Jeffrey Manufacturing Co.

JEFFREY MFG. CO. 75 Jeffrey Manufacturing Company, Screw Conveyor Division and Isaac S. Smith Steel Workers Local No. 902, affiliated with Federat- ed Independent Texas Unions (Jeffrey Manufac- turing Company, Screw Conveyor Division) and Isaac S. Smith. Cases 16-CA-5005 and 16-CB-723 January 3, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 25, 1973, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent Company and Respondent Union each filed exceptions. 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 Administrative Law Judge' s Decision in light of the exceptions and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 1 only to the extent consistent, herewith. REMEDY Having found that Respondent Union and Re- spondent Company engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. The Administrative Law Judge recommended as a remedy for the Company's continued illegal dealings with its supervisor as the Union's president that, in addition to ceasing its dealings with its supervisor as a union officer or agent and giving effect to the new 3-year contract, the Company be ordered to withhold recognition from the Union until it is certified by the Board as the exclusive representative of the employ- ees. The reliance of the Administrative Law Judge on The Powers Regulator Company v. N.L.R.B., 355 F.2d 506 (C.A. 7, 1966), in requiring such withdrawal of recognition is misplaced in the circumstances of this i We find without merit Respondent Union's allegations of bias and prejudice on the part of the Administrative Law Judge and Respondent Company's allegations that the Administrative Law Judge's credibility resolutions are unfounded, unwarranted, arbitrary , and capricious We have fully considered the entire record and the Administrative Law Judge's Decision , and we perceive no evidence that the Administrative Law Judge prejudged this case, made prejudicial rulings, or demonstrated either bias or incompetency in his analysis or discussion of the evidence Moreover, it is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponder- case. The Union had an established bargaining relationship with the Employer, and the record evidence does not disclose that its majority status was in question. Requiring that Jones, the supervisor, be separated from the administration of the Union and participation in future negotiations and griev- ances on its behalf, and requiring that the recently negotiated collective-bargaining agreement be set aside, will suffice to remedy the 8(a)(2) violation found. Bisso Towboat Company, Inc., 192 NLRB 885. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Company, Jeffrey Manufacturing Company, Screw Conveyor Division, Fort Worth, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the administration of Steel Workers Local No. 902, affiliated with Federated Independent Texas Unions, or any other union, by recognizing or dealing with Willie Jones or any other company supervisor as a union officer or agent in negotiating or administering any collective-bargain- ing agreement or in handling employee grievances. (b) Maintaining or giving effect to the 1971-74 contract with Steel Workers Local No. 902, or to any modification, extension, supplement, or renewal thereof, provided, however, that nothing herein shall be construed to require the Respondent Company to vary any substantive provision of the contract, or to prejudice the assertion by the employees of any rights they may have thereunder. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its plant in Fort Worth, Texas, copies of the attached notice marked "Appendix A.-2 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent Company's authorized representative, shall be posted by the Company immediately, upon receipt thereof, and be maintained by it for 60 ance 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 In the event this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 208 NLRB No. 6 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that the notices are not altered, defaced, or covered by any other material. (b) Post at the same places and under the same conditions as set forth in (a) above, as soon as forwarded by the Regional Director, copies of the Respondent Union's attached notice marked "Ap- pendix B." (c) Sign and return by mail to the Regional Director for Region 16, immediately upon receipt from him, copies of the attached notice marked "Appendix A" for posting by the Respondent Union. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. Respondent Union, Steel Workers Local No. 902, affiliated with Federated Independent Texas Unions, Fort Worth, Texas, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Jeffrey Manu- facturing Company, Screw Conveyor Division, to discharge or otherwise discriminate against any of its employees in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees of the Company in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post in Respondent Union's business office copies of the attached notice marked "Appendix B."3 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by an authorized representative of the Union, shall be posted by the Union immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that the notices are not altered, defaced, or covered by any other material. (b) Post at the same places and under the same conditions as set forth in (a) above, as soon as forwarded by the Regional Director, copies of the Respondent Company's attached notice marked "Appendix A." (c) Sign and return by mail to the Regional Director for Region 16, immediately upon receipt from him, copies of the attached notice marked "Appendix B" for posting by the Respondent Company. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found. 3 See fn. 2. supra. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal law by unlawfully interfering with the independent union when permit- ting a supervisor to serve as union president: WE WILL NOT permit receiving clerk Willie Jones or any other supervisor to serve as a union officer or representative. WE WILL NOT give effect to our 1971-74 contract with Local 902, and we will not change ,the wages and other conditions of employment under the contract. WE WILL NOT unlawfully interfere with the operation of any union of your choice. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. JEFFREY MANUFACTURING COMPANY, SCREW CONVEYOR DIVISION (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, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334=2921. JEFFREY MFG. CO. 77 APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal law by attempt- ing to cause Jeffrey Manufacturing Company to discharge an employee for filing grievances: WE WILL NOT unlawfully request the Company to discharge or otherwise discriminate against any employee. WE WILL NOT in any like or related manner restrain or coerce employees of the Company in the exercise of their rights under Section 7 of the Act. STEEL WORKERS LOCAL No. 902, AFFILIATED WITH FEDERATED INDEPENDENT TEXAS UNIONS (Labor Organization) 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, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: These consolidated cases were tried at Fort Worth, Texas, on April 5-6 and 9-12, 1973. The charges were filed by an individual, Isaac S. Smith, on November 30, 19721 (amended February 27 and April 4, 1973), against the Respondent Company, and on September 27 (amended November 30 and February 15, 1973) against the Respon- dent Union. The consolidated complaint was issued on February 15, 1973, and amended on February 27 and April 4, 1973. The primary issues are whether (a) the Union, through President Willie Jones, attempted to cause the Company to discharge machinist Smith for submitting grievances, and (b) the Company interfered with the administration of the independent union, in that Jones and/or Secretary-Treas- urer Marvin Rodgers is a company supervisor-the Company thereby violating Section 8(a)(1) and (2), and the Union Section 8(b)(1)(A) and (2), of the National Labor Relations Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Company, and the Union, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, an Ohio corporation, is engaged in the manufacture of conveyors at its plant in Fort Worth, Texas, where it annually ships goods valued in excess of $50,000 directly to points outside the State. The Company and the Union admit, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Union, which represents production and mainte- nance employees of the Company, is one of three small locals affiliated with the Federated Independent Texas Unions. In 1971, several months before the October 31 expiration of the Union's contract with the Company, some of the employees made an unsuccessful attempt to decertify the Union. At their request, Machinist Isaac Smith obtained the appropriate forms from the Board's Regional Office. Apparently an insufficient number of signatures were obtained to file a petition. In the summer of 1971, the union membership elected Smith to the three-employee negotiating committee. The first meeting of the committee was held at the home of Secretary-Treasurer Marvin Rodgers (chairman of the committee) in early September. (Smith, whose credibility is discussed later, erroneously recalled the meeting to have been held in early October.) President Willie Jones and Committeemen Smith and William Irick were present with Rodgers at the meeting. They began reviewing the existing contract, for the purpose of preparing proposed contract changes. Upon reaching the grievance procedure provi- sions, both Jones and Rodgers commented about having discharged employees. As Smith credibly testified (upon cross-examination by company counsel): Q. [By Karl Mueller] How did that come up? A. Well, we was talking about arbitrations . . . and discharges, and they both made the statements that they had discharged people while they had been employed out there in their capacity, and I told them that I was in the wrong place; if the two of them had the authority to discharge or hire and fire people that 1 All dates are in 1972, unless otherwise stated 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were both supervisors and they didn't have no place in the Union, let alone being secretary-treasurer and president. Q. A. Q. A. Did Willie [Jones] tell you who he had fired? No, sir, he did not. Or when he had fired somebody? No, sir, he did not. Q. ... had fired? Did Marvin [Rodgers ] tell you anybody he A. No, sir, he did not. Q. Or when? A. No, sir, he did not. (Neither Jones nor Rodgers was called to confirm or deny this testimony. Committeeman Irick was called as a witness, but he appeared to have very little recollection of what occurred.) On September 14, 1971, after Union Secretary Rodgers had submitted a written list of proposed contract changes to the Company, the union membership met, and both Rodgers and Irick resigned from the negotiating commit- tee. Two substitutes were elected, and Machinist Smith (who had prior experience in contract negotiations with an earlier employer) was appointed chairman of the commit- tee. It is undisputed (as Smith credibly testified upon cross- examination by union counsel at the trial), that Smith told the membership, "I thought there should be some changes in the contract language, too much of it leaned toward the Company," and "I thought it stunk." It is also undisputed that the membership requested Smith to see if he could obtain copies of union contracts at other company plants, and indicated that "they wanted a completely new negotiated contract"-although Secretary Rodgers ' said "that the contract we had was plenty good and we didn't need any outsiders coming in telling us how to negotiate a contract," and President Jones "stated that they had been doing good under the contract that they had for years out there and he didn't see any reason to change it." I After this meeting, Committee Chairman Smith obtained