Birmingham Fabricating Co.

National Labor Relations Board - Board Decisions

Jan 17, 1963

140 N.L.R.B. 640 (N.L.R.B. 1963)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was supplied as to the Section 8(a)(1) and (4) violation, or was, in itself, such as
to compel the inference of unlawful motivation 29
For the above reasons, and upon the entire record considered as a whole, I find
that the General Counsel has not sustained the burden of proving by a preponderance
of the credible evidence the allegations of the complaint, and thus conclude that the
Respondent has not engaged in conduct violative of Section 8(a) (1), (3), and (4)
of the Act 30
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
I Standard Packaging Corporation, Royal Lace Paper Division, is engaged in
commerce within the meaning of Section 2(6) of the Act.
2 At all times material to this proceeding. General Independent Union was a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor practices as alleged in
the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
19 See Thomas J Aycock. Jr, an individual, (1/b/a Vita Foods, 135 NLRB 1357; Dal-
Tex Optical Company, Inc, 131 NLRB 715 Pacemaker Corporation , 120 NLRB 987
Chautauqua Hardware Corporation, 103 NLRB 723: Stratford Furniture Corporation, 96
NLRB 1031 ; Reliance Manufacturing Co , 60 NLRB 946 See also, Fulton Bag and Cotton
Mills, 79 NLRB 939, enfd in 180 F 2d 68 (C.A 10)
^4 In view of my finding that Murray and Storms were discharged for reasons other than
those proscribed by the Act, I deem it unnecessary as well as beyond the scope of my
function to pass upon the Respondent' s assertion , set forth as an affirmative defense, that,
as the question of the Respondent's discharge of Murray and Storms was submitted to
arbitration pursuant to the grievance machinery in ovided by the existing contract, the
arbitrator's award, finding that both were discharged for cause, rendered after a hearing
had been conducted which conformed to the standards enunciated by the Board in
Spietberg Manufacturing Company, 112 NLRB 1080, should be accorded recognition and
accepted by the Board.
Birmingham Fabricating Company and International Brother-
hood of Boilermakers , Iron Shipbuilders, Blacksmiths, Forgers
and Helpers, AFL-CIO, Local 583. Case No. 10-CA-5037. Janet-
ary 17, 1963
DECISION AND ORDER
On October 18, 1962, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. There-
after, the Respondent filed exceptions to the Intermediate Report and
It supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
140 NLRB No. 64.
BIRMINGHAM FABRICATING COMPANY 641
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modification.
The complaint alleged that Respondent violated Section 8 (a) (1)
of the Act when its supervisors, Uptain and Reininger, threatened
employees with closing the plant and other reprisals because of their
union activities. The Trial Examiner found the violations as alleged.1
However, he deemed it unnecessary to decide whether Uptain and
Reininger were in fact supervisors within the meaning of the Act.
Instead, lie predicated Respondent's responsibility for their state-
ments on the ground that the employees to whom the threats were
directed could reasonably believe that these individuals were speaking
on behalf of the Respondent. In its exceptions, Respondent contends
that the complaint should be dismissed, and that the Trial Examiner
erred in failing affirmatively to find that Uptain and Reininger were
not supervisors. We concur in the Trial Examiner's conclusion that
Respondent violated Section 8(a) (1). I Iowever, we rely not only
on the ground given by the Trial Examiner but also on the ground that,
as we view the evidence, Uptain and Reininger were, in any event,
clothed with the statutory indicia of supervisory authority and that
Respondent was also chargeable with their misconduct on this ground.
In the operation of its plant, Respondent maintains a machine shop
and a fabricating department. Uptain is assigned to the machine
shop and Reininger works in the fabricating department. Both are
classified as "leadermen."
The machine shop consists of approximately 50 employees who work
on 3 shifts. Freeman, a foreman who is concededly a supervisor within
the meaning of the Act, is generally responsible for the operation of
this shop and is present during the first shift which runs from 7:30
a.m. to 3 :30 p.m. The second shift, which spans the period from 3 :30
p.m. to 11:30 p.m., is under the direction of one Burton. Uptain is in
charge of the third shift, which operates from 11:30 p.m. to 7:30 a.m.
