Plastics Industrial Products, Inc.

National Labor Relations Board - Board DecisionsNov 19, 1962

139 N.L.R.B. 1066 (N.L.R.B. 1962)

1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that the complaint be dismissed in all other respects. It is finally recommended that unless Respondent shall within 20 days from the receipt of this intermediate Report notify said Regional Director, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify you that: WE WILL NOT interrogate employees concerning their union membership and sympathies in a manner constituting interference, restraint, or coercion in viola- tion of Section 8(a)(1) of the Act. WE WILL NOT discharge employees for engaging in protected concerted ac- tivities by refusing in good faith to work because of abnormally dangerous conditions at their place of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer to Harold May and Willard Winchester immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of their discriminatory discharge. All our employees are free to remain, and to refrain from becoming or remaining, members of District 17, United Mine Workers of America, or any other labor organization. BELFRY COAL CORPORATION, Employer. Dated------------------- By------------------------------------------- (Reprosentative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 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, Transit Building, 4th and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar 1-1420. if they have any questions concerning this notice or compliance with its provisions. Plastics Industrial Products , The. and Samuel E. AngÂ©fl'. Case No. 1-CA-3677. November 19, 1962 DECISION AND ORDER On August 17, 1962, Trial Examiner Louis Libbin issued his Inter- mediate Report' in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. He also found that the Respondent had not engaged I The hearing in this case was conducted by Trial Examiner Max Goldman, who died on July 3, 1932 Trial Examiner Louis Libbin prepared the attached Intermediate Report on the basis of the record. 139 NLRB No. 90. PLASTICS INDUSTRIAL PRODUCTS, INC. 1067 in certain other unfair labor practices alleged in the complaint and recommended dismissal of the complaint as to them. Thereafter, the General Counsel and the Respondent filed exceptions to the Interme- diate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. 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 entire record in this case, including the Intermediate Report and the excep- tions and briefs, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner with the following additions and modifications. The Trial Examiner found, and we agree, that all eight of the Re- spondent's extrusion operators, by remaining away from work on December 26 and 27, 1961, to protest the Respondent's refusal to pay a bonus which they understood had been promised, engaged in pro- tected concerted activity. The Respondent discharged all eight of these operators, but almost immediately reinstated four of them. The remaining four are the complainants herein. The Trial Examiner found the discharge of the extrusion operators because of their protected concerted activity violative of Section 8(a) (1) of the Act except as to John Stuart and Carleton Tuttle, leadmen, who he found, were supervisors. We do not agree, for the reasons set forth below, that Stuart and Tuttle were supervisors within the meaning of the Act. The Respondent, which is engaged in the manufacture of extruded plastic products, has approximately 22 employees, and a managerial staff of Saul Skoler, general manager, who superintends the entire operation; Herbert Erickson, operations manager, who coordinates the various divisions; and David Sidilou, production manager, who is re- sponsible for production activities. The various production opera- tions have leadmen who report to Sidilou. While Sidilou spends much of his time making the rounds of the departments, he has a glass- enclosed office located about 25 feet from the extrusion machines. There are four of these extrusion machines, which are operated 24 hours a day on 3 shifts. At the time of the hearing, there were eight extrusion operators, including three leadmen, with a leadman and from one to three operators working on each shift. All three lead- men are assigned to the operation of specific machines. Like the other machine operators, they are hourly paid, although they receive 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 30 cents an hour more, and they have the same fringe benefits as the other operators. The leadmen spend more than 90 percent of their time in the operation of their machines. In their remaining time, they assist new operators and help operators on their shift if they have difficulties with their machines. They may assign operators to particular machines, but such assignments are sometimes changed by Sidilou. The leadmen may make recommendations regarding an operator's work, and, as the Trial Examiner noted, their recommendations are given "serious consideration." Such recommendations, however, are apparently limited to the progress being made by the newer operators. Moreover, it is admitted by Respondent that Sidilou conducts an independent investigation with regard to a leadman's recommenda- tions, and discusses the matter with Erickson prior to taking action 2 It is