High Performance Tube, Inc.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1362 (N.L.R.B. 1980)

1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD High Performance Tube, Inc. and District 96, Inter- national Association of Machinists & Aerospace Workers, AFL-CIO. Case 10-CA-13898 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO ANID TRUESDALE On February 26, 1980, Administrative Law Judge Thomas E. Bracken issued the attached De- cision in this proceeding. Thereafter, the Respond- ent filed exceptions and a supporting brief. 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 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 Respondent contends that discriminatee Charles Homer Rooney, Jr., should be denied rein- statement and backpay because of the following al- leged misconduct: lying at the State of Georgia Unemployment Compensation Board; obtaining a list of development engineers of a competitor firm from a book in the Respondent's possession; and taking photographs of patented machinery and of blueprints, the latter by breaking into a locked office. We find no conclusive evidence in the record in support of the first allegation. With respect to the list of engineers, we find that the Respondent knew of this conduct approximate- ly 1 month before Rooney was discharged and that, although that conduct in part resulted in Rooney being placed on final warning probation- ary status, it cannot, standing alone, properly pro- vide a basis for the denial of reinstatement and I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge II is the Board's established policy not to overrule an administrative law judges resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. The Respondent contends in its exceptions, in considering the issue of whether Charles Homer Rooney, Jr, was an employee or supervisor, that the Administrative Law Judge did not consider all the proffered evi- dence of suggestions that Rooney made, some of which the Respondent alleges were followed We find, however, that assuming arguendo that all those suggestions which John Keyes and Christopher Keyes testified that Rooney made were actually made by him and followed by Respondent (i.e., air-conditioning, ventilation, locker room, shower, and uniforms), this does not alter the basic correctness of the Administrative Law Judge's conclusion that the making of suggestions concerning improve- ments to a plant is not an indicia of supervisory or managerial status 251 NLRB No. 181 backpay. See Cone Brothers Contracting Company, 158 NLRB 186, 212 (1966). As to the third allegation, Rooney admitted that he took photographs of Respondent's machines in the toolroom, of the toolroom itself, and of Vice President Klaus Reiger's office, although he denied any illicit use of the photographs. In addition, he testified that he "might have" taken photographs of blueprints in Vice President Klaus Rieger's office. Vice President John Keyes testified, without con- tradiction, that the machines are used in a stage of the production of a product that has a patent pend- ing and of which the Respondent is the sole manu- facturer. Production Manager Christopher Keyes testified that Rieger's office is always locked at night, the shift Rooney worked. However, Rooney denied that Rieger's office was locked at the time of his entry and there is corroborated testimony that Rooney was sometimes present for part of the first shift as well, when Rieger is in the plant. In light of the above evidence concerning the third allegation, we shall not order Charles Homer Rooney, Jr., reinstated. 2 The Board has held that an employee who improperly enters a supervisor's private office and pilfers a letter has forfeited the right to reinstatement. Uniform Rental Service, Inc., 161 NLRB 187, 190 (1966), enforcement denied on other grounds 398 F.2d 812 (6th Cir. 1968); see also Offner Electronics. Inc., 134 NLRB 1064, 1075- 77 (1961). The same holding should apply in the circumstances of this case, because Rooney has ad- mitted entering Rieger's office, apparently without any prior permission, where he also admits he "might have" taken photographs of blueprints re- lating to the Respondent's exclusive manufacture of a product with a patent pending. In light of Roon- ey's additional admission that he took photographs in the toolroom and in Rieger's office, and in the total absence of evidence to the contrary, the infer- ence is inescapable that Rooney did take photo- graphs of the confidential blueprints. This conduct, coupled with the fact that at the time of his unlaw- ful discharge Rooney was already on final warning probationary status due in part to the Respondent's discovery that he possessed a list of a competitor's 2 In Chairman Fanning's view. all that can be established from the above-described evidence is that Rooney took photographs of the tool- room, of machines (used in the exclusive manufacture of a product with a patent pending) in the toolrtoom, and Vice President Rieger's office, and that he "might have" taken photographs of blueprints in Rieger's office As there is no evidence of any illicit use of these photographs. Chairman Fanning would find that the Respondent has failed to meet its burden of proof that Rooney's conduct was sufficiently flagrant to warrant depriv- ing him of reinstatement and backpay. Big "G" Corporation, 223 NLRB 1349 (1976). In doing so, he relies upon the Board's standard set forth in that decision. "Denial of reinstatement must be based on something more than reasonable suspicion of misconduct " Ibid. See also Southern Mareri- als Company. Incorporated. of Norfolk, 145 NLRB 28, fn 2 (1963), en- forcement denied 345 F2d 240 (4th Cir. 1965) HIG;H PERFORMANCE TUBE. INC. 1363 engineers, warrants the conclusion that a reinstate- ment order would not be appropriate in this in- stance. Also, we would terminate Rooney's back- pay entitlement as of the date Respondent could have discharged him lawfully upon learning of his misconduct in taking the photographs of the above- mentioned machinery and blueprints, such date to be determined at the compliance stage of this pro- ceeding. See Vincent C. Vandermotter d/b/a Rex Printing Company, 227 NLRB 1144, 1144-45 (1977). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, High Performance Tube, Inc., Brunswick, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph 2(a): "(a) Make Charles Homer Rooney, Jr., whole for any losses he sustained as a result of the dis- crimination against him, with interest, and in the manner described in 'The Remedy' section above, from the date of his unlawful discharge to the date, to be determined in the compliance stage of this proceeding, on which he could have been lawfully discharged for his activity of taking photographs of the Respondent's machinery and blueprints." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPIOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT threaten employees with dis- charge, or other reprisals, for engaging in con- certed activities. WE WILL NOT discharge employees for en- gaging in concerted activities for their mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid and protec- tion. WE w.i make Charles Homer Rooney, Jr., whole for any losses he sustained as a result of the discrimination against him, with interest, from the date of his unlawful discharge to the date on which he could have been lawfully discharged for his activity of taking photo- graphs of our machinery and blueprints. HIGH PERFORMANCE TUBE, INC. DEICISION STATI-MN.N I o rHF CASI THOMAS E. BRACKEN, Administrative Law Judge: This case was heard at Brunswick, Georgia, on Novem- ber 30 and December 1, 1978.' 1 The charge was filed by District 96, International Association of Machinists & Aerospace Workers, AFL-CIO (herein the Union), on August 15, alleging that the Company, herein Respond- ent, had terminated employee Charles Homer Rooney, Jr., because of his activities on behalf of the Union. On October 5, an amended charge was filed alleging that Rooney had been terminated because of his concerted activities with other employees. The complaint was issued on October 5 and an answer timely filed on Octo- ber 9. The primary issues are whether Respondent on or about July 31 (a) threatened its employees with discharge for engaging in protected concerted activities, and (b) discharged Rooney for engaging in protected concerted activity, both in violation of Section 8(a)(l) of the Na- tional Labor Relations Act, as amended. The chief con- troversy litigated is whether Rooney was a supervisor, within the meaning of the Act. Upon the entire record, 2 including my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent I make the following: FINDINGS OF FACT I. URISDICTION The Company, a Georgia corporation, is engaged in the manufacture and sale of finned tubing at its plant in Brunswick, Georgia, where during the past calendar year, a representative period, it shipped finished products valued in excess of $50,000 directly to customers located outside the State. The Company admits and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. ' All dates are in 1978 unless otherwise slaled 2 The transcript shows November 30 as the date of he hearing The hearing also took place on the following day. December . on which date John M Keyes and Christopher Keyes testified on behalf of Respondent H I G HP E R FO RM A N C ET U B E.IN C I 3 h 3~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE AI..EGED) UNFAIR LABOR PRACTICES A. Background In early 1977 the Company, then only a few months old, moved from New Jersey to Brunswick, Georgia. At this time it had three employees, all of whom were owners. John O'Donnell, Sr., was the president and re- mained in New Jersey handling sales. Vice Presidents John M. Keyes and Klaus Rieger moved to the new plant, with Keyes serving as secretary-treasurer and in overall charge of the operation of the plant. Rieger's field was in research and development of the Company's product. Bob O'Donnell, son of the president, was the fourth member of the original work force and, after ini- tially working in production, worked under Rieger in de- velopment. Initially, the fledgling Company shared a one-story building with two other tenants. In this space it manufac- tured a new product, titanium fin tubing. 3 There was only one work area, in which both production and tool- manufacturing were performed. Robert George Paterson was hired in June 1976 to make tools, and Robert Wood were subsequently hired to do production work, making the finished product. In the spring of 1977, there was a plant work force of five to eight employees, all working on the day shift, in the same common work area. Chris- topher Keyes (C. Keyes), the factory manager, was the son of Vice-President John M. Keyes, and the supervisor of all employees. There were no foremen. B. Rooney's Job Duties and Responsibilities In March 1977, Rooney was hired by C. Keyes as an hourly paid toolmaker, to make the cutting tools that would be used in manufacturing the Company's finished product. At that time the tool department had only two employees, Rooney and Paterson. Paterson already knew how to operate the three machines then in the tool de- partment, the surface grinder, the honing machine, and the lapping machine, as C. Keyes had trained him to do so. Rooney later trained Paterson to operate the newly installed crush grinder. A short while after Rooney was hired, management separated the production area from the toolmaking area, as both functions were expanding. In August 1977, C. Keyes decided that Rooney and Woods should become the first foremen employed by Respondent. Rooney testified that C. Keyes informed him that he would be responsible for the work in the toolroom, and that he would have "control" over both shifts. Rooney was admittedly not given a written job description at that time, or at any time during his period of employment. According to C. Keyes, he brought Rooney and Wood into his office separately, and told Rooney that he was in charge of "all personnel associat- ed with tooling on both shifts," 3 The typical fin tube was three-fourths of an inch in diameter. with 30 fins, r threads, per inch, with each fin being thirty one-thousandths of an Inch high The nature of these in tubes requires that the toxls used to make them be machined to very close tolerances. Prior to the introduc- tion of this fin lube manufactured from titanium, fin tubes had been fabri- cated out of copper or other alloys, resulting in a much less expensive product, but not nearly as durable a product . . and he was in charge of all the duties as far as all tooling was concerned; making sure people were trained correctly; that the tooling was inspected; that they were up to par-our "up to par" by the way is some very close tolerances that take a lot of supervision; and I would say, in the production area Richard Wood was working, only the second shift-he was the second shift supervisor, I acted as the day shift supervisor during that period. And his problems and such with his men, were his responsi- bility. Getting the product made correctly, made correct-with the specifications met, and quality control checks maintained; and the operation ran smoothly. Rooney and Wood were both transferred to the night shift4 and each received a $1-an-hour increase, which was $1 more than Paterson's basic rate of pay. However, both foremen were required by C. Keyes to relinquish the 10-percent pay differential received by night-shift employees. 