Jeffrey Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 3, 1974

208 N.L.R.B. 75 (N.L.R.B. 1974)

JEFFREY MFG. CO. 75
Jeffrey Manufacturing Company , Screw Conveyor
Division and Isaac S. Smith
Steel Workers Local No. 902, affiliated with Federat-
ed Independent Texas Unions (Jeffrey Manufac-
turing Company, Screw Conveyor Division) and
Isaac S. Smith . Cases 16-CA-5005 and 16-CB-723
January 3, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 25, 1973, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent Company
and Respondent Union each filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge' s Decision in light of the
exceptions and has decided to affirm the rulings,
findings , and conclusions of the Administrative Law
Judge 1 only to the extent consistent, herewith.
REMEDY
Having found that Respondent Union and Re-
spondent Company engaged in certain unfair labor
practices, we shall order that they cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
The Administrative Law Judge recommended as a
remedy for the Company's continued illegal dealings
with its supervisor as the Union's president that, in
addition to ceasing its dealings with its supervisor as
a union officer or agent and giving effect to the new
3-year contract, the Company be ordered to withhold
recognition from the Union until it is certified by the
Board as the exclusive representative of the employ-
ees.
The reliance of the Administrative Law Judge on
The Powers Regulator Company v. N.L.R.B., 355 F.2d
506 (C.A. 7, 1966), in requiring such withdrawal of
recognition is misplaced in the circumstances of this
i We find without merit Respondent Union's allegations of bias and
prejudice on the part of the Administrative Law Judge and Respondent
Company's allegations that the Administrative Law Judge's credibility
resolutions are unfounded , unwarranted , arbitrary , and capricious We have
fully considered the entire record and the Administrative Law Judge's
Decision , and we perceive no evidence that the Administrative Law Judge
prejudged this case , made prejudicial rulings, or demonstrated either bias or
incompetency in his analysis or discussion of the evidence Moreover, it is
the Board 's established policy not to overrule an Administrative Law
Judge's resolutions with respect to credibility unless the clear preponder-
case. The Union had an established bargaining
relationship with the Employer, and the record
evidence does not disclose that its majority status
was in question. Requiring that Jones, the supervisor,
be separated from the administration of the Union
and participation in future negotiations and griev-
ances on its behalf, and requiring that the recently
negotiated collective-bargaining agreement be set
aside, will suffice to remedy the 8(a)(2) violation
found. Bisso Towboat Company, Inc., 192 NLRB 885.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Company, Jeffrey Manufacturing
Company, Screw Conveyor Division, Fort Worth,
Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interfering with the administration of Steel
Workers Local No. 902, affiliated with Federated
Independent Texas Unions, or any other union, by
recognizing or dealing with Willie Jones or any other
company supervisor as a union officer or agent in
negotiating or administering any collective-bargain-
ing agreement or in handling employee grievances.
(b) Maintaining or giving effect to the 1971-74
contract with Steel Workers Local No. 902, or to any
modification, extension, supplement, or renewal
thereof, provided, however, that nothing herein shall
be construed to require the Respondent Company to
vary any substantive provision of the contract, or to
prejudice the assertion by the employees of any
rights they may have thereunder.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its plant in Fort Worth, Texas, copies of
the attached notice marked "Appendix A.-2 Copies
of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by
Respondent Company's authorized representative,
shall be posted by the Company immediately, upon
receipt thereof, and be maintained by it for 60
ance of all of the relevant evidence convinces us that the resolutions are
incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d
362 (C A. 3, 1951 ) We have carefully examined the record and find no basis
for reversing his findings
2 In the event this Order is enforced by a Judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
208 NLRB No. 6
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Company to insure that the notices are not
altered, defaced, or covered by any other material.
(b) Post at the same places and under the same
conditions as set forth in (a) above, as soon as
forwarded by the Regional Director, copies of the
Respondent Union's attached notice marked "Ap-
pendix B."
(c) Sign and return by mail to the Regional
Director for Region 16, immediately upon receipt
from him, copies of the attached notice marked
"Appendix A" for posting by the Respondent Union.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
B. Respondent Union, Steel Workers Local No.
902, affiliated with Federated Independent Texas
Unions, Fort Worth, Texas, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Jeffrey Manu-
facturing Company, Screw Conveyor Division, to
discharge or otherwise discriminate against any of its
employees in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees of the Company in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post in Respondent Union's business office
copies of the attached notice marked "Appendix
B."3 Copies of said notice, on forms provided by the
Regional Director for Region 16, after being duly
signed by an authorized representative of the Union,
shall be posted by the Union immediately upon
receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the Union
to insure that the notices are not altered, defaced, or
covered by any other material.
(b) Post at the same places and under the same
conditions as set forth in (a) above, as soon as
forwarded by the Regional Director, copies of the
Respondent Company's attached notice marked
"Appendix A."
(c) Sign and return by mail to the Regional
Director for Region 16, immediately upon receipt
from him, copies of the attached notice marked
"Appendix B" for posting by the Respondent
Company.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found.
