Nevada Tank and Casing

National Labor Relations Board - Board Decisions

Aug 21, 1963

144 N.L.R.B. 123 (N.L.R.B. 1963)

NEVADA TANK AND CASING 123
All our employees are free to become, remain, or to refrain from becoming or
remaining, members in the above-named or in any other labor organization.
VENUS PEN AND PENCIL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Seventh
Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No.
Jackson 7-5451, if they have any question concerning this notice or compliance with
its provisions.
Nevada Tank and Casing and International Brotherhood of
Boilermakers , Iron Ship Builders , Blacksmiths & Forgers,
Local #10, AFL-CIO. Case No. 2O-CA-2394. August 21, 1963
DECISION AND ORDER
On April 29, 1963, Trial Examiner Eugene K. Kennedy issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief, and the Respondent filed a brief in support of
the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error Was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.'
i We are not convinced that a clear preponderance of all the relevant evidence warrants
overruling the Trial Examiner's credibility resolutions with respect to the alleged unlawful
statements made by Plant Manager Walker. Accordingly, we agree with the Trial Ex-
aminer's finding that such statements were not made. Standard Dry Wall Products, Inc,
91 NLRB 544, enfd. 188 F. 2d 362 (CA 3). We agree, without however adopting the en-
tire discussion of the Trial Examiner relating to an employer's responsibility for the con-
duct of his supervisors, that in the particular circumstances of this case a finding of a
violation of Section 8(a) (1) and (5) is not warranted on the basis of the statements made
by Hughes and Griffith to employees We concur, therefore, in the Trial Examiner's con-
clusions that there was no unlawful refusal to bargain because of such alleged statements,
that the strike following unsuccessful bargaining negotiations neither commenced as nor
was converted to an unfair labor practice strike, and that there was no possible unlawful
discrimination at the end of the strike with respect to a delay in offering reinstatement to
four of the economic strikers who had been replaced However, we find it unnecessary to,
and do not, pass upon the Trial Examiner's assumptions arguendo that if Walker made
144 NLRB No 6
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board dismissed the complaint.]
such statements and Respondent were responsible for the statements of Hughes and
Griffith, such statements would still not warrant a remedial order, or his assumption
arguendo that if Respondent were responsible for Griffith's statements, such statements
had no causal effect In prolonging the strike.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard in Reno, Nevada, on January 15, 16, 30, and 31, 1963, before
Trial Examiner Eugene K. Kennedy. The basic issues are whether Nevada Tank
and Casing, herein called Respondent, violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, herein called the Act, and also whether
the strike which occurred on September 13, 1962, was an unfair labor practice
strike having consequences entitling the striking employees to certain backpay bene-
fits, and whether the failure by Respondent to provide such benefits constituted a
violation of Section 8(a)(3) and (1) of the Act. Upon consideration of the entire
record, including my observation of the witnesses, and after a consideration of the
briefs filed by the Respondent and the General Counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY ; THE LABOR ORGANIZATION INVOLVED
Respondent is a Nevada corporation with its main office and principal place of
business located at Reno, Nevada. It is engaged in the manufacture and distribu-
tion of steel tanks and casings. During the year 1961 , Respondent sold and shipped
goods valued in excess of $50,000 from its plant in Nevada directly to places outside
the State of Nevada and received materials valued in excess of $50,000 directly
from suppliers located outside the State of Nevada . It is found that Respondent
at all times material has been engaged in commerce and in operations affecting com-
merce within the meaning of the Act.
International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths &
Forgers, Local #10, AFL-CIO, herein called the Union, is engaged in representing
employees and is a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On January 30, 1962, the Union was certified to represent the following described
unit of Respondent 's employees:
All production and maintenance employees at the Employer's plant in Reno,
Nevada, excluding all office clericals, guards, professional employees and super-
visors as defined in the Act.
Following this certification, representatives of the Union and Respondent engaged
in a series of negotiations commencing on February 2, 1962, and terminating on
October 12, 1962. The General Counsel makes no claim, nor does the complaint
allege, that the content of the negotiations demonstrates Respondent's bad faith in
collective bargaining but relies upon extraneous acts coincident with the negotiations
as establishing Respondent's breach of its duty to bargain in good faith. Consequently
there is no necessity for considering the negotiating sessions except to note that they
ended with the parties in disagreement over three issues, the principal one being the
failure to agree on a seniority provision, with the secondary issues relating to wages
and holidays.
At all times material, William Walker was in charge of Respondent's Reno plant.
Under him was an individual named C. S. Hughes characterized by Walker as a
working foreman. The question of Hughes' supervisory status within the meaning
of the Act will be considered below. Hughes, who did not testify, was discharged
by Respondent shortly before the strike which began on September 13, 1962. The
record reflects Hughes ' strong opposition to anyone, including himself, crossing a picket
line, and it also reflects he was a union member. The third member of manage-
ment hierarchy to whom the General Counsel attributes statements constituting unfair
labor practices is Earl Griffith. The nature of his comments as well as his supervisory
status are reserved for further consideration below.