5 Paterson testified that when he worked on the day shift, while Rooney was on the night shift, Rooney would leave him a note stating "this needs to be done, or the machine's set at this and run this size tool." Also, at the end of Paterson's shift, when he saw Rooney, he would tell him what work he had done and where the machine was left. Sometimes he would leave a note for Rooney as to what setting he had left a machine, so that Rooney could see what he had been running, and what stage of completion the job was in. On December 16, 1977, C. Keyes hired another tool- room employee, Glenn E. Mixon. Mixon testified that, on his first day of work, C. Keyes told him that Rooney was his foreman, that he would be working under Rooney, and that Rooney would train him. Rooney did proceed to train Mixon in the operation of the toolroom machines, and Mixon worked for the next several months with Rooney on the evening shift in the tool room. Mixon testified that, once he was completely trained, he received "hardly any" supervision or oversight by Rooney. During this period "Chris [Keyes] would tell Chuck [Rooney] certain things he wanted done, certain jobs he wanted performed." As a result of these instruc- tions, Mixon would usually run the crush grinder, the main machine in the toolroom. Rooney would be doing a variety of jobs, checking blades and micrometers, making honing discs, OD grinding, or setting the machine up for such grinding, and setting up the surface grinder for op- eration. In the spring of 1978, Mixon was transferred to the toolroom day shift. At this time Paterson was still the sole day-shift toolroom employee, but he wanted to try to sell real estate in the day, and work at the plant at 4 Rooney was a student at Brunswick Junior College and his tuition was being paid by Respondent He continued to attend the college each day, arriving at the plant at approximately 3 p.m The night shift was from 3 to II p.m., and the day shift 7 a.m to 3 pm. At the time of Rooney's discharge, his hourly rate was $5 50 per hour. Paterson's night-shift pay was $4.50 an hour plus a 45-cent shift dif- ferential, so that the actual difference in pay between the foreman and the second-shift toolroom employee was 55 cents per hour. HIGH PERFORMANCE TUBE, INC. 1365 night. Rooney testified that he suggested to C. Keyes that Mixon and Paterson exchange shifts. C. Keyes ad- mitted that Rooney consulted with him about this trans- fer, and that he approved it. Mixon testified that, when he went on the day shift, Rooney would leave him a sample showing where the machine was set, and the type tool Rooney had been running on that machine on the night shift. He would also have conversations with Rooney just about every day, when Rooney would arrive for work. Rooney would want to know what he did that day, or what went wrong, and whatever he had not done, Rooney would have to do it. He further testified that, in late spring, C. Keyes instructed him to start writing notes to Rooney about the status of his work, and that he sometimes did so. Rooney was also instructed by C. Keyes to write notes to Mixon, with a typical one being "Glenn, I'm running number sixes, when the form is shot switch to eight to nines." Mixon further testified that, even when he had a note from Rooney to run number sixes, if the plant was running low on eights or nines, he would make the decision, without checking with C. Keyes, when to stop running the sixes, and run the eights and nines. There were also times when C. Keyes would come in the toolroom and tell him to stop working on one job and do another. When asked who supervised him on the day shift, he replied, "Chris Keyes, I guess you'd say, su- pervised me." Mixon stated that he respected Rooney as a supervisor because he had a better understanding of the machines, and his job performance was so much better than his. C. Keyes testified that Rooney was responsible for as- signing work, and for scheduling work in the toolroom: He understood what discs were going to be used, and he could tell by looking at our assortment-we have, the way they are assorted on a board you can define what he is going to need; what is the next part-which facet of the tooling needs to be done next. The factory manager agreed that Rooney would leave a note at night explaining what he had done, and stating what he expected Mixon to do. He also admitted that, at the end of 1977 or early 1978, he gave authority to Wood that in an emergency situation on the night shift, "where production was at stake," Wood would have the last say over Rooney. In July or August 1977, a month or two after he was appointed to be a foreman, Rooney suggested to C. Keyes that the toolroom be enclosed so as to keep it sep- arate from the rest of the building, which covered a total area of 80 feet by 160 feet 6 In the following spring, a toolroom 15 feet wide by 60 feet long was enclosed at a cost of $12,000 for construction, and $3,000 for air- con- ditioning. Rooney also recommended that the toolroom be air-conditioned, and that fans be installed for ventila- tion. Rooney testified that this was never done as only one small air conditioner and one fan were installed. 6 Rooney originally testified that he did not recall who requested that the toolroom be enclosed, hut later admitted that he recommended it he enclosed. There was no desk or file cabinet in the toolroom, and a counter was used as a desk for any paperwork. C. Rooney' Probation J. Keyes testified that, in the first week of July, he called Rooney into his office to discuss a list of com- plaints that had been submitted to him by C. Keyes and Rieger, about Rooney's conduct, as both Rieger and C. Keyes wanted Rooney to be discharged. The first in- volved an argument Rooney had had with Wood over the making of tools on the night shift. Wood had needed certain tools to keep production going, and had gone to Rooney and asked him to stop what he was doing, and make the tools that were then needed. Rooney refused and let the production machines run out of tools. This issue had already been straightened out by C. Keyes who had made a ruling that Production Foreman Wood would have the final say as to what tools were to be made in the toolroom at a particular time, on the night shift. The second complaint involved a list of instructions given by C. Keyes to Rooney, to which Rooney had taken exception. When Rooney had received these instructions, he had "stormed" into Rieger's office and, when Rieger had told him to do what he was told, he threw