3 See fn. 2. supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after trial, that we violated Federal law by unlawfully
interfering with the independent union when permit-
ting a supervisor to serve as union president:
WE WILL NOT permit receiving clerk Willie
Jones or any other supervisor to serve as a union
officer or representative.
WE WILL NOT give effect to our 1971-74
contract with Local 902, and we will not change
,the wages and other conditions of employment
under the contract.
WE WILL NOT unlawfully interfere with the
operation of any union of your choice.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
JEFFREY
MANUFACTURING
COMPANY, SCREW
CONVEYOR DIVISION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive-
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room
8-A-24, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334=2921.
JEFFREY MFG. CO. 77
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after trial, that we violated Federal law by attempt-
ing to cause Jeffrey Manufacturing Company to
discharge an employee for filing grievances:
WE WILL NOT unlawfully request the Company
to discharge or otherwise discriminate against any
employee.
WE WILL NOT in any like or related manner
restrain or coerce employees of the Company in
the exercise of their rights under Section 7 of the
Act.
STEEL WORKERS LOCAL
No. 902, AFFILIATED
WITH FEDERATED
INDEPENDENT TEXAS
UNIONS
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room
8-A-24, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: These
consolidated cases were tried at Fort Worth, Texas, on
April 5-6 and 9-12, 1973. The charges were filed by an
individual, Isaac S. Smith, on November 30, 19721
(amended February 27 and April 4, 1973), against the
Respondent Company, and on September 27 (amended
November 30 and February 15, 1973) against the Respon-
dent Union. The consolidated complaint was issued on
February 15, 1973, and amended on February 27 and April
4, 1973.
The primary issues are whether (a) the Union, through
President Willie Jones, attempted to cause the Company to
discharge machinist Smith for submitting grievances, and
(b) the Company interfered with the administration of the
independent union, in that Jones and/or Secretary-Treas-
urer Marvin Rodgers is a company supervisor-the
Company thereby violating Section 8(a)(1) and (2), and the
Union Section 8(b)(1)(A) and (2), of the National Labor
Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Company, and
the Union, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, an Ohio corporation, is engaged in the
manufacture of conveyors at its plant in Fort Worth,
Texas, where it annually ships goods valued in excess of
$50,000 directly to points outside the State. The Company
and the Union admit, and I find, that the Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union, which represents production and mainte-
nance employees of the Company, is one of three small
locals affiliated with the Federated Independent Texas
Unions.
In 1971, several months before the October 31 expiration
of the Union's contract with the Company, some of the
employees made an unsuccessful attempt to decertify the
Union. At their request, Machinist Isaac Smith obtained
the appropriate forms from the Board's Regional Office.
Apparently an insufficient number of signatures were
obtained to file a petition.
In the summer of 1971, the union membership elected
Smith to the three-employee negotiating committee. The
first meeting of the committee was held at the home of
Secretary-Treasurer Marvin Rodgers (chairman of the
committee) in early September. (Smith, whose credibility is
discussed later, erroneously recalled the meeting to have
been held in early October.) President Willie Jones and
Committeemen Smith and William Irick were present with
Rodgers at the meeting. They began reviewing the existing
contract, for the purpose of preparing proposed contract
changes. Upon reaching the grievance procedure provi-
sions, both Jones and Rodgers commented about having
discharged employees. As Smith credibly testified (upon
cross-examination by company counsel):
Q. [By Karl Mueller] How did that come up?
A. Well, we was talking about arbitrations . . . and
discharges, and they both made the statements that
they had discharged people while they had been
employed out there in their capacity, and I told them
that I was in the wrong place; if the two of them had
the authority to discharge or hire and fire people that
1 All dates are in 1972, unless otherwise stated
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were both supervisors and they didn' t have no
place in the Union, let alone being secretary- treasurer
and president.
Q.
A.
Q.
A.
Did Willie [Jones] tell you who he had fired?
No, sir, he did not.
Or when he had fired somebody?
No, sir, he did not.
Q. ...
had fired?
Did Marvin [Rodgers ] tell you anybody he
A. No, sir, he did not.
Q. Or when?
A. No, sir, he did not.
(Neither Jones nor Rodgers was called to confirm or deny
this testimony. Committeeman Irick was called as a
witness, but he appeared to have very little recollection of
what occurred.)
On September 14, 1971, after Union Secretary Rodgers
had submitted a written list of proposed contract changes
to the Company, the union membership met, and both
Rodgers and Irick resigned from the negotiating commit-
tee. Two substitutes were elected, and Machinist Smith
(who had prior experience in contract negotiations with an
earlier employer) was appointed chairman of the commit-
tee. It is undisputed (as Smith credibly testified upon cross-
examination by union counsel at the trial), that Smith told
the membership, "I thought there should be some changes
in the contract language, too much of it leaned toward the
Company," and "I thought it stunk." It is also undisputed
that the membership requested Smith to see if he could
obtain copies of union contracts at other company plants,
and indicated that "they wanted a completely new
negotiated contract"-although Secretary Rodgers ' said
"that the contract we had was plenty good and we didn't
need any outsiders coming in telling us how to negotiate a
contract," and President Jones "stated that they had been
doing good under the contract that they had for years out
there and he didn't see any reason to change it."
