against the Union. Later that afternoon, Polk gave Workman a list showing the number of votes which, in his opinion, would be cast for and against the Union, and the number he regarded as doubtful. The list only gave numbers, but no names or indicia how any employee might be expected to vote. Polk's testimony is uncontroverted, as Workman did not testify, and I find Polk to be a credible witness. About mid-June, C. Edgar Howell, employed by Re- spondent as a cable splicer, testified that he was engaged in a conversation by Supervisor David M. Armstrong con- cerning the Union. Howell stated that Armstrong asked him to supply Armstrong with a written report showing how he thought the people in the assignment department would vote in the upcoming election. Later that day, Howell gave Armstrong a paper showing that all men in the department would vote against the Union. The infor- mation supplied was simply a total, and did not contain the name of any individual employee, or how it was antici- pated any individual would vote. Armstrong candidly admitted that he approached Ho- well in the parking area and asked him if he would give a total count-no names- in writing of how he thought the people in that department would vote. Later that day, Howell gave him the requested information. (e) On a day some 2 or 3 weeks before the election, Howell testified that he was engaged in a conversation with Plant Superintendent Donald E. Bushue in the truck shed. The latter asked Howell who the employees were who were making complaints, and what were the complaints that were causing the Union to be brought in. Howell replied that he was willing to tell Bushue what the complaints were but would not mention any names. The evidence does not show that the conversation went any further. Bushue testified that he had no recollection of any conversation with Howell of the kind he related, but while insisting that he did not ask for the names of union supporters, admitted that he may have asked Howell for the names of employees with complaints. Howell was an impressive, sincere, responsive witness, who answered questions on both direct and cross-examina- tion on all subject matter simply and directly, without any evasion. He also testified against Respondent while still in its employ, further supporting his credibility. I credit Howell's testimony throughout the case. (f) Also, on June 25, Howell had occasion to ride to a jobsite with Supervisor Tommy Williams. On the way Jack Barnes, and Dan Armstrong. Respondent did not admit or deny that status. G.C. Exh. 3, which is headed "Supervisors Schedule," was the only evidence introduced by General Counsel to prove the supervisory status of these four employees. However, at the representation case hearing on May 13, Respondent stipulated that these four persons, among others, were supervisors within the meaning of the Act, and I so find 692 ROCK HILL TELEPHONE COMPANY Howell asked Williams when all this activity about the Union was going to be settled down and when things would get back to normal. Williams replied that would happen when "the troublemakers were weeded out." Williams also stated that, when all this was over, he was going to ask Frank Peay why he did what he had done regarding the Union. Williams admitted that on the ride to the job Howell brought up the subject of the Union, and that the matter was discussed between them. He denied, however, that he said anything to the effect that discussions concerning the Union would subside only when the troublemakers were weeded out. Williams also testified that he "could not recall" telling Howell that he was going to ask Peay why he did what he had done regarding the Union. As previously stated, I credit Howell. (g) The Union had scheduled a meeting for the Monday evening prior to the election. On Monday morning, Howell testified that he met with Jack Barnes in a parking lot "to talk about the job." Barnes asked if Howell was going to the union meeting that evening. When Howell answered in the affirmative, Barnes asked if Howell would telephone Bushue or Gaillard after the meeting and tell him what had occurred at the union meeting. Howell made no reply, but on the following day told Barnes that he just could not do what Barnes had asked. Barnes admitted that he had a conversation with Howell on a parking lot and that Howell told him he was going to a union meeting. However, Barnes denied flatly that he asked Howell to bring any information back to anyone. I credit Howell. (h) On a day, some 2 to 3 weeks prior to the election, Howell testified, he was in the plant work center when the following occurred: "I overheard a group of people talking, of which Tommy Williams said that the only reason James Miller was interested in the Union was because he thought he was going to get something for nothing." No other evidence was presented by General Counsel as to this incident. Williams admitted that he knew Miller, a janitor in the employ of Respondent, but denied flatly that he made any statement to other people, about what Miller was going to do at