NEVADA TANK AND CASING 125
The strike terminated on November 6, 1962, with its abandonment by the Union
without achieving the objectives for which the strike was instituted. The General
Counsel contends that the strike was an unfair labor practice strike and that in some
instances Respondent practiced unlawful discrimination in delaying reinstatement of
some of the striking employees.
B. Alleged unlawful activities
1. Statements of Plant Manager Walker
Except for the alleged wrongful delay in reinstatement, the unlawful activities
of Respondent are predicated on the following charging allegations of the complaint.
On various unknown dates in July and August 1962, C. S Hughes bypassed
and circumvented the Union, solicited employees to abandon the Union, bar-
gained with them individually, and offered to them increased wages in excess of
those offered the Union in negotiations;
On various unknown dates in July and August 1962, William E. Walker by-
passed and circumvented the Union, solicited employees to abandon the Union,
bargained with them individually, and offered to them increased wages in excess
of those offered the Union in negotiations;
On or about September 29, 1962, and various unknown dates in September,
1962, Earl Griffith bypassed and circumvented the Union, solicited striking
employees to abandon the Union and return to work, bargained with them
individually and threatened them with discharge unless they abandoned the
Union and returned to work.
An examination of the evidence in some detail is demanded because of the
circumstances surrounding the statements on which the General Counsel rests his
claim of unlawful conduct on the part of Respondent.
Consideration will first be given to the unlawful statements Walker allegedly
made in July and August 1962. Employee Dickinson testified that sometime in
July 1962, an employee named Zimbra (who died October 1, 1962) and he had a
conversation in which Zimbra said, in effect, all the employees preferred to deal
directly with Respondent without the aid of the Union. It was on this day Zimbra
informed a union representative, who was waiting outside the plant, of the em-
ployees' decision to dispense with the Union and deal directly with Respondent.
Dickinson went on to testify that on the same day, about 4:30 p.m., he asked
Walker if it were true about getting the raise and the Union "going down the road."
According to Dickinson, Walker said, "Well, I see no reason why the company
and the employees couldn't come to an agreement without the aid of the Union and
get the same benefits Perkins employees in Sacramento were getting." i
During the pendency of the strike which commenced on September 13, 1962,
Dickinson testified that he asked Walker why Respondent could not give the same
benefits as Perkins' employees were getting, and Walker replied that Perkins' em-
ployees had been working for about 15 years and that was the reason for their
increased benefits
Employee James Wessman testified with respect to a conversation he had with
Walker after Zimbra had told him the employees preferred not to be represented
by the Union. Wessman was selected as the spokesman for the employees to deal
with Walker instead of the Union. Wessman, after being designated as spokesman
for the employees, asked Walker how he wanted to handle the negotiations. Walker
told Wessman that he would first have to obtain some kind of release from the
Union. This conversation, as far as can be ascertained from the record, occurred
on the same day as Dickinson's claimed talk with Walker. About a week later
Wessman asked Walker if he had heard from the Union and Walker stated that the
Union would not give a release and that his lawyer advised him not to discuss
the matter any further with the employees.
It is difficult to square Walker's alleged response to Dickinson in the first con-
versation with his statement to Wessman about the necessity of obtaining a release
from the Union The lawyer's advice not to discuss the matter with employees was
given after both conversations and does not present a basis for the different responses.
Walker gave the impression of a witness doing his best to answer the questions put to
I The significance of the reference to benefits that Perkins' employees were enjoying is
that there was a community of interest between the owners of Perkins and Respondent
and that Perkins' employees, working in a plant at Sacramento, California, under the
terms of a collective-bargaining agreement, were enjoying benefits not available to em-
ployees of Respondent This fact was known to Respondent's employees in Reno, Nevada
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him in a truthful manner. In view of the general impression that Walker evidenced
as a witness and the pattern of conduct he exhibited over a period of several
months in dealing with the Union, it seems highly implausible that he would
express the opinion attributed to him by Dickinson under such circumstances
while at the same general time informing employee Wessman that he would not
negotiate without a release from the Union. Consequently, Walker's denial of the
statement attributed to him by Dickinson is credited.
Assuming, arguendo, that a conversation about the Union occurred in July between
Dickinson and Walker in substantially the manner related by Dickinson, in the con-
text of the entire record such a comment by Walker occurring after the employees
had already decided to negotiate without the Union would appear, at most, to con-
stitute only minimal unlawful interference violative of the Act. As found below,
the employees' decision to abandon the Union is not chargeable to any unfair labor
practice of Respondent.