I After this meeting, Committee Chairman Smith obtained
copies of other union contracts, and prepared six copies of
a proposal, containing a number of changes, including new
provisions for severance and cost-of-living allowances. The
other two members of the committee agreed with Smith to
submit the new proposal to the Company. However, when
Smith showed the drafted proposal to President Jones and
Secretary Rodgers, "it was pushed aside," and both Jones
and Rodgers said they did not want anything to do with
the proposal or with the union contracts Smith had
obtained.
About the second week in October 1971, the i Jnion went
into negotiations with the Company, after Secretary
Rodgers had submitted a revised list of proposed changes
(with few changes from the original list ). It is undisputed
that shortly before the first negotiating session, when
Committee Chairman Smith questioned Jones' right to be
present "because he was not elected to the negotiating
committee ," Jones stated that "he was there because the
Company wanted him there ." During the negotiations, as
Smith credibly testified on cross-examination by company
counsel (although denied by Glass ), Smith "tried to find
out" what authority Jones had with respect to the
employees he worked with , but the Company was "vague
as the devil about that ." After four meetings, a new
agreement was reached by October 19.
Two months later, machinist Smith was the first to sign a
recall petition , challenging the manner in which a union
election had been held . The following September 13, he
filed a grievance against the Company (concerning
performance reviews) and one against the Union (alleging
"I am not being properly represented"). On September 29,
he left for other employment.
The General Counsel contends that the Union , through
President Jones, caused or attempted to cause the
Company to discharge machinist Smith because he
submitted the grievances, and that the two union officers,
Jones and Secretary-Treasurer Rodgers , are supervisors.
The Company and the Union deny both allegations. (The
Company also contends that Smith quit, and was not
constructively discharged , but that issue was settled shortly
before trial.)
B. Jones' Attempt to Cause Discharge
In September , when machinist Smith filed the grievances
against the Company and the Union , James Hunter was a
leadman in the machine shop . Previously , he had been the
machine shop foreman, but had been on paid sick leave for
a considerable length of time , during which he had
received psychiatric care.
According to Leadman Hunter , he and Foreman T. J.
Barnes were in the machine shop office (where both Barnes
and Hunter had desks), when Union President Jones
entered and began discussing with Barnes one or both of
the grievances Smith had filed (on September 13). Hunter
testified , "I don't recall just exactly what they said, but
they were discussing Ike's part in the Union . They called it
troublemaker ." He did not recall which one referred to
Smith as a troublemaker , but "Both agreed that he would
have to be gotten rid of . . . . I don't recall just exactly
what they said , but I know there was discussion that he was
a troublemaker , and that he would have to be gotten rid
of." Sometime after Jones left, Barnes told Hunter, "That
we would try to get rid of Ike. . . . He said keep him busy;
keep the work piled up on him in hopes that that would get
rid of him , not let him have a chance to slow down."
Hunter did not recall when Jones was in the office
(thinking it was sometime in August or September), did not
recall how much time elapsed before Barnes said to pile up
work on Smith (thinking it was within 2 weeks), did not
know how much later Smith left (thinking it was "maybe"
4 months-whereas Smith left on September 29), and did
not recall piling up work on Smith . (Smith, who impressed
me as having a much better memory , credibly testified that
about the first week in October, Hunter came to Smith's
home , reported that he had overheard Jones, in a
conversation in the office , tell Barnes that "The only way
we can get rid of the SB is to run" Smith off . Hunter said
he wanted to apologize for what had taken place, that
Barnes had told him to load the work up on Smith, and
JEFFREY MFG. CO. 79
"that they couldn't run me off because of absenteeism or
my scraps or anything of that nature and the only thing
they could do was pile the work on me and run me off that
way." The mere fact that Hunter made such statements at
the time provides some corroboration of Hunter's testimo-
ny at the trial.) Smith also credibly testified that on
September 14, he saw Jones in the machine shop and asked
him if he had seen the grievance (against the Union), and
Jones responded, "What do I have to do to please you
damn people?"
Earlier, during the September 1971 contract-proposal
meeting at Secretary Rodgers' home, President Jones had
stated his opposition to the processing of grievances. It is
undisputed, as elicited by company counsel from machinist
Smith on cross-examination, that Jones stated at that
meeting "that he had been out there 20 something years,
and, `no grievances got by me.' I agreed with him; he'd
been out there a long time and they ain't had an arbitration
case or nothing else that got by him."
When Machine Shop Foreman Barnes was called as a
defense witness by the Company, he gave complete denials
to the allegation that the Union had unlawfully caused or
attempted to cause the Company to discharge Machinist
Smith . Barnes denied that he had any conversation with
Union President Jones concerning Smith, denied that he
ever had a conversation with Jones concerning running
Smith off or concerning Smith being a troublemaker,
denied ever having a conversation with Jones in the
presence of leadman Hunter with respect to running off
Smith, and denied that he ever told Hunter to pile work on
Smith. Barnes did not impress me as being a trustworthy
witness. (When giving these denials, his face appeared
unusually flushed, and he appeared quite nervous.) Hunter,
on the other hand, impressed me as endeavoring to report
accurately what he could recall had happened. I credit his
testimony about the conversation between Barnes and
Jones, and discredit Barnes' denials.
