Shakespeare of Arkansas

National Labor Relations Board - Board Decisions

Feb 22, 1973

201 N.L.R.B. 981 (N.L.R.B. 1973)

SHAKESPEARE OF ARKANSAS 981
Shakespeare of Arkansas and Communications
Workers of America, AFL-C1O-CLC. Case
26-CA-4287
was an "employee" or a "supervisor ." The case was tried in
Fayetteville , Arkansas , on August 10-11, 1972.1
FINDINGS AND CONCLUSIONS
February 22, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 25, 1972, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief , and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Shakespeare of
Arkansas, Fayetteville, Arkansas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
RAMEY DONOVAN, Administrative Law Judge: The
charge was filed on March 17, 1972, by Communication
Workers of America, AFL-CIO-CLC, herein the Union,
against Shakespeare of Arkansas, Inc., herein the Compa-
ny or Respondent. On April 25, 1972, the complaint was
issued against Respondent alleging that, by the discharge
of James Wilson on March 6, 1972, Respondent has
violated Section 8(a)(1) and (3) of the Act. Respondent's
answer denies the commission of the alleged unfair labor
practice inasmuch as Respondent asserts that Wilson was a
supervisor within the meaning of the Act. Since the
evidence is admittedly that Wilson was discharged because
he had attended a union meeting , the issue is whether he
1 The General Counsel 's motion to correct the transcript of testimony,
being unopposed , is granted.
2 Aside from Wilson , all of the other witnesses in this case had not yet
been employed by the Company at this early period. Coiling, the present
industrial relations manager who also discharged the functions of a
personnel manager and who was in charge of personnel records, was first
employed in March 1968 ; Courtney was plant manager from November
1965 until June 26, 1972, when he left the Company ; the date Richards,
1. JURISDICTION
Respondent, at all times material , is a corporation with
an office and place of business in Fayetteville , Arkansas,
where it is engaged in the manufacture of sporting goods.
In a representative 12-month period, Respondent, in the
course and conduct of its business , purchased and received
at its Fayetteville plant materials and supplies , valued in
excess of $50,000, directly from points located outside the
State of Arkansas , and, during the same period, Respon-
dent sold and shipped products valued in excess of $50,000
directly to points located outside the state of Arkansas.
At all times material , the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union, at all times material , is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Wilson was the first or one of the first rank-and-file
production or maintenance employees hired by Respon-
dent at its Fayetteville plant. He was hired in December
1964, as a maintenance electrician "A" at $2.15 per hour.
Wilson is a licensed master electrician and also possesses a
state license as a boiler operator.
At the time Wilson was hired, Mitchell was the
maintenance foreman . Mitchell was absent from the plant
at various times and, according to Wilson, in about March
1965, the then plant manager, Willis, notified Wilson that
the latter was to be the assistant foreman and as such
would be in charge of maintenance during Mitchell's
absence. This verbal commission to Wilson from Willis did
not lead to any reclassification at that time of Wilson from
maintenance electrician to assistant foreman in company
personnel records nor was there any immediate change in
Wilson's wage rate? Aside from the foregoing verbal
commission from Willis to Wilson that the latter would be
in charge of maintenance in the absence of foreman
Mitchell, the sole reclassification of Wilson in Company
personnel records, from December 1964 to October 14,
1968, a period of over 3-1/2 years, was a classification
change on March 13, 1967, about 2 years after Willis had
told Wilson that he was assistant foreman and in charge of
maintenance when foreman Mitchell was absent .3 On
March 13, 1967, Wilson was reclassified from "mainte-
nance electrician 'A' " to Electrician, Dept. Leadman."
This reclassification brought with it a change in Wilson's
wage rate from $2.49 per hour to $2.60.4
Thereafter, as department leadman , Wilson received a
manager of industrial engineering , came with the Company does not appear
and he did not testify about this early period ; Goforth was hired as
supervisor of the tool -and-die department , tool crib , and maintenance, on
June 3 , 1968; Sherwood was hired as chief manufacturing engineer in
November 1968.
3 This arrangement of Wilson being in charge in Mitchell 's absence
lasted until about 1968 when Mitchell left the Company.