Again assuming, arguendo, that Dickinson correctly recalled the comments of
Walker that he attributed to him, inasmuch as they were made in response to a
question by Dickinson after the employees had all indicated a desire to dispense
with the Union, such comments also arguably constitute a lawful expression of
opinion by Walker as to the outcome of negotiations under changed circumstances
protected by Section 8(c) 2 The exoneration of Walker, in connection with the
statement attributed to him by Dickinson, is based primarily on his credible denial
of a statement, that in the context of all of his other conduct and other factors
reflected by this record would be an implausible one for him to make. The timing
of the alleged comment as occurring after the employees' decision had been made
to abandon the Union and the form of the comment as possibly expressing Walker's
opinion, if such a comment were made, are mentioned to indicate the equivocal
aspect of such a statement constituting interference with the Section 7 rights of the
employees.
Employee Holmes in his testimony attributed a statement to Walker similar to the
one Dickinson related. According to Holmes, about 1 p in. on a day in July 1962,
he and Foreman Hughes and employee Zimbra were in a group when Zimbra said,
"The union men are supposed to be up tonight and if we can get together with Mr.
Walker why we will drop the union." At this point, according to Holmes, Walker
came by and laughed and said, "I see you are talking about the union" and went
on to say, "Well there is no reason why we can't negotiate among ourselves" and
Zimbra replied, "Well alright we can go that route" and Walker replied, "We will
see if the union talk dies down. If it does we will see about getting a 10¢ raise
in the shop."
Walker's denial of this statement is more plausible than Holmes' version. That
Walker would initiate such a statement seems highly unlikely. General Counsel's
witness, Wessman, when acting as the spokesman for the employees, was informed
by Walker that a release from the Union was necessary before negotiations could
be begun. The conduct of Respondent in negotiationg with the Union in which
Walker participated does not provide a basis for finding Respondent was carrying
on a campaign to have the employees disavow the Union. In fact, early in the
course of negotiations, Respondent offered a contract which the Union rejected, and
when the Union abandoned the strike, Walker took back in Respondent's employ all
the striking employees desiring to return If any words concerning the Union
were in fact exchanged between Zimbra and Walker in the presence of Holmes and
Hughes, I find that Holmes failed to relate them correctly as it seems totally im-
plausible that Walker would introduce such comments about the Union in address-
ing employees Both the form of the alleged comment and its content do not seem
consistent with Walker's attitude toward labor relations expressed on the witness
stand and his declination to deal with Wessman as the employees' spokesman
until the Union gave a release. Nor is the initiation of these alleged comments
in character with the conduct of Walker during several months when the subject
of the Union was freely discussed in the plant by the employees Taking the
record as a whole, I find that Walker. as plant manager, permitted the employees
free discussion concerning union oreanizations during working time, and carefully
avoided, as a matter of policy, making any comments that might constitute inter-
ference with the employees' right of organization Consequently it is found Walker
did not make the comment attributed to him by Holmes.
2 Section 8( c) reads as follows:
The expressing of any views, argument , or opinion , or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or he evi-
dence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit
NEVADA TANK AND CASING 127
Inasmuch as the record reveals that the subject of the Union and the possibility
of the wage increase were constant subjects of conversation among the employees
for several months and carried on with Foreman Hughes, it may be that Holmes
attributed to some comment of Walker a meaning that was expressed either by
Hughes or one of the other employees. Walker's denial is credited absolutely to
the extent that he initiated a conversation suggesting employees would be better
off without the Union. His denial of the conversation as occurring, as related by
Holmes, is credited because of the impression of veracity Walker evinced. More-
over, Walker's testimony is credited to the effect that he instructed Foreman Hughes
two or three times in July not to discuss the Union with the employees. Since
Walker certainly did not give the impression of being irrational, it would follow
that he would not engage in conduct that he had instructed his foreman to avoid.
For the reasons noted, it is found that the evidence falls short of establishing
Walker promised employees benefits as a condition for the abandonment of the
Union. Nor does the evidence establish that Walker solicited employees to abandon
the Union, nor that he bargained with them individually or offered wages in excess
of those offered the Union
2. Statements of Hughes and his supervisory status
Towards the end of the hearing Respondent amended its answer to deny that
Hughes was a supervisor within the meaning of the Act.
Walker, when called as a witness for the General Counsel, testified that Hughes
had authority to hire, discharge, and discipline employees and to assign work that
Walker laid out. He also testified that Hughes spent 40 to 50 percent of his time
welding and in addition did other manual work. When called as a witness for the
Respondent, Walker estimated Hughes spent about 90 percent of his time in produc-
tion work. This estimate is not necessarily inconsistent with his original estimate
of 40 percent of time spent by Hughes on welding as there was no percentile of time
fixed by Walker in his original testimony when Hughes was doing manual work other
than welding. Walker also testified that Hughes was an hourly paid employee
receiving 10 cents an hour more than the welders and that he was docked for time
absent the same as any other employee. Although Walker testified he did not give
Hughes authority to assign employees or to give them time off or to hire them, he
admitted Hughes had assumed authority in these areas which, as the record indicates,
was tolerated by Walker. It is clear and undisputed that Walker accepted Hughes'
recommendations as to hiring for at least two employees without seeing them, and
also that Hughes made an effective recommendation to fire at least one employee.