While Freeman generally remains at the plant for several hours after
Burton's shift commences, he is not normally present during Uptain's
shift. Uptain has approximately 14 employees under his direction,
and receives 9 cents per hour more than the next highest paid em-
I In its exceptions and brief, Respondent urges that, even if Reininger and Uptain did
utter the threats, as the Trial Examiner found, and even if Respondent is responsible
for their actions, the complaint should nevertheless be dismissed because the threats were
too isolated to warrant remedial treatment. We do not believe that Reininger' s threat
that Respondent would lay off any employee who received union literature or signed
authorization cards made to between 7 and 10 employees, and L'ptain's threat to approxi-
mately 3 employees that Respondent would close its plant if the Union was successful,
may be properly characterized as isolated In our opinion, these remarks were coercive
and it would not effectuate the policies of the Act to permit them to go unremedied. See
Hilton Hotels Corporation d/b/a Statler Hilton Hotel, 138 NLRB 135
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee on this shift. He assigns work to the men, and, in the exercise
of independent judgment, reassigns them to different operations based
upon his observation and knowledge of their individual capacities.
Uptain also possesses and exercises the authority effectively to recom-
mend the discipline of employees on the third shift.
Reininger works in the fabricating department which is generally
supervised by Foreman McConnell, concededly a supervisor. His
duties are performed on the second shift, when McConnell is absent,
and he has nine employees who work under him. According to Reinin-
ger's own testimony, he has the authority to discipline employees on
his shift, and has exercised authority to grant time off and furlough
employees during slack periods.
In view of the foregoing, and the entire record, we conclude and
find that Uptain and Reininger possess and exercise the statutory in-
dicia of supervisory authority and therefore are supervisors within
the meaning of Section 2(11) of the Act. Accordingly, we find that
Respondent violated Section 8(a) (1) when Uptain and Reininger,
as supervisors, threatened employees with closing the plant and other
forms of reprisals because of their engagement in protected, concerted
activities.2
ORDER
The Board hereby adopts as its Order the Recommended Order of
the Trial Examiner.
2 See Applied Research, Inc , 138 NLRB 870
In its brief to the Board, Respondent requests that the P.oaid take official notue of the
record in Case No. 10-RC-5364 (not published in NLRB volinnes), a representation pro-
ceeding instituted after the hearing herein, and that the Boaid notice that on October 11,
1962, Respondent and Charging Party stipulated in connection with a consent-election
agreement in that case that: "Edward Uptain and Melvin Reininger aie not supei,.i,orti
within the meaning of the Act and are eligible to vote in the election " Apait from the
question of whether this stipulation is binding upon the General Counsel, we do not think
it has any probative value here while that stipulation may or may not reflect the true
status of Uptain and Reininger on October 11, it is not evidence of their status during
the times material here which long predated that stipulation.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by the Charging Party on June 19, 1962, the General Counsel
on August 3, 1962, issued a complaint alleging that the Respondent, by the actions
of Supervisors Melvin Reininger and Edward Uptain . had threatened employees with
reprisals because of their union affiliation , in violation of Section 8(a)(1) of the
Act. The Respondent filed an answer denying the commission of any unfair labor
practices and specifically denying the supervisory status of Reininger and Uptain
The case was heard before Trial Examiner Owsley Vose at Birmingham, Alabama,
on August 30, 1962. All parties appeared, were represented at the hearing, and
were afforded a full opportunity to be heard, to examine and cross-examine wit-
nesses , and to present oral argument The Respondent has filed a brief which has
been fully considered
Upon the entire record , and my observation of the witnesses , I make the following.