Thus, I find that when President Jones went to the
machine shop on September 14, the day after Smith filed
the two grievances, Jones indicated his displeasure by
asking Smith, "What do I have to do to please you damn
people?" And when Jones met with Foreman Barnes
concerning one or both of Smith's grievances, Jones and
Barnes , talked about Smith being a troublemaker in the
independent union and about getting rid of him. Although
Jones did not state in so many words that Barnes should
discharge Smith for filing grievances, I find that Smith's
actions in filing the grievances (against the Company and
the Union) provided the reason for Jones to be meeting
with Barnes, and motivated the conversation about getting
rid of Smith. I therefore find that Jones sought the
discharge of Smith at least in part for filing grievances, and
that the Union thereby unlawfully attempted to cause the
Company to discharge Smith for so doing, in violation of
Section 8(a)(1)(A) and (2) of the Act as alleged. (In view of
the pretrial settlement of the allegation that the Company
constructively discharged Smith, I do, not rule on whether
the Union caused any action on the Company's part in
connection with Smith's departure from the job.)
C. Alleged Illegal Interference with Administration
of Independent Union
1. Credibility issue
In order for the General Counsel to prove the allegation
in the complaint that the Company illegally interfered with
the administration of the Union, he must establish that
either Union President Jones or Secretary-Treasurer
Rodgers is a company supervisor, which the Company and
the Union deny.
Although the trial lasted 6 days, none of the parties
called Jones or Rodgers to testify, or their immediate
supervisors, or any of the employees working with them.
Instead, the General Counsel relies mainly upon the
testimony of Machinist Smith, and the Company and the
Union rely mainly on the testimony of Manager William
Glass. The testimony of Smith and Glass are in sharp
conflict on a number of points.
The General Counsel contends in his brief that an
inference should be drawn, from the failure of the
Company and Union to call Jones or Rodgers, that their
testimony would have been unfavorable to the Company
and the Union. However, the General Counsel has the
burden of proof on the issue of supervisory status, and he
has offered no justification for not calling these witnesses
himself if he considered their testimony necessary for
meeting that burden. I therefore reject the contention.
In view of the virtual absence of corroborating testimo-
ny, I find it necessary to decide whether Smith or Glass
was the more credible witness, before determining whether
the General Counsel has met his burden of proof. In
making the credibility findings, I have weighed all the
evidence, and considered all the arguments of the parties,
after having closely observed the demeanor of the
witnesses on the stand.
Machinist Smith, who had no personal interest in the
outcome of the case after the pretrial settlement of the
allegation that he was constructively discharged, impressed
me as an honest , forthright witness at all times . Extensive
cross-examination pointed out some errors in his memory,
particularly in recalling dates. As an example, he testified
that October 7 was the date he went to work for a new
employer after leaving the Company on September 29.
(The new employer "left it in this way, that if I wanted to
come to work out there, report to work on Monday
morning.") The October 7 date was obviously wrong,
because it fell on a Saturday, and was the end, rather than
the beginning, of Smith's first pay period. However, it is
undisputed that Smith had checked with the secretary in
the new employer's office to determine when he was hired
(in connection with computing the amount of his backpay
under the pretrial settlement agreement), and that the
secretary advised him that October 7 was the date he was
hired. Contrary to the Company's contention that Smith
was completely discredited, Smith's memory appeared to
be generally good, and he appeared to be attempting to
testify as accurately as he could.
Manager Glass also appeared to have a good memory.
However, when testifying about the functions of the two
alleged supervisors, he impressed me as being less than
candid. Finally, when the Company produced Jones' and
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rodgers' timecards, Glass began giving testimony which
appeared to be clearly fabricated. The timecards show
instances of where these alleged supervisors had initialed
corrections on their own timecards, whereas machinist
Smith's timecards bore only the initials of his foreman as
approving corrections (and the initials of Rodgers' foreman
appeared by a correction on one of Rodgers' timecards)
When asked by company counsel if it was permissible for
an employee to initial such corrections, Glass answered:
"The only way I can answer it is to simply say that in order
to record the information on the timeclock so that the
accounting department will know of something, that's the
only place the employee has to record it , if there is some
data that should be there for accounting purposes... .
The accounting department will contact the foreman of the
department to ask any clarification that they need
concerning that and then if the foreman does not know, he
would call the employee and ask." Later, when the
Company produced the August and September timecards
for three employees working with Jones, the timecard of
employee Harvey Clinton for the week ending October 3
clearly bore the same initials, "WJ," as appeared on Willie
Jones' timecards. Instead of candidly admitting that he had
been in error , when indicating that employees initial
corrections on their own timecards, Glass gave clearly
fabricated testimony, testifying that those were the initials
of Harvey Clinton:
Q. Are those the cards used by the men in
reporting their time week by week for the periods
indicated?
