Iowa Southern Utilities Co.

IOWA SOUTHERN UTILITIES CO. 341 Iowa Southern Utilities Company and International Brotherhood of Electrical Workers, Local Union No. 735. Case 18-CA-3807 - Upon the entire record, together with careful observation of the witnesses and consideration of the briefs, I make the following: November 14, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 26, 1973, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions. 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 has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt her recommended Order. 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 Respondent, Iowa Southern Utilities Company, Centerville, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed by International Brotherhood of Electrical Workers, Local Union No. 735, on March 7, 1973,1 a complaint was issued on April 3 against ' Iowa Southern Utilities Company, Respondent, alleging that on or about February 15 and 23 Respondent violated Section 8(a)(1) of the Act2 by interrogating an employee concern- ing his union membership and activities and that on or about February 28 discharged employee Harold Miskimins because of his union activity, in violation of Section 8(a)(3). Pursuant to due -notice, a trial was held before me on May 24 in Centerville, Iowa. The General Counsel and the Respondent were represented by counsel and the Charging Party by its representative. All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument. Since the hearing, briefs have been filed on behalf of the General Counsel and the Respondent. i Except where otherwise indicated, all dates herein are in 1973. 2 National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, FINDINGS OF FACTS 1. PRELIMINARY FINDINGS The complaint alleges, the answer admits, and I find that: A. Respondent, an Iowa corporation with its principal place of business in Centerville, Iowa, is a public utility engaged in the generation, transmission, distribution, and sale of natural gas and electricity. During the past 12 months, a representative period, Respondent, in the course and conduct of its business, had a gross volume of business in excess of $500,000. During that period, Respondent, in the course and conduct of its business operations, purchased and received goods and materials valued in excess of $50,000 which were shipped to Respondent within Iowa directly from points outside Iowa. Respondent is now and at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Issue For some time Miskimins had been dissatisfied with Respondent's salary policy for "supervisory" employees, within which classification he worked. He had discussed the matter to some extent with other workers over a considerable period of time. However, his dissatisfaction became more acute upon Respondent's promulgation of a revised policy as of the beginning of 1973. At that time, he intensified his discussions with other "supervisory" and office personnel and instigated consideration of the advisability and feasibility of unionizing such employees. He first consulted the Union in January. Reports of Miskimins' activities reached top-echelon management. On or about February 13, he was called into the office of his superior, E. E. Lawson, director of purchasing and stores, for a conference with C. E. Parks, vice president in charge of engineering, operations, and administrative. In effect, Parks expressed displeasure at Miskimins' having aired to others his dissatisfaction with managerial decisions. A few days later Miskimins obtained union authorization cards and continued his discussions with other workers. On February 23, Miskimins was called into the office of David A. Little, Respondent's director of personnel. Little testified that in the meeting of February 23 he said that if Miskimins "had a problem with management policies and practices" he should "air that problem with his superior" instead of discussing it with other employees. When Little referred to the presence of union authorization cards, 29 U.S.C. § 151 et seq.). 207 NLRB No. 48 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miskimins revealed that he was responsible for their distribution. After February 23, Little received further reports about Miskimins. Accordingly, on February 28, Miskimins was again called into Little's office and informed that he was to be discharged for having "openly criticized management" and for having solicited for the Union. There is no dispute that Miskimins' concerted activity in talking to his fellow workers and his having solicited for the Union were the reasons for his discharge. While it does not appear that Little directly asked Miskimins about his union activities, it is clear that Little first raised the union matter and that it was in response to this that Miskimins revealed his active role. In its brief, Respondent does not argue that there was no "interrogation." Accordingly, I find that Respondent did interrogate Miskimins concern- ing his union activities. And it is undisputed that Miskimins was discharged for his concerted and union activities. The only substantial issue in the case is whether Miskimins was an "employee" entitled to the protection of the Act. Respondent maintains that Miskimins was not protected because he was a supervisor and/or a managerial employee. B. Miskimins' Status 1. The facts Respondent is a gas and electric utility serving the southern portion of Iowa. Its general office is located in Centerville. It maintains six district offices, including one in Centerville which is separate from the general office. Miskimins had