4 Up to the reclassification to leadman, Wilson's wage history was:
(Continued)
201 NLRB No. 152
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10-cent merit increase to $2.70 on 10/2/67 and participat-
ed in a general plant wage increase of 10 cents on 4/1/68
to $2.80 per hour. He was then reclassified on 5/27/68
from "Electrician Dept. Leadman" to "Maint. [mainte-
nance], Elect. [electrician] 'A' Leadman & A. C. [air
conditioning ] Repair." This reclassification from one type
of leadman to another brought with it a 20-cent wage
increase to $2.80 per hour.
In the foregoing period from early 1965 and for
approximately 3 years, the Company had a full-time
foreman, Mitchell. Evidently, being human, Mitchell was
absent from the plant from time to time .5 In the foreman's
absence , there was quite apparently a need for someone to
be in charge of maintenance. Wilson was the likely choice,
because he was the senior employee in maintenance and
the most skilled in the work of the department. Only
Wilson was a licensed master electrician and only he had a
boiler operator's license . The plant manager, therefore, told
Wilson in March 1965 that he was, or would act as,
assistant foreman and thus be in charge of maintenance
when the foreman was absent . It does not appear that this
verbal commissioning of Wilson was more extensive than
its terms or that thereafter he had duties and responsibili-
ties as an assistant foreman in the day-to-day course of
work when foreman Mitchell was present.
The indication from the evidence is that the verbal
commission as assistant foreman was of a nebulous, if not
an illusory, nature. The verbal bestowal was not reflected
in any change of Wilson's classification by the Company,
nor was it directly or discernibly reflected in an increase in
wage rate for him. Indeed, it took Wilson approximately 2
years from his "commissioning" as assistant foreman to
attain the classification of "leadman ," a distinct and lower
classification than "assistant foreman ." The foregoing
cannot be attributed to a nonexistent or undeveloped
classification system for the Company's employees. The
Company had distinct job classifications in other depart-
ments , of general foremen , foremen , assistant foremen,
section leaders, and leadmen . Nor can it be said that there
was substance to Wilson's appellation as assistant foreman
by reason of receiving higher wages . He received no wage
increase in March 1965 when he was commissioned. From
May 1965 to August 8, 1966, he received four merit
increases averaging 8.5 cents each.
As the name implies , the merit increases were for
meritorious job performance in his classification as
"maintenance electrician 'A' " and he occupied this
classification from December 21, 1964, to March 13, 1967.
Wilson was undoubtedly a highly competent employee
and, as we have seen , he was the most highly qualified and
skilled , in a craft sense , of any maintenance employee. He
also devised developments in company machines or
equipment and had been told that his raises or some of
them were due to this skill and inventiveness. The
Company may have also given consideration to the fact
that when the foreman was absent , Wilson stepped into the
gap, but the principal factor in the merit increases to
12/21/64-$2 15
5/31 /65-12 25 (Merit Increase)
1/10/66-S2 35 (Merit Increase)
7/8/66-$2.42 (Merit Increase)
Wilson appears to have been his meritorious performance
as an employee generally, a maintenance electrician.
Company records for the period reflect neither a reclassifi-
cation of Wilson as assistant foreman nor any wage
increase accompanying such a commission . This is to be
contracted with the fact that the only reclassification
shown for Wilson was the promotion to "leadman" in
March 1967, and this classification was reflected directly
by a higher wage rate tied to the classification.
When Mitchell, the maintenance foreman , left the
Company in 1968, there is no claim that the vacancy was
offered to Wilson, or that he was considered for the job, or
that he had indicated lack of interest in the job. The
Company, of course, had no obligation to offer the job to
Wilson and could choose whom it wished . Evidently the
Company considered that Wilson was in his appropriate
slot and classification as "leadman" in the maintenance
department. In any event, the Company, in June 1968,
hired Goforth as maintenance foreman ; and also as
foreman of the tool-and-die department; and foreman of
the toolcrib.
In practical effect, as Goforth in substance testified, the
three departments could not be supervised by one man as a
full-time on-the-spot foreman of each department . Goforth
testified that the tool-and-die department and its work was
his real specialty and, moreover , that department was
experiencing major problems that required his attention.
As a consequence, Goforth spent practically all his time in
the tool-and-die department. He verbally delegated to
Wilson, in effect, the running of the maintenance depart-
ment . Colling testified that he and assistant plant manager
Wood met with Wilson and told him "we didn't have a
foreman in that department [maintenance ] and that we
were promoting him to assistant foreman... .
