Sunshine Homes, Inc.

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunshine Homes, Inc. and William Keith Shewbart, Johnny M. Collum, Jack B. Tate , Harvel A. Hardin, Jerry R. Terrell, Thomas Marvin Burns, and Ken- neth Paul Winchester. Cases 10-CA-9763-1, 10- CA-9763-2, 10-CA-9763-3, 10-CA-9763-4, 10- CA-9763-5, 10-CA-9795-1, and 10-CA-9795-2 August 22, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 28, 1973, Administrative Law Judge George J. Bott issued the attached Decision in this proceeding. Thereafter, counsel for Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge as mod- ified herein. Unlike the Administrative Law Judge, we do not find that employee Burns ceased work on the morning of August 29, 1972, as a consequence of Respondent's unfair labor practices in discharging the five leadmen. Unlike employee Winchester who had discussed the need for wage increases with employees before that date, had offered to support the leadmen, and had met with employees that morning to talk about a possible walkout, there is no evidence that Burns was involved in the employees' quest for a wage increase or that he supported the leadmen. In fact, the only record testi- mony concerning Burns, who did not testify, is Winchester's recital that Burns joined him in Respondent's office on August 29 and said that he could not work under existing conditions. In our view this vague, ambiguous statement does not establish the relevant nexus between Burns' actions and the unfair labor practices. Thus we find that the General Counsel has not proven by a preponderance of the evidence that Burns quit to protest Respondent's un- fair labor practices and accordingly we dismiss this allegation of the complaint.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Sun- shine Homes, Inc., Red Bay, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recom- mended Order, as herein modified: 1. Substitute the following for paragraph 2(b): "(b) Upon application offer to Kenneth Paul Win- chester reinstatement to his former position or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any employee hired after August 28, 1972, for such position. Re- spondent shall make Winchester whole for any loss of pay he may suffer by reason of Respondent's refusal, if any, to reinstate him, in the manner set forth above in the section entitled "The Remedy." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 1 The 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 credibility 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, enfd 188 F.2d 362 (C A 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings 2 Member Fanning, in agreement with the Administrative Law Judge, would find that Burns ceased work as a consequence of Respondent's unfair labor practices and is thus an unfair labor practice striker entitled to rein- statement upon application Very shortly after Respondent illegally dis- charged the five leadmen for their protected activities, employee Burns came into Respondent's office, said he could not work under existing conditions, and quit The only unusual conditions at the plant immediately preceding Burns' statement that he was quitting were the precipitate discharges of the five leadmen without any explanation by the Employer In these circum- stances Member Fanning is of the opinion that Burns' mention of existing conditions clearly related to those discharges and that he is therefore an unfair labor practice striker entitled to reinstatement upon application APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce em- ployees by discharging them, or in any other manner discriminating against them, for engaging in protect- ed concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL offer William Shewbart, Johnny Collum, Jack Tate, Harvel Hardin, and Jerry Terrell reinstate- ment to their former jobs or, if they do not exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and WE 205 NLRB No. 108 SUNSHINE HOMES, INC. 645 WILL make them whole for any loss of earnings they have suffered. WE WILL, upon application, offer Kenneth Winches- ter reinstatement to his former or substantially equiv- alent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any employee hired after August 28, 1972, for such position. In the event we fail to reinstate said employ- ee, we shall make him whole for any loss of pay he may suffer because of our refusal to reinstate him. SUNSHINE HOMES, INC (Employer) Dated By (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 compli- ance with its provisions may be directed to the Board's Office, 730 Peachtree Street N. E., Peachtree Building, Room 701, Atlanta, Georgia 30308, Tele- phone 404-526-5760. DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Adminstrative Law Judge: Upon charges of unfair labor practices filed by the above-named individu- als I against Sunshine Homes, Inc., herein called Respon- dent or Company , the General Counsel of the National Labor Relations Board issued a complaint on November 6, 1972, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) of the National La- bor Relations Act, as amended, herein called the Act. Re- spondent filed an answer and a hearing was held before me in Russellville, Alabama, on December 12, 1972, at which all parties were represented. Subsequent to the hearing, General Counsel filed a brief which has been carefully con- sidered. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION OF THE BOARD Respondent, an Alabama Corporation, is engaged in the manufacture and sale of mobile homes at Red Bay, Ala- 1 The charges in Case IO-CA-9763 were filed on August 31, 1972, and those in Case 10-CA-9795 on September 25, 1971 bama. During the year prior to the issuance of the com- plaint, Respondent sold and shipped finished products val- ued in excess of $50,000 directly to customers located out- side the State of Alabama. Respondent is an employer engaged in commerce within the meaning of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharges It is undisputed that Respondent discharged leadmen Shewbart, Collum, Tate, Hardin, and Terrell on August 29, 1972, the day after they had engaged in a number of discus- sions with Respondent's officials about wage increases for themselves and employees generally, but Respondent con- tends that they were discharged, not because of any protect- ed activities they had engaged in, but because they had slowed down production on August 28. As a further de- fense, Respondent indicated at the hearing that the dischar- gees may have had sufficient responsibilities with respect to the employees who worked under them to make them super- visors within the meaning of Section 2( 11) of the Act, and, as such, not covered by the guarantees in Section 7 of the Act. Just prior to August 28, 1972, some of Respondent's em- ployees were talking about raises . On the morning of August 28, Plant Superintendent Williams called all of Respondent's 9 or 10 leadmen to his office and having told them that he had heard that they wanted wage increases, advised them that he would consult with Respondent's offi- cials about the matter and call them back when he had. Near noon on the same day, the leadmen were again summoned to Williams' office where they found all of Respondent's foremen gathered with Williams. Soon Respondent's president, Harriet Bostic, entered. According to leadmen Hardin's and Collum's credited testimony, which is really uncontradicted, Bostic opened the discussion by commenting that she had heard that they had problems, and when leadman Tate agreed that they had, Bostic said she assumed the problem was raises. After encouraging the men to speak frankly, Bostic explained that there was no chance of an increase at that time but there was a possibility that something might be done in the spring. Tate suggested that Bostic personally explain this to all of the employees, but when she turned the idea down , Williams told the lead- men to carry the message to the other employees, which they did after they returned to their stations. Leadman Tate visited Harriet Bostic's office between 1 and 2 o'clock and told her and her father, Fred Bostic, chairman of Respondent's board, that employees were talk- ing about quitting if they did not get a raise. Fred Bostic advised Tate that he and Harriet would consider the ques- tion again and let him know later in the day what they had decided. Tate testified credibly that a slowdown was not mentioned in this meeting or in any other he attended that day. Tate met leadman Hardin when he left the Bostics and told him what had occurred. Not having heard anything by 3:30 p.m., their regular breaktime, Tate, Hardin, and four other leadmen went to Harriet Bostic 's office to talk with 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her. Leadmen Hardin and Tate were the principle spokesmen when they saw Harriet Bostic that afternoon, according to the credited testimony of Hardin and leadman Collum. As soon as they all entered, Bostic announced that a raise was out of the question, and she indicated that the issue was closed and ought to be forgotten. After first reminding her that earlier she had urged them to be candid, Hardin com- mented that on the basis of certain calculations and obser- vations, he and the other leadmen estimated that the Company was making a net profit of $10,000 or $12,000 per week, and he wondered why the Company could not grant a wage increase. Bostic was visibly irritated at this remark, because she flushed and replied, "That's a damned good way to put it.... " Repeating that she had already ex- plained to them what the Company could and could not do, she cautioned them that they could either return to work or go home. Hardin testified that, "She was real red and talk- ing pretty ill-tempered." Near the end of the meeting, Tate again suggested that Bostic tell the rest of the employees what she had told them. Although she declined to do so, she told the leadmen that they could brief the employees. The leadmen returned to the plant and did so. That night a meeting was held at Respondent's plant attended by Harriet Bostic, Fred Bostic, Jr., Superintendent Williams, and all of the foremen. One of the foremen had not worked that day, and Harriet Bostic testified that, at the meeting, "we went over the events of the day." She said that no instructions of any kind to fire any particular person were given at the meeting, but she also stated that after reviewing the events of the day, she said, "Gentlemen, you know we've had a problem here today. You know that I have a problem as far as some of my people. I think it is time that I take care of my problems. If you have any problems with any of your people or if you think they are creating problems I think that you might do this also." Bostic testi- fied that the personal problem she was referring to was the Company receiver and not production. She also stated that she did not know why the foremen selected the five leadmen named in the complaint for discharge, but she added that "I assume that they knew that these people were participat- ing