A. Yes, sir. Evidence of that is the initial of Harvey
Clinton where he made a mistake of his time on
October 3, which is what employees are supposed to do.
[Emphasis supplied.]
Thus, Glass positively identified, as being Harvey Clin-
ton's, the initials which were quite similar to the "WJ"
which Glass had readily identified as being Willie Jones'
initials on Jones' timecards. (It takes no handwriting expert
to determine the similarity between the "WJ" on Clinton's
timecard, General Counsel Exhibit 7, and the "WJ"
repeatedly written on Jones' timecards, General Counsel
Exhibits 8 and 9. There is no possible way of confusing
these initials with any combination of initials for Harvey L.
Clinton.) Glass next testified that, "I didn't see Mr. Clinton
make these . I assume they are the initials of Mr. Clinton,"
and claimed, "They appear to me to be different" from the
"WJ" on Willie Jones' cards. Later, on cross-examination,
he testified, "No, sir. I cannot distinguish the initials" on
Clinton's card.
Manager Glass did not impress me as being a forthright
witness.
2. Status of Willie Jones
The September 20 seniority list shows that the Company
had a foreman over each of five production and mainte-
nance departments. The sheet metal department foreman
was over 66 employees; the conveyor department foreman
was over 35; the shipping department foreman over 14; the
machine shop department foreman over 13, and the plant
maintenance department foreman over 6 employees. The
remaining department in the plant area , listed as the
warehouse and receiving department, showed no foreman,
but listed Receiving Clerk Willie Jones over four employ-
ees (material handler J . W. Chambers and warehousemen
Mack Carpenter, Harvey Clinton, and James Moon). This
seniority list was furnished by the Company to the Union
as required by the collective-bargaining agreement. Thus,
the published seniority list indicates to the employees that
each of five departments was headed by a foreman, and
the sixth department was headed by Receiving Clerk Jones.
(For its own purposes, the Company had an organizational
chart showing five production and maintenance depart-
ments, and on a different level, a production and inventory
control supervisor, Bob Newton-who was Jones' immedi-
ate supervisor.)
The five foremen, and Supervisor Newton, were salaried
supervisors, with different benefits from the contractual
"Leadmen and Working Foreman" (such as Receiving
Clerk Jones) who, as members of the bargaining unit,
"shall draw a minimum of 10c per hour above the
maximum rate being paid to regular employees of the
leadman's or working foreman's sub-department." At the
time of the seniority list, Jones was being paid $3.75 an
hour, as compared to $2.95 being paid material handler
Chambers (an employee since 1958), $2.55 paid warehouse-
man Moon, and $2.45 paid warehouseman (or warehouse
clerk) Clinton. (The maximum contractual rate for material
handlers was $3.20 and for warehousemen was $2.95.)
Receiving Clerk Jones' office is near the receiving dock,
and the warehouse clerk, at a separate desk in the office,
handles much of the clerical work. (The office of Jones'
immediate supervisor , Newton , is upstairs where Newton
supervised a group of clerical employees.)
Jones, who has over 25 years of service, has a responsible
position in the receiving, warehousing, and handling of
materials at the plant. He gives orders to, and directs the
work of, not only the three or four employees assigned to
his department, but also other material handlers in the
plant-such as material handler (forklift operator) Sank
"Slim" Brown who is assigned to the conveyor department,
and material handler John Tovar who is assigned to the
shipping department. This work includes unloading and
storing pipe and materials in the north and south yards,
moving pipe into the machine shop, taking finished
material from the machine shop to the welding shop,
moving various finished items from the production areas to
the warehouse for storage (until needed for assembly or for
shipment), and removing scrap from various points in the
plant . This work is in addition to the receiving and storage
of materials in the warehouse, and moving materials from
the warehouse to the production areas.
One of the Company's own documents, the November
13 employee performance review for Jones (approving a
10-cent wage increase, to $3.85), recognizes the importance
of Jones' leadership role. The review cites his "outstanding
leadership" and states that his "vast product knowledge
and concern contributes vastly to our operation."
As alluded to above, Receiving Clerk Jones has demon-
strated his authority over warehouse and receiving employ-
ees by acting in the role of a foreman, when initialing a
JEFFREY MFG. CO. 81
correction on warehouse clerk Clinton's October 3 time-
card. Furthermore, Jones initialed corrections on his own
timecards, and at least for the 3-month period preceding
machinist Smith's termination, Jones followed the practice
of retaining his own timecard-contrary to the instructions
to rank-and-file employees to leave their timecards in the
timerack. He also distributed paychecks to employees in
his department.
In addition to directing forklift work of Sank Brown (an
employee in another department), he exercised authority
over Brown early in 1971 by signing a medical slip,
authorizing Brown to leave work and see a doctor.
(Machinist Smith received such a slip from his own
foreman about the same time, before the Company
changed insurance carriers, and began issuing medical slips
from the office. I discredit Manager Glass' uncorroborated
denial that foremen had issued such slips.)