worked -for Respondent, in various capacities, since early in 1949. In 1970, Respondent created a department of transportation and equipment and Miskimins was appointed "supervisor" thereof. He was in the general office. According to his testimony, as well as Respondent's tables of organization, Miskimins reported to E. E. Lawson, director of purchasing and stores, who, in turn, reported to C. E. Parks, vice president for engineer- ing, operations, and administration. The position description for the job of "Supervisor of Transportation and Work Equipment," issued by Respon- dent's president, sets forth the "Purpose of Job" as follows: Responsible for the development and implementation of an effective and economical system-wide transporta- tion and mobile work equipment purchase, operation and maintenance program. This job description, dated February 27, 1970, was in effect unaltered at the time of Miskimins' discharge, although, as set forth below, Personnel Director David A. Little, Respondent's only, witness, testified that the description was "outdated." Respondent has some 400 to 450 transportation and mobile work equipment units. It purchases about 75 to 80 vehicles a year. Among Miskimins' principal duties was the preparation of specifications for vehicles and mobile work equipment to be purchased by the Company. The specifications were reviewed by top management. When approved, the specifications were incorporated into re- quests for bids prepared and issued by Miskimins. Miskimins received the bids, but the decisions as to acceptance or rejection were made by Lawson, his superior. Miskimins was required to inspect vehicles for conformance with the specifications before they were accepted by the Company. Respondent's formal description of Miskimins' position contains the following prefatory statement: "Supervises: No direct supervision of others." At least through 1971, so- called "supervisory" employees were required to prepare and submit annual self-evaluation reports. Apparently the first matter to be covered was the current adequacy of the job description. In his self-appraisal report dated January 11, 1971, Miskimins said inter alia: 1. In essence, my position description is up to date. The description states, "No direct supervision of others," which I believe should be changed to "Func- tional supervision of company mechanics and related matters of operation and maintenance." 5. The only problem which I feel hinders my productivity is having considerable responsibility with very little authority. I have had wonderful cooperation and backing. It is a little discouraging to go into the field to work and not have any authority in certain situations. By my own initiative, I have assumed authority and have always been backed, but could not have sustained the decision on my own if challenged. I am not asking for authority for everything I do; however, I feel there are situations where my judgment should have some authority. I would expect to be held responsible for such use. I state this for my purposes and for other positions existing in our company which have the same problem. This problem is not new and, in my opinion, is inherent in our company structure. Beside paragraph 1, quoted above, appear the following two handwritten marginal notes: (1) "Direct supervision only is normally shown on pos. descrip.," initialed by Newel W. Brown, then personnel director; and (2) "Question need for this chg.," initialed by Vice President Parks. No change was made in the job description, and Miskimins' self-appraisal dated January 21, 1972, con- tained substantial repetitions of the two paragraphs quoted from the 1971 report. Again no change in the position description was made. At the hearing Personnel Director Little, Respondent's only witness, testified that "[t]hat job description is outdated but . . . it was in effect" at the time Miskimins was discharged. Little maintained, however, that as Miskimins' experi- ence increased the job "grew." According to Little, Lawson dealt with Miskimins on this matter. After testifying that Miskimins had been given personnel authority, Little was examined as followed: Q. IBy Mr. Alaniz] . . . When was this authority communicated to him, if it did not appear in his job description? IOWA SOUTHERN UTILITIES CO. 343 A. He's asked progressively since he took the job and since he became more proficient with Mr. Lawson that he did want more authority and he did state in his performance appraisal that he did want more responsi- bility. Mr. Lawson would state that you have my backing and you're going to gain as you go along and in fact we want you to take part in handling the people at the garage, and if necessary even in other locations when the work program was running effectively throughout the company. Q. Can you tell me exactly when this grant of authority was made, who gave it and where it took place? A. I think, sir, it was an expectation that went on a continuum. To give you an exact date I can't, because I did not personally review him... _ Q. Was he ever told specifically to make recom- mendations regarding hiring and firing of employees or laying off of employees or recommending wage increases or disciplinary action of that type? A. I doubt that he was told in any specific instance but he was told again from an all-encompassing standpoint. Q. But you can't give us any dates or who made these statements to him about what he was expected to do in his job? A. I'm quite certain, without a doubt, that during his performance appraisals, and the dates would be in the personnel file, that this was