copies of other union contracts, and prepared six copies of a proposal, containing a number of changes, including new provisions for severance and cost-of-living allowances. The other two members of the committee agreed with Smith to submit the new proposal to the Company. However, when Smith showed the drafted proposal to President Jones and Secretary Rodgers, "it was pushed aside," and both Jones and Rodgers said they did not want anything to do with the proposal or with the union contracts Smith had obtained. About the second week in October 1971, the i Jnion went into negotiations with the Company, after Secretary Rodgers had submitted a revised list of proposed changes (with few changes from the original list). It is undisputed that shortly before the first negotiating session, when Committee Chairman Smith questioned Jones' right to be present "because he was not elected to the negotiating committee," Jones stated that "he was there because the Company wanted him there." During the negotiations, as Smith credibly testified on cross-examination by company counsel (although denied by Glass), Smith "tried to find out" what authority Jones had with respect to the employees he worked with, but the Company was "vague as the devil about that ." After four meetings, a new agreement was reached by October 19. Two months later, machinist Smith was the first to sign a recall petition , challenging the manner in which a union election had been held. The following September 13, he filed a grievance against the Company (concerning performance reviews) and one against the Union (alleging "I am not being properly represented"). On September 29, he left for other employment. The General Counsel contends that the Union , through President Jones, caused or attempted to cause the Company to discharge machinist Smith because he submitted the grievances, and that the two union officers, Jones and Secretary-Treasurer Rodgers, are supervisors. The Company and the Union deny both allegations. (The Company also contends that Smith quit, and was not constructively discharged, but that issue was settled shortly before trial.) B. Jones' Attempt to Cause Discharge In September, when machinist Smith filed the grievances against the Company and the Union, James Hunter was a leadman in the machine shop . Previously, he had been the machine shop foreman, but had been on paid sick leave for a considerable length of time, during which he had received psychiatric care. According to Leadman Hunter, he and Foreman T. J. Barnes were in the machine shop office (where both Barnes and Hunter had desks), when Union President Jones entered and began discussing with Barnes one or both of the grievances Smith had filed (on September 13). Hunter testified, "I don't recall just exactly what they said, but they were discussing Ike's part in the Union . They called it troublemaker." He did not recall which one referred to Smith as a troublemaker, but "Both agreed that he would have to be gotten rid of. . . . I don't recall just exactly what they said, but I know there was discussion that he was a troublemaker, and that he would have to be gotten rid of." Sometime after Jones left, Barnes told Hunter, "That we would try to get rid of Ike. . . . He said keep him busy; keep the work piled up on him in hopes that that would get rid of him, not let him have a chance to slow down." Hunter did not recall when Jones was in the office (thinking it was sometime in August or September), did not recall how much time elapsed before Barnes said to pile up work on Smith (thinking it was within 2 weeks), did not know how much later Smith left (thinking it was "maybe" 4 months-whereas Smith left on September 29), and did not recall piling up work on Smith. (Smith, who impressed me as having a much better memory , credibly testified that about the first week in October, Hunter came to Smith's home, reported that he had overheard Jones, in a conversation in the office, tell Barnes that "The only way we can get rid of the SB is to run" Smith off. Hunter said he wanted to apologize for what had taken place, that Barnes had told him to load the work up on Smith, and JEFFREY MFG. CO. 79 "that they couldn't run me off because of absenteeism or my scraps or anything of that nature and the only thing they could do was pile the work on me and run me off that way." The mere fact that Hunter made such statements at the time provides some corroboration of Hunter's testimo- ny at the trial.) Smith also credibly testified that on September 14, he saw Jones in the machine shop and asked him if he had seen the grievance (against the Union), and Jones responded, "What do I have to do to please you damn people?" Earlier, during the September 1971 contract-proposal meeting at Secretary Rodgers' home, President Jones had stated his opposition to the processing of grievances. It is undisputed, as elicited by company counsel from machinist Smith on cross-examination, that Jones stated at that meeting "that he had been out there 20 something years, and, `no grievances got by me.' I agreed with him; he'd been out there a long time and they ain't had an arbitration case or nothing else that got by him." When Machine Shop Foreman Barnes was called as a defense witness by the Company, he gave complete denials to the allegation that the Union had unlawfully caused or attempted to cause the Company to discharge Machinist Smith. Barnes denied that he had any conversation with Union President Jones concerning Smith, denied that he ever had a conversation with Jones concerning running Smith off or concerning Smith being a troublemaker, denied ever having a conversation with Jones in the presence of leadman Hunter with respect to running off Smith, and denied that he ever told Hunter to pile work on Smith. Barnes did not impress me as being a trustworthy witness. (When giving these denials, his face appeared unusually flushed, and he appeared quite nervous.) Hunter, on the other hand, impressed me as endeavoring