Although Walker may not have regarded his original testimony as correctly de-
picting Hughes' status in Respondent's organization and his subsequent testimony
operated to more accurately reflect Hughes' position, nevertheless, the fact remains
that the record establishes without question that Hughes had the attributes of a
supervisor within the meaning of the Act.
Hughes was hired by Walker in the latter part of March 1962. The General
Counsel offered testimony through employee Wessman to the effect that in April
1962, in a conversation about the Union initiated by Wessman, Hughes told Wessman
that Smith, one of Respondent's owners and a friend of Hughes, had said that Re-
spondent's employees would receive a 10-cent per hour wage increase when the
union activities died down.3
The General Counsel relies on this testimony as demonstrating that Respondent,
acting through Hughes, commenced in April 1962 to undercut the Union The next
claimed acts of interference occurred in June when the employees initiated conversa-
tions with respect to eliminating the Union.4 A contention that Hughes' remark
to Wessman, which the record does not show was repeated to any other employees,
planted the seed which blossomed into the rejection of the Union by the employees
3 Respondent's motion to strike this testimony, because it was outside the scope of the
complaint, was taken under submission at the hearing The charging allegations of the
complaint are limited to July and August 1962 The General Counsel urges that the
testimony should be allowed to stand in that it was explanatory of later conduct of
Respondent. The motion to strike the testimony is denied on the basis of the statement
of the General Counsel as to the purpose for which the testimony was offered However,
as will be reflected elsewhere, the theory of the case advanced by the General Counsel is
not regarded as being established by the evidence
4 Employee Robison initiated a conversation with Hughes either in late June or early
July concerning the Union, and solicited Hughes' opinion Hughes expressed the view
that the employees could probably do better by selecting their own committee to negotiate
with Respondent.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in July, lacks any supporting evidence. As far as this record goes, the employees
became dissatisfied with the Union as its negotiator and initiated the move to deal
directly with Respondent Respondent's failure to agree to a contract satisfactory
to the Union and to the employees, although it may have resulted in the employees'
dissatisfaction and rejection of the Union, is not thereby made unlawful.
There are circumstances reflected by the record which bear on the extent of the
interference, if any, with the employees' organizational rights Hughes' remarks may
have caused. Hughes was discharged shortly before the strike commenced on Sep-
tember 13, 1962, and was unavailable as a witness. However, the General Counsel's
witnesses have provided some indicators as to the probable impact of Hughes' state-
ments on the employees which may be of questionable legality under the Act.
Hughes' opinion expressed to employee Wessman, in response to a question by
Wessman, was to the effect that the employees could obtain additional benefits without
the Union. Employee Robison also testified that in response to his question, Hughes
advanced the opinion that the employees would get additional benefits without the
Union. In response to Robison's question as to the consequences of an employee
crossing the picket line, Hughes stated:
He told me that if a person crossed the picket line they would be in disfavor
with the Union, and since he was not going to cross the picket line he said that
he wouldn't think much of anyone that did cross the picket line. He said that
if the strike was resolved and the Union won it would be difficult for the person
to get back in favor with the Union after they had once crossed the picket line.
Hughes repeated the statement about the consequences of crossing the picket line
about the end of July 1962. He stated he was not going to cross the picket line
and he didn't think it wise for any employee to do so. Robison also testified that
Hughes was a union member.
Hughes, before the strike, told employee Benson he would be fired if he crossed
the picket line.
Employee Miller testified that in early August, during the lunch hour, Hughes
said, "If you boys get rid of the union you will have a good raise coming up and
the company is going to give you a better wage than this union can get for you."
Miller, in relating the circumstances as to how the conversation started, testified:
A. Well, I'd say from normal chatter among a bunch of men working in
the shop; that is the only thing that happens all the time.
Q. Was it over lunch?
A. Usually at lunchtime when the bunch was together.
Here too it seems probable that Hughes was solicited for his opinion. Viewing
the quoted portion of Miller's testimony as a whole, it seems probable that Miller
did not recall whether or not Hughes made the comment in response to a question
and certainly this testimony does not support a finding that Hughes made the state-
ment without being solicited for his opinion.
Hughes' opinions about the Union expressed to employees were in substantially all,
if not in every, instance, made in response to questions initiated by employees while
working or while having lunch.
