Pennypower Shopping News

tI' NNYP()WER SHO()PPINOi NEW'S Pennypower Shopping News, Inc. and Debra K. Leisek. Case 17-CA-8064 October 17. 1980 DECISION AND ORDER BY CHAIRMAN FANNIN(G AND MI:MBIRS JENKINS ANI) PINEIAI 0 On June 4, 1980, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, counsel for the Gener- al Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Ad- ministrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and recommendations of the Administrative Law Judge only to the extent consistent herewith. The facts show that the employees engaged in an economic strike and that, when they left their work stations on January 6, they deposited with Produc- tion Manager Hern a signed, written list of griev- ances and economic demands and announced that they would return to discuss them with manage- ment on the following Monday. Employees Mondy and Harris, who had signed the petition, had com- pleted their work shifts by the time of th, walkout and left the premises with the striking employees. On Monday, as the employees began filing into Hern's office, he announced to them that their "final paychecks were in the mail." When they in- quired whether Hern meant that they were fired, he stated that he had not fired anyone, that "all he knew was that eleven employees walked off and eleven would be replaced." The strikers persistent- ly questioned Hern regarding their status, but Hern told them that he had no answers. Their request to speak with General Manager Walton was rebuffed by Hern who stated that Walton would not meet with the group, but that any individual could make an appointment and meet with Walton.' The em- ployees continued to pepper Hern with questions concerning their status, and Hern's continuing re- sponse was that he had no answers, that he had not fired anyone, and that 11 employees had walked off and would be replaced. As the employees began leaving, Hern "invited" them to remove their personal belongings from their desks, which a I In its remand ordering a hearing d n herein (244 NIRH 51t, (1979)), the Board found that WUaltorn had a lawful right, in I tl, c Ircal- stances, to refuse to deal with the strikers except (on an inidlviidual hua sl 253 NLRB No. 11 number of employees did. Most of the employees then went to the State Employment Service to as- certain their employment status. Mondy and Harris did not attend the meeting with Hern. Instead, they learned by chance that the employees had to see Walton individually. They made appointments with, and were seen by, Walton, who asked them to return to work. The Administrative Law Judge found that Hern's remarks did not provide the employees with a reasonable basis to believe that they were dis- charged. He also found that the employees had no intention of returning to work because they "failed to seek (or to keep) appointments with . .. [Gen- eral Manager] Walton," unlike Mondy and Harris, who did seek such an appointment and were asked to return. Accordingly, he dismissed the complaint. The General Counsel excepts, arguing that the facts as found by the Administrative Law Judge es- tablish the reasonableness of the strikers' belief that Respondent had discharged them. We find merit in the General Counsel's exceptions. It is obvious that, in reaching his conclusions, the Administrative Law Judge viewed the events through Respondent's eyes rather than as the em- ployees would have viewed them, as he should have done.2 It is also clear that, from the employ- ees' view, Hern's remarks and responses through- out the meeting created a climate of ambiguity and confusion which reasonably caused the employees to believe that they had been discharged or, at the very least, that their employment status was ques- tionable because of their strike activity. Having created the ambiguity, and having failed to clarify it, the burden of the results of that ambiguity must fall on Respondent.3 The inference stemming from those results is clear, and we draw it, that Re- spondent engaged in such conduct as a device to break the strike by creating the impression either that the employees had been discharged because of their strike activity, or that their employment status was conditioned on their abandonment of the strike. In these circumstances, and contrary to the intimation of the Administrative Law Judge, Re- spondent's offer to reinstate Mondy and Harris, who sought an interview with Walton, does not equate the failure of others to seek a similar inter- view with an intention to quit. Accordingly, we find that Respondent caused the employees reason- ably to believe that they had been discharged, or that their continued employment status was ques- tionable, because of their participation