in a slowdown in our production." The following morning, August 29, 1972, five of the six leadmen who had attended the last meeting with Harriet Bostic, namely, Shewbart, Collum Tate, Hardin, and Ter- rell, were discharged when they reported for work. Superin- tendent Williams and all foremen were present when the dischargees were given their checks without any explanation for their termination. Hardin asked Williams if they had been discharged because they had asked for a raise, and he testified, without contradiction, that Williams replied that they had not, and when pressed further for an explanation, said, "Well it was for bugging Harriet." As indicated above, one foreman had been absent from work on August 28 and had to be brought up to date on the events of the day at the meeting of supervisors which Har- riet Bostic addressed that night. Leadman Collum testified credibly, without contradiction, that during a social conver- sation with Superintendent Williams after his discharge in which he again querried Williams about why he had been fired, Williams told him that when Foreman Robinson was advised at the evening meeting that one of his leadmen had been asking for an increase in wages, he stated that he had no use for a person who would "go behind my back and cut my throat while I am out." I do not believe the testimony of Respondent's witnesses that the complainants were discharged because they had engaged in a slowdown. As appears above, Harriet Bostic's testimony about her role in the discharges is most abbreviated and somewhat cryptic, and her detachment in leaving it all up to each individual foreman to "solve" whatever "problems" he had strongly suggested that she was avoiding the delicate area of employee dissatisfaction with wages with which she had been so deeply involved on August 28 and was reaching for a reason other than the real one to justify the discharges. This was not only an apparent evasion of reality, but she also exaggerated what she said she observed in regard to a slowdown. She testified that on the same day that she met with the leadmen, the assembly line was "all torn up," and was being slowed down, and foremen were upset and franti- cally attempting to straighten things out. There is no evi- dence anywhere else in the record to support these statements, and Plant Superintendent Williams, admittedly more experienced than Bostic, testified that he first noticed the effects of what appeared to have been a slowdown on August 29, the day after the meetings with the leadmen and after the decision to terminate them had been made. I find that the word "problems," if that is how Bostic described the days' events to the foremen assembled on the night of Au- gust 28, meant concerted and persistent actions by the lead- men, on behalf of themselves and others, seeking an answer from her on their request for a wage increase, not a deliber- ate involvement by them in any interference with produc- tion, and it had to be so understood by the foremen attending the meeting, if Bostic and Williams accurately briefed them on what had happened that day. It appears that Respondent produced one less trailer on August 29 and two less on August 30 than it normally does. As just indicated, Superintendent Williams testified that he learned of a slowdown in production the day after it hap- pened, and he explained that poor production on the line on any given date will show up a day or two later. Although he also said that it did not appear to him that leadmen were pushing employees as hard on August 28 as they should have, he was vague about whether he observed them work- ing or not, and only after having been led by counsel, who asked if the leadmen were performing their duties as they were supposed to, replied, uncertainly, "Well, I wouldn't think so." I find that Williams, like Harriet Bostic, exagger- ated what he observed on August 28 about production and the complainants' responsibility for any decrease in its level. Williams' testimony also appeared unrealistic where he, too, described the night meeting of supervisors on August 28 in 2 Even if the dischargees had participated with other employees in a tempo- rary refusal to work for a brief period in support of their request for a wage increase which was being discussed and considered by Respondent, their conduct could not be considered so "indefensible" as tojustify their summa- ry dismissal See N L R B v Washington Aluminum Company, Inc, 370 U S 9, 17 (1962), N L R B v Kennametal, Inc, 182 F 2d 817 (C A 3), N L R B v Leprino Cheese Co, 424 F 2d 184, 186-187 (C A 10, 1970), First National Bank of Omaha v NLRB, 413 F 2d 921 (C A 8, 1969) SUNSHINE HOMES, INC. Harriet Bostic's terms and claimed that there was no discus- sion about firing anyone because they had asked for a raise. Apparently, only undefined "problems" were discussed, for there is no suggestion in his direct examination that produc- tion as such was mentioned by anyone at the meeting. I do not consider Williams to have been a reliable witness, and I do not credit his testimony that the dischargees were ter- minated "for slowing down production." Other factors make it hard to accept Respondent's de- fense. Foreman Raper testified that he, without any instruc- tions from anyone else, decided to discharge leadmen Shewbart, Hardin, and Terrell, whom he supervised, be- cause they were his "problem," since they were slowing down the line. As with Respondent's other witnesses, he offered no specific examples of how or when any of the three accomplished