BIRMINGHAM FABRICATING COMPANY
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
643
The Respondent, an Alabama corporation, is engaged at its plant at Birmingham,
Alabama, in the manufacture and fabrication of steel products, primarily mine
expansion bolts and steel parts for trailer bodies. During the past 12 months, which
is a representative period, the Respondent shipped more than $50,000 worth of its
steel products to customers located outside of Alabama. Upon these facts I find,
as the Respondent admits, that it is engaged in commerce within the meaning of
the Act, and that it is appropriate for the Board to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forgers and Helpers, AFL-CIO, Local 583, is a labor organization within the mean-
ing of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Preliminary statement
There are two main questions in this case. One is whether Reininger and Uptain
in fact made the threats attributed to them by witnesses for the General Counsel.
Only if this question is answered in the affirmative is the second question reached,
namely, the question whether the circumstances of the case are such that it is rea-
sonable to hold the Respondent responsible for the conduct of Reisinger and Uptain.
I have concluded, although not without difficulty because of the sharply conflicting
testimony of the opposing witnesses in this case, that the answer to the first question
is in the affirmative. Since my conclusion in this regard, at least insofar as the
threats attributed to Reininger are concerned, is influenced in part by the nature of
his testimony concerning his supervisory status or lack thereof, it appears appropriate
to consider this question first.
B. Reininger's supervisory status in the fabricating department
The principal products made in the fabricating department are steel frames , sides,
and parts for trailer bodies. These are made to special order from blueprints. Carl
McConnell is the foreman in the fabricating department . McConnell works days
and usually leaves the plant between 4:30 and 5 p in
The Respondent has a second shift in the fabricating department The record does
not state exactly the hours of the second shift in this department and it apparently
runs from about 4.30 p in. to 12 30 a.m At the time of the hearing nine employees
worked on this shift . After Foreman McConnell leaves the plant, Reininger is the
only employee on the shift having any supervisory authority Reminger, who in
discussing his disciplinary authority at the plant characterized himself as a "leader-
man," is paid by the hour and fills out a timecard like the other employees in the
fabricating department . He receives $ 2.62 per hour and is given an extra half hour's
pay, according to his testimony , "for turning out the lights , cutting off the machines
and fans, and stuff " The next highest paid man on the shift in the fabricating
department receives $2 56 per hour. Helpers in the department start out at $1.48
per hour.
Reminger spends 15 to 20 minutes at the beginning of the shift with Foreman
McConnell obtaining the orders and instructions for the evening Reinmger then
passes on to the men their instructions for the evening , tells them what machines
and what jobs they are to work on, and the order in which the various jobs are to
be performed . Reisinger hands out the blueprints from which the men are to work
After passing out the instructions for the evening and answering the questions of
the men concerning their assignments, Reininger fills in as a helper wherever he is
needed in the shop.
If the employees have trouble in completing their jobs , they consult Reininger
for advice . Reininger reviews blueprints with employees when they have difficulty
with them, determines whether they are accurate or not, and points out to the em-
ployees their errors in reading the prints . If he decides that the prints are in error,
Reininger takes the matter up with the man who drew up the blueprints.
6 81-49 2-6 3-v of 140-42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Reininger does not have the right to hire and fire, on one occasion, at least,
Reininger notified an employee that he was laid off. About a year before the hear-
ing, Reininger notified James McGehee that work was slack, that he could not use him
any more, "to go on home and the first time the work picked back up he'd call
[McGehee] back." i
The Respondent relies on Reininger to maintain order on the second shift. When
asked whether, if a disciplinary problem arose, he had authority to discipline the
men, Reisinger replied in the negative, but added, "I just ask him-I'd just ask him
to be quiet. In other words, just like a leaderman job is supposed to be, to keep
discipline." Reininger reports to Foreman McConnell employee misconduct, such as
stealing company property. McConnell determines what the punishment for such
misconduct should be. Reininger admittedly spoke to employee Nicholson about his
improper operation of the crane on one occasion and directed him to restack the
timbers he had piled on a slant .2
Employees admittedly kept coming to Reininger with requests for raises. While
Reininger first testified that he merely passed these requests on to Foreman McConnell
without any recommendations and asserted that McConnell could check the work
of the men himself, he subsequently admitted, in effect, that he was the only one hav-
ing an adequate opportunity to observe the quality of the work of the men. When
pressed as to whether he did not "make recommendations to [his] supervisor as
to who's a good man and who isn't," Reininger replied, "I talk to him; I don't make
recommendations-but we might talk it over occasionally." Also while Reininger
at one point insisted that Foreman McConnell could determine for himself which
employees were doing their jobs right by examining the work orders and seeing how
many jobs were completed, he later admitted that the work orders did not reflect the
quality of the work. McConnell, however, was the individual who made the ultimate
decision as to the employees to receive raises.