the list on the floor and "stormed out." The third incident involved Rooney hanging up the phone on C. Keyes when C. Keyes had called him at his home. The fourth, and chief, complaint involved a list of de- velopment engineers employed by Respondent's main competitor, all of whom J. Keyes knew, as he had for- merly worked with that company. C. Keyes had found this list in the plant and, recognizing the handwriting of Rooney, had turned it over to his father. J. Keyes re- viewed these four matters with Roone,. and Rooney promised to control his temper, and not to contact any competitors of the Company. J. Keyes then told him that he was giving him a second chance, that he was on pro- bation, and explained to him what probation meant: . . . that if there was another instance of vyou having a temper tantrum or being disloyal to the company-and I stressed the disloyalty part of it- we're going to have to let you go. Rooney did not contradict this testimony of J. Keyes, and admitted that he had been placed on probation. He also admitted that he had copied the engineers' names out of a Wolverine Tube book that had been on a shelf in J. Keyes' office. He defended his copying of the names by testifying that Rieger had given him permission to read any manual in the plant. D. The Discharge of Rooney 1. The General Counsel's Evidence On the evening of July 30, a Sunday, 13 of Respond- ent's 16 nonmanagement employees met at the home of an employee to discuss grievances related to their work Here, a very broad and extensive list of demands. con- sisting of 2-1/2 pages, was written out (Resp. Exh. 12). HIGH PERFORMANCE TUBE INC 1360 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD The document contained a laundry list of grievances and requests, not only for the improvement of specific work- ing conditions, but also for substantial wage increases, a pension plan, major medical and dental insurance, profit sharing, and a stock option plan. The employees then elected Rooney, Wood, and Pickens to be their spokes- men, and decided to confront management with the grievances the next morning. On July 31, a few minutes before 7 a.m., Rooney, Wood, Pickens and most of the employees from both shifts were at the plant entrance. J. Keyes and C. Keyes entered the plant and the employees followed them in, sitting on boxes in a corner of the plant, a place where, at times, management conducted employee meetings. Rooney was standing and called out to J. Keyes to come over and listen to what they had to say. Both J. Keyes and C. Keyes walked over, and Rooney commenced reading the list of grievances. According to Rooney, J. Keyes interrupted him while he was reading the griev- ances, and said that the employees were a bunch of cry- babies, and had no right to have any grievances. Howev- er, J. Keyes agreed to let him finish reading the list, which Rooney proceeded to do, without further inter- ruption. At the end of Rooney's reading of the list, J. Keyes yelled and screamed about the grievances, and Rooney testified that J. Keyes told him: "As far as I am concerned you can pack up your stuff and go out the door, and if anybody wants to follow, they're more than welcome." The day-shift employees proceeded to go to work, and Rooney testified that he started to walk out the front door, when he was called back by C. Keyes. At this time C. Keyes told him, "I just wanted you to know, you are fired." When Rooney asked him several times for a reason, C. Keyes told him that he was a "troublemaker," and that he should have been fired a long time ago. Mixon testified that J. Keyes did interrupt Rooney as he was reading the list, and that the vice president stated that he did not want to hear it, but did remain for the complete reading. Then J. Keyes told the employees that they were just begging for money, that he did not want to talk about it, and finally told them "if you don't like working here you can go out the door and, Chuck [Rooney], as far as I'm concerned you can go now; and the rest of you, if you want to go you can follow him; we'll get a whole new crew in." J. Keyes then told the employees who were scheduled to work to go to work, and for the others to leave, and the meeting broke up. Mixon corroborated Rooney's testimony that he asked C. Keyes why he was fired, and C. Keyes told him that he was a troublemaker and had been on the verge of being fired before. Pickens corroborated the testimony of Rooney and Mixon, in large extent, but did state that he heard C. Keyes tell Rooney in so many words, that he was fired. Neither Rooney nor Mixon so testified, and I do not find that he was. 2. Respondent's version J. Keyes testified that he was about 20 yards away from the assembled employees when Rooney held up a piece of paper, and called him "in quite a loud voice" to come over, as they wanted a discussion with him. The vice president was, as he stated, very angry. He allowed Rooney to read the document without interruption, and regarded the demands as preposterous. He admitted call- ing the employees a "bunch of damn cry babies," and told them that the Company had tried to make the plant a good place to work, and had been fair in the wages paid. Then he said to the whole group, "Those that want to go to work, go to work: those that don't can go on home-and this means you, too, Chuck." With that, J. Keyes walked away. As J. Keyes walked toward his office, Rooney fol- lowed him, and J. Keyes then reminded Rooney that he was on probation, told him that his actions were not be- fitting a supervisor, that his conduct was a provocation to him, and that he was through. The vice president then told C. Keyes to stay with Rooney until he left the building. C. Keyes corroborated in the main his father's testimo- ny as to these events. He further testified that, after Rooney completed reading the list, his father took charge of the meeting, "told him and the bunch that they were cry babies . . . that we had done well by them; they ought not to throw this at us." While C. Keyes did not hear J. Keyes discharge Rooney, his father did tell him that he had let him go, and to see him out of the plant. C. Keyes did not recall calling Rooney a trouble- maker, but did not deny that he had done so. Paterson testified that J. Keyes did interrupt Rooney while he was reading the list of grievances, as "every- body was a little riled up, including him [J. Keyes]," and that J. Keyes told the employees as a group that they could all leave. The first time Paterson knew that Rooney had been fired was when Paterson (then a night- shift worker) was getting in his car to go home, and Rooney told him that he had been fired. Following Rooney's discharge, Paterson