During this period when Goforth was foreman of
maintenance , I am satisfied that Wilson performed the
functions of a supervisor. For instance , he wrote up
recommendations for merit wage increases for various
employees in the department and had been delegated this
function by Goforth. In such instances , Wilson, since he
was more familiar with the work of individual employees
than was Goforth, supplied and wrote out the reasons for
the wage increases . Wilson also initialed timecards of
employees in the department to show that they were
entitled to overtime payment ; or, he might initial a
timecard if an employee had neglected to punch in
although the employee had been at work on time. Wilson
also requisitioned parts and supplies from suppliers.
Wilson was reclassified during this period from leadman
to assistant foreman on October 14, 1968 . However, his
pay as assistant foreman remained the same as his pay as
leadman , $3 per hour. This contrasted with the fact that the
job of leadman carried with it a higher rate than that of
maintenance electrician and a reclassification from one
type of leadman to another type also entailed a higher rate.
There was no difference in the pay of Wilson with the title
8/8/66-12.49 (Merit Increase)
S There is no reason to believe that if the foreman had been habitually
absent for protracted periods that the Company would have retained him
for approximately 3 years
SHAKESPEARE OF ARKANSAS 983
of assistant foreman than his pay with the title of
leadman .6
In most of the period when Goforth was foreman of
maintenance as well as foreman of two other departments,
Sherwood , the chief manufacturing engineer , was Go-
forth's immediate supervisor. Goforth was relieved of his
duties as foreman of maintenance in the latter part of 1969
and confined himself to the tool and die department and
related duties.
To replace Goforth as foreman of maintenance, a man
named Jordan was hired .? Wilson , who had the title of
assistant foreman and who had been virtually running the
maintenance department during Goforth's incumbency,
testified that he spoke to Sherwood about Jordan's
appointment as foreman because Wilson felt that he
"should have had the foreman 's place ." Sherwood then
called Colling in to his office and they spoke to Wilson
about the matter.
Wilson testified credibly that in this meeting with
Sherwood and Colling , he was told that because there had
been friction in the maintenance crew he was not going to
remain as foreman in that department ; and also, because
of his ability in doing maintenance work, he was more
valuable in the actual work performance than he would be
"in supervision ." By way of illustration of this point, it was
pointed out to Wilson on this occasion that if he had his
head inside an electric panel board or in some other such
task, he could not be overseeing other work of the
maintenance employees.8
Coiling admits that he and Sherwood met with Wilson
about Jordan 's appointment as foreman . He denied that
Wilson was told he was more valuable on the floor of the
plant working than in supervision . Other than this denial,
Colling did not describe what Wilson was told on this
occasion, but Colling admits that Wilson did express
disapproval of the hiring of Jordan as foreman. Since
Colling does not describe any other purpose of the
meeting, I am satisfied that the subject was Jordan's hiring
and that admittedly Wilson expressed his opposition to the
hiring of Jordan as foreman of maintenance . In view of the
facts , it is quite credible, as Wilson testified , that Sherwood
and Colling, at the meeting, and responding to Wilson's
expressed opposition to the hiring of Jordan , told him why
an outsider had been or was being hired as foreman of the
department and why Wilson , despite his period of being in
virtual charge of maintenance under Goforth, was not
being made supervisor of the department.