in protected concerted activity, in violation of Section 8(a)(1) of ' 'tnl .SupplI Corporion, 249 NL RB t74 {1981)1 :~ t, d DECISIONS OF NATIONA LABOR RELATIONS 3BOARD the Act. We further find that, having been placed in that position by Respondent, the employees were under no obligation to seek reinstatement, and we shall order their reinstatement. CONCI.USIONS OF LAW 1. The Respondent, Pennypower Shopping News, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By causing its striking employees to believe that they were discharged for engaging in protect- ed concerted activities, Respondent has violated Section 8(a)(l) of the Act. THE REMEDY Having found that Respondent unlawfully caused the aforesaid striking employees to believe that they were discharged, which in turn caused them not to report for work thereafter, we shall order it to offer immediate and full reinstatement to the nine striking employees, including Peggy Ann Krehbiel who was found to be a supervisor by the Administrative Law Judge and who signed the em- ployees' petition, attended the strikers' meeting with Hern, and cleaned out her desk at Hern's invi- tation.4 We shall further order Respondent to make the employees whole for any losses 5 they may have suffered as a result of Respondent's unlawful conduct. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Pennypower Shopping News, Inc., Wichita, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or causing employees reasonably to believe that they were discharged for engaging in concerted protected activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- 4 We are including Peggy Ann Krehbiel in our reinstatement and back- pay order inasmuch as we find that Respondent's conduct as a whole, including the discharge of Supervisor Krehbiel, was part of a pattern of conduct aimed at coercing employees in the exercise of their Sec 7 rights. DRW Corporation d/b/a Brothers Three Cabinets, 248 NLRB 828 (1980); Sheraton Puerto Rico Corp. d/b/a Puerto Rico Sheraton Hotel, 248 NLRB 867 (1980). s Backpay shall be computed in the manner set forth in F W Wool- worth Company, 90 NLRB 289 (1950), with interest as prescribed in Flor- ida Steel Corporation. 231 NLRB 651 (1977). See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962) In accordance with his partial dis- sent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jen- kins would award interest on the backpay due based on the formula set forth therein. ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Jonna Leisek, Debra Leisek, Kathy DeWeese, Lois Kiersey, William Miller, Peggy Ann Krehbiel, Kristina Achterman, Connie Jo Mondy, and Lynn Harris immediate and full rein- statement to their former positions or, if those posi- tions no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of the the discrimination prac- ticed against them, plus interest. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, 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 Wichita, Kansas, facility copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER PENELLO, dissenting: Contrary to my colleagues, I agree with the Ad- ministrative Law Judge, for the reasons stated by him, that Respondent did not discharge its striking employees, nor did it cause them reasonably to be- lieve that they had been discharged. Accordingly, I would dismiss the complaint in its entirety. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 86 Pt'ENNYIP()VER SHO)PP'INi NEWS APPENDIX NOTIC To EMPI.OYttI.tS PosrT,) BY ORDER O: ITHE NATIONAI. LABOR RE.l ATIONS BOARI) An Agency of the United States Government WIE Wit.i NOT discharge employees or cause employees to believe that they were dis- charged because of their protected concerted activities. WI WII.l NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, offer Jonna Leisek, Debra Leisek, Kathy DeWeese, Lois Kiersey, William Miller. Peggy Ann Krehbiel, Kristina Achterman, Connie Jo Mondy, and Lynn Harris immediate and full reinstatement to their former positions or, if their former positions no longer exist, to substantially equivalent positions, without prej- udice to their seniority or other rights and privileges previously enjoyed, and wt: wtlIl. make them whole for any loss of earnings they may have suffered as a result of the discrimi- nation practiced against them, with interest. PENNYPOWER SHOPPING NWS, INC. DECISION STATMENT OF I 01HI CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Wichita, Kansas, on January 9, 10, and 11, 1980, based on the National Labor Relations Board's August 22, 1979, Decision and Order Remanding for Hearing De Novo (244 NLRB 536), taken in connection with a complaint issued by the Regional Director for Region 17 on