to report accurately what he could recall had happened. I credit his testimony about the conversation between Barnes and Jones, and discredit Barnes' denials. Thus, I find that when President Jones went to the machine shop on September 14, the day after Smith filed the two grievances, Jones indicated his displeasure by asking Smith, "What do I have to do to please you damn people?" And when Jones met with Foreman Barnes concerning one or both of Smith's grievances, Jones and Barnes , talked about Smith being a troublemaker in the independent union and about getting rid of him. Although Jones did not state in so many words that Barnes should discharge Smith for filing grievances, I find that Smith's actions in filing the grievances (against the Company and the Union) provided the reason for Jones to be meeting with Barnes, and motivated the conversation about getting rid of Smith. I therefore find that Jones sought the discharge of Smith at least in part for filing grievances, and that the Union thereby unlawfully attempted to cause the Company to discharge Smith for so doing, in violation of Section 8(a)(1)(A) and (2) of the Act as alleged. (In view of the pretrial settlement of the allegation that the Company constructively discharged Smith, I do, not rule on whether the Union caused any action on the Company's part in connection with Smith's departure from the job.) C. Alleged Illegal Interference with Administration of Independent Union 1. Credibility issue In order for the General Counsel to prove the allegation in the complaint that the Company illegally interfered with the administration of the Union, he must establish that either Union President Jones or Secretary-Treasurer Rodgers is a company supervisor, which the Company and the Union deny. Although the trial lasted 6 days, none of the parties called Jones or Rodgers to testify, or their immediate supervisors, or any of the employees working with them. Instead, the General Counsel relies mainly upon the testimony of Machinist Smith, and the Company and the Union rely mainly on the testimony of Manager William Glass. The testimony of Smith and Glass are in sharp conflict on a number of points. The General Counsel contends in his brief that an inference should be drawn, from the failure of the Company and Union to call Jones or Rodgers, that their testimony would have been unfavorable to the Company and the Union. However, the General Counsel has the burden of proof on the issue of supervisory status, and he has offered no justification for not calling these witnesses himself if he considered their testimony necessary for meeting that burden. I therefore reject the contention. In view of the virtual absence of corroborating testimo- ny, I find it necessary to decide whether Smith or Glass was the more credible witness, before determining whether the General Counsel has met his burden of proof. In making the credibility findings, I have weighed all the evidence, and considered all the arguments of the parties, after having closely observed the demeanor of the witnesses on the stand. Machinist Smith, who had no personal interest in the outcome of the case after the pretrial settlement of the allegation that he was constructively discharged, impressed me as an honest, forthright witness at all times . Extensive cross-examination pointed out some errors in his memory, particularly in recalling dates. As an example, he testified that October 7 was the date he went to work for a new employer after leaving the Company on September 29. (The new employer "left it in this way, that if I wanted to come to work out there, report to work on Monday morning.") The October 7 date was obviously wrong, because it fell on a Saturday, and was the end, rather than the beginning, of Smith's first pay period. However, it is undisputed that Smith had checked with the secretary in the new employer's office to determine when he was hired (in connection with computing the amount of his backpay under the pretrial settlement agreement), and that the secretary advised him that October 7 was the date he was hired. Contrary to the Company's contention that Smith was completely discredited, Smith's memory appeared to be generally good, and he appeared to be attempting to testify as accurately as he could. Manager Glass also appeared to have a good memory. However, when testifying about the functions of the two alleged supervisors, he impressed me as being less than candid. Finally, when the Company produced Jones' and 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rodgers' timecards, Glass began giving testimony which appeared to be clearly fabricated. The timecards show instances of where these alleged supervisors had initialed corrections on their own timecards, whereas machinist Smith's timecards bore only the initials of his foreman as approving corrections (and the initials of Rodgers' foreman appeared by a correction on one of Rodgers' timecards) When asked by company counsel if it was permissible for an employee to initial such corrections, Glass answered: "The only way I can answer it is to simply say that in order to record the information on the timeclock so that the accounting department will know of something, that's the only place the employee has to record it, if there is some data that should be there for accounting purposes... . The accounting department will contact the foreman of the department to ask any clarification that they need concerning that and then if the foreman does not know, he would call the employee and ask." Later, when the Company produced the August and September timecards for three employees working with Jones, the timecard of employee Harvey Clinton for the week ending October 3 clearly bore the same initials, "WJ," as appeared on Willie Jones' timecards. Instead of candidly admitting that he had been in error, when indicating that employees initial corrections on their own timecards, Glass gave clearly fabricated testimony, testifying that those were