As already found, Receiving Clerk Jones stated at a
meeting of the Union's negotiating committee in early
September 1971 that he had discharged employees at the
plant. He did not indicate how he effected such discharges,
but his above-found conduct a year later (when he talked
to Machine Shop Foreman Barnes about getting rid of the
"troublemaker" Smith-who was not even in Jones'
department) may give some indication of what Jones had
in mind when mentioning at the committee meeting about
discharging employees. (I credit Manager Glass' testimony
that only members of the management club--consisting of
foremen and higher supervision-have the authority on
their own to discharge employees. However, I do not credit
Glass' testimony that Jones has not been invited to attend
any meetings of that club. Machinist Smith credibly
testified that on one occasion when he was eating lunch
with other employees in Foreman Barnes' office-where
Smith usually saw the monthly meeting announcements of
the management club-he observed one of the announce-
ments on the foreman's desk, showed it to the other
employees, and commented, "How does this grab you;
Management Club, and it's got Mr. Jones and Mr. Rodgers
names on the bottom." As he recalled, he saw their names
on the announcement three or four times. When the
Company produced copies of the monthly announcements-
-none of which bore the names of Jones or Rodgers-
-Glass testified, "I put out a notice of every meeting to
the supervisors as to whether or not any changes would be
forthcoming," and that if any meeting could not be held, "I
would put out a notification that the meeting would either
be rescheduled or postponed or something of this nature."
Yet the Company produced no notices for the months of
July and September 1971. When asked by the General
Counsel whether these did not represent all such memoran-
dums distributed, the company counsel frankly answered,
"There may be some exceptions." However when asked by
the company counsel if this was right, Glass claimed that
the documents being offered into evidence represented "all
the meetings . . . of any type that were actually held or
notification of postponements or other information per-
taining to that." Yet, the Company did not produce the
notices for the previously scheduled July 26 and September
27, 1971, meetings, or proof that the meetings were not
held. Although the record does not reveal why Jones and
Rodgers were invited on the one occasion when Smith
showed their names to other employees eating lunch with
him in the foreman's office, and possibly on another
occasion-but evidently not more than twice, contrary to
Smith's recollection-I note that the scheduled July
meeting was about the time of the union election of the
negotiating committee and the September meeting was
scheduled to be held shortly before the contract negotia-
tions.)
It is clear that Manager Glass was not a candid witness
when testifying about Receiving Clerk Jones' role at the
plant. Instead of detailing Jones' responsibility as a
leadman or working foreman, Glass testified that Jones
was one of four persons who would receive the material,
and attempted to leave the impression that it was
Production and Inventory Control Supervisor Newton who
directed the work. Despite the fact that Jones had been
cited in a recent performance review for his outstanding
leadership, and that Jones was a senior employee whose
"vast product knowledge and concern contributes vastly to
our operation," Glass testified that Newton had instructed
Jones "to receive the pipe and put it in its normal storage"
place; that Newton designates where every item is to be
kept; that in addition to doing filing and clerical work, or
jobs which Jones or other receiving department employees
might do, warehouse clerk Clinton "would do other things
in relationship to whatever directions Bob Newton might
have set out"; that "Bob Newton has basically set up his
department so that Willie Jones, Dock Chambers, Keith
Moon, Harvey Clinton . . . can receive"; and that if an
item like bearings is received by one of the department
employees and not placed in the designated place, Jones
might come along and put them up or "Bob Newton might
have come through and said, `What the hell are these
bearings doing on the floor, why aren't they put up,' and
somebody would have jumped and put them up." When
asked by company counsel which persons had the
authority "responsibly to direct employees in the perform-
ance of their work," Glass answered, "Those people who
are members of the Management Club, or supervisors,
because they are the ones responsible for the budget in their
department." (Emphasis supplied.) This would be a plausi-
ble basis for membership in the management club, but an
unlikely basis for determining who responsibly directs the
work. Glass impressed me as endeavoring to provide a
defense for the Company, rather than candidly revealing
the actual situation at the plant.
After weighing all the credible evidence, I find that the
evidence clearly establishes that' Receiving Clerk Jones
possesses the supervisory authority to responsibly direct
the work of not only employees in the warehouse and
receiving area but also these and other employees in
moving materials into and from the machine shop, from
different departments to the warehouse, and in removing
scrap from various points in the plant. I also find that he
possesses the authority to effectively recommend the'
discharge of employees. I therefore find that he is a
supervisor as defined in Section 2(11) of the Act.
3. Status of Marvin Rodgers
The General Counsel alleges that Marvin Rodgers is a
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sheet metal supervisor. The Company asserted at the trial
that Rodgers "actually has no title assigned to his job," and
that Rodgers does predominately clerical work under Sheet
Metal Department Foreman Jack Rainey.
Rodgers, *ho was employed in 1954 in the sheet metal
department, has been a leadman since 1963. He, like
Receiving Clerk Jones, mentioned during the September
1971 negotiating committee meeting that he had dis-
charged employees. Also like Jones, he initialed corrections
on his own timecards and, unlike rank-and-file employees,
retained his own timecard at least for several months (in
the summer of 1972). In September, he was being paid
$3.85 an hour (10 cents an hour more than Jones). His
November 21 employee performance review, approving a
wage increase to $3.95 an hour, stated that "He is
dependable and gets along with all the men."