any time. I credit Howell. (i) About 2 or 3 weeks following the election, Howell testified, Armstrong assembled the employees in his de- partment, and told them that the vote against the Union was being appealed, that the employees may be ap- proached by certain people, and that the employees should remember that they did not have to talk to anyone about it. Shortly thereafter, Howell met Bushue at one of the company offices and told Bushue that he had been contacted by someone to talk about the Union. Bushue asked him who came to see him and what they wanted to know. Howell told Bushue the nature of the conversation, but declined to reveal the identity of those who had spoken with him. At this point Bushue asked, "Well, what did Frank say?" Howell replied that he had not mentioned Peay's name. Bushue then said that he would be back in touch with Howell later. Armstrong admitted that he told the assembled employ- ees that they might be approached about giving testimony concerning the Union and testified that Bushue had directed him to make such statements. This was not controverted by Bushue. In fact, Bushue admits that he had a conversation with Howell concerning the objections to the election, but claims that he only listened, and asked no questions. I credit Howell. 2. The discharge of Frank Peay Peay was initially employed by Respondent in June 1965 and assigned to work as a frameman in a central office. After a period of service there and in construction, Peay became an installer-repairman (herein installer) in 1968. At the time of the events here involved, Peay was the most senior installer on the staff, having about 5 years seniority over the next most senior installer. The duties of an installer fell mainly into three categories: (1) Repair of equipment on the customer's premises, (2) installation or removal of company equipment from the premises of a customer, and (3) miscellaneous orders for exchanging old equipment, or doing preventive maintenance. Prior to 1972, the Company's installation crews were divided into four areas, designated as A, B, C, and D. In 1972, areas A and B were consolidated into one work group, and areas C and D into another work group. Each consolidated group was assigned a crew chief or crew foreman; Peay being designated as chief of crews A and B, and Clyde Thomas as chief of groups C and D. As crew chief Peay obtained from Neely, the supervisor of the installation and repair department, service work orders which designated the work to be done by the crews for areas A and B, and as his first duty of the day passed these orders out to the men in those crews. According to Peay, and his testimony in the area is not denied, he exercised no discretion whatever in distributing the orders, simply passing them out at random, and without examining them. At times he would retain some of the orders for himself, and personally perform such work. In addition to performing some of the work himself, Peay visited one or more of the jobsites each day, either on his own, or by reason of a call from one of his crew who may have encountered some problem, to see, as he put it, what assistance he might render the men in performance of their duties. According to Peay, his only function on the jobsite was to offer the men help, which they were free to accept or reject as they saw fit. He testified that he was without authority to give the men any orders, or to reprimand or discipline them if they refused to follow his suggestions. Also, if one of the other crews got behind in their work, and if one or more men from his crews could be spared, he would send such men over to the other crew. Although Peay claims that he did not make the decision whether to send help or not, he did not indicate who did make that decision. At the end of each day, each member of his crew prepared a report of the functions performed, the time spent, and the materials used, which reports they delivered to Peay. Peay approved them, sent them with his own report, to Neely, who likewise approved them and forward- ed them to the internal accounting office. According to Peay, he did not examine these reports or question any of the entries therein, he simply approved them perfunctorily. 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peay was on 24-hour call, and for that reason was provided with a company truck, which he took home for after duty-hour calls. Such calls came to Peay direct from the repairmen then at work, when they encountered a problem they could not resolve. Peay would then go to the jobsite and when he had solved the problem he would return home. Only if Peay was unable to resolve the problem would he call Neely. The record contains a number of employee evaluation reports which Peay approved in 1975 and 1976, grading installers for performance in various areas, and recom- mending increased pay for certain employees in his crew. On many of these he made comments.8 There is no evidence that Peay's recommendations in this regard were ever questioned or disregarded. 