Lenoir Industries, Inc.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lenoir Industries, Inc. and Clarence Stinnett. Case 10-CA-10522 February 11, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On September 18, 1974, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions to the Administrative Law Judge' s Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Re- spondent's October 19, 1973, discharge of Clarence Stinnett, the Charging Party herein, was in violation of Section 8(a)(3) of the Act. While Respondent admits that Stinnett's discharge was for union-related reasons, it contends that, since Stinnett was a supervisor within the meaning of Section 2(11) of the Act, its action in discharging him was not in contravention of the Act. However, since the Administrative Law Judge found that Stinnett was an employee of Respondent rather than a supervisor, he found Respondent's discharge of Stinnett a violation of the Act. We agree with this conclusion of the Administrative Law Judge as we note infra. As more fully detailed in the Administrative Law Judge's Decision, Stinnett was hired by Respondent to work as a permanent member of its field repair crew.2 Cedric Giles, the representative of Respond- i 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 (1950), enfd 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent is engaged in the manufacture and sale of modular motel units. 3 The Administrative Law Judge generally credited Stinnett's testimony. a The Administrative Law Judge inadvertently found that this figure comprised the amount of time Stinnett worked on a crew of himself, Brady, and employee Campbell However, the 80-percent figure refers only to the amount of time Stinnett worked with Brady as opposed to without him and hears no reference to how many other employees worked with the two men during those times that they worked together. 5 Since the repair work involved appears to have been on the same basic modular motel unit on each job, it would appear too that there would be a 216 NLRB No. 109 ent who hired Stinnett, testified that he did not hire Stinnett as a supervisor and stated that he told Stinnett at the time of his hire that "all he would have to do was to bring his tools and come in and he'd be working for Mr. Brady [an admitted supervisor]." Giles further testified that, if Brady, who himself had only recently been hired, did not work out, Respondent would then have given thought to making Stinnett a supervisor. Stinnett likewise testified that, at the time of his hire, Giles told him that if there was ever an opening for a supervisor, Stinnett would be considered for the job.3 Stinnett ultimately spent about 80 percent of his time working on a crew under Brady4 and the balance of his time was spent in taking repair crews out without Brady. Respondent contends that during this time, when Stinnett was out without Brady, he exercised supervisory functions. The Administrative Law Judge has detailed the work of the repair crew and such appears to be clearly routine work.5 Further, it is undisputed that on the job itself, whether he worked with or without Brady, Stinnett worked with his tools his entire worktime.6 And on those crews which Stinnett headed, the employees worked either from an already prepared list of items which needed repair or reported to the client representative on the job to ascertain from him the work that needed to be done.? We also note that Jack Bond, Respondent's vice president for operations, kept a close overall watch on any crew out in the field. Bond testified that he would try to keep in touch with the crew "every night or every other night or so" by speaking by phone to the man heading the crew and checking to see "how they're getting along" or "what problems they've run into." In such circumstances, as more fully detailed in the Administrative Law Judge's Decision and for those further reasons he notes, we agree with his conclu- sion that Stinnett was an employee of Respondent rather than a supervisor and that his discharge was therefore in violation of Section 8(a)(3) of the Act.8 degree of repetition involved in any repair work done on each Job 6 While Respondent points to the fact that employees Galyon and Campbell testified that Stinnett had in fact assigned work to the men on trips when Brady was not present, the Administrative Law Judge specifically credited Stinnett's testimony that he had not assigned any such work. Stinnett's testimony was corroborated by employees Phillips and Harold Stinnett. r And when the employees finished their work , although the man in charge might have them do certain of it over , it appears that this was done only after the client representative went over the work and determined that it was not done acceptably. B As an indicia of Stinnett's alleged supervisory status, Respondent notes that, in an election held at Respondent, Stinnett's name was not on the eligibility list and he did not cast a ballot. The Administrative Law