the initials of Harvey Clinton: Q. Are those the cards used by the men in reporting their time week by week for the periods indicated? A. Yes, sir. Evidence of that is the initial of Harvey Clinton where he made a mistake of his time on October 3, which is what employees are supposed to do. [Emphasis supplied.] Thus, Glass positively identified, as being Harvey Clin- ton's, the initials which were quite similar to the "WJ" which Glass had readily identified as being Willie Jones' initials on Jones' timecards. (It takes no handwriting expert to determine the similarity between the "WJ" on Clinton's timecard, General Counsel Exhibit 7, and the "WJ" repeatedly written on Jones' timecards, General Counsel Exhibits 8 and 9. There is no possible way of confusing these initials with any combination of initials for Harvey L. Clinton.) Glass next testified that, "I didn't see Mr. Clinton make these. I assume they are the initials of Mr. Clinton," and claimed, "They appear to me to be different" from the "WJ" on Willie Jones' cards. Later, on cross-examination, he testified, "No, sir. I cannot distinguish the initials" on Clinton's card. Manager Glass did not impress me as being a forthright witness. 2. Status of Willie Jones The September 20 seniority list shows that the Company had a foreman over each of five production and mainte- nance departments. The sheet metal department foreman was over 66 employees; the conveyor department foreman was over 35; the shipping department foreman over 14; the machine shop department foreman over 13, and the plant maintenance department foreman over 6 employees. The remaining department in the plant area , listed as the warehouse and receiving department, showed no foreman, but listed Receiving Clerk Willie Jones over four employ- ees (material handler J . W. Chambers and warehousemen Mack Carpenter, Harvey Clinton, and James Moon). This seniority list was furnished by the Company to the Union as required by the collective-bargaining agreement. Thus, the published seniority list indicates to the employees that each of five departments was headed by a foreman, and the sixth department was headed by Receiving Clerk Jones. (For its own purposes, the Company had an organizational chart showing five production and maintenance depart- ments, and on a different level, a production and inventory control supervisor, Bob Newton-who was Jones' immedi- ate supervisor.) The five foremen, and Supervisor Newton, were salaried supervisors, with different benefits from the contractual "Leadmen and Working Foreman" (such as Receiving Clerk Jones) who, as members of the bargaining unit, "shall draw a minimum of 10c per hour above the maximum rate being paid to regular employees of the leadman's or working foreman's sub-department." At the time of the seniority list, Jones was being paid $3.75 an hour, as compared to $2.95 being paid material handler Chambers (an employee since 1958), $2.55 paid warehouse- man Moon, and $2.45 paid warehouseman (or warehouse clerk) Clinton. (The maximum contractual rate for material handlers was $3.20 and for warehousemen was $2.95.) Receiving Clerk Jones' office is near the receiving dock, and the warehouse clerk, at a separate desk in the office, handles much of the clerical work. (The office of Jones' immediate supervisor, Newton, is upstairs where Newton supervised a group of clerical employees.) Jones, who has over 25 years of service, has a responsible position in the receiving, warehousing, and handling of materials at the plant. He gives orders to, and directs the work of, not only the three or four employees assigned to his department, but also other material handlers in the plant-such as material handler (forklift operator) Sank "Slim" Brown who is assigned to the conveyor department, and material handler John Tovar who is assigned to the shipping department. This work includes unloading and storing pipe and materials in the north and south yards, moving pipe into the machine shop, taking finished material from the machine shop to the welding shop, moving various finished items from the production areas to the warehouse for storage (until needed for assembly or for shipment), and removing scrap from various points in the plant. This work is in addition to the receiving and storage of materials in the warehouse, and moving materials from the warehouse to the production areas. One of the Company's own documents, the November 13 employee performance review for Jones (approving a 10-cent wage increase, to $3.85), recognizes the importance of Jones' leadership role. The review cites his "outstanding leadership" and states that his "vast product knowledge and concern contributes vastly to our operation." As alluded to above, Receiving Clerk Jones has demon- strated his authority over warehouse and receiving employ- ees by acting in the role of a foreman, when initialing a JEFFREY MFG. CO. 81 correction on warehouse clerk Clinton's October 3 time- card. Furthermore, Jones initialed corrections on his own timecards, and at least for the 3-month period preceding machinist Smith's termination, Jones followed the practice of retaining his own timecard-contrary to the instructions to rank-and-file employees to leave their timecards in the timerack. He also distributed paychecks to employees in his department. In addition to directing forklift work of Sank Brown (an employee in another department), he exercised authority over Brown early in 1971 by signing a medical slip, authorizing Brown to leave work and see a doctor. (Machinist Smith received such a slip from his own foreman about the same time, before the Company changed insurance carriers, and began issuing medical slips from the office. I discredit Manager Glass' uncorroborated denial that foremen had issued such slips.) As already found, Receiving Clerk Jones stated at a meeting of the Union's negotiating committee in early September 1971 that he had discharged employees at the plant. He did not indicate how he effected