Rodgers shares an office with, and has the same
telephone extension as, Foreman Rainey who is over the
plant's largest department. In September there were 66
persons (including 7 leadmen) working in the sheet metal
department under Rainey. The September seniority list
shows a total of 68 persons (including 5 leadmen) working
in the 5 next largest departments (each of which has a
separate foreman). Thus, outside the warehouse and
receiving department (under Receiving Clerk Jones),
Foreman Rainey was over about half of the production
and maintenance employees, and over 7 of the 12 leadmen.
The sheet metal department (which expanded from 36
hourly personnel in January 1971 to 66 in September
1972-an increase of 83 percent) had an assistant foreman
between September 1971 and May 1972. Manager Glass
testified that this assistant foreman, Milford Hooper, was
in complete charge of the sheet metal department in
Foreman Rainey's absence, but denied that there has been
an assistant foreman after Hooper left in May-testifying
that "the slack was picked up by Jack Rainey."
When cross-examined by the company counsel, machin-
ist Smith credibly testified that Machine Shop Foreman
Barnes stated (contrary to Barnes' denial) that Rodgers
"Had moved up to Mr. Hooper's place" shortly after
Hooper departed. Smith expressed the conclusion: "That's
the reason they ain't got no title" on Rodgers.
It is clear , however, that Smith did not have the
opportunity of observing Rodgers (as he did Jones) giving
orders and directing the work, and that Smith reached
some erroneous conclusions about Rodgers' status. Smith
saw in the machine shop office various work-flow
memorandums signed by Rodgers-without any title-and
assumed from this that Rodgers had supervisory authority:
"They never did ask me to put my name on something
down there." Smith also testified, "I know Rainey used to
run all the errands . . . when something went wrong up
there in the machine shop," and that this gave him the
impression that Rodgers was having Rainey run the
errands. Smith also erroneously believed that Rainey had
been an assistant foreman under Hooper, and that when
Foreman Barnes stated that Rodgers had taken Hooper's
place, that meant that Rodgers was the foreman and that
Rainey was his assistant. Smith was not in a position to
observe Rodgers on the job, or to have first-hand
knowledge of Rodgers' status in the sheet metal depart-
ment. As already indicated, the General Counsel did not
call Rodgers, or any of the persons working with him, to
testify.
It is also clear that the General Counsel did not establish
through Manager Glass that Rodgers was a supervisor.
Glass denied that Rodgers had any supervisory authority,
and even denied that Rodgers had the responsibility of
answering Foreman Rainey's telephone in Rainey's ab-
sence (after first testifying, "Sure, if he's there"). Glass
claimed that Rodgers spent about 80 to 85 percent of his
time in the office, doing production planning breakdowns.
On cross-examination, Glass changed his testimony and
asserted that Rodgers spent "somewhere around" 60
percent of his time doing this work, and spent the other 40
percent of his time on the floor, perhaps loafing, or talking
to the men about something "to get squared away with the
foreman," or "picking up papers from Bob Newton's
department," or asking the foreman when something
would be finished. At one point, Glass testified that
Rodgers was a "working leadman, distributing information
that Jack Rainey . . . would have wanted the men to do."
At another point, he testified that Rodgers "with the years
of experience that he has had . . . we could have him out
there any time we needed him, if another leadman there
was sick or something like that." He denied that Rodgers
would assign work and say, "The Company needs this
done and therefore you are directed to do it."
I therefore find that the General Counsel has failed to
prove that Rodgers had any supervisory authority. Al-
though machinist Smith credibly testified that Machine
Shop Foreman Barnes (an admitted supervisor) stated that
Rodgers took Assistant Foreman Hooper's place, and
Rodgers shares an office with (and has the same telephone
extension as) Foreman Rainey and is thereby placed in a
position which may indicate to the employees in the
department that Rodgers is Rainey's assistant, the General
Counsel failed to call any witnesses to give any direct
testimony about Rodgers' responsibilities and status, or to
establish that Rodgers is serving as an assistant foreman
with supervisory authority. The General Counsel has also
failed to prove that Rodgers recently sought, as did Jones,
the discharge of an employee.
4. Concluding findings
Throughout 1972, and until the trial in April 1973,
Receiving Clerk Jones continued to be president of the
independent union. (He is also vice president of the
independent federation, FITU, with which the Union and
two other small locals are affiliated.) It is undisputed that
the Company met with Jones in the summer of 1972
concerning the disputes over the employees' performance
reviews. (When Machinist Smith filed his September 13
grievance against the Union, he was complaining that
Union President Jones and Secretary Rodgers had by-
passed the member-elected union plant committee and
dealt directly with the Company, asserting: "I am grieved
by the Union in that I am not being properly represented
by the Union. The people elected to represent me are not
being allowed to do so.") Also, as found above, the
Company (through Foreman Barnes) met with President
JEFFREY MFG. CO. 83
Jones in September concerning one or both of Smith's
grievances.