this, which makes his testimony suspect on that ground alone, but more importantly, his explanation contradicts an earlier statement he made in a letter written at Shewbart's request after he was terminated. In that letter he stated that Shewbart had been discharged, contrary to Raper's wish, because "Harriet told [him] to release [him] because he and a number of others asked for their men a raise...... Although it is understandable how a former supervisor might give an employee who had been dis- charged for cause a good reference to help him get a job, Raper's succinct attribution of Shewbart's and the other leadmen's terminations to Harriet Bostic's orders based on their actions in seeking raises coincides too much with what the leadmen had actually done just before they were dis- missed from employment to be discounted. Moreover, Ra- per never denied that what he said in the letter was not the fact. Another inconsistency or contradiction is found in Super- intendent Williams' statement to all of the leadmen on the day they were discharged that they had been discharged for "bugging" Harriet Bostic. Still another is Williams' remark to Collum that Foreman Roberston fired his leadman for going behind his back while he was absent, and Harriet Bostic's own actions throughout August 28 also contradict her assumption that the leadmen were discharged for engag- ing in or advocating a slowdown, because never in her meet- ings with the leadmen or her own supervisors did she charge that such conduct was occurring.' No one in management mentioned a slowdown as the basis for termination when the leadmen were fired on Au- gust 29. Hardin testified without contradiction that some foremen indicated displeasure with Respondent's action as they handed the leadmen their final checks. Raper said he was sorry, but he was doing only what "the man" wanted. Fred Bostic and Superintendent Williams were also present as the discharges were effected, but the simple explanation now offered tojustify them was not volunteered by anyone, even though Williams was pressed for one. I have already indicated that there is no credible evidence 3 I have not credited her testimony that leadman Tate told her privately on August 28 that the leadmen had been slowing "the line down all day " If he had, it would be even more difficult to understand why she did not make it clear to her supervisors that this was the "problem" they had, or confront the leadmen with this evidence when she met with them prior to quitting time on August 28 647 that any of the leadmen engaged in or advocated a slow- down. Although five of them were fired, there is not even a suggestion from any witness that Collum did anything improper, and there is no explanation of why Ewing, one of the six leadmen who attended the last meeting with Harriet Bostic, was not let go .4 Respondent offers nothing but gen- eralizations and a conclusion about the basis for the dis- charges, and this bare-boned account is another reason for discrediting its defense. Moreover, it is more than likely that the general gossip among employees and the leadmen's meetings with management and later explanations to em- ployees of Respondent's position on wage increases, all done with Respondent's permission, not to mention the discharge of five of the leadmen and the walkout of others as described below, were the principal factors responsible for any lowered output which appeared on August 29 and 30 .5 I find and conclude that Respondent discharged the lead- men because they persistently presented requests for wage increases and questioned the validity of Respondent's rea- sons for not acceding to their requests. Since I find below that the leadmen are not supervisors under the Act, Respon- dent violated Section 8(a)(1) of the Act by discharging them for engaging in concerted activity for their mutual aid and protection within the meaning of Section 7 of the Act. B. The Unfair Labor Practice Strike Prior to August 28, employee Kenneth Paul Winchester discussed the need for a raise with other employees. On August 28, having learned that the leadmen intended to ask Respondent for raises for all employees, he assured leadman Tate that he would support them if they did. On August 29, Winchester learned from leadmen Terrell and Hardin that they and other leadmen had been discharged. Thereafter, Winchester and other employees stood around and talked about a possible walkout, but before anything developed along that line they were ordered over a loudspeaker to report to their work areas. Winchester and the other em- ployees were then told by Foreman Raper that if they did not like what had happened to the leadmen, they could go home but if they wanted to work they could, but he added that he did not want to hear anymore about "raises or slowing the line down." As Winchester started for his work area, Raper followed him and asked him what he intended to do. Winchester thought for a moment and then said, "let's go get the checks." While he was in the office, employ- ee Bums came in and said that he could not work under existing conditions, and he was paid off with Winchester. They left the plant together. I find and conclude that Winchester and Burns, having ceased work as a consequence of Respondent's unfair labor practices, are unfair labor practice strikers entitled to rein- 4 Cullum credibly testified that he had no knowledge of leadmen partici- pating in a slowdown on August 28, and he himself worked overtime until 6 ps in that day Indicating Respondent's uncertainty and