March 8, 1978, in which it was alleged that Pennypower Shopping News, Inc., herein called Re- spondent, had violated Section 8(a)(1) of the National Labor Relations Act, herein called the Act, on or about January 9, 1978, by discharging nine named employees and thereafter failing and refusing to reinstate them be- cause of their participation in protected concerted activi- ties for the purpose of mutual aid and protection. Upon the entire record, my observation of the wit- nesses, and consideration of posthearing briefs. I make the following: FINDINGS OF FACT AND RESU.rTANT CONCl.USION OF LAW This business utilizes a departmentalized two-shift op- eration as its Art Service and Printing (ASAP) Division which is physically and functionally separated from a publications distrihuting arm kino n as Quick 1Midvcst Postal (NM P).' During the afternoon of P:rida. Januar h. 197. Kris- tina (Kris) Achtermanl a pasleup nd la, out artist, asked her supervisor for a raise in hourl) pa\ on grounds she was additionally performing typscttilg work It .%as denied 2 She conversed with co, ,orker Jonna I.eisek. an- other second-shift pasteup and layout artist, about wheth- er employees should act on then nascent thoughts of col- lective joh action based on diverse dlissatisfactios. At meal break shortlN follow ing from 6 to 7 p.m. the t o joined also by pasteup and l out artist William L. (1) Miller II, spoke with Debra Leisck (sister of Jonna) at an enclosed garage/s arehouse area immediately adjoining the work premises of ASAP. Debra Leisek, formerlN day-shift administrative supervisor, was at that time off work on a short sick leave of absence occasioned bh pneumonia. After discussion Jonna Lisek made a 2-1/2 page handprinted petition Vs hich the originators igned This document complained of wages. hours, benefits, thc Employer's ethics, and ingratitude. The conlcluding pas- sages read: In our previous futle [sic] attempts as indi iduals to reach you with our problems--nothing has been ac- complished. Promises have been made promises have been broken. As a collective hod\ e're hoping to reach you. e'v c hbent over backialrds for you-w ork with you as well ias for you -no is your turn to work with us. It's true we all need our jobs "se need lPenn - power-but PennN po, cr needs us too. Remember- People make Pennlpo,%cr Upon return to the work area Achterman quietl circu- lated the petition among other employees, resultinig in . 'ditional signatures from Connie Jo Mondy, Kath A DeWeese, Peggy Ann Krehbiel. lois Kiersey Il.Nnn Harris. Diane Gress, David l.undbladc. Sandra lruels, and George Godoeb. By prearrangement synchronized to 7:30 p.m., 10 of the signatories abruptly put on outer- wear and moved as a group into the front administrative office where Production Manager Walter Hern ,kas at work. Achterman gave him the petition stating that "a walkout" was occurring, The 10 employees then left the premises. Respolnden iR etgaged in prodtlttioit and dtrlihltitol of a xcckI shopping newspaper al a facilit rll 'ichila, Kill;a, innlll? pulrchall g goo.ds anti ser% ices alued in excess of 550i.(XI dilreitly frorl i irc its it side Kaansas xxhile cselling good, and scrliCes alued iI e xces of I.5t t(XX directl) to custlomers locacd oulside .If Kanal I ilnd froim thlst ad fnitiet facis that Respondent i, aill emploh cr eligigei inr corinlttert th.n the meaning of Sec 2(6) nd (7) oI the Act I All dales and named months hereafter are ir I7, u1ilss shlull oIlh- erwise ' VWlnolna Wallon. Respondent's sccrctars -reasnlrer and half ,lltr, happened io ce in Ihe Immediale area ail his i look place She tleslited th at it utlerly surprised her. distracted as she x as h hl ig sil tlJrlC itle i- ferred io the telephionie fir a h tislnSs call inld hb se il Ig l h Icr I lsek xxho she thought Io he in cniofined recuperitlation " ¥ll* l iltl't rt' ille' Achterman saing, "We'll he back ai 2 pin Mi h[itcd as tht grmp pro ceetled through Ihe door anti oltidtc ti lilt i1 als l t Iilttlgi( l ri-gilar i ,[,rll~'l I)ItCISI()NS () NA'Il()NAI. I.AB()OR RELA'II()NS OA()RD Hern immediately relayed developments to Raymond Walton, Respondent's president and the other hall owner with his wife Winona. Emergency securing of other management personnel ensued, so that through them and the services of those publications production employees remaining the weekly late Friday deadline was met sometime after 2 a.m. the next day. However as this tran- spired Achterman had reappeared in Hern's office about 2() minutes after the walkout and spoke with him alone. Achterman testified that she announced the twofold pur- pose of her reappearance as to obtain a copy of the peti- lion and to articulate that employees