discussed with him. Now again I didn't complete the review with him, naturally, but encouragement to do these things was given to him. Lawson did not testify and no personnel records were introduced to establish when, or even that, Miskimins was "encouraged" to assume personnel responsibility. As previously stated, the job description remained unchanged after Miskimins specifically requested that he be given "functional supervisory" authority.3 According to Little's vague testimony, he and Lawson discussed the matter of revision and "indicated that it certainly needed to be updated, but did not do anything about it" and did not discuss any specific revisions. Toward the end of his testimony, Little was questioned about Miskimins' personnel functions, with the following results: JUDGE KLEIN: . . . can you give any specific examples of recommendations of personnel promotion, demotion, firing, discipline, transfer, or whatever that Mr. Miskimins might have made? Any specific exam- ples he took or recommended? THE WITNESS: Would staffing be in that? JUDGE KLEIN: Whatever you think of. THE WITNESS: He made a recommendation to add 3 In its brief, Respondent says. "[Miskimins] readily admitted in testimony that he believed his position description should read `functional supervision of Company mechanics and related matters of operation and maintenance' . . He therefore readily admitted in a document which he prepared, that he had supervision of company mechanics and related matters of operation and maintenance." " The record, however, is clear that Miskimms was complaining that he did not have such authority and was requesting, unsuccessfully, that it be conferred on him. Miskimins' testimony on cross-examination was: "Q. And as part of that, did you not another employee in the garage in Ottumwa and at the time there was a budgetary consideration- JUDGE KLEIN: (interrupting): Recommended a new position or he recommended hiring a particular man? THE_ WITNESS: No not a particular individual but a lube at the garage and in light of the work that had to be done and the addition of an employee, as I recall. JUDGE KLEIN: Any others? THE WITNESS: Your Honor, that is the only one I can think of as we talk. One of Miskimins' major responsibilities was mainte- nance of the Company's vehicles, including passenger vehicles in the Company's motor vehicle pool. He was to be sure that warranty services were performed and generally to see that vehicles were kept in safe and good operating condition. It was up to him to determine whether maintenance and repairs should be performed by Respon- dent's own employees or by outsiders, and, if the latter, what contractor should be used. In this connection he was able to pledge the Company's credit. He testified that, strictly speaking, the limit of his ability to pledge the Company's credit was $200 per item but that he frequently went somewhat above that figure, receiving retroactive approval. He was also charged with considering whether certain vehicles and equipment "should be replaced or repaired, making recommendations on action to be taken." He also made recommendations as to whether equipment should be leased rather than purchased. Respondent has a small garage, with only one mechanic, in Burlington, and a larger garage, with a senior mechanic and one or two additional mechanics, in its central district in Ottumwa. The Ottumwa garage services vehicles for the entire system. According to Respondent's tables of organization and Miskimins' testimony, the auto mechan- ics in the Ottumwa garage report to District Superintend- ent Jones, who reports to District Manager J. P. Kyhl.4 The job description provided as follows concerning Miskimins' relationship to the auto mechanics in the performance of maintenance work: (b) Analyzes need for major maintenance to be performed on [General Office] pool and district automobiles and trucks . . . and ascertains that the most economical repairs are made, working closely with the auto mechanic-senior in this function. (e) Consults with and advises the auto mechanic-senior and other auto mechanics located at the Company's service centers to assure that most efficient system-wide use is being made of these facilities and manpower and that proper repair parts for special equipment are maintained in stock. Miskimins testified that his visits to the Ottumwa garage state on Paragraph 1 of Page I [of the self-appraisals ] that you believed that your position was that of `functional supervision of company mechanics and related matters of operation and maintenance? A. No, sir, I said that should be changed to. I thought that was a change that should be made." In both the 1971 and 1972 self-appraisals, Miskinuns had prefaced his request for revision by a statement that his position description was "up to date." 4 In the transcript the district manager's name is erroneously stated as 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD averaged about 2 to 3 hours once a week and he was in telephone communication about 4 or 5 times a week.5 According to Miskimins' credited testimony, vehicles were scheduled into the Ottumwa garage by roughly monthly conferences between Jones and Miskimins. Generally there was no disagreement as to priorities, but, in the event of disagreement, "it could go up to" Kyhl, central district manager. When agreement was reached on a schedule for the month, Miskimins reduced it to writing and sent copies to the district managers, the district superintendents, and the mechanics so that vehicles would be delivered to the garage at the proper