inconsistency in this area also, Superintendent Williams at one point in his testimony indicated that the fact that the leadmen were frequently in the office during the day "when they were supposed to be on the line working" was a contributing factor in the decision to discharge them, but he quickly added, "of course, I called them in 11 648 statement upon application. DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Supervisor Issue The question here, which arises frequently and whose resolution depends on the facts in each case, is whether this group of "leadmen," as Respondent calls them, or "group leaders or utility men" as they are sometimes called else- where, who occupy a level somewhere above a rank-and-file worker but below a foreman, have enough supervisory indi- cia to constitute them supervisors under Section 2(11) of the Act, which it is well established must be read in the disjunc- tive. I find that they do not. Leadmen are under the immediate supervision of a fore- man who reports to a plant superintendent. There were approximately 10 leadmen employed when the events in this case took place, working alongside 15 or so rank-and-file production employees 100 percent of the time.6 Leadmen, in addition to doing their own jobs, fill in for other employ- ees when they are absent or assist them if they get behind in their work or appear to have some problem with it. Win- chester, a rank-and-file worker who struck when the lead- men were fired, testified credibly, and there is no specific evidence in the record to contradict him,' that leadmen employed by Respondent did not tell employees what to do, but he also said he "guessed" they were in charge when the foremen were "gone." Leadman Hardin testified credibly that he had a regular job like every other production worker and that he and nine other men built sidewalls for trailers. He said he was sup- posed to see that blueprints were followed, that he helped other employees, and did the work of others if they were absent. Most of the men had regular jobs assigned to them, he said, and knew what they were supposed to do. As a consequence, he seldom had to tell any employee to do anything. Leadman Collum testified credibly that he understood a leadman's function to be assisting other employees who fall behind in their work and filling in on the line for them when they are absent. He said that he understood that he had no authority to order an employee to do anything, such as repairing poor work, but could ask the employee to do it over and then tell the foreman about it if an employee refused. He has filled in for a foreman only once for a period of 3 hours, but at the same time he continued to work like every other employee and another foreman was available in the department. He did not understand that his authority increased when he took the foreman's place, and no one has told him that it does. In addition, he said that his powers have never been defined. With respect to assignments, he said he believed that the foreman, not he, has the authority to direct one employee to assist another. He and other lead- men are paid 15 cents an hour more than the other employ- ees, but he said he understands this premium is paid for helping other employees when they need it and for filling in for them when they are absent. 6 Respondent employed approximately 185 employees at the time 7 Respondent's evidence consists of conclusions on the part of Superinten- dent Williams, Foreman Raper, and President Bostic, of what they consid- ered or believed leadman's responsibilities to be Leadmen Terrell illustrated the extent of what he consid- ered a leadman's authority to direct employees to be by an incident which occurred when he, following Foreman Raper's instructions, told employees to clean up their de- partment. When he did, they told him to, "Kiss my ass," and when he reported this lack of cooperation to Raper, Raper told him to foreget the whole thing. He said this was repre- sentative of what happens when he tries to exercise authori- ty. Superintendent Williams testified that every production employee has a specific job to perform and that 90 percent of the time he does that work. Occasionally, however, a worker finishes his task early or cannot continue with his operation for some reason and he is then supposed to help other employees. Williams said that "most of the time" the foreman would tell the leadmen to instruct the employee what to do in such a situation, but it was very unclear how often this would happen. Asked if the leadmen would assign the employees to other tasks in such cases if the foreman was absent, he said "I would say so, right." He agreed, however, that foremen are seldom absent and aside from a recent absence, he could not remember the the last time it has happened. Williams also stated that leadmen have the right to rec- ommend hiring and firing and that they are expected to fill in for the foremen if they are absent from work. In such a case, the leadman, who would be assigned to substitute for the foreman on the day he was out but who would not necessarily be the same person in each case, would have the right to fire an employee, he said. Based on Williams' testimony and demeanor, I find that he completely exaggerated the authority of leadmen to rec- ommend hiring, firing, and promotions, and was otherwise an incredible witness. As indicated above, Williams was prone to generalize with no supporting facts, thereby leav- ing the impression from his direct examination that leadmen have very substantial