were not quitting but only wanted a meeting, to which Hern assertedly an- swered, "Okay." Hern testified that Achterman's remarks were confined to requesting a photocopy of the petition and stating that "we'll be back at 2 p.m. Monday to talk," to which his overall response was to "acknowl- edge" her and to make the desired copy. On January 8 most of the petitioners, joined by several other employees and aided by a "student lawyer," met at Debra Leisek's home to formulate plans. They re- searched various matters bearing on their employment at ASAP, formed a grievance committee, and generally girded themselves for searching dialogue the next day with the reputedly intimidating Raymond Walton. At or about 2 p.m. on January 9 all of the named discrimina- tees presented themselves at Hern's office expecting to discuss their job dissatisfactions with Raymond Walton. The assemblage formed in stages as various smaller groups appeared randomly during the 15-30 minutes pre- ceding 2 p.m., or after various preshowdown experi- ences. Thus Debra Leisek (still in recuperation) had actu- ally approached Hern around 11:30 a.m. that day to ask for another copy of the petition because the one obtained by Achterman had somehow been misplaced. He was unable to accommodate this, telling her that by then Raymond Walton, physically located in a new headquar- ters building several blocks away, had the original and only petition. Mondy and Harris had approached the premises together, and in a chance meeting with Bruels were told that the group must all see Raymond Walton individually. Appointments were later made by Ray- mond Walton with Mondy and Harris for 5:30 p.m. and 7:30 p.m. that day, respectively. Harris' was changed to the following morning however, as Raymond Walton progressively fell behind in his series of employee and in- terspersed business meetings on the day of January 9. Confrontation with Hern at the plant was variously described as "chaotic" with "several people . . . talking at once" and "everybody . . . talking real excitedly." Eventually Hern was pressed to understand that employ- ees had never intended to quit their jobs and only meant to catalyze their desired group meeting with Raymond Walton. In this context Jonna Leisek testified that Hern said "final" checks would he mailed and he only knew that "eleven people walked out Friday night." She added that Hern repeatedly answered "don't know" to inquiries of whether people had been "fired," and after a muffled telephone conversation advised those assembled they part-time pager Nancy Todhunter who, while deliberately not signing the petition, chose to affiliate with group objectives and slipped out a hack door not to return to work for several weeks. could only meet with Raymond Walton as individuals. Jonia Leisek also testified that Hernt asked employees to clear personal belongings off their desks which she and others did. Her own scheduled starting time that day was 6 p.m. Jonna Leisek did not in fact attempt to start work that evening nor at any subsequent time, and has not in any manner since asked for reemployment nor sought an appointment for herself with Raymond Walton. Kathy DeWeese, formerly a phototypesetter operator setting display ads and doing markup plus proofreading, appeared at Hern's office with an estimated 10-20 others at or about 2 p.m. on January 9 (which for her was a scheduled day off). She testified that Hern surprisingly informed those present that no meeting would ensue but that, in an apparent refinement of information following the phone call, persons could meet individually with Raymond Walton. DeWeese testified that Hern told in- quiring persons not to clock in, and that those participat- ing in the walkout would be replaced. She did not appear for work the following day, nor has she since ex- pressly asked about having a job. On January 19 she tele- phoned Raymond Walton and obtained an appointment to see him the following day. She canceled this after being stranded in winter weather, and later conversed in- conclusively with him by telephone as her last contact with Respondent. Kiersey, formerly a pasteup artist, also appeared with the group. She testified that Hern said checks would be mailed out, while on the question of whether people were "fired," he knew only that "eleven people left their jobs on Friday." She recalled that Hern said nobody with the group could clock in until having spoken indi- vidually with Raymond Walton. Kiersey did not return at her next scheduled shift nor has she made any job re- quests since then. Miller, formerly a pasteup and layout artist, was pres- ent as remarks were exchanged with Hern in the early afternoon of January 9. He