9 Peay continued to perform the functions of crew chief or crew foreman of the installer-repairmen from 1972 until early May 1976. As set forth above, on May 6 Gaillard interrogated Peay concerning his union activity. On the following Monday, May 10, when Peay reported for work, he was told by Neely that he was being transferred from his job of crew chief of installer-repairmen to the test board.'0 According to Peay, when Neely informed him of this transfer, he asked Neely if the transfer was his idea, and that Neely shook his head in the negative; that he then asked if it was Dan Bushue's idea, and Neely answered in the negative; and that he then asked if it was Gaillard's idea, and that Neely then nodded affirmatively, but quickly added, "Let's say its Dan's idea and mine." According to Peay nothing was said at the time about the transfer being temporary. Neely testified that he was instructed to transfer Peay to the test board, and to tell him that the transfer was temporary, and that he did so. Neely admitted that Peay asked whether the transfer was his idea, Bushue's, or Gaillard's, that he shook his head and said in effect, let's say it was our idea, or that it was his and Bushue's, and did not elaborate further. To the extent that Neely's testimony conflicts with that of Peay, I credit Peay. Gaillard admitted that he directed Peay's transfer to the test board, and that he did so because in the discussion he had with Peay on I Typical comments on the evaluations appear on parts of Resp. Exhs. I 11 and 12. On the sheet relating to Stanley Robinson, dated December 18, 1975, Peay wrote, "Stanley is very cooperative and performs his duties well. Stan is at a point where I feel he is maturing into an excellent installer- repairman and should show steady improvement." On the evaluation sheet relating to David Simril, Jr., dated June II, 1975, Peay wrote: In making this recommendation I feel it necessary to bring up what I feel is all important on any job- attitude. I have no doubt of David's ability or future ability to be an excellent repairman, but to accomplish this he will have to have a more positive attitude about his work. This weak attitude I feel is one of David's weaknesses. This attitude of course has an influence on his fellow workers as well. Should David over come this he should progress very rapidly. On the evaluation sheet relating to James Hawley, dated January 26, 1976, Peay wrote, "Milo is very dependable. He responds to supervision very well and gets along with fellow workers easily. I feel Milo will be an excellent installer repairman. He takes his job seriously." 9 Peay did testify in effect that the comments on these evaluation sheets were not his opinions, which he claimed were never sought, but mere echoes of what Neely wanted him to write. Neely denied this, and testified that the documents were handed to him by Peay as the latter's evaluation. I do not May 6 Peay attempted to deceive him by saying that he had no contact with the Union, which Gaillard knew was not a true statement. The operations manager also testified that he instructed Neely to tell Peay that the transfer was temporary. I find it unnecessary to resolve the conflict as to whether Neely told Peay that the transfer was temporary, as the issue is what duties Peay actually did perform while working on the test board for 3-1/2 months. On the test board, Peay was one of the three-person complement who handled calls from installer-repairmen, cable people, and contractors out in the field. He did not approve work reports, or prepare evaluation reports on employees, he did not visit jobsites, or have any contact with employees except to the extent that an installer might call the test board to check on the condition or operation of a line and, in such event, the caller may speak to any one of the three employees assigned to the test board. As set forth above, Peay was discharged by Gaillard on August 23. Gaillard testified that he made the decision to terminate Peay commencing with his interview with Peay on May 6.1t Bushue testified that Peay's discharge was not motivated by the fact that he had supported the Union and stated that the reason for the discharge was that Respon- dent could no longer trust him. The following colloquy then took place: Q. (General Counsel) Well, what was it that you couldn't trust him about? A. Well, he had - after he had been told to discontinue his activities by Mr. Gaillard, after having been declared a supervisor by the National Labor Relations Board, we had reasons to know that he continued to perform in areas that he should not have. Q. In areas related to the Union? A. Yes, sir.1 2 C. Analysis and Conclusions Numerous Board decisions make it clear that with exceptions not here material a person employed as a "supervisor," as that term is defined in Section 2(1 1) of the Act,' 3 does not enjoy the protection of the Act and may be credit Peay in this regard. His demeanor while testifying convinced me that in the area of his duties and responsibilities Peay made a studied effort to minimize the importance of the functions he performed, and to picture himself as one who had no responsibility for the proper functioning of his crew. o1 Neely described the test board as being similar to a switchboard, at which three test board operators sit taking calls from installer-repairmen, and in return giving them information on "troubles" and testing problems. 