Judge noted Stinnett's explanation that he did not vote because he was on an out- of-town job on the day of the election . While not contesting this, Respondent notes employee Campbell's testimony which indicates that Stinnett told Campbell that he, Stinnett, could not vote because he was a LENOIR INDUSTRIES, INC. 545 While the Administrative Law Judge correctly found that Respondent violated Section 8(a)(3) of the Act by discharging Stinnett for engaging in union activities, he inadvertently set out in his Conclusions of Law and recommended Order as the violation he had found a refusal to reinstate Stinnett. General Counsel has excepted to these inadvertent errors of the Administrative Law Judge and we herein amend his Conclusions of Law and his recommended Order so that they are consistent with the balance of his findings, remedy, and proposed notice. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 3 of the Administrative Law Judge's Conclusions of Law: "3. By discriminatorily terminating the employ- ment of Clarence Stinnett on or about October 19, 1973, and not thereafter reinstating him to his position because of his engagement in union activi- ties, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Lenoir Industries, Inc., Lenoir City, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: Substitute the following for paragraph 1(b): "(b) Terminating the employment of Clarence Stinnett and refusing to reinstate him because of his union activities." supervisor. We note, however, that Stinnett denied making such a statement, stating rather that he had told Campbell initially that the field repair crew was not eligible to vote and later that Campbell was eligible to vote. While we do not agree with the Administrative Law Judge that Sunnett's and Bond's versions of the Galyon-Davis disciplinary incident are "substantially parallel" to each other, we agree with his conclusion that this incident in which Stinnett may have imposed a penalty on the two employees for their failure to report to work was an isolated incident which does not compel a supervisory finding here. In concurring with the conclusion of the Administrative Law Judge that Stinnett was not a supervisor, Member Kennedy does not rely upon Dad's Foods, Inc., 212 NLRB 500 (1974), which he finds to be clearly distinguishable from the present case. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: This case came on for hearing before me in Knoxville, Tennessee on August 6, 1974. The charge was filed on December 26, 1973 and the complaint was issued on June 17, 1974. The complainant is an individual, Clarence Stinnett (hereinaf- ter referred to as the Charging Party or Stinnett). The Union involved is the Sheet Metal Workers' International Association, Local 464 (hereinafter referred to as the Union or Local). The complaint alleges that Lenoir Industries, Inc. (hereinafter referred to as Respondent or Company) discharged Stinnett because of his membership in and activities on behalf of the Union, thus violating Section 8(a)(3) and (1) of the Act. Respondent does not deny that it discharged Stinnett because of his union activities but defends on the ground that the Charging Party is a supervisor within the meaning of Section 2(11) and therefore beyond the protection of the Act. The parties were given opportunity at the trial to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were carefully consid- ered. FINDINGS OF FACT I. JURISDICTION Respondent is a Tennessee corporation with its principal office and place of business located at Lenoir City, Tennessee, where it is engaged in the manufacturing and sale of modular motel units. During the past year Respondent sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of Tennessee. I find that it is engaged in commerce within the meaning ofSection 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The sole issue litigated at the hearing was whether or not Stinnett was a supervisor within the meaning of Section 2(11) of the Act. A. Preliminary Statement Jack Bond, vice president in charge of operations, explained the nature of the Company's operations. Lenoir Industries is engaged in the manufacture of motel modulars the basic module consists of a unit 12 feet wide by 52 feet long. It consists of two motel rooms, back to back, with a 4-foot service chase in the center where all the plumbing and electrical parts are subbed out. It is of wood frame construction. All the interiors of the rooms are finished. The plumbing fixtures are set. All the electrical wires are pulled. The carpet is on the floor; and the mirrors are attached to the wall. The Company employs approximately 75 men most of whom are working in the plant where all the above items are manufactured, they are then shipped to the sites for installation in finished condition. These units are then sold to individual owners of motels. At the present time Respondent sells the modules in about 18 different States throughout the Eastern part of the United