Sherwood testified that the purpose of the meeting was
that, since Wilson would be working with Jordan, "we
invited him [Wilson ] to recommend him [Jordan ]." There
is no evidence or claim that Wilson knew Jordan
personally or professionally and it is difficult to understand
why such a meeting would be called so Wilson could
6 On March 13, 1967, Wilson was made department leadman at $2.60;
prior high rate as maintenance electrician was $249 On May 27, 1968,
Wilson was reclassified from department leadman to maintenance electri-
cian leadman and A/C repair at $3, prior high as department leadman was
$2.80. On October 14, 1968, Wilson was reclassified from leadman to an
assistant foreman at same rate of $3 All employees were reviewed annually
for work performance. Wilson received a 10-cent merit increase on
December 2, 1968; November 24, 1969; August 3, 1970; March 15, 1971;
February 28, 1972. There were also general plant wide wage increases in
which Wilson also participated but there was no wage increase as such that
recommend an outsider as foreman when the latter had
either been already hired or was about to be hired pursuant
to a management decision in which Wilson had not
previously participated. Sherwood states that Wilson said
that he would not "recommend" Jordan for the job. In
view of Wilson's and Colling's testimony on this aspect, as
well as Sherwood 's, I am satisfied that Wilson expressed
opposition to Jordan 's hiring as foreman . Moreover, why
would Wilson refuse to "recommend" Jordan for the job as
Sherwood asserts, or why would Wilson oppose Jordan's
appointment as I believe was the case , and yet, as
Sherwood then testified , Wilson said that he, Wilson, did
not want the job "because he didn't want to be saddled
with paper work." Wilson had handled the paper work
under Goforth for a substantial period, including filling
out forms for merit increases for employees; requisitions of
materials; and presumably other paper work , because
Goforth had simply been unable to devote any appreciable
time to the maintenance department . There is no evidence
that Wilson had complained about paper work in that
period or that he had sought to have the Company hire an
outsider as foreman in place of Goforth so that the new
foreman could handle the paper work.
As previously indicated, I credit Wilson that he had
expressed opposition to the hiring of Jordan as foreman of
maintenance instead of Wilson , and I believe Sherwood
and Colling then told Wilson the reason or reasons as
testified to by Wilson , above.
One of the reasons given to Wilson by Sherwood and
Colling was that there had been friction in the maintenance
crew under Wilson while he was performing as a supervisor
under the nominal regime of Goforth as maintenance
foreman. Neither Colling nor Sherwood mentions this in
their testimony. They confined their denials to the portion
of Wilson's testimony where he stated that he was told that
he was being removed from supervision for the reason that
he was more valuable working on the floor than in
supervision . The other reason given to Wilson was the
friction in the department under Wilson 's supervision. Not
only is this latter aspect important on the credibility issue
regarding the Wilson , Sherwood , Colling meeting but it has
other importance . Whether rightly or wrongly, the Compa-
ny was quite apparently dissatisfied with Wilson as a
supervisor, e.g., friction under Wilson in the maintenance
crew . The Company went outside to hire Jordan. As we
shall see, Jordan was discharged after a brief period, and
the Company again went outside to hire Smith as foreman.
Early in his regime Smith called all the maintenance
employees together . He did this, he testified, because he
had reports "about the men was unhappy about various
things ."9 What Smith said at this meeting about authority
and jobs in the maintenance department will be described
at a later point.
distinguished his change in title from leadman to assistant foreman.
7 The record does not show the precise period of Jordan 's foremanship
although it was apparently in 1%9 and was of relatively brief duration.
Wilson 's testimony on this score was not contravened and he testified that
"Jordan didn 't last very long and he was fired."
B As the only licensed master electrician and licensed boiler operator
there can be no question of the fact that Wilson was involved in his own
actual performance of important job tasks.
9 This is the same type of thing that Sherwood and Colling had
previously mentioned to Wilson as one of the reasons for his not continuing
(Continued)
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not show the precise period of Jordan's
tenure in 1969 as maintenance foreman.i° Apparently, it
was a relatively brief period for, as Wilson testified,
"Jordan didn't last very long and he was fired."
Employee Murphy was hired in the maintenance
department on November 1968. He was still employed at
the time of hearing. Murphy was a friend of Wilson's and
had been hired with Wilson's recommendation.ii Accord-
ing to Murphy's uncontroverted testimony, Jordan, had
informed him and the other people in maintenance, when
Jordan was foreman, that "when they [the Company] hired
him [Jordan] they had turned it [the department] all over
to him." Murphy testified that Wilson had no authority in
the maintenance department "since they hired Leonard
Jordan."
The evidence regarding the period of the brief Jordan
regime is very limited on both sides and the period of that
regime is not shown with any precision. Murphy's
testimony on the Jordan period cannot be regarded as
dispositive thereof but it is consistent with what Wilson
had been told by Sherwood and Coiling when he had
complained about Jordan's appointment, i.e., because of
friction in the maintenance crew under Wilson while
Goforth was nominal foreman and because Wilson was
more valuable as an expert craftsman on the floor of the
shop than in supervision, he was being removed from his
supervision of maintenance (having been virtual supervisor
in charge under Goforth) and an outsider, Jordan, was
being hired as supervisor foreman of maintenance.