Thus, during the 6 months preceding the November 30
charge against it, the Company recognized Jones, its own
supervisor, as the Union's president, and dealt with Jones
as a representative of its employees in handling disputes
arising under the collective-bargaining agreement with the
Union. "Such a mingling of supervisory and employee-
representative function has denied the Respondent's
employees their rights under the Act to be represented in
collective-bargaining matters by individuals who have a
single-minded loyalty to their interest. By . . . dealing with
him in this capacity the Respondent has therefore
interfered with this right of its employees and also with the
Union's proper administration of its representative func-
tion," in violation of Section 8(a)(2) and (1) of the Act.
E.E.E. Co. Inc., 171 NLRB 982 (1968), involving an
employer dealing with a supervisor as the union steward in
handling grievances and in contract negotiations; G & H
Towing Co., 168 NLRB 589, 590, 596-597 (1967), where
"no new contract had been negotiated within the 10(b)
period," but the "clarifications committee," containing
supervisors, was active during that period, and citing
Powers Regulator Company, 149 NLRB 1185 (1964), enfd.
355 F.2d 506 (C.A. 7, 1966), in which "the Board found a
violation even though the single supervisor on the
bargaining committee was a borderline supervisor."
In view of these findings, I deny the Company's motion
to dismiss all the allegations in the complaint against it.
CONCLUSIONS OF LAW
1. By attempting to cause the Company to discriminate
against an employee in his tenure of employment to
encourage union membership on the part of other
employees, the Union engaged in unfair labor practices
affecting commerce within the meaning of Section 8(b)(2)
and (1)(A) of the Act.
2. By permitting Willie Jones, one of its supervisors, to
serve as the president of the Union, and by recognizing and
dealing with him in that capacity in administering and
handling disputes arising under the collective-bargaining
agreement with the Union, the Company has interfered
with the administration of the Union in violation of
Section 8(a)(2) and (1) of the Act.
3. The General Counsel has failed to prove in this
proceeding that Union Secretary-Treasurer Marvin Rodg-
ers is a supervisor within the meaning of Section 2(11) of
the Act.
REMEDY
Having found that the Respondents, Company and
Union, have engaged in certain unfair labor practices, I
find it necessary to order them to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
As found, the Company during the 10(b) limitation
period (beginning May 30, 1972) unlawfully interfered with
the administration of the Union by permitting one of its
supervisors, Receiving Clerk Jones, to serve as the union
president, and by recognizing and dealing with him in that
capacity. Whether or not such unlawful conduct, when
considered in isolation, would necessitate an order direct-
ing the Company to withhold recognition from the Union
unless and until the independent union is certified, I find
that such a remedy is necessary when the background
evidence is taken into consideration. As held in N.L.R.B. v.
Lundy Manufacturing Corporation, 316 F.2d 921, 927 (C.A.
2, 1963), cert. denied 375 U.S. 895 (1963), "the Board may
look to earlier events to determine the appropriate remedy
to be prescribed."
In 1971, after unsuccessful employee efforts to obtain
sufficient signatures on a petition to decertify the Union,
Supervisor Jones-while serving as union president
-played a dominant role in influencing the member-
elected union negotiating committee. He informed the
committee of his supervisory role by telling them that he
had discharged employees at the plant, and stated "that he
had been out there 20 something years" and "no grievances
got by me." Later, at a membership meeting, Jones
personally appointed machinist Smith to be chairman of
the negotiating committee. Thereupon, Smith told the
union membership that he thought too much of the
contract language "leaned toward the Company," and the
membership requested Smith to get copies of union
contracts at other company plants and negotiate a
completely new agreement . Jones then stated "that they
had been doing good under the^,,contract that they had for
years out there and he didn't see any reason to change it."
After Smith had obtained copies of other contracts and
prepared a new proposal, which was approved by the
negotiating committee, Jones would not permit the
proposal to be submitted to the Company, stating that he
did not want anything to do with the proposal or with the
other contracts. Shortly before the brief negotiations with
the Company began, Jones further influenced the union
negotiating committee by stating "he was there because the
Company wanted him there." And in the negotiations, as
machinist Smith credibly testified upon cross-examination
by the company counsel, "every time [Manager] Glass
wants a yes or no," and says to Jones, "Ain't that so,
Willie?" Jones would say, "Yes, sir." ('The company
counsel asked, "But you didn't stand up to anything; is
that what you're saying?" Smith answered, "Well, the
expression, `there ain't no use to fight City Hall.' ") The
negotiations began about the second week in October 1971
and were concluded by October 19, 1971. Thus, by having
a supervisor at the head of the Union, the Company had
his assistance before and during the negotiations-despite
"the adage that an employer may not sit on both sides of
the bargaining table." The Powers Regulator Company v.
N.L.R.B., 355 F.2d 506, 508 (C.A. 7, 1966). Under these
circumstances, I find that it is necessary, as a remedy for
the Company's continued illegal dealings with its supervi-
sor as the Union's president during the 10(b) limitation
period, that the Company be ordered to withhold recogni-
tion from the Union and abrogate the new 3-year contract
(effective November 1, 1971, and expiring October 31,
1974) unless and until the Union is certified.
[Recommended Order omitted from publication.]