States. After the 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD units are completed in the factory they are transported from the plant to the field. A large crane is rented in the area and there are teams of men who go out in the field to check up and correct, when necessary, the electrical and plumbing fixtures which are built onto foundations provided by the customers. The crews consist of from 3 to 5 men including a carpenter, electrician, and plumbing man. The owner of the motel has his own general contractor who does the foundation work and all the electric and plumbing hookups, puts on the permanent roof and builds the parking lot. The principal responsibility of the teams is to check whatever has already been installed, check on the installations and correct any carpentry work, plumbing and electrical work that requires adjustment. It is important to note that the teams consist of highly experienced workmen who need no supervision on the job since these men are all experts . Occasionally the leadman of the group, while he does not actually supervise the team, does help to maintain discipline . One of such leadmen, Stinnett, acts somewhat in the role of Respond- ent's representative on the job and he has the additional responsibility of reporting back to top management the progress on the job or any special problems that may have arisen. B. The Testimony of the Witnesses The Charging Party testified that he has been working with his tools as a carpenter for 20 to 25 years. When he was hired, in July 1972 by Cedric Giles, who was then the plant superintendent, he was told he would be hired to work with a field crew with his tools and that he (Giles) "needed a man out there with my experience on the unit to help." Also that Giles told him "that if there was ever an opening out there for a supervisor that I would be considered for it." Stinnett went on to say that there never was such an opening. At the time of his being hired he was paid $175 a week and after about 90 days on the job he was raised to $200 per week. He was discharged on October 19, 1973. Stinnett was called in from Pennsylvania and told to report for work on Monday morning. Bond called him into his office and the following colloquy took place: (Bond) said "I've got some bad news for you." He said, "I'm going to have to let you go." (Stinnett) said, "I asked him what for?" He said, "Well, I'm going to put on your separation papers that unsatisfactory work." He said, "Now we both know that that's not the reason." I said, "No, Mr. Bond, I know that's not the reason. What is the reason?" He said, "Well the reason is this union." He said, "I been told that you have been active in the union, getting union in the plant here." (Stinnett) . . . and I told him that I couldn't take a separation notice with unsatisfactory work on it, that I wanted the truth put on it, whatever he was firing me for... Bond then told him he would investigate it for 1 more week and for Stinnett to come back to see him. He did as instructed, and returned to see Bond who told him that "I'm going to put on it what we're letting you go for." The separation notice appears in the record as General Counsel's Exhibit 2. The reason for the discharge states ". . . conduct unbefitting a Supervisor in connection with union activities." The testimony of Stinnett continues as follows: Q. Now when you're on the job, describe for the hearing what you do ... . A. If I was on the job, and we didn't have carpenters and plumbers and electricians I had to check the plumbing . . . for leaks and correct them, check all the wiring, to correct them, and I had to adjust the motel unit doors and do general repair inside the rooms, which is bad ceilings, and bad fixtures and moldings and whatever needed to be repaired. Stinnett further testified that when he started to work for Respondent he was sent on an assignment with James Brady who was and is a supervisor. The General Counsel asked Stinnett on direct examination: Q. Now what, from your observation, what did Mr. Brady do when you were out, away from Lenoir City at a motel establishment? A. Mr. Brady was our supervisor. He assigned us our work and checked our work when we finished with it to see that we had done it satisfactory. Q. Now tell us whether or not Mr. Brady did any of the manual work? A. Mr. Brady might have worked some if he wanted to. Sometimes he would stop and give you something, if you was in a strain or something, why he would help you. But otherwise, he checked the work and assigned us to our work. Q. Okay. Now were there any times that you made trips without Mr. Brady? A. Yes, sir. Q. All right. What number was on the crew when you went without Mr. Brady? A. How many times? Q. No, what was the number of the crew? A. Anywhere from one to maybe five. Q. Who told you you were to go without Mr. Brady? A. Sometimes Mr. Brady told me I'd be going and sometimes Mr. Bond told me I would be going. Q. All right. What would Mr. Bond tell