was appoint- ed the "supervisor" of the toolroom, with an elaborate written description of his duties. He testified that at the time of the hearing he supervised six employees, four of whom were regular toolroom employees. He further tes- tified that he spent 50 percent of his time doing paper- work, and the other 50 percent doing other things, and that the only time he operated a machine was on a relief basis. When asked if that was the way it was for Rooney, he replied that it was not, that he and Rooney would take turns running the machinery. Rooney had testified that he ran machines the whole 8 hours of his shift, unless a machine broke down and he would then have to repair it. According to C. Keyes, Rooney spent at most only 20 percent of his time operating machines, and 80 percent of his time in other duties. When asked what the other duties were, he replied that it was preparing work for the day crew. The only record the Company produced as to how Rooney prepared work for the "day crew," which essentially consisted of one regular employee Mixon, was a brief message written by Rooney on note- paper.7 I find it incredible that Rooney spent 80 percent ' Similar notes would he left by Mixon for Rooney. and by Paterson for Rooney when either worked on the day shift he Company pro- Continued HIGH PERFORMANCE TUBE. INC. 1367 of his time preparing work for one regular employee, and credit Rooney's testimony, corroborated by Pater- son, that he operated machines for virtually his 8-hour shift. E. Credibility As is evident from the record, the credibility issues in this case are of the sharpest nature, and are not easily re- solved. Rooney was at times evasive, such as when he could not recall initially if he recommended that the toolroom be enclosed, and could not recall, initially, the transfer of Mixon from the night shift to the day shift. Both J. Keyes and C. Keyes impressed me as advocates for their cause, who now knew the criteria used by the Board to determine a statutory supervisor, and were going to exaggerate the facts to make the best possible impression for their side. An example is J. Keyes' testi- mony as to what title he used when referring to Rooney, while employed by Respondent. Keyes testified that he referred to Rooney by the title of supervisor. However, when J. Keyes filled out the separation notice for the Georgia Employment Security Agency (G.C. Exh. 3), he inserted therein in two places that Rooney was a fore- man, with no mention of the title of supervisor. An ex- ample for C. Keyes is his testimony as to how long Pick- ens worked in the toolroom. When asked on cross-exami- nation how long Pickens worked in the toolroom, he re- plied a week at a time. When pressed, he admitted that Pickens worked there on one occasion for I week. Paterson, who had been given the title of toolroom su- pervisor after Rooney's discharge, was a completely par- tisan witness, and greatly exaggerated his duties after his appointment, so as to constitute himself a supervisor. An example is his description of what his duties were as a supervisor. He testified that one of his functions was to make out purchase orders and order the steel. When asked by the court how often he placed such orders, he guessed that it was about every 3 months. Since the hearing was 4 months after Paterson had been appointed supervisor, by his own formula he would have ordered steel once, or at most twice. I have therefore credited Rooney, the two Keyes, and Paterson in part, based on the evidentiary rule that it is not uncommon "to believe some and not all" of a wit- ness' testimony. N.L.R.B. v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). Mixon was the most impressive of all witnesses, testi- fying in a sincere, straightforward, and conscientious manner, without trying to shade his testimony for either side, and I credit his testimony. F. Anaysis and Conclusions 1. Whether Rooney was a supervisor within the meaning of the Act The question to be resolved is whether, as Respondent contends, Rooney occupied at the time of his discharge duced no regular records of any kind that ere kept by Rooney The clear inference I draw is that there wuere no such records. or U'ere so meager as to show that the time Rooney used in keeping records as insignificant the status of a supervisor within the statutory definition,8 or whether, as the General Counsel insists, Rooney was merely a leadman, a category of minor supervisory em- ployees that Congress, as the Act's legislative history shows, intended to leave under the protection of the Act.9 I am persuaded, after consideration of all the rele- vant facts, that the question must be resolved in favor of the General Counsel. While it is true that on the day Rooney was made a foreman by C. Keyes he was told he was "in charge" and would have "control" over the toolroom, the use of such general words does not confer supervisory status on an employee. The test is what duties did Rooney actually perform. Respondent, in its brief, points to some 13 indicia of supervisory duties that were performed by Rooney. These are reviewed below. (1) Rooney recommended the hiring of employees. Rooney admitted that he recommended to C. Keyes that the Company hire Phil Kemp, a fellow student at Bruns- wick Junior College. After the interview by C. Keyes, Kemp was hired. On direct examination C. Keyes testi- fied that he also hired Harper on Rooney's recommenda- tion. On cross-examination, when asked if in fact Richard Wood had introduced Harper to him, C. Keyes replied defensively, "I think it was Chuck Rooney." Rooney had previously testified that he thought Wood had recom- mended Harper, but that he "probably could have" rec- ommended him as, "Anybody can recommend anybody to come to work at the company." While I find that Rooney did recommend Kemp, there is no evidence as to what weight, if any, that C. Keyes gave to Rooney's recommendation. Assuming, arguendo, that Rooney rec- ommended Harper, there is also no evidence as to any weight given to such recommendation by C. Keyes. I conclude, therefore, that Rooney's conduct in connection with Kemp's and Harper's hiring did not constitute effec- tive recommendation with respect to hire within the meaning of Section 2(11) of the Act. Harmon Industries, Inc., 226 NLRB 432, 439 (1976), enfd. 565 F.2d 1047 (8 Cir. 1977); Howard Johnson Company, 174 NLRB 1217, 1221 (1969). (2) Rooney permanently transferred an employee [Bryant] out of the toolroom without prior approval or consultation with higher management. Rooney testified that Bryant was daily making expensive mistakes in the toolroom, so he went to C. Keyes and recommended that he be transferred out of