C. The strike
There is a hiatus in the record as to what caused the employees to again support
the Union and go on strike on September 13, 1962, after having agreed among them-
selves to abandon the Union. The record reflects that a meeting was held on
September 11, 1962, when the employees voted to reject Respondent's contract offer
and to go on strike. At this meeting the union representatives expressed their ob-
jection to Respondent's proposed contract primarily because it did not contain a
seniority clause and there was also expressed a degree of dissatisfaction with the
wage rate and the holiday proposals. The record clearly establishes that the strike
vote was taken on the question of whether or not to accept the Respondent's contract
offer and the rejection of this offer was coupled with the employees' voting to strike.
The General Counsel contends that the strike was an unfair labor practice strike.
He relies on the following evidence to establish this. Employee Wessman testified
that the union representative advised the employees that the Respondent had made
a final offer and the Company would not make a better offer. No one said anything
else about a reason for going on strike. Wessman went on to say:
A. I felt that we were at a standstill. We could go nowhere the way things
stood. We were going to stay with the Union and the company would not
bargain with the Union as far as giving in. They would stand on no seniority,
they were giving no seniority, which the Union would not settle without seniority,
NEVADA TANK AND CASING 129
so we were at an impasse. So the only out was to either quit or go on strike
to force the company to bargain with us.
Q. And that was your reason for going on strike?
A. Yes.
Q. Have you any other reason?
A. Well, I felt that we were being penalized the 10-cent-an-hour that Perkins
was getting because we were negotiating with the Union.
The General Counsel also relies on a statement in employee Holmes' affidavit to
the effect that the employees went on strike to obtain a contract containing a seniority
clause and the same 10 cents per hour that Perkins' employees had received. This
affidavit was introduced by Respondent for the purpose of impeaching Holmes in
connection with another aspect of his testimony. Although Holmes was a witness
for the General Counsel, he was not asked to testify as to why he went on strike.
Wessman's testimony appeared to include an afterthought as to the reason he
went on strike and it was only after being pressed for some other reason by the
questioning of the General Counsel that he advanced as a reason for going on strike
that he felt he was being penalized on account of the Union. As to Holmes' affidavit,
even if accepted as probative evidence, it contains a statement which negates the
General Counsel's position. In his affidavit, Holmes stated:
That it is my belief that we would not have received a raise whether the
Union was in or not. Thus we went on strike to get the raise and the seniority
clause.
It is apparent that employee Holmes did not feel he was being penalized on ac-
count of the Union and that was not the reason he went on strike. The expression
of Wessman as to his partial and subsidiary subjective reason for going on strike
cannot on this record be imputed to the other 10 or 11 employees as to their reason
for striking. The circumstances attending the strike point overwhelmingly to the
cause of the strike as being due to the Respondent and the Union failing to reach
an agreement. Wessman's testimony to the effect he felt he was being penalized
on account of the Union, in the context of the record, falls far short of the sub-
stantial evidence required to establish a causal connection between unfair labor
practices and the strike so as to constitute this strike as an unfair labor practice
strike.
Alternatively, the General Counsel claims that statements by one Earl Griffith
converted the strike into an unfair labor practice strike.
During the pendency of the strike, Griffith was notified on September 29, 1962,
that he was to be appointed foreman effective October 1, 1962. Griffith was not
called as a witness. His actions on the morning of September 30, 1962, while
visiting the Respondent's plant, are claimed by the General Counsel to constitute
unfair labor practices. On the morning of September 30, 1962, while visiting the
plant, Griffith became involved in a heated and extended argument with Zimbra,
one of the pickets. Employees Cobb and Holmes were also present at the time on
the picket line. When the argument was over, Griffith told Cobb and Holmes they
could go back to work. He also added a statement to the effect that if the Union
won, Cobb and Holmes would be fired on some pretext within 60 days.
Assuming, arguendo, that Griffith was a supervisor and an agent of Respondent
at the time he made the statements on September 30, the statements to Holmes and
Cobb clearly had no causal effect in prolonging the strike. A causal connection
between the unfair labor practices and the prolongation of the strike is essential
to convert a strike into an unfair labor practice strike. N.L.R.B. V. Scott and Scott,
245 F. 2d 926 (C.A. 9); N.L.R.B. v. James Thompson & Co., Inc., 208 F. 2d 743
(C.A. 2).
Since the record lacks any substantial evidence that the strike was caused or
prolonged by any unfair labor practice, it is found that the strike was an economic
one from its inception and retained that character until its termination.