1 Gaillard admitted that the reason he did not discharge Peay prior to August 23 was the advice given him by company counsel that to do so would have affected the atmosphere of a free election. As indicated, the election was held on June 30. 12 At Bushue's conference with Peay on August 16, when Bushue admittedly asked Peay how did he let himself get involved, Peay responded that he did not get heavily involved until he was put on the test board, "And then I became very, very active." 13 That section provides: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise 694 ROCK HILL TELEPHONE COMPANY discharged by his employer even for union activity without violating the Act. Dexter Foods, Inc., 209 NLRB 369 (1974); United Painting Contractors, 184 NLRB 159 (1970). Thus, before deciding whether Respondent's conduct toward Peay was violative of the Act, it must first be decided whether Peay was a supervisor within the meaning of the Act. I now turn to that question. I. Supervisory status of Peay Based on my consideration of all the evidence, I am convinced, and therefore find, that from and after 1972 and until May 10, 1976, Peay was a supervisor within the meaning of Section 2(11) of the Act, because he, at the very least, responsibly directed the work of his crew. Assuming without deciding, that the checking of the daily reports and the preparation of the evaluation reports was, as the General Counsel argues, merely routine and did not involve the exercise of independent judgment (a conclusion I have serious difficulty in accepting), the evidence leaves no room for doubt that Peay was authorized to and did in fact responsibly direct the work of his crew.'4 Peay admitted as much when, on cross-examination, he stated: [M ]y job as a foreman was . . . [to) see that the work being done in my zones was up to a standard of professionalism . . . that was expected by the tele- phone company. That's exactly what I did. Peay additionally admitted that if he found a man had not performed his work properly he could and did tell the man that the work should be done over, although, as he frequently did, Peay sought to minimize his authority by claiming that if the man refused to redo the work he had no way of compelling him to do so. Accordingly, for the reasons stated, I find and conclude that until May 10, 1976, Peay was a supervisor within the meaning of the Act, and for that reason did not enjoy the protection that the Act affords "employees." However, I further find and conclude that from May 10, the date Gaillard transferred him to the test board, until his discharge on August 23, Peay was no longer a supervisor under the Act, but was a rank-and-file employee. On the test board, Peay was merely one of three employees, who performed the same routine duties as the other two employees: testing the lines on calls from installer-repair- men, cable splicers, and contractors. He did not assign any work, he did not review the worksheets of other employees, he did not evaluate other employees, he did not in any manner responsibly direct any employees in the perfor- mance of their duties.15 The three test board operators set forth in Respondent's Exhibit 6, Thomas,' 6 Bickford, and Therrell, all were listed on the Excelsior list supplied by of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 14 Indeed, if Peay did not supervise them, it might well be asked, who did; for the record is barren of evidence that anyone else in fact exercised the day-to-day supervision of the crew. The thought that the Respondent, a highly regulated public service employer, permitted the crews to work without day-to-day supervision does violence to the generally accepted practices of industrial management. 1S Counsel for Respondent in the representation case hearing admitted Respondent for the representation case, General Counsel's Exhibit 9, and all three, including Thomas, voted in the election without challenge.' 7 Respondent did not contend, during either the representation hearing or the instant case, that test board operators were statutory supervisors. It is crystal clear that from May 10 to August 23 Peay was not a supervisor under the Act. 2. The 8(aX3) violation General Counsel states in his brief that "The cases make it abundantly clear that loss of supervisory status brings one under the protection of the Act." However, I do not believe that to be a complete statement of the law on this point. Enterprise Products Company, Enterprise Fraction- ation Company, 196 NLRB 549 (1972), involved the dismissal of a supervisor who was discharged after being demoted because of his union activities. In upholding the discharge, the Board adopted the Trial Examiner's findings at 553: The law is clear that an employer may demote or discharge a supervisor