testified that Hern repeatedly recited that "eleven people walked out of here," and would not give any assurance about employees' entitle- ment to clock in again. Miller added that persons in the group were told to "clear your desks off," and, when he returned from doing this, "questions [were] being thrown about." He did not appear for work at his scheduled 6:30 p.m. starting time that day, nor has he since had any communication with Respondent. Krehbiel, formerly acting day-shift graphics supervi- sor, appeared shortly after I p.m. on January 9 at Hern's office. She testified that Hern said "final" paychecks would reach them in about a week. She observed the muted telephone conversation after which Hern said Raymond Walton would not meet with them collectively but would do so on an individual basis. Krehbiel testified that she asked Hern if "we clock in," to which he merely replied "final paychecks would he mailed." She recalled how this rigidity on his part was highly upset- ting to the group which insisted in a collective view that no quitting of employment had occurred. Krehbiel testi- fied that she expressly remarked how the employees in- volved "fully intended to come back to work Tuesday," 88 PI' NN YP()WI R S()OPPI'N(i NWS to which Hern soon repealed his litany about 11 hl:ving walked out and that their status w as keyed to indiidual meetings with Raymond Wa;lton. She thell remoLed per- sonal property from her desk at Hlern's tacit request, did not appear at her nie\t scihl ledled starting time of' 8 :15 a.m. on January t1) ad later coiacted Respondent by telephone on Jalnuar I I and prsoally oil Jillnuar- 13 in contrite discussions with Rayniond Walton wlho i- formed her on the latter occasion that her job was al- readv filled. Achtermai testified, with recall, about the Jalnuary '4 episode, of KHern's having repeatedly referred to the I I employees ho walked out and awho could not come back until "meeting with Ray" indiv iduall. Achhlernlan did not appear for work at her scheduled :3(l starting time that evening, nor make an 5 further attellmpt to resume emplo lmenl. Debra Leisek testified concer;iiag events inll ern's office on January 9. the foremost factor of ,which Las how he kept saying "eleven people walked out aind eleven people will be replaced." and that wllile he had no answers he nvertheless would not "advise" trin to see Ray. She added that he told her indirectly she coull not clock inll and he was noncommittal about vwhether Mondy or Harris could do so She also recalled the talk of inal paychecks anid clearing of desks. ill summarizing the episode that seemed to involve about 20 people over a span of 35-40 minutes. O()n January 10 Debra Leisek conversed by telephone with Raymond Waltonl who told her he would only meet with the group one at a time. In this conversation she said that advice from the National Labor Relations Board left her believing he had a differ- ent obligation, hut he was adamant on the question. She made an appointment to meet with him the followiig day but did not keep it. The Board's remand of this matter was expressly to determine whether "the remarks attributed to Hern during and immediately following the January 9 meeting. if credited, could have caused the strikers reasonably to believe that they were discharged aid that reinstatement for them was out of the question." Additionally, the Board found sufficient substance in an earlier record to hold "as a matter of law" that Raymond Walton had a "lawful right, i these circumstances, to refuse to deal with the strikers except on an individual basis . . . ." As so framed the case calls up fundamental principles of an employment relationship and such subsidiary beliefs as might prudently be reached by supervisors and by em- ployees as events. behavior, and verbalisms unfold. Here the assessments were respectively in terms of what sig- nificance to attach when employees protestilgly leae work well before regular quitting time and in terms of how to deal with unexpected refusal of management to collectively negotiate on subjects of stated concern. At a point just before the January 9 meeting in Hern's office got underway, Respondent knew that a sizable portion of its work force had engaged in a job action, and the con- certedly demonstrating employees anticipated that at least they would be heard out by their targeted authority figure. It was in this setting that much was said, the key ques- tion being what did Hlern say and what is the fair mean- Ing of his w\,orls. M1 first g.eneral obhers aliiion is t hat ' \- eral ilrisses for the (ieneral Cousel \tere admitledll plsscsscdl of ague or impaired recall .Inra; I .tsek ca;ughel Only "sniatuchei of the rnlarks