times. R. (Russ) Blanchard, the senior auto mechanic, was referred to as a "leadman." However, the evidence is clear that he had considerable authority and to a large extent himself conducted the day-to-day operation of the garage .6 Blanchard excused absences of other mechanics. Mechan- ics' timesheets were initialed by Jones and it was Jones who authorized overtime, if any. The Ottumwa garage is covered by the central district office budget. While Little maintained that this was purely for accidental "historical" reasons, and that, in fact, the garage was a systemwide, or general office, affair, the administrative setup has never been changed. It apparently has been kept intact for the purpose of retaining resident supervision, since the general office is in Centerville about 45 miles away. There is no evidence that Miskimins ever directly gave working instructions to any of the mechanics or took any part in the day-to-day operations of the garage. Little maintained that at least theoretically senior mechanic Blanchard was under Miskimms' supervision. However, the record evidence clearly establishes that the lines of authority were, from the top down: (1) president and chairman of the board, R. F. Brewer; vice president for district operations, G. F. Cooper; central district manager, J. P. Kyhl; district superintendent, C. Jones; auto mechanic senior, R. Blanchard, and auto mechanic, E. Wright; (2) president, brewer; vice president of engineer- ing, operations, and administrative, C. E. Parks; director of purchasing and stores, E. E. Lawson; supervisor of transportation and work equipment, H. Miskimins. The organizational tables show no employees reporting to either Blanchard or Miskimins. Although Little testified, in effect, that the tables of organization were not accurate, he provided no factual basis for this conclusory statement and I do not credit it.7 5 Little estimated Miskimmns' visits to the Ottumwa garage at about 4 to 5 per week. However, Little admitted that he had no personal knowledge and was, in effect, merely conjecturing as to this figure. I credit Miskimrns' testimony 6 As the matter is not in issue in the present proceeding, I expressly refrain from making any finding or expressing any opinion as to the employee or supervisory status of Blanchard. 7 He testified in part as follows: "Q. [By the General Counsel] Regarding the mechanics at the garage, if a particular employee were required to take time off, who would grant him time off? A. That was run, you almost have to know Russ Blanchard, but Russ Blanchard would have been the one to do this. Q. Would he have to 'clarify that with anyone prior to do[mg] that? A. Technically he would but I'm certain he did not. Q Who of the personnel would he have to clear it with in order to do that9 A. Technically he would have supposed to have cleared it with Harold [Miskimis], but in all practical standpoints, in all probability would clear it with Jones, who was housed in the same building as Blanchard Q. So if an employee were going to go to the doctor or for Respondent's office personnel - are grouped in three classifications: executive, supervisory, and rank-and-file. Miskimins was in the second, or "supervisory," class. As such, he received more liberal benefits, such as vacations and sick leave, than did the rank-and-file office and clerical workers. He was paid a monthly salary of $1,028, with no compensation for overtime. He did not punch a timeclock or keep records of his worktime. He wore ordinary business clothes, rather than any uniform, while working. He had a business card, which he used primarily in contacts with manufacturers' representatives. He also had a key to Respondent's general office. Little testified that keys are generally given only to "supervisory employ- ees," but "a few nonsupervisory people, such as the janitors that spend late hours there ... do have keys." Miskimins had no assigned personal secretary but had ready access to secretarial services when needed. B. Discussion and Conclusion Obviously the fact that Miskimins had the title of "supervisor" is not determinative of his status under the Act. It is well settled that "the employer cannot make a supervisor out of a rank-and-file employee simply by giving him the title and theoretical power to perform one or more of the enumerated supervisory functions. The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title." N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958), cert. denied 359 U.S. 911(1959). There is not a shred of credible evidence that Miskimins was authorized to or did exercise any supervisory authority over any other employee. Little stated, purportedly as "facts," certain conclusions concerning Miskimins' author- ity to supervise and direct other employees. However, every such conclusory statement by Little was in direct conflict with the documentary evidence, which consisted of Respondent's own material. In addition, on every crucial or important matter, Little conceded that he had no personal information. As to the major facts, Miskimins' superior, Lawson, was the most knowledgeable company representative. Yet Lawson was not called as a witness and no reason was stated for his failure to appear. Similarly, since Respondent apparently contends that Miskimins "supervised" the auto mechanics, Blanchard, the chief mechanic, presumably could have provided reliable, first- some reason had to take the day off, would he as a matter of course report to Harold Miskimins? A. Well, it depends. If it were Blanchard he'd sure let Harold know if he was going to be there or not. Q. But would