After Jordan's discharge, there is no claim or evidence
that Richards or any other managerial employee of the
Company, considered or spoke to Wilson about the
possibility of becoming supervisor of maintenance, al-
though Wilson still bore the classification of assistant
foreman in the company books. In itself this is not
dispositive of whether Wilson still was in fact a supervisor
as he had been under Goforth. However, a supervisor in a
department, as assistant foreman, with Wilson's length of
service, technical ability and qualifications, and past
service of supervising the department under Goforth,
would appear worthy of at least consideration for the job
of supervisor foreman in the same department, particularly
when he had been recently passed over for an outsider,
Jordan, who was discharged after a brief reign. But Wilson
was not considered for the job despite the fact that
Richards had interviewed four or five outside applicants
and their references without arriving at a choice. These
facts add further credence to what Sherwood and Coiling
had told Wilson at the time of the Jordan appointment, i.e.,
that there had been friction among the maintenance crew
under Wilson and that Wilson was more valuable on the
plant floor than in supervision and was being removed
from his supervisory status that he had exercised under
Goforth.
With considerable realism in the face of the foregoing
state of affairs, Wilson accepted the situation as a basically
loyal employee. When the Company was having difficulty
previously mentioned to Wilson as one of the reasons for his not continuing
as supervisor, i e , friction in the maintenance crew
10 Shortly after Jordan came with the Company, Richards , manager of
industrial engineering , took Sherwood ' s place as the supervisor over the
in securing an outsider for the job of supervisor of
maintenance after Jordan 's discharge , Wilson did not sit
back in the hope that maybe, if no suitable outsider was
eventually found , the Company would give the job to him
and that he would once again exercise supervisory power
as he had done under Goforth. Instead, as Wilson testified,
"after Jordan was fired and I knew I couldn't be a
supervisor , I didn't want to impose anymore or argue
about the point of being a supervisor and I knew Raymond
and I recommended him." In short , Wilson then recom-
mended to Richards that the Company hire Raymond
Smith as supervisor foreman of the maintenance depart-
ment . Smith and Wilson had gone to school together and
had known each other for 35 years. Richard thereafter
interviewed Smith on two occasions , once alone and once
with Coiling. Subsequently, and relying on Wilson as a
reference and upon his recommendation, the Company
hired Smith as supervisor foreman of maintenance.
According to Coiling, Smith was advised when he was
hired that, as foreman in charge of maintenance, he had
total responsibility for his department ; he was also advised
that Wilson was assistant foreman to help him in his job
and that Wilson had "an obvious knowledge" of "the
people" and " the things in the plant" that Smith as a new
man did not have. Coiling was asked:
Q. Did you leave it up to him [Smith] to decide
what responsibility, if any, that he would delegate to M.
Wilson?
A. I think that all of our foremen run their own
departments.
Q. So the answer is yes?
A. Yes.
The number of employees in the maintenance depart-
ment varied from about 7-9, including Wilson, during the
first 3 or 4 years since Wilson had been with the Company.
In early 1972 just prior to Wilson's discharge there were
seven employees , all hourly paid, including Wilson, in the
department . Smith was the salaried foreman and Richards,
a salaried engineer, was Smith 's supervisor . The mainte-
nance department worked one shift and that was during
the day. The Company asserts that both Smith and Wilson
were supervisors over the six men in the maintenance
department.
In the initial period after Smith was hired as foreman,
while Smith was familiarizing himself with the operation,
Wilson requisitioned parts and supplies . This situation
changed , however, and Smith made it clear to Wilson that
the maintenance department was his responsibility , that he
was in charge , and that Wilson was no longer to handle
requisitions . I credit the foregoing testimony of Wilson.
Smith admitted that when he first came to the department,
Wilson had been ordering parts from outside suppliers.
Smith states that he took over this work entirely and
thereafter no more outside requisitions were made by
Wilson . Smith asserts that Wilson could still secure items
from the plant toolcrib. This evidently meant that he could
get a light switch or a nut and bolts or a wrench or so forth
maintenance foreman
II Murphy and others, on both sides, were among witnesses that can be
regarded as "interested witnesses."
SHAKESPEARE OF ARKANSAS 985
from the toolcrib but could not requisition parts or supplies
that were available only from outside suppliers. Smith
admits that even the plant crib requisitions of Wilson and
others were signed by Smith because he wanted to know
what was going on.