apparent, therefore, and we find, that the leadmen do not have the authority "effectively to recommend" within the terms of Section 2(11) of the Act. It is also clear, and we find, that they do not possess any of the other indicia of supervisory authority as defined by the Act. Moreover, in an election conducted by the Board in May 1961, the leadmen voted without challenge, and there is no evidence that their status or duties have changed since that time. In view of the foregoing, including particularly the dispropor- tionately high ratio of supervisors to rank-and-file employees that would exist if the leadmen were found to be supervisors, the routine nature of the operation, the fact that the leadmen spend virtually all their time operating machines, their lack of authority to make changes in employee status, and the independent investigations that the Respondent makes regarding their recommendations, we find that the leadmen are not supervisors within the meaning of the Act. Ac- cordingly, we find that the Respondent, by its discharge of Stuart and Tuttle for their participation in the protected concerted activity of the other extrusion operators, violated Section 8(a) (1) of the Act, and that Stuart and Tuttle are, therefore, entitled to the same rein- statement and backpay provisions which the Trial Examiner recom- mended for the other two discharged operators. ORDER The Board adopts the Recommended Order of the Trial Examiner with the following modifications : 2 The Trial Examiner states in the Intermediate Report that an independent investiga- tion of the leadmen's recommendations was made "in some cases ." The record establishes, however , that these recommendations were always independently investigated Thus, Erickson testified that he conferred with Sidilou and "went over" the leadmen 's recom- mendations in "all cases." PLASTICS INDUSTRIAL PRODUCTS, INC. 1069 Amend paragraph numbered 2(a) to include the names of John Stuart and Carleton Tuttle in the provisions requiring reinstatement and backpay 3 8 The "Notice to All Employees" appended to the Intermediate Report is also amended by adding the names John Stuart and Carleton Tuttle in the paragraph providing for reinstatement and backpay. We hereby modify the backpay remedy In both the Order and notice to include payment of interest at the rate of 6 percent, as set forth in Isis Plumbing & Heating Co , 138 NLRB 716. For the reasons stated in his dissenting opinion In that case, Member Leedom does not join in this modification. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges filed on January 3 and February 8, 1962, the General Counsel of the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massachusetts), issued his complaint, dated February 16, 1962, against Plastics Industrial Products, Inc., herein called the Respondent. With respect to the unfair labor practices, the complaint alleges ,that: (1) on or about December 27 and 28, 1961, Respondent discharged and thereafter refused to reinstate four named employees because they had engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection; and (2) by the foregoing conduct Respondent violated Section 8(a)(1) of the Act. In its duly filed answer, Respondent admits the discharge of the employees named in the complaint, denies generally the unfair labor practice allegations, and affirma- tively avers that certain of the named employees are supervisors within the meaning of the Act and therefore not protected by the Act. Pursuant to due notice, a hearing was held before Trial Examiner Max M. Gold- man on March 27 and 28 and May 17, 1962. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. During the month of June 1962, the General Counsel and the Respondent filed briefs with Trial Examiner Goldman.' Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS Plastics Industrial Products, Inc., Respondent herein, is a Massachusetts corpora- tion with its principal office and place of business in Peabody, Massachusetts, where it is engaged in the manufacture, sale, and distribution of extruded plastic and related products. Respondent annually ships quantities of extruded plastics, valued in excess of $50,000, from its plant in Peabody, Massachusetts, to points located outside the Commonwealth of Massachusetts. Upon the above admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES Respondent is engaged in the manufacture of extruded plastic products and em- ploys approximately 25 persons, 8 of whom are classified as extrusion operators. I Upon the demise of Trial Examiner Goldman, Trial Examiner Louis Libbin was desig- nated by the Chief Trial Examiner, pursuant to Section 102.36 of the Board's Rules and Regulations, Series 8, as amended, for the purpose of holding further hearings or issuing an Intermediate Report or both. On July 16, 1962, the Acting Chief Trial Examiner notified the parties of my designation, the reason therefor, and of their right to request a hearing de novo within a time stated. As no such request was made by the General Counsel and the Respondent, that right is deemed to have been waived by them. The Charging Party did make a timely request for a hearing de novo but subsequently with- drew his request. The instant report has accordingly been based on the record made before Trial Examiner Goldman, Including the briefs submitted to him. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There are four extrusion machines which produce the finished product . Respondent normally maintains three shifts , running from 7 a.m. to 3:30 p.m.; 3:30 to 11:30 p.m.; and 11:30 p.m. to 7:30 a .m. The individuals named in the complaint worked on the extrusion machines and were admittedly discharged on Wednesday , Decem- ber 28, 1961. The issues to be resolved in this case are (1 ) whether the individuals named in the complaint were discharged because they engaged in protected concerted activities, as the complaint alleges and the General Counsel contends , or whether they were discharged for violating a company rule against leaving their machines unattended without permission , as Respondent contends , and (2 ) whether two of the individuals named in the complaint are supervisors not entitled to the protection of the Act. A. Sequence of events 2 The Respondent did not schedule the third shift on Friday, December 23, since Christmas was being observed on the next working day, Monday , December 26 .3 The extrusion operators who normally would have worked the third shift were scheduled to work on the first or second shift on ,that Friday. It was the Company's policy to have a 15-minute overlapping of shifts for extrusion operators by requir- ing them to punch the timeclock about 15 minutes prior to the close of the prior shift to enable them to become acquainted with the production and functioning of the machines on the prior shift. Thus, in accordance with this practice , all eight extrusion operators were on the production floor at or about 3:15 p.m. on Friday, December 23, as the operators on the first shift had not yet punched out and the operators on the second shift had already punched in . All the extrusion operators then got together , discussed the fact that they had not received the bonus which had been promised to them, and decided that they would all go in together to see General Manager Skoler to find out why they had not received the bonus they felt they had been promised. About 3:30 p.m., all eight extrusion operators went en masse to Skoler's office. As they left the production floor, only two extrusion machines were running and they saw Production Manager Sidilou in his glass enclosed production office, about 25 feet away from the working area. Skoler's secretary informed Skoler that all the men were outside and wanted to see him. Skoler replied that the men should wait until he had finished his long-distance telephone call. About 10 or 15 min- utes later , the men were received in Skoler's office. The men remained in Skoler's office about 45 minutes . The conversation began by one of the men asking Skoler to explain why they had not received the production bonus which had been promised to them . The discussion about the subject of the bonus consumed about half the time of the meeting. During this discussion , Skoler made it clear that there would not be a bonus and that nothing more would be done about it. For the remainder of the meeting, there was a discussion of the wage scales and a comparison of individual wages with those at other plants where com- parable work was done. During this part of the discussion , Skoler had Operations Manager Erickson come into the office with more detailed information about wages. After the men had been in the office about 30 minutes , but before Erickson was called in , Skoler asked who was watching the machines . The men replied that Sidilou was out there. Skoler asked if Sidilou could handle it, and they replied that he could . Just before the meeting ended , Office Manager Mayberg informed Skoler by telephone that the machines were running scrap all over the floor and material was being wasted . After this telephone conversation , Skoler asked the men if there were any volunteers to go out to the machines , but explained that it was not necessary to end the meeting if they desired further discussion . The men however stated that they were getting ready to leave anyway and were going back to work. The meeting thereupon ended. After leaving Skoler's office , the eight extrusion operators had a brief private discussion on the production floor and decided to show their dissatisfaction for not receiving the bonus by staying out of work the next 2 working days, Tuesday and Wednesday, December 27 and 28. The four men who had worked on the first shift then asked Production Manager Sidilou , who was standing by the timeclock, if he wanted to sign them out. He refused , telling them to punch out . The men 2 The factual findings in this section are based on credited evidence which is either admitted or undisputed 8 The record erroneously refers to Friday as December 22, and to the following Monday, Tuesday, and Wednesday as December 25, 26, and 27 . Such obvious errors are hereby corrected. PLASTICS INDUSTRIAL PRODUCTS, INC. 1071 thereupon punched out . The other four operators who were scheduled to work the second shift completed their work on that shift which ended at 11 : 30 p.m. None of the eight extrusion operators reported for work on the following Tues- day and Wednesday , although some of them had messages delivered to the plant on Tuesday to the effect that they were sick . About 9 or 10 a.m. on Wednesday morning, all eight operators held a meeting at a restaurant . The men decided that they would return to work the following day, Tharsday , and would