you? A. He would tell me, give me a list of work, if he had a list, of the things that needed to be done. And if he didn't have a list, he would tell me to check with the manager for room number and work to be done. LENOIR INDUSTRIES, INC. 547 Q. Well would he tell you where you were going? How did you find out where you were going? What specific city? A. Well sometimes Mr. Bond would tell me that I'd be going to a certain place in Florida, and sometimes Mr. Brady would tell me before we came in that I would be going to, next week, somewhere else. Q. Well then who would assign the crew members to this crew? A. Mr. Bond and Mr. Lane. Q. Did you have any sayso in who you wanted? A. No, sir. Q. Now can you remember the trips you made to Florida? A. Yes sir.... I made one trip to Tampa, Florida for the purpose of straightening some window walls. They was trying to stucco the front of the units and the window walls had to be straightened out. And me and three more fellows went on this trip. Q. And what, did you have verbal or written instructions? A. I was told that we had some window wall trouble down there; to check with the superintendent on thejob, the contractor. Q. How about where do you people stay when you're on the road? A. We stay in motels. Q. Who handles that? A. Well on that particular trip, Mr. Bond made the room arrangements himself Q. . . . Did you go to Tampa any other time? A. Yes, sir I returned to Tampa ... Me and two more fellows, Mr. Lester Lawson and Mr. James Galyon got in a truck and went back to Florida. In answer to a further question as to who assigned these men to that job Stinnett replied, "I don't recall whether it was Mr. Bond or Mr. Brady. It could have been either. I don't remember." The second time the men went to Tampa to adjust doors and check both the electrical and carpentry work. Motel arrangements on this occasion were made by Stinnett. Payment for the motel was made by a gasoline credit card. The Charging Party went on to say that the crewmembers got to the sites in the field in a Dodge van which was driven by Brady. When he was not there the men traveled by plane sometimes and occasionally they took a bigger truck. The men and supplies went with the truck. Also sometimes some of the men were brought to the site after the original crew had already reached the job. So far as driving the truck was concerned when Brady was not along on the trip the men would take turns driving on long trips. The lady in the Company's office gave the men cash expense money. Sometimes the money was given to them by Mr. Bond himself. Stinnett was in charge of the expense money. He, in turn, gave the expense money to the rest of the men. Expense money started at $6 and later was raised to $8 per day. He remembered that after completing a task at Tampa he and the crew proceeded to Orlando, Florida. Once again Stinnett did not assign the men at a time when Brady was not with them. On this occasion Stinnett had trouble with Galyon and Davis. They went out on a drunk, stayed out all night, and did not report to work the next morning. Stinnett had material in the truck and Davis had the key to this truck. He went on lunchtime, saw the men who asked what was going to happen to them. Stinnett called Bond that night and reported to him. He asked Bond to be lenient with the men and suggested that they be docked a day's pay and denied their usual expense money. Bond said that would be all right with him. Stinnett said that when he was with a crew, out of town, he would work with his tools, either as a carpenter when that work was required to be done, or, if the crew consisted of a carpenter, he would do plumbing work; also if both plumbing and carpentry work was being handled by men trained to do this type of work he would sometimes do electrical work. He also testified that when he was out on a jobsite when Brady was not along, Stinnett worked with his tools 100 percent of the time. The usual hours spent on a job away from Respondent's plant was 10 hours per day. The only other duties performed by Stinnett was to handle the -men's expense money and he also turned in their time. Further elaborating on the typical work week when a crew was in the field Stinnett said the men, himself included, worked 10 hours a day Monday through Saturday and 8 hours on Sunday. All the men received overtime pay except for Stinnett and Brady who were paid on a salary basis. Oftentimes when the crew was out of town on a job, Stinnett and the others in the crew worked 7 days a week, for 10 hours a day. When they returned to Respondent's office Brady and Stinnett were given days off in the form of compensatory time off because of the excessive hours worked. Both Stinnett and Brady received their regular pay when they were given compensatory time off. In sum Stinnett's duties while on the job involved the following: he worked with his tools approximately 100 percent of the time; sometimes he spent at least 80 percent of the time he worked in