such discharges, but his above-found conduct a year later (when he talked to Machine Shop Foreman Barnes about getting rid of the "troublemaker" Smith-who was not even in Jones' department) may give some indication of what Jones had in mind when mentioning at the committee meeting about discharging employees. (I credit Manager Glass' testimony that only members of the management club--consisting of foremen and higher supervision-have the authority on their own to discharge employees. However, I do not credit Glass' testimony that Jones has not been invited to attend any meetings of that club. Machinist Smith credibly testified that on one occasion when he was eating lunch with other employees in Foreman Barnes' office-where Smith usually saw the monthly meeting announcements of the management club-he observed one of the announce- ments on the foreman's desk, showed it to the other employees, and commented, "How does this grab you; Management Club, and it's got Mr. Jones and Mr. Rodgers names on the bottom." As he recalled, he saw their names on the announcement three or four times. When the Company produced copies of the monthly announcements- -none of which bore the names of Jones or Rodgers- -Glass testified, "I put out a notice of every meeting to the supervisors as to whether or not any changes would be forthcoming," and that if any meeting could not be held, "I would put out a notification that the meeting would either be rescheduled or postponed or something of this nature." Yet the Company produced no notices for the months of July and September 1971. When asked by the General Counsel whether these did not represent all such memoran- dums distributed, the company counsel frankly answered, "There may be some exceptions." However when asked by the company counsel if this was right, Glass claimed that the documents being offered into evidence represented "all the meetings . . . of any type that were actually held or notification of postponements or other information per- taining to that." Yet, the Company did not produce the notices for the previously scheduled July 26 and September 27, 1971, meetings, or proof that the meetings were not held. Although the record does not reveal why Jones and Rodgers were invited on the one occasion when Smith showed their names to other employees eating lunch with him in the foreman's office, and possibly on another occasion-but evidently not more than twice, contrary to Smith's recollection-I note that the scheduled July meeting was about the time of the union election of the negotiating committee and the September meeting was scheduled to be held shortly before the contract negotia- tions.) It is clear that Manager Glass was not a candid witness when testifying about Receiving Clerk Jones' role at the plant. Instead of detailing Jones' responsibility as a leadman or working foreman, Glass testified that Jones was one of four persons who would receive the material, and attempted to leave the impression that it was Production and Inventory Control Supervisor Newton who directed the work. Despite the fact that Jones had been cited in a recent performance review for his outstanding leadership, and that Jones was a senior employee whose "vast product knowledge and concern contributes vastly to our operation," Glass testified that Newton had instructed Jones "to receive the pipe and put it in its normal storage" place; that Newton designates where every item is to be kept; that in addition to doing filing and clerical work, or jobs which Jones or other receiving department employees might do, warehouse clerk Clinton "would do other things in relationship to whatever directions Bob Newton might have set out"; that "Bob Newton has basically set up his department so that Willie Jones, Dock Chambers, Keith Moon, Harvey Clinton . . . can receive"; and that if an item like bearings is received by one of the department employees and not placed in the designated place, Jones might come along and put them up or "Bob Newton might have come through and said, `What the hell are these bearings doing on the floor, why aren't they put up,' and somebody would have jumped and put them up." When asked by company counsel which persons had the authority "responsibly to direct employees in the perform- ance of their work," Glass answered, "Those people who are members of the Management Club, or supervisors, because they are the ones responsible for the budget in their department." (Emphasis supplied.) This would be a plausi- ble basis for membership in the management club, but an unlikely basis for determining who responsibly directs the work. Glass impressed me as endeavoring to provide a defense for the Company, rather than candidly revealing the actual situation at the plant. After weighing all the credible evidence, I find that the evidence clearly establishes that' Receiving Clerk Jones possesses the supervisory authority to responsibly direct the work of not only employees in the warehouse and receiving area but also these and other employees in moving materials into and from the machine shop, from different departments to the warehouse, and in removing scrap from various points in the plant. I also find that he possesses the authority to effectively recommend the' discharge of employees. I therefore find that he is a supervisor as defined in Section 2(11) of the Act. 3. Status of Marvin Rodgers The General Counsel alleges that Marvin Rodgers is a 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sheet metal supervisor. The Company asserted at the trial that Rodgers "actually has no title assigned to his job," and that Rodgers does predominately clerical work under Sheet Metal Department Foreman Jack Rainey. Rodgers, *ho was employed in 1954 in the sheet metal department, has been a leadman since 1963. He, like Receiving Clerk Jones, mentioned during the September 1971 negotiating committee meeting that he had dis- charged employees. Also like Jones, he initialed corrections on his own timecards