On one occasion. Reininger gave an employee permission to take time off.
According to James McGehee, he asked Reininger during the fall of 1961 if it would
be possible to take time off to go to a football game. Reininger said, "Okay."
While admitting that he said, "Okay," Reininger testified that he was merely
acknowledging McGehee's announcement that he was taking the evening off. When
asked if that was a common occurrence at the plant, Reininger replied, "Yes, sir.
People just take off whenever they get ready to take off " In my opinion, Reininger
was exaggerating the laxity of the Respondent's attendance requirements. I credit
McGehee's testimony regarding this incident.
Employees take up with Reininger complaints that they have been shorted in
their time. Reininger checks such matters with Foreman McConnell and "clear[s]"
them up in the office with the timekeeper.
Two of the employees on Reininger's shift, called as witnesses by the Re-
spondent, testified that they regarded Reininger as their boss or immediate supervisor.
Reininger testified that Foreman McConnell, whose shift overlapped that of
Reininger for a short while, always gave him complete instructions concerning each
evening's work and the operation each employee was to perform; that McConnell
always left him with sufficient advance instructions and orders to take care of any
contingency, such as early completion of a job or trouble on a job; and that if he had
an emergency he could not cope with he would simply stop work on the job and he
would have alternative instructions from McConnell as to the next assignment for
the employee involved. Reininger further testified that McConnell gives him
instructions as to how to rearrange assignments in the event of the absence of any
of the employees on the shift, and that he has never had to use his own judgment in
deciding either where he would himself work next or where to reassign one of the
men on his shift.
The Respondent relies on the foregoing testimony and the fact that Reininger
performed ordinary production work for about 61/2 hours of every shift as estab-
lishing that Reininger was just a "strawboss" with only routine decisions to make
in directing the work of the other employees on the shift, and that consequently he
was not a supervisor within the meaning of Section 2(11) of the Act. While the cases
'This is McGehee' s undenled testimony
z Reininger explained his action in this regard by saving, "We joke with each other all
the time" In my opinion, Reininger was not being altogether candid in thus seeking to
minimize his responsibilities in connection with the operation of the second shift in the
fabricating department.
BIRMINGHAM FABRICATING COMPANY 645
cited by the Respondent seemingly support its position in this regard ,3 I find it
unnecessary to decide this question .4 for in my opinion the facts set forth hereinabove
disclose that the Respondent has "clothed " Reininger "with apparent authority to
speak for it" and hence the Respondent "may fairly be said to be responsible for his
conduct ." (Cf. N.L.R.B. V. Mississippi Products , Inc., 213 F. 2d 670, 673 (C.A. 5);
International Association of Machinists, Tool and Die Makers Lodge No 35 (Serrick
Corp) v. N.L.R B., 311 U.S. 72, 80 ) This point is further treated below.
C. Uptain 's supervisory status
Respondent manufactures mine expansion bolts in the machine shop department.
They are used for holding timbers to the roofs of mines These expansion bolts con-
sist of a combination of a metal shell and bolt which are so assembled that when the
bolt is tightened the shell expands , affording the bolt a grip in the rock . These bolts
are made by mass production methods in standard diameters and lengths.
The Respondent operates the machine shop department on three shifts each day.
Freeman, the foreman, has the overall responsibility for the operations carved on in
the machine shop. About 50 employees work in the machine shop in all 3
shifts. Freeman personally supervises the employees working on the first or day
shift which runs from 7.30 a.m. to 3 30 p in . One Burton has supervisory duties on
the second shift, and Uptain is the one employee having supervisory responsibilities
,on the third shift , which is from 11.30 p.m. to 7:30 a.m . Fifteen employees worked
on the third shift in the machine shop in May 1962, at the time of the incidents
involved in this case . Although Foreman Freeman works very long hours , remain-
ing at the plant for several hours after Burton's second shift commences , Freeman is
not normally at the plant at all during Uptain's third shift. Freeman , however, re-
mains on call for emergencies arising all during the second and third shifts.