he be required to ask Mr. Miskimins' permission before he took the day off? A. Would he be required to ask his permission? In some cases they do ask permission. The reason I'm hedging is that it's a unique situation in the garage, all centering around one man. If you went solely by the book then permission should technically be granted by Harold, even though organizationally it shows otherwise. JUDGE KLEIN: By what book, sir? THE WITNESS I'm sorry. The contract or by the book. I meant, to keep matters completely straight- JUDGE KLEIN (interrupting): By what book, thoughS I don't see anything in the job description that gives him this function so what do you mean "by the book"? THE WITNESS: The Job description is outdated.. . Q. (By Mr. Alaniz) Do you know of your personal knowledge any instances in which Mr. Blanchard or any of the other mechanics at the Ottumwa garage requested time off directly from Mr. Miskimrns? A. Do I know personally? I have to say I do not know personally." IOWA SOUTHERN UTILITIES CO. 345 hand information. He also was conspicuous by his unexplained absence. The credible testimony and the documentary evidence leave no possible doubt that, as "Supervisor of Transporta- tion and Work Equipment," Miskimins may have been, in the words of his position description, "responsible for the development and implementation of an equipment pur- chase, operation and maintenance program"; but it is clear that, as also set forth in his position description, he exercised "no direct supervision of others?' He had and exercised absolutely no "authority . . . to hire, transfer, suspend, layoff, 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." That Miskimins may have exercised discretion in the performance of his job does not make him a supervisor, since his actions "were not acts of discretion in directing employees," N.LRB. v. Security Guard Service, Inc., 384 F.2d 143, 148 (C.A. 5, 1967). Accordingly, I find and conclude that he was not a supervisor within the purview of Section 2(11) of the Act. See, e.g., N.LRB. v. American Oil Co., 387 F.2d 786 (C.A. 7, 1967), cert. denied 391 U.S. 906 (1968). Respondent maintains, additionally or alternatively, that Miskimins was not entitled to the protection of the Act because he was a "managerial" employee. However, the Board's position, by which I am bound, is that managerial employees are entitled to the protection of the Act, even though they may be, and normally are, excluded from bargaining -units of other employees. Bell Aerospace, a Division of Textron, 197 NLRB 209; Reeves-Weidman Company, 203 NLRB No. 140. At the time the Administra- tive Law Judge's Decision in Reeves-Weidman was issued, Bell Aerospace was pending on petitions for review and enforcement in the Court of Appeals for the Second Circuit. Thereafter, on February 28, 1973, the court issued its decision denying enforcement of the Board's Bell Aerospace decision, 475 F.2d 485 (C.A. 2, 1973). Thus, the Second Circuit has now joined the Eighth Circuit (North Arkansas Electric Coop. v, N.LRB., 446 F.2d 602 (C.A. 8, 1971)), in holding, contrary to the Board's view, that "managerial" employees are not entitled to the protection of the Act.8 However, the Board has not acceded to these judicial decisions. On the contrary, the Board filed a petition for certiorari in the United States Supreme Court in the Bell Aerospace case (O.T. 72, No. 1598) on May 29, 1973, 6 days after issuance of the Board decision in Reeves- Weidman. Accordingly, on the foregoing authority, I am compelled to hold that, whether or not Miskimins had "managerial" status, he was entitled to the statutory protection granted to employees by Section 7 of the Act. Thus, his discharge because of his union activities was violative of Section 8(a)(3) and Respondent's interrogating him concerning his protected activities contravened Section 8(a)(1). Alternatively, if Miskimins was not a managerial employee, he was entitled to the protection of the Act even if the Board's view should be definitively overturned. Bell Aerospace Company v. N.LR.B., supra, 475 F.2d at 494-495. Under established Board and court decisions, there are two tests for "managerial status." An employee is "mana gerial" if (1) he is "so closely related to or aligned with management as to place the employee in a position of potential conflict in interest between his employer and his fellow workers," or (2) he is engaged in "formulating, determining and effectuating his employer's policies or has discretion, independent of an employer's established policy, in the performance of his duties." Illinois State Journal-Register, Inc. v. N.LRB., 412 F.2d 37,41 (C.A. 7, 1969). The first, or "alignment," test "is essentially a narrow one in the sense that unless an employee is substantially involved in his employer's labor policies his relationship with management is not one of a managerial employee." Ibid Obviously Miskimins did not meet the "alignment test" of managerial status since he had no personnel functions and no role in or connection with Respondent's labor relations. His only concern in this regard was an employee's complaint of what he considered unfavorable wage policies. Similarly, Miskimins did not meet the second managerial test set forth in Illinois State Journal-Register. While he had the authority to recommend various types of action by the Company in connection with transportation and mobile work equipment, the evidence "does not show [he had] the discretion or authority to make the ultimate determination, independent of Company consideration and approval." 