and, unlike rank-and-file employees, retained his own timecard at least for several months (in the summer of 1972). In September, he was being paid $3.85 an hour (10 cents an hour more than Jones). His November 21 employee performance review, approving a wage increase to $3.95 an hour, stated that "He is dependable and gets along with all the men." Rodgers shares an office with, and has the same telephone extension as, Foreman Rainey who is over the plant's largest department. In September there were 66 persons (including 7 leadmen) working in the sheet metal department under Rainey. The September seniority list shows a total of 68 persons (including 5 leadmen) working in the 5 next largest departments (each of which has a separate foreman). Thus, outside the warehouse and receiving department (under Receiving Clerk Jones), Foreman Rainey was over about half of the production and maintenance employees, and over 7 of the 12 leadmen. The sheet metal department (which expanded from 36 hourly personnel in January 1971 to 66 in September 1972-an increase of 83 percent) had an assistant foreman between September 1971 and May 1972. Manager Glass testified that this assistant foreman, Milford Hooper, was in complete charge of the sheet metal department in Foreman Rainey's absence, but denied that there has been an assistant foreman after Hooper left in May-testifying that "the slack was picked up by Jack Rainey." When cross-examined by the company counsel, machin- ist Smith credibly testified that Machine Shop Foreman Barnes stated (contrary to Barnes' denial) that Rodgers "Had moved up to Mr. Hooper's place" shortly after Hooper departed. Smith expressed the conclusion: "That's the reason they ain't got no title" on Rodgers. It is clear, however, that Smith did not have the opportunity of observing Rodgers (as he did Jones) giving orders and directing the work, and that Smith reached some erroneous conclusions about Rodgers' status. Smith saw in the machine shop office various work-flow memorandums signed by Rodgers-without any title-and assumed from this that Rodgers had supervisory authority: "They never did ask me to put my name on something down there." Smith also testified, "I know Rainey used to run all the errands . . . when something went wrong up there in the machine shop," and that this gave him the impression that Rodgers was having Rainey run the errands. Smith also erroneously believed that Rainey had been an assistant foreman under Hooper, and that when Foreman Barnes stated that Rodgers had taken Hooper's place, that meant that Rodgers was the foreman and that Rainey was his assistant. Smith was not in a position to observe Rodgers on the job, or to have first-hand knowledge of Rodgers' status in the sheet metal depart- ment. As already indicated, the General Counsel did not call Rodgers, or any of the persons working with him, to testify. It is also clear that the General Counsel did not establish through Manager Glass that Rodgers was a supervisor. Glass denied that Rodgers had any supervisory authority, and even denied that Rodgers had the responsibility of answering Foreman Rainey's telephone in Rainey's ab- sence (after first testifying, "Sure, if he's there"). Glass claimed that Rodgers spent about 80 to 85 percent of his time in the office, doing production planning breakdowns. On cross-examination, Glass changed his testimony and asserted that Rodgers spent "somewhere around" 60 percent of his time doing this work, and spent the other 40 percent of his time on the floor, perhaps loafing, or talking to the men about something "to get squared away with the foreman," or "picking up papers from Bob Newton's department," or asking the foreman when something would be finished. At one point, Glass testified that Rodgers was a "working leadman, distributing information that Jack Rainey . . . would have wanted the men to do." At another point, he testified that Rodgers "with the years of experience that he has had . . . we could have him out there any time we needed him, if another leadman there was sick or something like that." He denied that Rodgers would assign work and say, "The Company needs this done and therefore you are directed to do it." I therefore find that the General Counsel has failed to prove that Rodgers had any supervisory authority. Al- though machinist Smith credibly testified that Machine Shop Foreman Barnes (an admitted supervisor) stated that Rodgers took Assistant Foreman Hooper's place, and Rodgers shares an office with (and has the same telephone extension as) Foreman Rainey and is thereby placed in a position which may indicate to the employees in the department that Rodgers is Rainey's assistant, the General Counsel failed to call any witnesses to give any direct testimony about Rodgers' responsibilities and status, or to establish that Rodgers is serving as an assistant foreman with supervisory authority. The General Counsel has also failed to prove that Rodgers recently sought, as did Jones, the discharge of an employee. 4. Concluding findings Throughout 1972, and until the trial in April 1973, Receiving Clerk Jones continued to be president of the independent union. (He is also vice president of the independent federation, FITU, with which the Union and two other small locals are affiliated.) It is undisputed that the Company met with Jones in the summer of 1972 concerning the disputes over the employees' performance reviews. (When Machinist Smith filed his September 13 grievance against the Union, he was complaining that Union President Jones and Secretary Rodgers had by- passed the member-elected union plant committee and dealt directly with the Company, asserting: "I am grieved by the Union in that I am not being properly represented by the Union. The people elected to represent me are not being allowed to do so.") Also, as found above, the Company (through Foreman Barnes) met with President JEFFREY MFG. CO. 83 Jones in September concerning one or both of Smith's grievances. Thus, during