the toolroom. C. Keyes tes- tified that Bryant had been transferred to the toolroom for training, but had ruined several thousand dollars worth of material. Rooney did come to C. Keyes and asked for Bryant's transfer back to production "in no un- certain terms," and Bryant was transferred. In this one instance, I find that Rooney's recommendation was effec- Sec. 2(11) of the Act provides: The term "supervisor" means any individual having authority in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees. or responsibly to direct them, or to adjust their grievances, or effective- ly to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 9 See .L.R B. s Securrty Guard Service Inc. 384 F.2d 143, 146 (5th Cir 1967), for a discussion of the applicable legislative history 1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive in having Bryant transferred. However, it is too iso- lated an instance to prove supervisory status. (3) Upon their request, Rooney transferred employees from one shift to another, after discussion with higher management. Paterson testified that, in the spring of 1978, he was trying his hand at selling real estate, and he "mentioned" something to Rooney that he wanted to be transferred from the day shift to the night shift. C. Keyes admitted that Rooney talked with him about moving Pa- terson to the night shift and Mixon to the day shift, and that he approved it. There is no evidence as to how much weight C. Keyes gave to Rooney's recommenda- tion of this one-time exchange of shifts between the day man and the nightman which simply allowed employee Paterson to go on the night shift, while engaging in the sale of real estate in the daytime. (4) He made recommendations regarding improve- ments of the toolroom, all of which were followed. The evidence is clear that the toolroom was enclosed some 6 to 9 months after Rooney's recommendation. I do not regard this as showing that Rooney had genuine manage- ment prerogatives, as any employee could make such a suggestion. It is a fact of industrial life that innumerable factories throughout this nation use suggestion boxes trying to stimulate their employees to make suggestions that would improve efficiency and the operation of the plant. It is also clear that the making of such suggestions, and their implementation, does not cause the employee to become part of management. (5) He gave an oral warning to an employee regarding his job performance, and told him that he had better im- prove his work. Rooney testified vaguely that he had told Mixon that "he'd better improve." Mixon recalled only one time that Rooney counseled him for not doing enough work. C. Keyes recalled that Rooney told him that he had been working on Mixon to produce more parts, and that he let Rooney handle the problem. Rooney was acting here as a working foreman who could turn out a large number of parts, and who wanted the only other toolmaker on the same shift to increase his production. (6) He trained employees assigned to the toolroom. There is no question but that Rooney trained Mixon on operating all four machines used in the tool room, and that he trained Paterson on the use of the crush grinder. Training new employees in the operation of machines is plainly a function of a skilled leadman, and not necessar- ily a function of a supervisor. (7) He supervised and assigned work to all temporary employees working in the toolroom. Respondent pointed to Jack Horn and Pickens as two employees who worked temporarily in the toolroom, under Rooney's su- pervision. Rooney testified that Horn, a day-shift produc- tion worker who had broken his leg in a motorcycle ac- cident, was put in the toolroom by C. Keyes, without any notification to Rooney, to sort discs. Rooney was working on the night shift while Horn sorted the discs on the day shift. Rooney's testimony was uncontradicted and I credit it. As to Pickens, C. Keyes made the bare statement that Pickens was transferred to the toolroom, although he did not claim that Rooney was the person who transferred him. However, C. Keyes did say that Rooney sent Pickens back from the toolroom to produc- tion. Rooney testified that Pickens never worked in the toolroom as a toolroom employee. He did admit that, on one occasion when the fin machine broke down in the production department, and the toolroom was out of ma- terial to make tools, all production employees came in the toolroom and helped Rooney and Paterson to sort out the broken discs from the good discs. Pickens testi- fied that he never worked under Rooney. I do not find from the record that Rooney assigned work to employ- ees who worked temporarily in the toolroom. (8) He reviewed all work and, if it were unsatisfactory, he would reject it. Rooney testified that, when he came in for the afternoon shift, he would look at the work done on the day shift by Mixon to see that it had been done properly. If the pieces had not been done properly, he would reject them, and set them aside for reinspec- tion, or regrinding, and do whatever was needed to be done to them. Rooney's testimony was also uncontradict- ed that his work would be rejected if it was not up to specifications. Paterson testified that, if he was running tools on the crush grinder, he would ask Rooney "for his help," to see if the "tools were looking within toler- ances," and that Rooney would take a look every now and then, and spot check the work to see if it was within the required tolerances. If Rooney would say that the profile was getting too thick, or the gauge line was a little off center, or make other technical comment, Pater- son would so correct the tooling. Rooney's actions in re- viewing Paterson's tools while they were being ma- chined were clearly that of a skilled leadman. As to the checking of parts after they had been ma- chined, Rooney was performing the duties of an inspec- tor, mechanically checking the finished parts against the tolerances required by the blueprints. In like manner, if an inspection revealed that any of Rooney's work did not meet the blueprint tolerances, his tools would also have to be reworked. Such inspection of parts is not su- pervisory in nature. (9) He gave an employee oral warning that he would have to terminate him if his attendance did not improve. Rooney, when asked on cross-examination if he recalled telling Mixon that he was going to have to let him go if his attendance did not improve, replied, "I think some- thing to that effect." C. Keyes' testimony was equally sparse. He admitted that Rooney had suggested to him on one occasion that the Company should let Mixon go, but he had not followed the foreman's recommendations. Mixon was still working for Respondent