a crew consisting of himself, Brady, and employee Campbell; on five or six occasions during the 15 months of his employment with Respondent Stinnett was sent out in the field with a crew for which he was responsible. Besides actually working on the job Stinnett did keep a record of expense money, he also kept time records of the crew and he checked out the completed project with a representative of the customer. It is the contention of the General Counsel that the work performed by the crew was routine in nature and it was not necessary for Stinnett to oversee or direct the work of the men on the crew. Stinnett himself usually performed carpentry work and he occasionally did some plumbing and electrical work when this became necessary. Stinnett testified credibly that he neither assigned work to the men nor did he inspect the jobs performed by them. His testimony on this point was corroborated by employees Phillips and Harold Stinnett. In further substantiation of the lack of knowledge of the men with whom he worked 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was in charge of the job, Phillips testified that he was unaware that Stinnett had charge of the crew. On one isolated occasion, while on a job in Orlando, Florida, two members of the crew stayed out all night on a drunk and failed to report to work the next day. They did show up at their motel rooms during the day but Stinnett, evidently of the view that they were not in condition to work, did not allow them to come to work and "docked them their time and expense money" for that day. He reported this incident to Vice President Bond that night and recommended leniency. His suggestion not to impose any additional disciplinary measures was agreed to by Bond. Respondent points out that both Bond and one of the employees involved stated that action against the men was taken prior to the report to Bond. Respondent contends, in support of its position that Stinnett is a supervisor, that he is frequently out on assignments without Brady, an acknowledged supervisor, and on such occasions Stinnett is the only company representative present to oversee the job. Further that Stinnett, like Brady, is carried on the salary payroll while the men who work with him are all hourly paid employees. The Company underscores its argument that Stinnett was a supervisor by emphasizing the incident regarding the two employees who went out on a drunk and were penalized by Stinnett. It also urges that Stinnett assigned men to his jobs and that he gave them orders and inspected their work. These contentions are stoutly denied by Stinnett. Finally Respondent argues that even when Stinnett was not always in charge of a given job the fact remains that he was the regular alternate in supervision. Also that the supervisory role occupied by Stinnett was a recurrent and anticipated part of his job. Credibility Resolutions The Company states that Stinnett is an incredible witness in that his testimony "lacked candor and his explanations were at variance with proven facts." My evaluation of the testimony offered by Stinnett is that he testified in a straightforward and convincing manner and I credit his testimony. In fact Bond also made a credible witness and some of the versions offered by both men did not necessarily contradict each other . For example the stories told by each of them with respect to imposing discipline in the incident involving employees Galyon and Bob Davis were substan- tially parallel to each other. It is not disputed that Brady was hired at $200 per week; Stinnett was initially paid $175 per week. They both received raises in pay-Brady ultimately earned $240 and Stinnett $200 per week. At the time of hire Stinnett was told that if the Company needed an additional superintendent in charge of repair crews he would be considered for the job. Testimony also was uncontradicted that on occasion clearly nonsupervisory men were sent out on jobs alone, without any supervisors being along on the assignment. There was a clear conflict in some of the testimony. Stinnett said he neither assigned men, picked them, nor inspected their work on its completion . Bond stated that Stinnett did select men to accompany him on jobs, assigned them to work when they reached the jobsite and was responsible for checking the work done. It should be noted that there was no convincing evidence adduced at the hearing in support of Bond's contentions in this regard. I am persuaded that the fact all men on the repair crews were expert craftsmen in their several specialties (plumbe- rs, electricians, and carpenters) makes it seem reasonable that they did not need supervision. Miscellaneous There is testimony in the record that in an election conducted by the NLRB, Stinnett's name was not on the eligibility list and he did not cast a ballot. According to Respondent Stinnett was excluded from participation in the election because he was a supervisor . Stinnett's explanation is that he did not vote because