the 6 months preceding the November 30 charge against it, the Company recognized Jones, its own supervisor, as the Union's president, and dealt with Jones as a representative of its employees in handling disputes arising under the collective-bargaining agreement with the Union. "Such a mingling of supervisory and employee- representative function has denied the Respondent's employees their rights under the Act to be represented in collective-bargaining matters by individuals who have a single-minded loyalty to their interest. By . . . dealing with him in this capacity the Respondent has therefore interfered with this right of its employees and also with the Union's proper administration of its representative func- tion," in violation of Section 8(a)(2) and (1) of the Act. E.E.E. Co. Inc., 171 NLRB 982 (1968), involving an employer dealing with a supervisor as the union steward in handling grievances and in contract negotiations; G & H Towing Co., 168 NLRB 589, 590, 596-597 (1967), where "no new contract had been negotiated within the 10(b) period," but the "clarifications committee," containing supervisors, was active during that period, and citing Powers Regulator Company, 149 NLRB 1185 (1964), enfd. 355 F.2d 506 (C.A. 7, 1966), in which "the Board found a violation even though the single supervisor on the bargaining committee was a borderline supervisor." In view of these findings, I deny the Company's motion to dismiss all the allegations in the complaint against it. CONCLUSIONS OF LAW 1. By attempting to cause the Company to discriminate against an employee in his tenure of employment to encourage union membership on the part of other employees, the Union engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and (1)(A) of the Act. 2. By permitting Willie Jones, one of its supervisors, to serve as the president of the Union, and by recognizing and dealing with him in that capacity in administering and handling disputes arising under the collective-bargaining agreement with the Union, the Company has interfered with the administration of the Union in violation of Section 8(a)(2) and (1) of the Act. 3. The General Counsel has failed to prove in this proceeding that Union Secretary-Treasurer Marvin Rodg- ers is a supervisor within the meaning of Section 2(11) of the Act. REMEDY Having found that the Respondents, Company and Union, have engaged in certain unfair labor practices, I find it necessary to order them to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As found, the Company during the 10(b) limitation period (beginning May 30, 1972) unlawfully interfered with the administration of the Union by permitting one of its supervisors, Receiving Clerk Jones, to serve as the union president, and by recognizing and dealing with him in that capacity. Whether or not such unlawful conduct, when considered in isolation, would necessitate an order direct- ing the Company to withhold recognition from the Union unless and until the independent union is certified, I find that such a remedy is necessary when the background evidence is taken into consideration. As held in N.L.R.B. v. Lundy Manufacturing Corporation, 316 F.2d 921, 927 (C.A. 2, 1963), cert. denied 375 U.S. 895 (1963), "the Board may look to earlier events to determine the appropriate remedy to be prescribed." In 1971, after unsuccessful employee efforts to obtain sufficient signatures on a petition to decertify the Union, Supervisor Jones-while serving as union president -played a dominant role in influencing the member- elected union negotiating committee. He informed the committee of his supervisory role by telling them that he had discharged employees at the plant, and stated "that he had been out there 20 something years" and "no grievances got by me." Later, at a membership meeting, Jones personally appointed machinist Smith to be chairman of the negotiating committee. Thereupon, Smith told the union membership that he thought too much of the contract language "leaned toward the Company," and the membership requested Smith to get copies of union contracts at other company plants and negotiate a completely new agreement. Jones then stated "that they had been doing good under the^,,contract that they had for years out there and he didn't see any reason to change it." After Smith had obtained copies of other contracts and prepared a new proposal, which was approved by the negotiating committee, Jones would not permit the proposal to be submitted to the Company, stating that he did not want anything to do with the proposal or with the other contracts. Shortly before the brief negotiations with the Company began, Jones further influenced the union negotiating committee by stating "he was there because the Company wanted him there." And in the negotiations, as machinist Smith credibly testified upon cross-examination by the company counsel, "every time [Manager] Glass wants a yes or no," and says to Jones, "Ain't that so, Willie?" Jones would say, "Yes, sir." ('The company counsel asked, "But you didn't stand up to anything; is that what you're saying?" Smith answered, "Well, the expression, `there ain't no use to fight City Hall.' ") The negotiations began about the second week in October 1971 and were concluded by October 19, 1971. Thus, by having a supervisor at the head of the Union, the Company had his assistance before and during the negotiations-despite "the adage that an employer may not sit on both sides of the bargaining table." The Powers Regulator Company v. N.L.R.B., 355 F.2d 506, 508 (C.A. 7, 1966). Under these circumstances, I find that it is necessary, as a remedy for the Company's continued illegal dealings with its supervi- sor as the Union's president during the 10(b) limitation period, that the Company be ordered to withhold recogni- tion from the Union and abrogate the new 3-year contract (effective November 1, 1971, and expiring October 31, 1974) unless and until the Union is certified. [Recommended Order omitted from publication.]