try to get in touch with Mr. Abromowitz who was believed to be one of the owners of Respondent. All eight extrusion operators were admittedly notified of their discharge during Wednesday afternoon and Thursday , December 27 and 28 . When Stuart, who normally worked on the third shift but had worked on the second shift the preced- ing Friday , went to the plant about Wednesday noon to collect his pay, Operations Manager Erickson told him that "we just called [ your home ] and left a message you've been discharged as of this morning. " Stuart asked what the reason was. Erickson replied that it was for leaving a machine unattended on Friday. When Stuart further asked if the other three men on the second shift had also been fired, Erickson stated that he did not have to answer that. When Tracchia , who normally worked on the first shift and had also worked on the first shift the preceding Friday, went to the plant about 1 p.m., on Wednesday , Erickson told him that he had been discharged In response to his query as to the reason , Erickson stated, "you've been around plastics machines long enough to know you don't leave them unat- tended." Tuttle , who normally worked on the first shift and had also worked on the first shift the preceding Friday, reported for work at 7.15 a m on Thursday morning. He had not spo ken to any company representative since Friday , December 23 Tuttle was met at the timeclock by an armed guard who told him to halt. Erickson was summoned , and informed Tuttle that he was discharged . Tuttle asked for the reason. Erickson replied that it was for leaving the machine unat- tended the previous Friday. When Tuttle pointer out that he had properly been relieved by the second shift, Erickson stated that that was immaterial because Tuttle "was still on the timeclock." Tuttle explained to no avail that when he was ready to leave the preceding Friday, Sidilou was at the timeclock , that Tuttle had asked Sidilou to sign his card out at 3 : 30 in accordance with the usual practice, that Sidilou refused to sign the timecard , and that that was why his card was punched out at 4.42. Doherty, who normally worked on the second shift but had worked on the first shift the preceding Friday, reported for work at 3:15 p m. Thursday . Erickson told him, "You must know the story now." When Doherty inquired how that affected him and whether or not he was fired or laid off, Erickson declined to answer. Beginning with 7 pm. on Wednesday , December 27, local police , in rotating shifts, were assigned to protect Respondent 's property. As previously noted, all eight extrusion operators admittedly were discharged on Wednesday and Thursday, December 27 and 28. However, four of them admittedly were reemployed almost immediately thereafter. The remaining four, referred to in the preceding para- graph , are the complainants in this proceeding. E. The issue as to the real reason for the discharges The eight extrusion operators were engaging in a concerted activity for their mutual aid and protection, a right guaranteed to them by Section 7 of the Act, when they presented their grievance to Skoler on Friday afternoon , December 23, about not having received a promised production bonus, and also when they failed to report for work on Tuesday and Wednesday , December 27 and 28, in protest against Skoler's position on the bonus question. Respondent does not take issue with the well-settled principle that a discharge for engaging in such conduct in- terferes with, restraints , and coerces employees in the exercises of their rights guar- anteed in Section 7 and therefore violates Section 8 ( a)(1) of the Act .4 As Re- spondent 's counsel correctly observes in his brief , the "primary question presented- whether or not the discharge was due to the fact that the men engaged in con- certed activities-does not present knotty legal problems . It is really a factual question." It is the Respondent's position that all eight operators had left their machines unattended , without permission and without asking someone else to watch them, when they met with General Manager Skoler on Friday afternoon , that this was a dangerous procedure and contrary to Respondent's rules, that Skoler and Erickson did not learn o: this conduct until Tuesday, and that Respondent discharged them IN.L.R.B. v. Washington Aluminum Company, Inc ., 370 US. 9. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for such conduct after having waited until Wednesday to give the men an opportu- nity to explain their conduct. Production Manager Sidilou testified that he did not notice the machines running without any men on the floor that Friday afternoon and that the first he knew about it was when Mayberg told him that materials were running onto the floor . At that point, he told Mayberg to get the men out on the floor. He admitted that he made no effort that afternoon to investigate who was at fault . He further testified that "it was perhaps Tuesday or Wednesday , but it definitely was not prior to Tuesday" that Operations Manager Erickson first raised the question with him as to whether the operators had asked Sidilou to attend the machines that Friday afternoon. Ac- cording to Sidilou, the first time Skoler spoke to him about the matter was during the week following the incident . However, Skoler testified that he never did talk to Sidilou about the matter but