responsibilities, which is a clear distor- tion of their duties. I have found that leadmen Hardin, Collum, and Terrell accurately described the extent of their responsibility, which is basically to keep the line moving by assisting and filling in for other employees. An apparent exaggeration appears in Williams' testimony where, after attributing a number of powers to the leadmen in regard to hiring and firing, including the right to terminate an em- ployee in the foreman's absence, he replied, "I don't think so," when asked if a leadman could discipline an employee, which fits Terrell's testimony about what employees told him he could do when he gave them a dirLt order. He also said that foremen make decisions whether to fire employees, and he was only able to say, "I would think so," when asked if foremen follow leadmen's recommendations in that area. In regard to hiring, he said he himself interviews all appli- cants regardless of who recommends them for employment, which is consonant with leadman's Shewbart's testimony that months before he became a leadman he brought a friend who was looking for ajob into the plant, at Williams' suggestion , and introduced him to the superintendent who told him to take him back to a department and put him to work hanging metal, which Shewbart did. Shewbart had not recommended anyone for employment since he became a leadman, and I find that the example he gave illustrates that SUNSHINE HOMES, INC. the recommendations of rank-and-file employees are given as much weight by Respondent as leadmen's. I also find in accordance with Williams' testimony, that no employee has been fired without his counsel and consent, a clear indica- tion that whatever recommendations leadmen may make to their foremen in that area then are not particularly effective. Williams was vague about what he based his opinions on in regard to what powers he claimed leadmen had. He stated at first that such was the way he had been "working for eight years," but when it was pointed out to him that Respondent's plant had been in operation for less than 2 years, he added that he and the superintendent who preced- ed him had discussed the authority of leadmen and "it is wrote up someway at the plant" as he described it, but he also added that his predecessor might have taken these writ- ings with him when he left Respondent. He also agreed that his answers with respect to leadmen and their responsibili- ties were based, in part, upon his experiences in other plants in the industry. Three of the leadmen who were fired worked for Fore- man Raper, who testified that he expected them, if he were away for 30 minutes, to have things running smoothly when he returned. He described their relationship to their crews as helping employees who have problems or need help, but he also said they assign work to employees. Leadmen, he said, "to a certain extent," fill in for the foreman when he is not there, but he added that Hardin and Shewbart had not, but Terrell had.8 In such a case, Terrell "would have to work with the plant superintendent Williams," he said and "keep my department going." He stated that he thought that the leadmen would have to give orders if the foreman was not present, but he amended this slightly to substitute the words "ask" or "tell" for "order." He could recall no in- stance where a leadman had recommended discipline or discharge, but he said they have recommended hiring and promotions and he claimed that he would "back up" his leadmen in their recommendations. I also find that Raper attempted to create the impression that leadmen have more authority than they really do. Be- sides a group of welders, for example, who make 10 cents an hour more than the rest of the employees, all employees got the same wage, and so there are few promotions that leadmen can effectively recommend.' It also turned out that Raper, in talking about authority to recommend promo- tions, was including the privilege of a leadman who was resigning his employment to suggest someone in his depart- ment as a replacement.10 I reject any implication in Raper's testimony that leadmen effectively recommend hiring or promotions. The question remains as to whether leadmen assign or responsibly direct the work of others. Harriet Bostic testi- fied they have done so and that their exercise of this authori- ty requires the use of independent judgment. I find that leadmen only infrequently assign work to other employees 8 Terrell testified that he had substituted for his foreman once for 3 hours 9 Raper said he had made recommendations , but he had never secured a raise for anyone 10 Raper personally selected his three leadmen from the ranks, but he never defined their powers for them, although he said that he was sure that Shew- bart and Terrell well knew what they were supposed to do, but Hardin probably did not 649 and that they cannot be held to be accountable for "respon- sibly" directing them. In addition, I find that any actions they do take in those areas are of a routine nature not requiring the exercise of independent judgment. First of all, it should be recalled that Superintendent Wil- liams testified that since all of the production employees have regular jobs, they do not have to be assigned to tasks by anyone, except when they run out of work. In such instances the foreman tells a leadman to put the employee somewhere else and the leadman transmit his instructions. Leadmen are the most versatile and knowledgeable of all the employees and any assignments they might make in this small