Uptain, who testified that he was known as a " leaderman" at the plant , is paid
by the hour, and fills out timecards and daily production records like the other em-
ployees in the machine shop. Uptain is paid $2.56 per hour, and receives an extra
15 minutes ' pay for conferring with Burton about the instructions for his shift. The
next highest paid man in the machine shop on Uptain 's shift receives $2.45 per hour.
Uptain is given in advance a series of written orders giving the quantities of the
various sizes of bolts to be produced Each evening before the shift begins, Uptain
meets with Burton for 15 minutes or so . Burton orally passes on to Uptain Fore-
man Freeman 's instructions as to the orders to be worked on that night . In some
instances these instructions include specific recommendations as to what man is to
work on what machine.
The first hour or hour and a half of the shift Uptain spends assigning the men
on the shift to their jobs for the night and in helping them in getting started . Some of
the men work on the same job night after night so that no great responsibility is in-
volved as to them. After the first hour or so Uptain operates one of the presses
or one of the other machines in the shop , just as the other employees do. Uptain
produces , for each hour that he is engaged in machine operations, about as many
units as the other employees do.
However, during the entire shift Uptain is responsible for checking the work of
the other employees , pointing out their errors , and generally teaching them how to
do their work properly If necessary , Uptain reassigns men from one operation to
another, using his own judgment based upon his past observation of the man's work
in deciding where to place him. Uptain instructs employees to tend to business
when he observes them dawdling on the job, and reports to Foreman Freeman em-
ployees found neglecting their work . On one occasion , when an employee refused
to follow his orders to work on the rolls, Uptain sent the employee home, after con-
sulting Foreman Freeman.
8 Among the cases cited by the Respondent are Potomac Electric Power ('ompanu. 111
NLRB 553 , 557 ; Cousins Associates , Inc , 125 NLRB 73. 76 : Crumleit Hotel , Inc , d/h/a
Holiday Hotel, 134 NLRB 113 : The Marley Company , 131 NLRB 566 , 867 Cinch ntann-
facturinp Corporation, 98 NLRB 781 , 784; West Virginia Pulp and Paper Co 122 NLRB
739 741 Phalo Plastics Corporation . 127 NLRB 1511, 1512-1513 Sheraton-Jefferson
Corporation, 125 NLRB 702 , 703: and Poultry Enterprises , Inc v N L R R , 216 F 2d
798 (C A 5 ). Since the General Counsel failed to file a brief in this proceeding, he has
cited no cases to the contrary
4 See Norman C Belfer, et al. Co-Partners Doing Business Under the Name and Style
of Belfer Brothers Company, 131 NLRB 470 , footnote 1
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Uptain has no power to hire or fire.
The Respondent also contends that Uptain is not a supervisor within the meaning
of Section 2 (11) of the Act for reasons similar to those given in the case of Reininger.
As in the case of Reininger , I hold , for the reasons set forth below, that the Re-
spondent is responsible for Uptain's conduct regardless of whether he was a super-
visor within the meaning of Section 2(11). Consequently , I find it unnecessary to
pass upon the Respondent 's contention in this regard.
D. The threat of layoff attributed to Leaderman Reininger
James McGehee testified that about May 24, 11962, Reininger came up to a group of
7 to 10 employees who were standing around the "Coke" box during the second shift
and said, "Listen, boys, you all stop out there at that gate getting any literature or
signing any of those cards and I'll lay you off." McGehee further testified that he
then walked back to his press and started to work and that shortly thereafter
Reininger approached him and said that "if [he] messed with that union, he
[Reisinger] would stop the six cent raise [he] had coming."