tfor a sthile inlii fouind it "hard to rnictiiher'' all of the ariumilenti Krhll- bicl reca lled tLhalt helr co)htalrt \CrC ''upset" ' ! Tri rn's seelillilg ohbstiiliic, hile I)tbra I cist'k pcrCcisd tllal " \r!h body \as like confronltillg liii" '' urtiirnilorc it is quite clear that the group as utterly prograinied lo triinlphanll meet ith Rni'nlolld la llolinL as the! al]- nloiuncli.d and the jarriig disruption of th Isi obj'ctise left them % ithi high susceptibilit to mioisostrtuc actual words spoken. While I has\c no strongls nelgatis'e dmlea- nor impression i as to Jomia I eisek. l)eWcese, Kiiersc'. Miller. Krehbiel, or Debra I eisek, I bcliexe all %rc' highly inlpressionable. notinig toot Ihat st'sral coni- plaidll of tlit passagt' of so miuch time since the evtts about khich thex testifted I'he conitrary sersiol of lerni is that. after his brief cx- changte ith Debra Leisek just htfor nI(oil o11 Jalitluar! colncerning i a copy of the petition. he soon sass Moid ai(d Harris in a car near the adjoininlg QMPI' buildiig. l'heni about 1:30 p.ni people started showing up to ask about havinlg a meetilig. Originall! there x er ' foLur per- sons presenit xith Jonllla I .isek scnmiiigly the spokeLsper son. At thlis poilnt according to flerii, lihe as asked vhether anllbody ais fired aid he sserledl ;allert'd, "''I havell't fired allshody.'' Soonll Dehbra Icisk anl olthers arrived ad Herll rcalledl all txcChiilgC hbl'ccl Jonna anti Debhra l eisek about it beig "tack"'' that Re- spondeint would b "firing us." lern tstlificd tha I)ebhra I eisek then volunlteered to obtaii a doetor's Cxcus' for him, to which he repeated that he hiad "''riot fired anyone.'' 4 {e characlerized much habbling ftlo\os lug this. punctuated by relatisc pause as Debhra I .eisek tricd unlsuccessfully to reach Raynionld Walton b ItclphonC. lie recalled continuiiig questiolns about ss lhcher people had been fired. to v-hich li alnsscred, "''ilextC people left, anl I assume sill hbe replacd " IB theil) some dis"i- paling of the group was undcrssAay aid lerin "i''iittd" any still i earshot to get their personal effects At or around 2:15 p.m. Mondy and Harris appeared (their scheduled starting time that day being 8 a.m. and I p.m., respectively) to explain reasonis hx they had not been to work when due and to state the \x re ill to meet with Raymond Walton. '[his was the last contact 1lern had with either. I find the sole conitradiction by Herii to the Gelneral Counsel's adversarial array is persuiasixe ad crctlible Demeanor factors are outstandinigl faxvorable to him. x hile the careful distinctions he madtte i recalliingl how remarks were exchanged on January '1 is highly conviric- ing. I anm satisfied that during the entire sequence of per- turhed commoltion he pointedly spoke only fromn Re- sponrldent's standpoint as he did not necessarilv know what the group (or any of its men'rihe-s0) ould do ilelx In doing so he said. xxith sufficil1t clarit for an!onc truly williniig to liste,l thail no person hald hecn dlis charged from employnetiit. that (slcnrill alludirig o al 4 h,ilbl \ ,tlt i, .... rll.l.i '\J3 %lN dL'l, 11kd Ill ,llrlbll .<11 \ 1' {lts 1[ H rmi I)1ICEISI( )NS B()0< NA )NAL IAS ()ARI) eLnployer's right i the general situation ) needful replace- menit would he sotughl ill due ourse, alld that should an) pelrson psenlt ilicmlwln'/'Li desire to retrieve personal be- lohgiigs from I eir desks tle tIine was coin cnlient.:' W'hal is e', ,c niorl important here is that Respondent did not act as though it \w;as sCiilig atiy inilialtie from the situalion. It is loteViortlhy first that lerni's condet the veniig of Janiu;ary 6 after the artfully timed sAalkoll "sas to equallilnously photocopy the petition for Achliter- mail s requested I lie sricdent approaches faced bhy lIrn during thle meeting of Janluary ') were generally molli- fied, and Raymoild WValton invited Mondy back to work that vcr\ day.o; Most oters from the group either failed to seek (or to keep) appo tnitlenlts with Raymond Waltoll, but ill all uvnlt I reject tIcstimonyl that .would ilnfer such a step vi ai es enl a c(nlditionl of resurning work. Significantl, luindblade tarted back to work within several days and Iodhunltcr did so by month's eld. ()verall, this coiiligurationi of facts harmonizes fully with IntI finding that (no reasonable basis existed for "the strik- cis" to hbelieve they were discharged or could not readily acquire "reilstatclntntll (to repeat the Board's terms). Subsidiary issues on remand colcern the status of [)ebra Leisck atid Kl-chbicl, who Respondeiit cotlciitds were each functinig as statutory supervisors within the mnianing of Section 2(11 ) of Ithe Act o Januar 9.) Ii Debra eisek's