D. Supervisory status of Griffith and the question as to whether he acted as
agent of Respondent
The question of Griffith's supervisorial status on the morning of September 30,
1962, will next be considered. The record stands uncontradicted that although he
was notified of his appointment as foreman on Friday, September 29, 1962, he did
not commence his supervisorial duties until Monday, October 2, 1962. Conse-
quently, it is improbable that Griffith had Respondent's authorization to offer em-
ployees their jobs or to make threats which would be binding on Respondent by
virtue of Griffith's supervisory status. However, there is also a question as to
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Respondent was responsible for placing Griffith in a position where he had
apparent authority to speak for Respondent. Although Griffith had previously
been a foreman, there is nothing, as far as this record goes, imputable to Respond-
ent with reference to Griffith's conduct on September 30. Griffith did not tell Cobb
or Holmes he was a foreman and there is nothing to suggest that they knew of
Respondent's action in informing Griffith of his promotion on September 29,
effective as of October 2. In short, Respondent did nothing to cause the employees,
including Cobb and Holmes, as of September 30, to regard Griffith as occupying
a position of apparent authority and, as far as this record goes, Griffith appeared
to Cobb and Holmes merely as one of two employees who did not go out on strike.
The General Counsel cites The Yale & Towne Manufacturing Company, 135 NLRB
926, and Peter Kiewit Sons' Co., 106 NLRB 194, as establishing that Griffith was
actually a supervisor on September 30, 1962, although he did not commence to act
as such until October 2. An examination of these cases shows that they are not
in point as they concern a determination as to which employees should be incor-
porated or excluded in the bargaining unit on the basis of their anticipated duties
in a representation proceeding.
Consideration should also be given to the fact that the threats attributed to Griffith
followed immediately a bitter argument with Zimbra, in which Griffith accused
Zimbra of calling him a "scab son of-a-bitch." Respondent's action in reemploying
any of the striking employees who desired to return offsets an inference that Re-
spondent would treat striking employees vindictively, and that Griffith was voicing
Respondent's policy in making threats. Although the statements by Griffith were
made prior to the end of the strike, with the advantage of hindsight, the action
of Respondent in reemploying the strikers demonstrates that Griffith was probably,
in fact, not expressing Respondent's policy in his comments to Cobb and Holmes.
Consequently it is found that the record does not establish by sufficient evidence
that Griffith was acting as an agent for Respondent when he made the statements to
Cobb and Holmes, and Respondent is not responsible for his statements. The finding
that there is insufficient evidence to establish that Griffith was acting as an agent of
Respondent on the morning of September 30, 1962, does not depend on whether or
not, in a technical sense, Griffith was a supervisor at that time. As will be de-
veloped in connection with Hughes' statements, the fact that an individual is a super-
visor and makes statements that would be unfair labor practices if attributable to
the employer, does not necessarily make his employer responsible for such statements.
E. Questions of discrimination in connection with reinstatement of employees
The General Counsel offered evidence indicating that three employees were not
reinstated until about a week after their application following the termination of the
strike, and also contends that employee Miller was never offered reinstatement.
The General Counsel's position with respect to Miller is difficult to understand insofar
as he contends that Miller was never offered reinstatement by Respondent. The
record reflects that on November 7, Miller, in the company of another employee,
Carroll Beets, was in the presence of Walker and Walker offered Beets his job
back and told Miller to check with him a couple of days later. Miller testified that
he did so, and no additional subject was mentioned in the later conversation with
Walker. However, on cross-examination he admitted that he did tell Walker he was
going to try for unemployment compensation. He denied telling Walker that he
was going to look for a job in California. Walker testified that Miller told him he
was not too interested in getting a job as he would just as soon leave Nevada and
draw unemployment compensation insurance and that he was trying to get work in
California. Miller later admitted going to work in California about 2 weeks after
the strike and that he was working there at the time of the hearing. The record also
indicates without contradiction that about November 20, 1962, Miller received a
communication from the Nevada Unemployment Commission stating that his job
was available and this information was read to him over the telephone by his wife
when he was in California. A registered letter dated November 21, 1962, was also
sent to Miller's address by Respondent which offered him reinstatement but which
was returned unclaimed.
It seems perfectly apparent that Miller preferred to work in California when he
did not return in response to his wife's telling him Walker had informed the Nevada
Unemployment Commission that Miller's job was available. This, taken with Re-
spondent's action in sending a registered letter to Miller offering him employment,
makes his claim of not being offered reinstatement untenable.
In any event, with respect to Miller and the other three employees, the record is
clear that Respondent had replaced them and that the strike was not caused or pro-
NEVADA TANK AND CASING 131
longed by Respondent's unfair labor practices and, consequently, Respondent did
not breach its obligations under the Act when it delayed offering reinstatement to
three employees until openings occurred for them.
F. Discussion and concluding findings
To summarize the findings based on the probabilities presented by this record, it
is found that there is no support for a finding that Plant Manager Walker engaged in
any undertaking to undermine the Union during the course of negotiations .5 The
conduct of the negotiations which I find reflected good-faith bargaining on the
part of Respondent and also the reemployment of the strikers after the termination
of the strike are not activities that would be consistent with a finding that Respondent
was covertly engaging in a campaign to rid itself of the Union and union adherents.