he was sent out of town on a job on the day the election took place. This testimony stands unrefuted on the record. The record also contains numerous references to the wearing of hard hats by the men. All hats initially are white but some have been painted blue. These latter were differently painted to denote that the wearers were supervisors. This record information proves • nothing because it was not controverted that the men in the repair crews did not wear hard hats at all. Concluding Findings and Analysis Respondent contends that "Stinnett was hired as assistant field crew superintendent and was accorded supervisory status throughout his employment. He was carried on the supervisory payroll account, as was the plant manager. He was given time off following extended field trips, with full compensation, and, similarly was entitled to his salary during periods of illness." Stinnett claimed he exercised no supervisory authority. Apart from the single isolated instance when he imposed a penalty on Galyon and Davis for failing to report for work the record does not include any other evidence that Stinnett disciplined the men . It is admitted that he kept the time of the men, that he reported on the progress of the job to Bond, and that he kept and disbursed expense money, whenever Brady was not along as a part of a repair crew, but the record is devoid of any convincing evidence that he exercised any of the supervisory duties enumerated in Section 2(11) of the Act. While this latter point is disputed by Respondent I am. not persuaded by the evidence in the record as a whole that Stinnett regularly exercised duties normally associated with supervision of employees. Respondent cites numerous cases which it claims support its conclusion that Stinnett was a supervisor. I have read the cases adverted to by the Company and have concluded that each one is substantially different on its facts from the matter at bar and therefore are not apposite . On the other hand many cases, indeed the weight of authority as set forth in adjudicated cases much closer to the facts , point to the opposite conclusion, viz, that Stinnett was not a supervisor. LENOIR INDUSTRIES, INC. In a very recent case decided by the NLRB on July 22, 1974, Dad's Foods, Inc.,' the Board concluded that "the fact that an individual may have authority to discharge employees under certain circumstances does not mean that he is a supervisor as defined in the Taft-Hartley Act, ...112 The facts in the Dad's case are even stronger than those in the instant case. The employee in question opens the employer's plant each morning some 30 to 45 minutes before the plant manager arrives, and during this time he works with other employees performing the routine tasks necessary to prepare the plant for the day's production. The plant manager leaves the plant each morning for 30 to 45 minutes to visit another company of which he is part owner, and on these occasions the alleged supervisor is "in charge" of operations and has the limited authority to discharge employees for intoxication on the job or involvement in a fight. The Board held that it is "less than persuaded" that the employees in question have "genuine or meaningful" authority to discharge or discipline . At most, it says, the authority he has is "only a very restricted, and sporadic kind of authority, limited to certain predetermined kinds of misconduct." Authority "so narrowly confined both in time and scope, if it can be said to exist at all," is not sufficient to establish supervisory status . The Board also found that any directions that the employee gives' to coworkers are of a routine nature or pursuant to instruc- tions of the plant manager. In the light of this case , just decided on July 22, 1974, it seems clear that in a factual situation analagous, if not even stronger than the facts of the instant case, I am persuaded that Stinnett is not a supervisor and is therefore entitled to the protection of the Act. I therefore find that Stinnett, admittedly discharged for union activities, was discharged in violation of his Section 7 rights. I therefore will recommend that he be reinstated to his former job with backpay computed with interest as is customary where an employer has been found to have violated Section 8(aX3) and (1) of the Act. I so find. Respondent places considerable reliance to support its contention that Stinnett is a supervisor on the admitted fact that he is carried on the payroll as a supervisor and is paid on a salary basis as distinguished from being an hourly paid employee. The fact that he has been described as assistant superintendent has no great significance. As is succinctly stated by the General Counsel in his brief: In making a determination as to whether an individual is a supervisor, title alone is insufficient to confer supervisory status. It is the function, duties and authority of the individual which must be determina- tive.3 Stinnett's handling of expense money and time records and his one isolated incident of disciplinary action *did not involve the degree of independent judgment or i 212 NLRB 500 (1974). 