got all his information from Erickson "as to what he [Erickson ] learned from investigating the thing with Mr. Sidilou ." Erickson testi- fied that it was not until Tuesday that he spoke to Sidilou about the machines be- ing left unattended . Although he admitted that he was in Skoler's office Friday afternoon when he heard Skoler tell the men that Mayberg had just informed Skoler the stuff was running onto the floor and heard Skoler ask if there were any volun- teers to help out, Erickson admittedly made no effort to investigate the matter that afternoon. It is conceded that during the period from 3:30 to 5:30 p in. on Friday , Decem- ber 23, only two of the four machines were running . Yet, all eight operators were admittedly discharged . Moreover, when all the operators left the floor to go to Skoler's office about 3:30 p.m ., the four who had worked on the first shift ( Tuttle, Tracchia, Doherty, and one other ) had already completed their shift , and their replacements had punched in about 15 minutes earlier . Both Production Manager Sidilou and Operations Manager Erickson admitted that when an employee in good faith fails to punch in or out on time, it was Respondent 's normal policy for the employee to inform Sidilou about it and for Sidilou to sign the employee's time- card for the appropriate time. However , as previously found, when the four first- shift operators followed this established practice about 4:40 on Friday afternoon and asked Sidilou, who was then at the timeclock , to sign them out for 3:30, he admittedly refused to do so. Furthermore , Sidilou also admitted that he knew at that time that the men had not been covering their machines since 3:30 pm. Yet without reprimanding them or saying anything about it or making any effort to ascertain who was responsible , he admittedly told them to punch out on the timeclock and thereby permitted them to get paid for the time they left their ma- chines unattended, conduct which Respondent contends constituted such a serious offense. In addition , as previously found, Erickson held the first -shift men respon- sible because their timecards were punched out after 3:30, despite the proffered explanation that that was due solely to Sidilou 's failure to sign them out in accord- ance with the admitted established company policy . Finally, despite the alleged seriousness of the offense , Respondent gave no explanation for the immediate rein- statement of four of the operators , three of whom had worked that Friday after- noon with Stuart on the second shift and the other with the remaining three com- plainants on the first shift. I am convinced that the reason asserted by the Respondent for the discharges was seized upon as a pretext to cloak the true motivating cause. General Manager Skoler's own testimony is very revealing in this respect Called as the first witness by the General Counsel , Skoler first testified that the men were discharged for leaving their machines running that Friday afternoon without permission and without advis- ing anyone . Asked by the General Counsel if that was the only reason for the dis- charges, Skoler testified, "I would say that this is primarily the reason that we fired them " Skoler was then asked if he had any other reason for firing them and testified as follows: Well, let me say this, we had to, when we investigated this on Tuesday, I mean we had to investigate whether this in effect had happened , because we didn't know this, we didn't know that they had left the machines without any- body's permission or anybody knowing that they weren 't on the machines. We were told this and investigated the thing on Tuesday , and then wanted to give them an opportunity to present their side of the picture . When we couldn't even get them to show up and had no opportunity to question them and investigate it, we had no other course but to assume , then, that the facts were as they were stated by others. Pressed further by the General Counsel to state whether there were any other reasons for the discharges , Skoler testified. PLASTICS INDUSTRIAL PRODUCTS, INC. 1073 Well, this thing got all confused, you know, we were trying, we would have liked these men to come in to work and we would have liked to investigate the thing further .. . under the pressure of business, we just couldn't wait forever... . Skoler testified further as follows: Q. (By Mr. ELLIS.) I'm still asking you, do you have any other reason for firing them, other than the fact that they left the machines unattended? And I'm not clear if you have any other reasons. A. I would say that was the primary motive; although other things got mixed up in this, you know, things were going on fast; there were a lot of pressures on Tuesday and Wednesday; and I don't remember... . Q. You don't recall any other reason? A. Well, I would say we were certainly, we were certainly upset because they didn't come in and we couldn't even talk the thing over with them, but we didn't know why they weren't in there. We ... . Thus, despite repeated opportunities offered by the General Counsel, Skoler refused to deny the existence of other motives for the discharges. Moreover, an evaluation of his testimony affirmatively reveals a grudging admission that the failure of the men to report for work on Tuesday and Wednesday was at least a contributing motivating factor. Indeed, his testimony (for