at the time of the hearing. It is clear that Rooney's recommendation did not constitute effective recommendation with respect to discharge, within the meaning of Section 2(11). (10) He was responsible for seeing that all production records for the toolroom were properly kept. Rooney testified that after he became foreman "we started to keep a record of what we were producing on each shift" and "how much of each item we made was logged in a book." Mixon entered into a "little old book" the work he had done and Paterson entered what he had done, as did Rooney. HIGH PERFORMANCE TBE, INC. 1369 Several months prior to Rooney's discharge, the Com- pany replaced this small booklet with printed forms that were to be filled in after each shift. Mixon filled the form in for the day shift, and Paterson would fill out the form for the night shift, if Rooney did not fill it in. Rooney originally testified that he reviewed the records just to see how much work was done, and under strong cross- examination, admitted that he was "responsible for look- ing at them." C. Keyes testified that Rooney was respon- sible for keeping records by getting the totals of parts run from the operators and then keeping a running tally of all parts. Assuming arguendo that Rooney kept run- ning totals of the production runs by himself and the other two toolroom operators, I do not find this to be a supervisory function, but a clerical one, which in a large plant would be performed by a plant clerical employ- ee. 0 (11) He would grant permission for employees to leave the plant during working hours. Rooney testified that, on the night shift, occasionally a small, inexpensive item would be needed. In such a case, he wouid walk up to the local hardware store and buy it. If Paterson wanted to make such a purchase, he would come to Rooney and ask his permission to go make the purchase, before leav- ing the plant. Thus, the testimony discloses that on occa- sion Rooney would give permission to the one employee on the night shift with him to leave the plant to walk up to the hardware store to make a small, essential pur- chase. Even if such granting of permission involved inde- pendent judgment, its exercise was too sporadic to render Rooney a supervisor. Westinghouse Broadcasting Company, Inc., 215 NLRB 123 (1974). (12) He sought redress of grievances of employees working in the toolroom. The only evidence pointed to by Respondent to support this contention involved the obtaining of earplugs for Paterson on the night shift. Rooney testified that Paterson complained to him that the noise hurt his ears, and that he asked C. Keyes if ear- plugs could be secured. When none were obtained, Pa- terson himself went to C. Keyes and requested earplugs, which were thereafter secured. Paterson corroborated Rooney's testimony that he, too, took up the earplugs with management and, after that, they were obtained. Thus, Rooney's recommendation went unheeded by C. Keyes, and was not effective until Paterson himself pressed his complaint to the factory manager. (13) He would assign work to two employees, Mixon and Paterson. However, these assignments were of a rou- tine nature that did not require the use of independent judgment. There was no testimony that Rooney met with management to learn what discs should be made in the toolroom, or that he was given any written orders to that effect. As C. Keyes testified, Rooney knew what discs were going to be needed by merely looking at a board, on which was placed an assortment of parts, and from the way they were sorted on the board, it could be determined what was the next part of the tool that would be needed to be machined in the toolroom. '0 It is also noted that the Company presented no written records of any kind to show what records were kept of production. Since the re- cords were in Respondent's possession, I draw the inference that their production would have been adverse to Respondent's position. Rooney, as the foreman, would at times tell Mixon or Paterson what disc, and how many, to run. Paterson and Mixon would then run these discs, and at the end of the day often leave those parts in the machine, uncompleted. They would leave a note telling Rooney of the disc's set- ting in the machine, and Rooney would operate the same machine running the same part as the dayman. On the day shift, Mixon would not always run the pieces Rooney had told him to run. If he learned the plant was running low on one size disc, while he was running a different size disc assigned by Rooney, he would unilaterally make the decision to stop machining that disc, and make the disc that the plant was in need of. On the night shift, whatever use of independent judg- ment Rooney may have had in assigning work was nulli- fied by C. Keyes' admitted decision in late 1977 or early 1978, in settling the matter of authority between Wood and Rooney. It was at this time that C. Keyes gave pro- duction Foreman Wood authority over Rooney as to what tools were to be made in the toolroom on the night shift. In International Union of United Brewery, Flour, Cereal. Soft Drink and Distillery Workers of America. AFL-CIO [Gulf Bottlers, Inc.) v. N'L.R.B., 298 F.2d 297, 303 (D.C Cir. 1961), the court stated that supervisory status is not to be tested by "a sheerly literal reading of Section 2(11)," but its determination must be based, rather, "upon the 'nature' of the [asserted] supervisory position and 'how completely the responsibilities of the particular po- sition identify the holder of the position with manage- ment."' In no way can Rooney be identified as a part of management, taking into account that he functioned pri- marily as a machine operator; never attended any man- agement meetings; that he had no effective authority with regard to matters affecting employees' job status, wages, or significant changes in conditions of employ- ment; that his hourly rate was 55 cents per hour higher than the other night-shift toolroom employee: that the toolroom consisted of only three regular employees. one of whom did not even work on the same shift as Rooney; and that C. Keyes who was management was always present, or near at hand, and was constantly an active participant in the direction of the toolroom oper- ations. It is also plain that the employees did not consid- er Rooney to be an arm of management when they se- lected him to be their spokesman to confront Vice Presi- dent Keyes with their grievances. On all the evidence, I find that Rooney was no more than a leadman and not a supervisor, and at all times ma- terial was an employee within the meaning of Section 2(3) of the Act and protected by Section 7 of the Act. Harmon Industries, Inc., supra; Graphics Typography, Inc., 217 NLRB 1047 (1975)." 