Reininger denied ever having made such statements to McGehee or anyone else on
any occasion. Reininger testified that he recalled one occasion on which he over-
heard a conversation engaged in by a group of employees gathered around the
"Coke" machine. This conversation occurred duringthe period the Union was pass-
ing out literature at the plant, and took place as the second -shift machine shop em-
ployees were leaving the plant . Reininger testified that on this occasion he heard
various employees discussing which employees would accept, and which would re-
ject, the union leaflets which were being offered them. According to Reininger, he
did not make any statement about the Union at this time. Reininger could not
recall whether McGehee was present on this occasion. Reininger further testified
that later that same evening McGehee came up to him and said that he had just been
out to the gate and "told them not to start that union business down here again,
these boys don't want it." Reininger's testimony continues that he thought he then
commented, "Well, I don't see where it helps or something." McGehee was not
questioned about this conversation.
It does not appear from Reininger 's testimony above set forth that he was re-
ferring to the same occasion as was McGehee. The record shows that the employees
gathered around the "Coke" machine one or more times every night. Consequently
Reininger 's testimony about this incident does not afford much assistance in resolv-
ing the conflicting testimony on this point.
McGehee was firm in his testimony about Reininger's two threats and adhered
to his account despite vigorous cross-examination. On the other hand, Reininger,
in his testimony about his supervisory responsibilities, was evasive and at times con-
tradicted himself. Although he had previously characterized himself as a "leader-
man," at one point in his testimony, when asked what his job was called, Reininger
replied that he did not know, that so far as he knew he was "just a laborer, a helper."
Upon all the circumstances of the case, and particularly in view of Reininger's lack
of candor regarding his duties and responsibilities in the fabricating department, I
conclude that McGehee's testimony is to be credited in preference to Reininger's
denials. In reaching this conclusion, I have considered the Respondent's argument
based upon the lack of corroboration of McGehee's testimony, but my impressions
based on the demeanor of the opposing witnesses are such that I am convinced that
McGehee's testimony is worthy of belief.
E. The threat to close the plant attributed to Leaderman Uptain
Three second-shift machine shop employees gave testimony concerning a threat
which they heard Uptain make on one occasion while they were filling out their
timecards in Foreman Freeman 's office after completing their shift . Orville Smith
testified that the four men, including Uptain, were engaged in a discussion in Fore-
man Freeman's office in the course of which he believes that he commented that he
would "like to see [the Union] come in." Whereupon Uptain stated, according to
Smith, "Boys . if you all vote for this union . . . the White boys will shut the
shop down and you'll all be out of a job." The White family is the owner of the
Respondent. Joe Riggsby testified that Uptain stated on this occasion, "Boys, even
if the union does come into the shop, . . the Whites would close the shop down."
Kenneth Lay's version of Uptain's statement on this occasion is as follows- "Ed
Unton [sic] told us if we voted the union in, that they'd close the plant down and all
of us would be out of work " Uptain testified that he remembered the occasion
referred to by the employees and that he recalled hearing Smith say that he would
like to see the Union come in. However, Uptain flatly denied making the statement
BIRMINGHAM FABRICATING COMPANY 647
attributed to him by the three men and denied discussing the Union with any em-
ployees at any time.
As can be seen, the testimony of the three employees is consistent. They appeared
to have positive recollections of the incident and adhered to their testimony on cross-
,examination. The employees impressed me as sincere witnesses, and I believe they
were telling the truth about this incident Accordingly, I must accept their testimony
an preference to Uptain's denials and find that Uptain threatened the three men that
the Respondent would close the plant if the employees chose the Union for their
bargaining representative.
F. Conclusions concerning the unfair labor practices
The Respondent does not dispute the proposition that threats to close the plant
and to lay off employees because of their union activities are ordinarily coercive
and violative of Section 8 (a) (1) of the Act. However, it urges that it should not
be held responsible for Reininger's and Uptain's threats because they were not
supervisors within the meaning of Section 2(11) of the Act and because their
threats were mere isolated and sporadic incidents.
As indicated above, it is not necessary for me decide whether Reininger and
Uptam were supervisors within the meaning of Section 2(11) of the Act, for, in
my view of the case, the circumstances are such as to warrant the conclusion that
the employees hearing the threats of Reininger and Uptain would have just cause
to believe that they were speaking on behalf of management and therefore the
Respondent was responsible for their conduct under the holding of the Supreme
Court in International Association of Machinists, Tool and Die Makers Lodge No.