example, "We would have liked these men to come in to work" . . . "the thing got all confused" . . . "other things got mixed up in this" . . . "there were a lot of pressures on Tuesday and Wednesday." . "We were certainly upset because they didn't come in," etc.) convinces me that the men would not have been discharged if they had reported for work as usual. Contrary to Respondent's contention, it is immaterial that Respondent may not have known of the concerted nature of the operators' activities at the time of their discharge. Thus, the Supreme Court stated in N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9, 14. We cannot agree that employees necessarily lose their right to engage in con- certed activities under Section 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of Section 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. To compel the Board to interpret and apply that language in the nig- gardly fashion suggested by the respondent here would only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working condition . . . . Moreover, I am convinced that Respondent was aware, or at the very least sus- pected, that the eight operators had agreed to stay away from work because of their displeasure in not receiving the production bonus which they felt had been promised to them. None of the operators reported for work on any of the three shifts for 2 days, although some called in as being sick on the first day. Skoler and Erickson admittedly tried. without success, to get in touch with them. They therefore were aware that sickness was not the real reason for their absence. Skoler himself admitted that he called Tracchia's home on Tuesday, after the latter had called in sick, and was told that he was not home and it was not known when he would be home. Under all the circumstances, I cannot believe that Skoler and Erickson were so naive as to think that it was pure happenstance that all the opera- tors of all three shifts had failed to report for work the very next workdays after the meeting in Skoler's office where Skoler made it clear that nothing would be done about granting the bonus which the men claimed had been promised.5 However, there is even more direct and uncontradicted evidence pointing to Respondent's knowledge. Thus, for the first time in its history, Respondent had local police guard the plant beginning with Wednesday evening, December 28. When the first policeman assigned to guard duty asked Sidilou that evening what the story was, Sidilou stated that he expects a little trouble from certain employees because they wanted a bonus which they did not receive. Finally, when Stuart later went to the plant to get his holiday pay, Skoler told him that he (Skoler) knew about the meet- ing the men had held in the restaurant Wednesday morning and that his information was that Stuart had been "the ringleader in this walkout." Upon consideration of the foregoing and the entire record as a whole, I am convinced and find that even "if not the only reason, the substantial or motivating 5 See, e g , Walls Manufacturing Company, Inc ., 137 NLRB 1317. 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason for Respondent's" discharge of the extrusion operators "resided in the fact that" they failed to report to work on Tuesday and Wednesday, December 27 and 28, 1961, when they were engaging in a protected concerted activity under the Act .6 By such conduct, Respondent violated Section 8(a)(1) of the Act.7 C. The supervisory issue The Respondent contends, and the General Counsel denies, that the record war- rants a finding that John Stuart and Carleton Tuttle, two of the complainants, were supervisors within the meaning of Section 2(11) of the Act. The General Counsel does not take issue with Respondent's further contention that, if they were super- visors, there was no violation of the Act in their discharge. The Respondent has four extrusion machines in the extrusion department which is centrally located in the plant. They are operated 24 hours a day on three shifts. One of the operators on each shift is designated as a leadman. There are from one to three operators on each shift in addition to the leadman, depending on the amount of work available, with fewer operators on the night shift. No management rep- resentative is present during the major portion of the night shift. Stuart normally worked as the leadman on the third or night shift, which ran from 11:30 p.m. to 7:30 a.m. Tuttle normally worked as the leadman on the first shift from 7:30 a.m. to 3:30 p.m. Leadmen are assigned a regular machine, which they operate in the same manner as the other operators. They are paid approxi- mately 30 cents an hour more than the other operators on the shift. In addition to running their own machines, they were required to, and do, train new operators, help out the operators on the shift whenever they have difficulties, and assign specific operators to specific machines in accordance with the experience of the employees, although such assignment were sometimes changed by Production Manager Sidilou. They received the same employment benefits as the other operators and had voted without challenge in a previous Board election. The Respondent has no foreman classification. General Manager Skoler is in charge of sales and overall general plant operations. Under him is Operations Manager Erickson, whose