1 Respondent cited in its brief numerous cases which it claims support its position that Rooney was a supervisor I have read these cases and have concluded that each one is substantially different in its fact, from the instant case, and therefore are not apposite he case most worthy of note is Custom Bronze & Aluminum Corp., 197 NLRB 397 (197), which involved a metal fabrication shop with a work force of just three mploN- ees. The Board found that the leadman therein was in factl a satuir C£ontinued HIGH PERFORMANCE TUBE, INC. I 1) 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Whether Rooney's discharge was unlawful The testimony of the various witnesses as to the events that occurred in the plant on July 31 are not in large dis- pute, except for two factual matters. The first is whether J. Keyes interrupted Rooney while he was reading the list of grievances, or let him finish before commenting thereon. I credit Mixon's and Paterson's testimony that J. Keyes did interrupt Rooney's reading, stating that he did not want to hear it. However, all witnesses agreed that Rooney did read the entire list of grievances before, as C. Keyes testified, his father took charge of the meeting. The other factual issue is whether, as the General Coun- sel contends, Rooney was discharged directly in front of the assembled employees, or shortly thereafter, as con- tended by Respondent. I find that Rooney was not dis- charged directly in front of the employees, but several minutes after the meeting broke up. Rooney himself in his original testimony, when asked what J. Keyes said to him following the reading of the grievances, did not claim that C. Keyes had fired him at that point. Rooney quoted J. Keyes as saying that as far as he was con- cerned Rooney could pack up his stuff, and go out the door. In subsequent testimony, in again testifying about what happened after he finished reading the grievance list, Rooney stated as a conclusion "and then, naturally, I was fired right there." Mixon's testimony, which I credit, does not claim that J. Keyes told Rooney he was fired in front of the employees, but that J. Keyes told the em- ployees that, if they did not like working there, they could go out the door, and that Rooney could go too. Whether Vice President Keyes personally fired Rooney as he walked toward the office need not be re- solved. C. Keyes admitted that he did not hear his father discharge Rooney, but did testify that his father told him he had let him go, and to see him out of the building. Mixon's testimony showed that Rooney did ask C. Keyes why he was fired, and that the factory manager told him that he was a troublemaker. Thus, the record is clear that Rooney was discharged because of his standing up and reading the list of griev- ances on behalf of his assembled fellow employees, a classical example of concerted activity. Vice President Keyes admitted that he was very angry at this conduct, and regarded the employees' demands as "preposterous." I therefore find that Rooney, as an employee, was dis- charged because of his participation in protected con- certed activities, and that such discharge was violative of Section 8(a)(1) of the Act. 3. The independent 8(a)(1) violation Vice President Keyes stated to the employees after the reading of the extensive grievances that, if they did not like working there, they could go out the door, and that the Company would get a whole new crew. The vice president conveyed this message to the assembled em- ployees while admittedly very angry, and after derisively supervisor of the other two shop employees, However, in that case the leadman received his orders each morning from the president, and there. after was in complete charge of the entire shop, the workload, and the two-man work force, without any member of management coming into the shop to partake in supervising the employees. calling these adult factory employees crybabies. His statement was clearly a veiled threat of discharge, that their group presentation of a request for improved wages, hours, and conditions was an affront to manage- ment, and not to be tolerated now, or in the future. I find that this statement constituted interference with the Section 7 rights of the employees, and hence violated Section 8(a)(l) of the Act. Markle Manufacturing Compa- ny of San Antonio, 239 NLRB 1353 (1979). CONCLUSIONS OF LAW 1. 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 mean- ing of Section 2(5) of the Act. 3. Charles Homer Rooney, Jr., was not at any relevant time a supervisor within the meaning of Section 2(11) of the Act. 4. At all relevant times, Charles Homer Rooney, Jr., was an employee within the meaning of Section 2(3) of the Act. 5. On July 31, 1978, Respondent discharged Rooney because of his protected concerted activity, in violation of Section 8(a)(1) of the Act. 6. On July 31, Respondent threatened its employees with discharge for engaging in protected concerted ac- tivities, in violation of Section 8(a)(1) of the Act. 7. These unfair labor practices affect commerce within the meaning of the Act. THF REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent having unlawfully discharged Charles Homer Rooney, Jr., I find it necessary to order Re- spondent to offer him full reinstatement, with backpay computed on a quarterly basis and interest thereon in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),1 2 from the date of discharge to date of a proper offer of reinstatement. Upon the foregoing findings of facts and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER'3 The Respondent, High Performance Tube, Inc., Bruns- wick, Georgia, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: " See, generally, Isis Plumbing d Hearing Co., 138 NLRB 716 (19621 13 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 HIGH PERFORMANCE TUBE, INC. 1371 (a) Threatening employees with discharge for engag- ing in concerted activity. (b) Discharging any employees for engaging in any ac- tivity protected by, or guaranteed in, Section 7 of the National Labor Relations Act, as amended. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Charles Homer Rooney, Jr., immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges, and make him whole for his lost earnings in the manner set forth in the remedy. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Brunswick, Georgia, copies of the attached notice marked "Appendix,"L4 Copies of the notice on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not al- tered, 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. 14 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 L.abor Relations Board"