9 Ibid. 3 Capitol Transit Company, 114 NLRB 617 at 618 (1955); Trumbull 549 responsible authority sufficient to find him a supervi- sor. Likewise, the fact that Stinnett was paid a salary rather than hourly is insufficient to establish an individual as a supervisor.4 The Board has held that an employee usually left in charge when the general manager and the assistant general manager are away is not a supervisor because any supervisory authority exercised was sporadic in nature.5 With respect to the emphasis placed by Respondent on the fact that Stinnett was a salaried employee rather than an hourly paid man, it should be noted that Respondent's brief in explaining the Company's supervisory hierarchy states: Plant employees are supervised by a plant superintend- ent and assistant plant superintendent, who are both salaried employees, and hourly paid foremen and assistant foreman. [Emphasis supplied.] Thus it can be seen that in the Company's structure, being paid on a salary basis rather than on an hourly basis is not determinative as a significant factor in declining whether an employee is a supervisor or a rank-and-file man. From the facts as found-supra and the determinative legal precedents I find and conclude that Stinnett was not a supervisor within the meaning of Section 2(11) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Clarence Stinnett is not and never was a supervisor within the meaning of Section 2(11) of the Act. Respondent admits that Stinnett was discharged for union activities. Such action on the part of the Company is a clear violation of Section 8(a)(3) and (1) of the Act. I shall therefore recommend that Stinnett be reinstated to his. former position, or, if that is no longer available, to a substantially equivalent position with backpay from the date of his discharge to the date Respondent makes a proper offer of reinstatement. Such offer of reinstatement shall be without prejudice to his seniority or other rights and privileges. Backpay and interest shall be computed Asphalt Co. of Delaware, 136 NLRB 1461, 1469 (1962). 4 Muscle Shoals Rubber Company, 157 NLRB 829 at 832 (1966). 5 Mon-Clair Grain and Supply Co., 131 NLRB 1096, 1099 (1961). 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the established standards of the Board .6 Upon the foregoing fmdings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to reinstate Clarence Stinnett upon his unconditional request for reinstatement, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct which interferes with, restrains, and coerces employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER 7 Respondent, Lenoir Industries, Inc., Lenoir City, Ten- nessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Sheet Metal Workers' International Association, Local 464, or any other labor organization by failing and refusing to reinstate Clarence Stinnett to a properly available position upon his unconditional application for reinstate- ment, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Refusing to reinstate Stinnett upon his unconditional application because he has engaged in union or concerted activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Clarence Stinnett immediate and full reinstate- ment to his former position, or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make whole for any loss of earnings he may have suffered by reason of his discriminatory discharge and failure to reinstate him in the manner set forth in the "Remedy" section of the Decision of the Administrative Law Judge. (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records, social security payment , records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Lenoir City, Tennessee, plant copies of the attached notice marked "Appendix." 8 Copies of said notice, 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, and be maintained for 60 consecutive days. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 6 F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 7 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. a In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Lenoir Industries, Inc., violated the National Labor Relations Act, and has Ordered us to post this notice. We intend to carry out the order of the Board, the Judgment of any court, and abide by the following: The Act gives all employees these rights To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything to interfere with you in the exercise of these rights. WE WILL NOT fire or otherwise discriminate against any employee because he joins, assists, or supports a union. As it has been found that we violated the law when we fired Clarence Stinnett, WE WILL offer him his old job back if the same exists, and if not a substantially equivalent job, and we will make up the pay he lost, together with 6-percent interest. LENOIR INDUSTRIES, INC. (Employer)