position she sorted ads, prepared art, did proofreadilg, and routcd wo'rk to employees (rcss iodbhey. and dlhunter. D)ebra Leisek had assumed the positioni about June I, 1977 at which time her pay was increased front S3.21) per hour to 3.45 p hour in rec- ognitioni of increased responsibilities. She ordinarilx thereafter attlentde sLupervisory nieetings aid received mcilos that R l spIoiidient circulated aloing management personnel. A former job descriptionl for the position, fur- nishcd her at Ihe tlitle assumed, stated that full authority, accountability, and responsibility for managing the par- ticular departnlilttal function was conferred on an in- cutribeiit She received telephone conimunications front Ir rhald etlocking ln hy aillS pir'lll, ll n illd h1lt clli rarilt hc inqiredt i slirlc llialii5 lit ',l tinthr it WI, llld hlLe t1LC his was specificall coii- tcdcd h tarris Mlinid, tilIeI of te cellairally railgCt afilernilo appoilll ierlt o JlUall 9, tslifi d Ilill '.he 1iii Ra~ll lold 'Wt, o il} 1 al. Ial tirlit' 'illh IIlrarce cinsell ti lrtick Miiniinig .1t<s preserlit tilllClplercdi SithS diislllsiun if l ier Islralt necds, but primlrils precctiuig hte sub- ject, Raymon lid Vanllon iuired i Mnlds would sItl ",ork fr" him, atiling all asslranlc tI it sitC Wa il ilt ire( Nolhiig yi dtiliiili,, es- ilahlshtue] hcAt'' Iillel :is t) hner Ci'linlly't I stalLuS. arid ifter oticlJud ing tis a1[1p(lllltt111lllldy aind Rityrtlmd Waltll engagd I tlhrc tce- 1hoiC COurlIs ersalils i cr ltia ecnlilg and the followilng rnlioriliig. Il the lust lle she ,it ld hiim t her declisilirl rlol o rtiurn Io( "virk itially. I credit lerln as to reinarks htweem hliii ad Acilerniall Oil January . finidinug hcrc tlihat she dli it arllriculalt ir il clarificatiion about Ii e i- plyl eniiel intqiliis of tli)se jtlit dIepartillg ; The Iulurc ofi Mondid arid Iarris to arlier alppeail fr , rk as sChel- iled reintirited ally asUIiitUllos ii lt the effect thailt Ilhosc prltitflllg il the isalknii had noi apparc iti l lleilltlll t resulie iuourk people unable to appear for work and initialed the time- cards to validate "in" or "out" entries when the time- clock was inadvertently not punched. While serving in the position she made written evaluations of the three persons under her direction. Krehbiel assumed her last position o October I, 1977, as teimporary indefinite replacementl during the maternity leave of absence of Rachel Hinld. She sorted ads by major category and assigned camera ads pasting up of type, and proofing art pasteups for errors and balance. About one-half her overall working time was spent per- sonally performing advertising layout and pasteup. Kreh- biel holds a bachelor of fine arts degree in commercial art, and used this training to determine routing aind as- sigTinlent among the eight persons i her department. She inliialed timecards to cover oversights and as an indica- tioni of' approving overtime worked. She recommended one merit pay increase which was granted, and prepared a written evaluation of employee Bruce Chapman. She was given a job description containing the same thrust as Debra Leisek's, but separately applying to the "Graphic Arts Supervisor." I believe that while Winona Walton testified to insti- tuting a structured personnel system in the late 1977- early 1978 period, actual happenings in a day-to-day sense between personnel at ASAP were quite informal. This particularly applies to matters of recommending friends or relatives for hire, as this was done in a casual manner and was usually accommodated. I therefore give little weight to the job descriptions, to gratuitous recruit- mnent eff'orts. to routine marking of timecards, and to service as a conduit of information with respect to daily staffing. Debra Leisek's basic function was clerical in nature and her evaluation of employees was so influ- enced by notions of consensus or the perception of higher management as to be illusory. Krehbiel on the other hand functioned in a more technical setting and was well equipped by training and inclination to fulfill a true managerial role, including a reservation of meaning- ful employee evaluation determinations to herself. While the resolution of these points is surplusage, I find from the record as a whole that Debra was not a statutory su- pervisor because the exercise of such authority as she possessed did not involve the exercise of independent judgment, but that in the case of Krehbiel the contrary was true as constituting her a supervisor within meaning of the Act. Disposition Accordingly, I render a conclusion of law that Re- spondent has not violated the Act as alleged. [Recommended Order for dismissal omitted from pub- lication.]