duties are to coordinate all the divisions. Next in the chain of command is Production Manager Sidilou, to whom the leadmen report. In addition to the extrusion department, Sidilou is also in charge of the shipping department which is located in the rear of the plant about 150 feet from the area where the extrusion machines are, the compounding room which is a sealed room at the rear of the plant, the grinding room which is also a sealed room, the machine shop which is completely enclosed, the maintenance division which is located in the machine shop, the tire room which is another completely sealed off room, and a new plastics' lace company located on another side. Each of the foregoing de- partments had leadmen who reported directly to Sidilou. Although his base of operations was a glass enclosed office located about 25 feet from the extrusion machines, Sidilou spent 90 percent of his time making his rounds through the va- rious departments. The foregoing findings are either admitted or not disputed. Erickson and Sidilou testified further as follows with respect to the functions, duties, and authority of the leadmen operators. "The primary responsibility of the leadman was to translate into action the production schedule which was laid before him." One of the func- tions of the leadman is to report to Sidilou on the progress of the operators on his shift. Leadmen would recommend to Sidilou that certain operators be removed from their shift because they would not make good operators or were taking up too much of the leadman's time. When such complaints were made, Sidilou would discuss the matter with Erickson, and the leadman's report as to the operator's attitude, capability, and degree of progress was given serious consideration. On a first complaint by a leadman that an operator's progress was not satisfactory or a recommendation that the operator be removed from his shift, Sidilou would first speak to the leadman and the operator involved. Upon ascertaining that there .,was not a silly problem due to a misunderstanding," Sidilou would transfer the operator to another shift. If the leadman on the shift to which the operator was transferred also made an unsatisfactory report on the operator, the operator would then be called into the office and "talked to," with the result that the operator would either resign, or be transferred out of the extrusion department entirely, or be discharged. Leadmen would also report to Sidilou as to whether certain operators deserved wage increases. In determining whether raises should be granted, Re- 0 N L.R B v. New England Tank Industries , Ina, 302 F. 2d 273 (C A. 1). 7 Except as to those hereinafter found to be supervisors within the meaning of the Act. PLASTICS INDUSTRIAL PRODUCTS, INC. 1075 spondent considered the operator's performance ratings, which in turn were based to a considerable extent upon the recommendations of the leadmen . While in some cases they would conduct an independent investigation with respect to a recom- mendation made by a leadman as to an operator, they nevertheless "leaned heavily" on the recommendations of the leadman on the shift to which the operator was assigned . Sidilou testified to two specific instances when an operator was removed from Tuttle's shift to another department on Tuttle's recommendation that the man would not make a good operator , in one instance , and that he would not do what he was told, in the other instance. The foregoing testimony of Erickson and Sidilou is not inconsistent with that of Stuart and Tuttle to any major extent. They admitted that they had the opportunity to observe how the operaors on their shift were developing and that they were familiar with the capabilities of the operators. Stuart further admitted making recommendations to Sidilou with respect to whether the men on his shift would make good extruder operators and that certain operators who were not performing satisfactorily be fired or removed from his shift. He further testified that his rec- ommendation was not always followed. On one occasion when Stuart recommended to Sidilou that a man be removed from his shift because he was not interested in becoming a good operator, Stuart testified that he did not recall whether that opera- tor was fired or whether he quit. With respect to another incident when Stuart recommended that a man would not make a good operator because he was primarily an insurance salesman who was interested only in supplementing his income , Stuart also testified that "I believe he finally quit." Stuart also admitted that on one oc- casion he recommended to Sidilou that an operator be given a raise because he was "developing," and that his recommendation in this respect was followed. Tuttle admitted that when Sidilou asked him about the work of Louis Coates, an operator on his shift, he replied that he did not like Coates' work. He further testified that he did not know whether Coates was discharged but that he did know that he left the employ of Respondent. In addition, Mello, the leadman on the second shift who had joined the others in remaining away from work on the 2 days following Christmas, credibly testified without contradiction that not long before the hearing in this proceeding he had recommended that Green, an operator on his shift, be transferred because he did not want him on his shift, that Green was transferred to another shift, and that Green later quit. Upon consideration of the foregoing and the entire record as a whole, I am con- vinced that the preponderance of the record evidence warrants the finding, which I herein make, that the leadmen, including Stuart and Tuttle, have authority, which they have exercised , effectively to recommend changes in employee status and there- fore are supervisors as defined in Section 2(11) of the Act. 8 As supervisors are not employees entitled to the protection of the Act, I find that Respondent did not commit an unfair labor practice by the discharge of Stuart and Tuttle. I will ac- cordingly recommend that the complaint be dismissed as to them. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. IV. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8 (a) (1) of the Act in terminating the employment of Charles Tracchia and Charles Doherty who were engaged in a protected concerted activity under the Act, I recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of their termina- tion , by payment to each of a sum of money equal to that which each normally would have earned as wages from the date of the discharge to the date of Respond- 8 See, e g, Transformer Engineers , 114 NLRB 1325, 1327; Pittsburgh Plate Glass Com- pany, 115 NLRB 976, 977; The Mountain States Telephone and Telegraph Company, 130 NLRB 388. 6 72 010-6 3-v o f 13 9 -- 6 9 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's offer of reinstatement, less his net earnings during said period, with backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 94 NLRB 289, 291-294. While I agree with the position, very ably set forth in the General Counsel's brief, that the Board has the power to include interest in backpay computations, I will not recommend such inclusion. This is a policy matter for determination by the Board and is now under the Board's consideration in other cases.9 I believe it would be more appropriate for the Board rather that its Trial Examiner, to make an initial policy declaration of this kind. 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. By discharging Charles Tracchia, and Charles Doherty because they engaged in a protected concerted activity for -their mutual aid and protection, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not engaged in unfair labor practices by the discharge of John Stuart and Carleton Tuttle. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondent, Plastics Industrial Products, Inc., Peabody, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of their right to engage in concerted activities for their mutual aid and protection by dis- charging employees or discriminating in regard to their hire, tenure of employ- ment, or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of their right to engage in, or to refrain from engaging in, any or all the activities specified in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Charles Tracchia and Charles Doherty immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records relevant to the amount of backpay due and to the reinstatement and related rights provided under the terms of this Recommended Order. (c) Post at its plant in Peabody, Massachusetts, copies of the attached notice marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the First Region (Boston, Massachusetts), shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. o Niagara Chemical Division, F.M.C. Corporation, 137 NLRB 376, footnote 1 10 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1077- (d) Notify the Regional Director for the First Region , in writing, within 20 days from the date of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith." I further recommend that the complaint be dismissed insofar as it alleges that Respondent violated the Act by the discharge of John Stuart and Carleton Tuttle. u In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply 'herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interfere with, restrain , or coerce employees in the exercise of their rights to engage in concerted activities for their mutual aid and protection, by discharging employees or discriminating in regard to their hire , tenure of employment , or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to engage in, or refrain from engaging in, any or all the activities specified in Section 7 of the Act. WE WILL offer Charles Tracchia and Charles Doherty immediate and full reinstatement to their former or substantially equivalent position , without preju- dice to their seniority and other rights and privileges , and will make them whole for any loss of pay suffered as a result of their discharge. PLASTICS INDUSTRIAL PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must notbe altered , defaced , or covered by any other material. Employees may communicate directly wtih the Board's Regional Office, 24 School Street, Boston , Massachusetts , Telephone Number, Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. Local 282, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Precon Truck- ing Corp . ; Precast Inc. ; Precrete , Inc. ; Concrete Conduit, Inc.; and Consolidated Edison Company of New York, Inc. Case No. 2-CC-650. November 19, 1962 DECISION AND ORDER On December 11, 1961, Trial Examiner George J. Bott issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent, the General Counsel, 139 NLRB No. 92.