Turning now to the general question as to whether statements by Hughes are
binding on Respondent, it will be recalled in connection with Griffith's activities, an
observation was made that an employer is not necessarily bound by the acts of a
supervisor in considering the question of whether an unfair labor practice has been
committed. This observation finds support in the wording of the Act and in Board
and judicial precedent.
Section 8(a)(1) of the Act reads: "It shall be an unfair labor practice for an
employer-(1) to interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 7; . . . ." [Emphasis supplied.]
Section 2(2) of the Act provides- "The term `employer' includes any person
acting as an agent of an employer, directly or indirectly. . . . ... [Emphasis
supplied.]
The term "agent" is defined by Section 2(13) of the Act as follows: "In deter-
mining whether any person is acting as an `agent' of another person so as to make
such other person responsible for his acts, the question of whether the specific acts
performed were actually authorized or subsequently ratified shall not be controlling."
In addition, in Section 2(11) of the Act, there is a definition of "supervisor" which
does not include in its definition the term "employer" or "agent."
It may be observed from the above-quoted sections of the Act that, although
Congress saw fit to separately set out and to define the term "supervisor," it did not
include that term within its definition of "employer," nor in its definition of the
term "agent." From that it may be concluded that an "employer" is not responsible
for all the acts of his "supervisors" which might ordinarily constitute unfair labor
practices. On the other hand, an "employer" is responsible for the acts of its
"agents" constituting unfair labor practices whether or not they are also supervisors.
The cases treating this question can be reconciled on the basis that certain circum-
stances will operate to relieve an employer from responsibility for acts of his super-
visor. These circumstances are such as to demonstrate in a given context that the
supervisor was not acting as ostensible agent for the employer
Some of the circumstances include situations where the supervisor may be included
in the bargaining unit, or may have voted in a Board election, and thus would not
appear to bespeaking as the voice of management, and hence not as an agent of the
employer. The supervisor may be also clearly acting for himself or in a manner in-
consistent with the conduct or policy of the employer. The supervisor may hold a
very minor position or may be identified as friendly to the employees and regarded
as one of the employees rather than a part of management. Such factors alone or in
5 The General Counsel points to a previous Board case, Nevada Tank and Casing Com-
pany, 131 NLRB 1352, as a factor in discrediting Walker and in establishing Respondent's
lack of good faith While in appropriate cases it is proper to take into account prior
cases involving a respondent, it is, of course, also true that a prior finding of a violation
of the Act will not necessarily stigmatize a party in all future proceedings Here the
record shows Respondent bargained in good faith and offered a contract to the Union, and
also reinstated striking employees when it had no obligation to do so on the termination
of the strike. With respect to Walker's credibility, I find that his involvement in a prior
case does not detract from his credibility in this case His prior experience taken in con-
nection with Respondent's efforts at bargaining in this case makes plausible Walker's
denial of statements attributed to him which might be considered violative of the Act.
The impression was obtained during the course of Walker's testimony that he was ex-
tremely careful in not breaching his obligations under the Act and because he had been
involved in a labor controversy prior to this occasion, he appeared to have become edu-
cated as to the proper role that a manager might play in labor relations matters
727-083-64-vol. 144-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
combination may, in a proper context, establish that a supervisor was not acting as an
agent of the employers
Stating the proposition another way , there are factors which may dispel the ap-
parent authority bestowed by the capacity of supervisor and thereby in a particular
situation the supervisor does not appear to be acting as an agent of the employer.
It is obvious that this question only arises in connection with situations where
there is a difference as to whether a supervisor is clothed with apparent authority to
commit an unfair labor practice . It would be the exceptional situation where the issue
was whether the supervisor had actual authority to commit an unfair labor practice.
In the instant case, although Hughes has been found to be a supervisor, there are
other circumstances which make it unlikely that he was speaking on behalf of
Respondent , and thus he did not have apparent authority to speak for Respondent,
and thus his statements are not imputable to Respondent . The Restatement of
Agency, Section 27, reads:
Creation of Apparent Authority: General Rule
Except for the execution of instruments under seal , or for the conduct of
transactions required by statute to be authorized in a particular way, apparent
authority to do an act is created as to a third person by written or spoken words
or any other conduct of the principal which reasonably interpreted , causes the
third person to believe that the principal consents to have the act done on his
behalf by the person purporting to act for him.
Applying the above definition to the facts at hand, Hughes ' apparent authority to
speak on behalf of Respondent is negated by Hughes ' own actions in identifying him-
self as a union supporter and announcing that in the event of a strike he would be, in
effect, with the Union and against Respondent.
Other factors to be taken into account are that Hughes was himself an hourly paid
employee receiving but 10 cents an hour more than many of the other employees.
He worked to a considerable extent with the employees and had his lunch with them
as a regular matter, and for a period of several months worked in an atmosphere
where the Union and related topics were major subjects of conversation among the
employees.