412 F.2d at 42. The power to recommend does not constitute managerial authority. Ibid. Nor did the authority to pledge the Company's credit necessarily make Miskimins a managerial employee. See Westinghouse Electric Corporation v. N.L.R.B., 424 F.2d 1151, 1158 (C.A. 7, 1970), cert. denied 400 U.S. 831 (1970); Continental Insurance Company v. N.L.R.B., 409 F2d 727, 730 (C.A. 2, 1969). Similarly, one is not a managerial employee simply because he "may represent [his ] employer to the public." International - Ladies' Garment Workers' Union, AFL-CIO v. N.LRB., 339 F.2d 116, 123 (C.A. 2, 1964); American Federation of Labor and Congress of Labor Organizations, 120 NLRB 969, 973. The facts that Miskimirs prepared specifications for equipment to be purchased and then "check[ed] conformity with specifica- tions upon completion of the contract" and that he made "recommendations which [led] to financial outlays by the Employer does not make [him] part ' of management." Puget Sound Power & Light Company, 117 NLRB 1825, 1826-27. The controlling fact here is that Miskimins did not "formulate, determine, and effectuate" Respondent's policies. He acted within prescribed limits under policies determined by company officials and only with clearance or approval by superior authority. Accordingly, while his work entailed considerable skill and judgment, he was not a managerial employee. Continental Insurance Co. v. N.L.R.B., supra, 409 F.2d at 730; LLG.W.U. v. N.L.R.B., supra, 339 F.2d at 123; Retail Clerks International Associa- 8 See, also,,N.L R.B. v. Wheeling Electric Company, 444 F.2d 783 (C.A. 4, entitled to the protection of the Act. 1971), rejecting the Board's holding that "confidential employees" are 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, AFL-CIO v. N.LR.B., 366 F.2d 642,645 (C.A.D.C., 1966), cert. denied 386 U.S. 1017 (1967). Thus, even if the Supreme Court were -eventually to reverse the Board's ruling that managerial employees are entitled to the protection of the Act, Respondent's interrogation and discharge of Miskimins would be violative of the Act, since the record does not support Respondent's contention that he was a managerial employee. CONCLUSIONS OF LAw 1. By coercively interrogating Harold Miskimins, an employee, concerning his union sympathies and activities, Respondent interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1). 2. By discharging employee Harold Miskimms on February 28, 1973, and failing and refusing thereafter to reinstate him to his former position, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. 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 unfair labor -practices, I shall recommend that it be ordered to cease and desist therefrom and take affirmative action of the type customarily ordered in such cases. Having found that Respondent discriminatorily dis- charged Harold Miskimis in violation of Section 8(a)(3) of the Act, I shall recommend that Respondent be required to offer him immediate and full reinstatement, with backpay, to be computed in the manner established in F. W. Woolworth Company, 90 NLRB 289, together with interest at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. 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: purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer Harold Miskimms immediate and full reinstate- ment to his former job, or, if that position is no longer in existence, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in "The Remedy" section of this Decision. (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 other records necessary to analyze and compute the amount of backpay due under the terms of this Order. (c) Post at each of its offices and other facilities copies of the attached notice marked "Appendix." to Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 9 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. 10 In the event that the -Boards 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 Enforcingan Order of the National Labor Relations Board."' APPENDIX ORDERS Respondent, Iowa Southern Utilities Company, Center- ville, Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any employees concerning their union activities or sympathies. (b) Discouraging membership in International Brother- hood of Electrical Workers, Local Union No. 735, or any other labor organization, by discharging any employee or by discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form or join labor organiza- tions, and to engage in any other concerted activity for the NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the law and we have been ordered to post this notice about what we are committed to do. The National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection IOWA SOUTHERN UTILITIES CO. To refuse to do any or all of these things. WE WILL NOT do anything that interferes with these rights. We assure all of our employees that WE WILL NOT discourage membership in International Brotherhood of Electrical Workers, Local Union No. 735, or any other labor organization, by discriminatorily discharg- ing any employee or discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment. WE WILL offer Harold Miskimins full reinstatement and we WILL compensate him, with interest, for any loss of earnings suffered by him as a result of our having discharged him February 28, 1973. WE WILL NOT question any employees about their union activities or sympathies. Dated By 347 IOWA SOUTHERN UTILITIES 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Suite 1695, Anthony J. Celebreeze Federal Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-37 15.