who engages in union or con- certed activities and the fact that the supervisor was first demoted to a rank-and-file employee does not change the unprotected conduct to protected conduct when no intervening protected conduct takes place between the demotion and the discharge. Gibbs Auto- mnatic Division, Pierce Industries, Inc., 129 NLRB 196 [(1960)1. In the instant case there can be no doubt but that Peay took part in protected conduct after he was demoted and that Respondent knew that he was participating in activi- ties on behalf of the Union. Gaillard admitted that he made the decision to terminate Peay and that he did so over a period of time commencing on May 6. Gaillard further admitted that on June 6 he called Peay in and told him that because Peay was a supervisor he must cease participating in union activities, and could be discharged if he continued with his activities on behalf of the Union. At this time, Gaillard was talking to Peay, the test board operator, not Peay the crew chief. Plant Superintendent Bushue's testimony was most revealing as to the cause of Peay's dismissal. When asked at the hearing why Peay was discharged, Bushue replied that it was because Respondent could no longer trust him, and he admitted that the lack of trust was based on the fact that Peay had promised (in the May meeting) to cease his activity on behalf of the Union, but nonetheless continued with that activity. Accordingly, and for the reasons stated, I find and conclude that Peay's discharge on August 23 was motivat- ed by the fact that he assisted and supported the Union on the record (Resp. Exh. 2) that Peay did not supervise test board employees. 16 Thomas, when assigned to the test board in 1975, was given a $4 raise, and told that he was in charge of the three positions on the board. He was out sick from March to August 1, and when he returned to work he found Peay on the board and assumed that Peay worked under him. Nothing in the record indicated anything to the contrary. 1" Peay's n, me was not listed on the Excelsior list, which was consistent with the Company's position that he was a statutory supervisor. Excelsior Underwear Inc., 156 NLRB 1236 (1966). 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequent to May 10 while employed as a rank-and-file employee, and hence his discharge violated Section 8(aXl) and (3) of the Act. 3. The 8(a)(1) Violations (a) Even though I have found that Gaillard asked Peay on May 6 what his feelings were about the Union, and if he had attended union meetings, I do not find that the Respondent thereby violated the Act, as on May 6, and at all material times prior thereto, Peay was a supervisor under the Act. Respondent, therefore, had a legal right to inquire of Peay about any participation by him in the union campaign. I would dismiss this allegation of the complaint. Mississippi Valley Barge Lines, Inc., 151 NLRB 676, 678 (1965). (b) Bushue's interrogation of Peay on or about August 15, as to why he had become so involved with the Union, and who had started the Union, plainly is the type of interrogation which interferes with an employee in the exercise of his rights guaranteed in Section 7 of the Act, and is a violation of Section 8(a)(1). (c) At the August 23 termination meeting, after Peay stated that one thing he had not done was to start the campaign to bring the Union into the plant, Gaillard admitted that he commented, "[1lf you didn't, who did. You've done everything else." While Gaillard sought to explain his comment away, the fact remains that he did seek to learn who brought the Union into the plant. I find this question under the circumstances to be coercive. Peay had just been fired for union activity, two high supervisors were present in the operations manager's office, and Gaillard's question contains an inherent threat of reprisal against the employee who did bring the Union in. Associ- ated Mills, Inc., 190 NLRB 113 (1971), enfd. 474 F.2d 1351 (C.A. 7, 1973). (d) Workman's request to Polk that Polk furnish him with a list of employees who would vote for or against the Union, as well as Armstrong's request of Howell that Howell supply him with a count of how he felt the employees in the assignment section would probably vote in the scheduled election, each plainly constituted interfer- ence with the Section 7 rights of the employees, and hence violated Section 8(a)(1) of the Act. (e) When Bushue, a high official of Respondent, interro- gated Howell as to who the employees were who were making the complaints that caused the employees to seek union representation, he was seeking information that plainly interfered with Howell's exercise of his rights protected by Section 7 of the Act. Howell readily recog- nized the implied threat when he told Bushue that he would tell Bushue what the complaints were, but would not tell him the names of the disgruntled employees. I find that Bushue's request violated Section 8(a)(l) of the Act. (f) Supervisor Williams' statement to Howell that the union problem would be settled only when the "trouble- i' The term "troublemaker" has an established meaning in the lexicon of labor relations, as a term applied by employers to individuals who are attempting to instigate other employees into engaging in concerted or union activities. Passaic Crushed Stone Co., Inc., 206 NLRB 81 (1973); Garner Tool d Die Manufacturing Inc., 198 NLRB 640 (1972). 