Another factor in weighing how Hughes ' conduct would normally appear to a third
person is that the record reflects on substantially all, if not every, occasion, when
Hughes indicated he believed the employees would be better off without the Union,
that it was in response to a question asked of him by an employee . Hughes' expression
of his opinion in such a context would be more likely regarded by the employees as
coming from one of the "bunch" than an expression of Respondent 's policy. Further,
Hughes himself was fired 3 days prior to the inception of the strike , and the
only reason suggested for his discharge by this record was his open statements
that he would, in effect, be on the side of the Union in the event of a strike.
Therefore, in this case Hughes' lack of apparent authority to speak on behalf of
Respondent was because Hughes, himself, by his statements made it clear that he was
expressing his own rather than Respondent 's views. So also Griffith did not have ap-
parent authority to bind Respondent because Respondent did not take any action that
was known to the employees that would indicate Griffith had such authority.
Consequently , in view of the circumstances which have been indicated attending the
statements of Hughes and Griffith , it is found that it has not been established that
either of them made statements imputable to Respondent which would constitute un-
fair labor practices.
Assuming , arguendo, that Respondent was technically responsible for the state-
ments of Hughes and Griffith, in the context of this record taking into account the
circumstances under which the alleged unlawful statements were made , no remedial
order is indicated.
6 A sampling of representative cases lends support to this analysis : N L R B v. Rock-
well Manufacturing Company (DuBois Division), 271 F. 2d 109, 118 (CA 3) ; NLRB.
v Miami Coca-Cola Bottling Co, 222 F 2d 341, 345 (C.A 5) ; N L.R B v. The Houston
Chronicle Publishing Company, 211 F. 2d 848, 855 (C.A 5) ; NL.R.B v. Hinde & Dauch
Paper Company, 171 F 2d 240, 241 (C.A. 4) ; N.L.R B. v. Scullin Steel Company, 161
F 2d 143, 149 (C A. 8) ; N L.R.B v. Shenandoah-Dives Mining Company, 145 F. 2d 542,
547 (CA. 10) ; NLRB. v. Clinton Woolen Manufacturing Co , 141 F 2d 753, 757
(C.A. 6) ; L. B Woods, et at., d/b/a Breckenridge Gasoline Company, 127 NLRB 1462,
1463; Nassau and Suffolk Contractors' Association, Inc, and its members, 118 NLRB
174, 181; Montgomery Ward & Company, Incorporated, 115 NLRB 645; Indianapolis
Newspapers, Inc., 103 NLRB 1750, 1751
PLUMBERS & FITTERS LOCAL 761, ETC. 133
As indicated above, the alleged unlawful statements of Walker to the employees,
even if they were actually made, despite a finding here to the contrary , do not warrant
a remedial order in view of their isolated character and because they would not
reasonably be calculated to have a significant effect on the employees ' organizational
rights. Middletown Manufacturing Company, Inc., 141 NLRB 234.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Nevada Tank and Casing is a Nevada corporation engaged in commerce and
in a business affecting commerce within the meaning of the Act.
2. International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths &
Forgers, Local #10, AFL-CIO, is a labor organization within the meaning of the
Act.
3. Respondent Nevada Tank and Casing has not engaged in unfair labor practices
as alleged in the complaint.
RECOMMENDATION
Upon the basis of the above findings of fact and conclusions of law, I recommend
that the complaint be dismissed in its entirety
Plumbers & Fitters Local 761 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL-CIO
and Matt J . Zaich Construction Co.
Plumbers & Fitters Local 761 of the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fit-
ting Industry of the United States and Canada, AFL-CIO
and Zarubica Company
International Union of Operating Engineers , Local Union No. 12,
AFL-CIO and Matt J. Zaich Construction Co. and Zarubica
Company. Cases Nos. 21-CD-134-1, 21-CD-134-2, and 21-CD-
135. August 21, 1963
DECISION, DETERMINATION OF DISPUTES, AND ORDER
QUASHING NOTICE OF HEARING
This is a proceeding under Section 10(k) of the National Labor
Relations Act following the filing of charges under Section
8(b) (4) (D) of the Act. A hearing was held before Hearing Officer
Ben Grodsky on January 8, 9, 11, 15, 17, and 21, 1963. All parties
appeared at the hearing 1 and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evidence
bearing on the issues. The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are hereby affirmed.
'Associated General Contractors of America , Southern California Chapter ( hereinafter
referred to as the AGC ), and the Southern California District Council of Laborers and its
Affiliated Local Unions (hereinafter referred to as the Laborers), intervened . Inter-
national Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths , Forgers and
Helpers , Local No. 92 (herein the Boilermakers ), after having intervened , later withdrew
on the ground that it would be bound by any subsequent Joint Board determination.
144 NLRB No. 12.