35 (Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 80.
Regarding Relnmger, the record shows that he is the only employee having any
supervisory authority in the fabricating department on the second shift after Foreman
Freeman leaves. The record further shows that Remmger assigns the men on his
shift their work, issues the blueprints from which they are to work, and assists them
in interpreting the blueprints and in solving the problems arising in the performance
of their work. The record also establishes that Reininger reprimands employees
for the faulty performance of their work, reports employees for misconduct, and
advises the foreman concerning the quality of the work of the employees on his
shift. In his statements to McGehee, as found above, Reininger purported to speak
for the Respondent, threatening, in the first incident, to lay McGehee off if he
signed a umon card Since Reininger had laid off McGehee on a previous occasion,
McGehee had reason to conclude that Reininger spoke with authority.
As to Uptain, who was the only employee possessing supervisory authority on
the third shift in the machine shop, he was management's only point of contact
with the men on this shift. The record further shows that Uptain daily issues
work orders to the other 14 men on his shift; checks and oversees their work; is
responsible for seeing to it that the other employees maintain their production;
and reports to the foreman employees observed neglecting their work. Uptain
reassigns men from one job to another, and not infrequently, as he admitted, does
so upon the basis of his appraisal of the ability of the men available. In threatening
that the plant would be closed down, Uptain purported to be speaking for the owners
of the Respondent, declaring that if the employees voted for the Union, "the
Whites would close the shop down."
The foregoing facts show that the Respondent has conferred on Reininger and
Uptain supervisory responsibilities of a kind which normally would identify them
in the minds of the other employees on their shifts with management. In view
of these responsibilities and the nature of the threats made by them, I conclude
that Reininger and Uptain, like the "leadmen" involved in the Machinists case (supra,
at 79) "were in a strategic position to translate to their subordinates the policies
and the desires of the management," that the employees hearing their threats "had
just cause to believe," that they "were acting for and on behalf of management,"
and that consequently it is reasonable to attribute their conduct to the Respondent.
International Association of Machinists, Tool and Die Makers Lodge No. 35 (Serrick
Corp.) v. N.L.R.B., 311 U S. 72, 80 Cf. N.L.R.B v. Premier Worsted Mills, 183
F. 2d 256 (C.A. 4); N.L.R.B. v. Mississippi Products, Inc., 213 F. 2d 670, 673 (C.A.
9); N.L R.B. v. Birmingham Publishing Company, 262 F. 2d 2 (C.A. 5); N L R.B.
v. Solo Cup Company, 237 F. 2d 521, 523-524 (C.A. 8). It is of no moment that
Reininger's sand Uptain's conduct may have been unauthorized since, as found above,
the threats of Reininger and Uptain reasonably tended to inhibit the employees in
the exercise of their statutory rights. In such circumstances, as the Supreme Court
has held, the Respondent is precluded "from gaining any advantage ... from such
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities," regardless of whether it had knowledge of such activities and "did not
authorize and direct them." H. J. Heinz Company v. N.L.R.B., 311 U.S. 514, 520.
It is immaterial, in my view, that in the latter part of 1960, over 18 months before
the organizing activities here involved commenced, the Respondent posted a notice
on the employees' bulletin board stating that no one was authorized to make any
statements regarding the position of the Respondent with respect to the attempts
of the Union to organize its employees. Even if all of the employees hearing
Reininger's and Uptain's threats were employed by the Respondent at the time this
notice was posted, saw the notice, and remembered its contents 18 months later,
it is not reasonable to conclude, after such a lapse of time, that the employees would
regard the policy stated therein as being applicable in the fact of Reininger's
and Uptain's current explicit threats concerning the adverse consequences of the
employees' choosing the Union. As stated in the Machinists case, "We are dealing
here not with private rights (Amalgamated Utility Workers v Consolidated Edison
Co., 309 U.S. 261, 60 S. Ct. 561, 84 L. Ed. 738) nor with technical concepts pertinent
to an employers' legal responsibility to third persons for acts of her servants, but
with a clear legislative policy to free the collective bargaining process from all taint
of an employer's compulsion, domination, or influence . The existence of that inter-
ference must be determined by careful scrutiny of all the factors, often subtle,
which restrain the employees' choice and for which the employer may fairly be
said to be responsible." (311 U.S. 72, 80).