1t I find it unnecessary to decide whether Armstrong's statement to the makers"' 8 were weeded out was clearly a threat that the Respondent would rid itself of the employees who support- ed the Union, and violated Section 8 (aX)(). (g) Supervisor Barnes' request to Howell, that Howell report to Bushue or Gaillard what transpired at the Monday evening union meeting that Howell planned to attend, plainly interfered with Howell's Section 7 rights, and violated Section 8(aXl1). (h) Williams' statement to a group of people that "the only reason James Miller was interested in the Union was because he thought he was going to get something for nothing" forms General Counsel's evidence of the allega- tion that Williams conveyed the impression of surveillance of union activities. I find that Williams' statement was an innocuous remark that does not convey the impression of unlawful surveillance, and I would dismiss this allegation of the complaint. (i) Bushue's interrogation of Howell, as to who came to see him, and his request that Howell reveal to him the nature of the information sought concerning evidence supporting possible objections to the election, and specifi- cally his questioning of Howell as to what Peay had said, clearly interfered with the Section 7 rights of the employ- ees, and hence violated Section 8(a)(1) of the Act.' 9 CONCLUSIONS OF LAW 1. At all times material prior to May 10, Frank Peay was a supervisor within the meaning of Section 2(1 1) of the Act, and at all times material after May 10 Peay was an employee within the meaning of Section 2(3) of the Act. 2. By discharging Peay on August 23, because he assisted and supported the Union, Respondent discrimi- nated against him in regard to his tenure and the terms and conditions of his employment, and thereby engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By engaging in the conduct summarized in section Ill, C,3,(b),(c),(d),(e),(f),(g), and (i), above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not engaged in unfair labor prac- tices as alleged in the complaint in respects other than those stated above. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Respon- dent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily discharged Frank Peay, I find it necessary to order Respondent to offer him assembled employees that they were not required to talk to those who might seek to interview employees concerning this election was the interference with Board processes that is proscribed by Sec. 8(aXI). It was not alleged as a violation in t'e complaint, and even if it is a violation, the scope of the Order to be entered herein would in no way be affected. I . . 696 ROCK HILL TELEPHONE COMPANY full reinstatement to the job he held on August 23, or, if that job no longer exists, to a substantially equivalent one, with backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of a proper offer of reinstatement. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 20 The Respondent, Rock Hill Telephone Company, Rock Hill, South Carolina, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interrogating employees as to why they had become involved with a labor organization, or who started the movement to have the employees represented by a labor organization. (b) Asking employees to indicate how employees would vote if they were called upon to decide whether to have union representation or not. (c) Interrogating employees as to what their complaints were that motivated them to seek representation by a labor organization. (d) Telling employees that its problems with the Union would be resolved when it was able to weed out the troublemakers. (e) Urging employees to report to Respondent what took place at union meetings, or what information was sought from them by those indicating a purpose to file objections to an election. (f) Encouraging or discouraging membership in Local 3716, Communications Workers of America, AFL-CIO, or any other labor organization, by discharging, or in any other manner discriminating against any employee in 20 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. regard to hire, tenure, or any other term or condition of employment. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Frank Peay immediate and full reinstatement to the job he held on August 23, 1976, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in the section of this Decision entitled "The Reme- dy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Rock Hill, South Carolina, copies of the attached notice marked "Appendix." 21 Copies of the notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT 15 FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 21 In the event that this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 697