segment of time, either with or without the previous direction of their foreman, would appear routine to me. I also have credited Collum's testimony that he did not un- derstand that he could direct anyone's work, as well as Terrell's graphic description of how employees reacted when he tried to.t2 Harriet Bostic's testimony regarding leadmen's responsi- bilities is very brief and touches only on assignment of work. Some of it is obviously not based upon personal knowledge but upon her understanding of what foremen have permit- ted their leadmen to do. She also said that in some cases leadmen tend to have more authority than in others based on their relative abilities. Earlier in the hearing, counsel for Respondent agreed that the responsibilities of all leadmen were basically the same. This lack of precision in regard to exactly what powers each leadman exercises is probably an indication that they never have been clearly defined, but in any case, it is an added reason for not accepting the conclu- sion of the witness that the job of leadman is not " routine," but "requires the use of independent judgment." I find and conclude that leadmen Shewbart, Collum, Tate, Hardin, and Terrell were not supervisors within the meaning of the Act at the time of their discharge. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging William Shewbart, Johnny M. Collum, Jack B. Tate, Harvel A. Hardin, and Jerry R. Terrell be- cause they engaged in concerted protected activity for mu- tual aid and protection of themselves and other employees, Respondent interfered with, restrained, and coerced its em- ployees in violation of Section 8(a)(1) of the Act. 3. Employees Thomas Marvin Burns and Kenneth Paul Winchester, who struck in protest of the unlawful dis- charges, were engaged in an unfair labor practice strike, and are unfair labor practice strikers who are entitled to rein- statement upon unconditional application for employment. 4. 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 Having found that Respondent has engaged in certain 1 Section 2(11) of the Act 12 Cullum said that before telling an employee to patch or replace a dam- aged carpet, he checks with his foreman 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices, it shall be recommended that Re- spondent cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Having found that Respondent discharged Shewbart, Collum, Tate, Hardin, and Terrell because they engaged in concerted activity for the employees' mutual aid and protec- tion, it shall be recommended that Respondent be ordered to offer them full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by payment to them of a sum of money equal to that which each of them would have normally earned as wages from the date of discharge to the date of Respondent's offer of reinstatement, less net earn- ings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolwoth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRD 716. It will also be recommended that Respondent, upon ap- plication, offer Burns and Winchester reinstatement to their former positions or, if they do not exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges , dismissing, if necessary, any em- ployees hired after August 28, 1972, for such positions. Re- spondent shall make whole said strikers for any loss of pay they may suffer by reason of Respondent's refusal, if any, to reinstate them, upon request, by payment to each of them of a sum of money equal to what he would have normally earned as wages during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of Respondent's offer of reinstatement, such loss to be computed in the manner and with interest as in F. W. Woolworth, supra, and Isis Plumbing & Heating Co., supra. Upon the basis of the foregoing findings of fact, conclu- sions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 Respondent, its officers, agents, successors, and assigns, 13 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 shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating against them because they engage in protected concerted activities. (b) In any other manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action: (a) Offer Shewbart, Collum, Tate, Hardin, and Terrell immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of pay he may have suffered as the result of his discharge, in the manner set forth above in the Section entitled "The Remedy." (b) Upon application, offer to Burns and Winchester re- instatement to their former positions, or if they no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges , dismiss- ing, if necessary, any employee hired after August 28, 1972, for such positions. Respondent shall make Burns and Win- chester whole for any loss of pay they may suffer by reason of Respondent's refusal, if any, to reinstate them, in the manner set forth above in the section entitled "The Reme- dy.,, (c) Preserve and, upon request, make available to the Board or its agents all payroll and other records necessary to compute the backpay and reinstatement rights, as set forth in the section of this Decision entitled "The Remedy". (d) Post at its Red Bay, Alabama, plant, copies of the attached notice marked "Appendix." 14 Copies of said no- tice, on forms provided by the Regional Director for Region 10, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are custom- arily posted, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 In the event the Board's Order is enforced by a Judgment of the 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 "