I have carefully considered (all of the cases cited by the Respondent in support
of its contention that it should not be held responsible for the threats of Reininger
and Uptain because they were allegedly isolated incidents. However, I find no case
in which a threat to close an entire plant-clearly a coercive statement-made by an
employee having supervisory attributes under circumstances justifying the inference
that he was speaking for management and voicing management's views, was ever
held not to be violative of the Act simply because it was made on but one or two
occasions Indeed, common to most of the "isolated remarks" cases is the fact
that the remarks in question were contrary to the expressed policy of the employer
and hence should not be regarded as an expression of the employer's views. Such
is not this case. As found above, the circumstances of the case are such as to
warrant the hearers of Reininger's and Uptain's threats to believe they were speaking
with the authority of management. Accordingly, I conclude that the Respondent's
"isolated remarks" argument is not applicable under the circumstances of this case .5
CONCLUSIONS OF LAW
1. By threatening employees with the closing of the plant and other forms of
reprisal because of their union activities, Birmingham Fabricating Company has
interfered with, restrained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby recommend that the Respondent, Birmingham
Fabricating Company, Birmingham, Alabama, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with the closing of the plant and other forms of
reprisal because of their union activities, or in any like or related manner interfering
with, restraining, or coercing employees in the exercise of the right to self-
organization, to form labor organizations. to join or assist International Brotherhood
of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO,
Local 5983, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain from any
and all such activities.
5 Respondent's further contention that it should be absolved from unfair labor practice
findings because it Instructed Its supervisors not to make any coercive statements is also
without merit There is no showing that these instructions were ever communicated to
the employees at any time. In these circumstances, the Respondent cannot rely on these
instructions as relieving it of responsibility for the threats of Reininger and Uptain
N L R.B v. Solo Cup Company. 237 F. 2d 521, 524 (CA 8)
GREENWOOD FARMS, INC. 649,
2. Take the following affirmative action which lilt is found will effectuate the policies.
of the Act:
(a) Post immediately at its plant at Birmingham, Alabama, copies of the attached.
notice marked "Appendix." 6 Copies ,of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by the Respondent's.
authorized representative, be posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for the Tenth Region, in writing, within 210
days from the date of this Recommended Order, what steps the Respondent has.
taken to comply herewith.7
0If this Recommended Order is adopted by the Board, the notice shall be amended by
substituting the words "A Decision and Order" for the words "A Recommended Order of
a Trial Examiner." If the Board's Order is enforced by a decree of a United States
Court of Appeals, this notice shall be further amended by substituting for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States.
Court of Appeals, Enforcing an Order."
T If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Relations.
Act, we hereby notify our employees that:
WE WILL NOT threaten employees with the closing of the plant or other forms
of reprisals because .of their union activities , or in any like or related manner
interfere with , restrain, or coerce our employees in the exercise of the right of'
self-organization , to form labor organizations , to join or assist International
Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths, Forgers and Help-
ers, AFL-CIO, Local 583 , or any other labor organization , to bargain collec-
tively through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , as guaranteed in Section 7 of the Act, or to refrain from any
and all such activities.
All our employees are free to become or remain or to refrain from becoming
or remaining members of International Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 583, or,any other labor
organization.
BIRMINGHAM FABRICATING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta 23, Georgia, Telephone
No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice
or compliance with its provisions.
Greenwood Farms, Inc. and Harry Miller. Case No. 2-CA-8502..
January 17, 1963
DECISION AND ORDER
On October 18, 1962, Trial Examiner Rosanna A. Blake issued her
Intermediate Report in the above-entitled proceeding, finding that the
140 NLRB No. 66.