Early in 1970, after Smith 's advent in the maintenance
department, Wilson observed an employee operating and
driving a forklift in a careless and acrobatic manner in the
plant . Wilson was aware that forklifts were often handled
badly by employees and that their maintenance was a
problem . Wilson therefore proceeded to write up the
particular forklift driver for his reckless operation of the
vehicle . Since the particular driver was not an employee in
the maintenance department , the writeup report would go
to the personnel department , which presumably would
either deal with the matter or bring it to the attention of the
employee 's own departmental foreman . In any event, as
Wilson was writing up the report, Smith told him that such
a matter was not Wilson 's responsibility and that he was
not to write up such reports but that Smith "was the one
that was going to do that from now." This took place in the
maintenance office . Murphy was standing in the doorway
and overheard the foregoing . Both Wilson and Murphy, in
my opinion , testified credibly regarding the incident. Smith
testified that he did not recall such an incident and denies
having told Wilson the foregoing.
Murphy testified that shortly after Smith became
foreman , Smith called together all the maintenance people.
Smith told his audience that none of the men in the
department "had any more authority than the other one,
that everything came through him." Smith testified that he
did call together the men in the department . Smith states
that several times he was told by employee Stills that "the
men was unhappy about various things and this is when I
called this meeting ." At the meeting, according to Smith,
he told all the assembled maintenance people that they
were a team and "I wanted everyone to feel that his job
was no more important than the other...."
Since Smith did not testify what "unhappiness" or
disgruntlement among the men led him to call the meeting,
we must rely on reasonable inference . Evidently some men
felt that someone else was acting as if , or was saying that,
his job or authority was greater than that of some fellow
worker in the department . Unless the complaints or
unhappiness in the department were of this nature, why
would Smith speak on the theme of equality and tell the
men, as Murphy credibly testified, that no one in the
department had any more authority than the other , except
Smith , of course , and "that everything came through
Smith." Obviously the men knew that Smith as the
supervisor foreman had the authority in the department.
They were not complaining about that but about someone
else's authoritative actions . And there is no indication in
this record that any employee in maintenance except
Wilson might have undertaken or attempted to act with
some authority . He was, after all , the bearer of the title of
assistant foreman. This is what led Smith to publicly
inform everyone in the department that no one had any
more authority than another and that authority resided
solely in Smith . Even under Smith's version , which I do not
credit over Murphy's, Smith spoke of the team and of
equality and that no one should feel that his job was any
"more important than the other ." In view of the fact that
Smith 's remarks did not exempt Wilson from this doctrine
and reign of complete equalitarianism in the maintenance
department under Smith , the undoubted supervisor, it is a
reasonable inference that all maintenance people , includ-
ing Wilson, were made aware that only Smith possessed
supervisory power.
The foregoing "unhappiness" among the men in the
maintenance department that , according to Smith, led him
to address his assembled people as aforedescribed, can
properly be described as friction in the maintenance crew
that Smith sought to alleviate . There is a striking parallel
and continuity in this to a prior incident . As we have seen,
in 1969, although Wilson as assistant foreman under
Goforth had acted and performed as a supervisor in
maintenance , Sherwood and Colling told him that he
would not continue as a supervisor and succeed Goforth.
Several reasons for this decision were given , i.e., he was
more valuable as a skilled worker than in supervision, and,
also, because there had been friction in the maintenance
crew when Wilson was supervising. It is a matter of
conjecture whether , when Smith was hired , he had been
informed of this company belief, whether justified or not,
regarding Wilson's supervisory deficiency and propensity
to cause rank-and-file friction when he had been allowed
to exercise supervisory power . Whether wholly on his own
or otherwise, however, as we have seen , Smith bluntly
responded to the reports of friction and unhappiness
among the men by stating to his entire department that
they were all Indians and that he was the sole and only
chief . There was no enclave of an assistant chief or of an
assistant foreman in this policy of equality as proclaimed
by Smith.
Smith testified that Wilson had the responsibility for the
boilerroom . The latter consisted of a boiler, compressors,
and an electric switch panel . It is also asserted by
Respondent that Wilson was responsible for the plant
A.D.T. burglar alarm and fire alarm systems.
Wilson came to work at 6:30 a.m. and went to the
boilerroom . Two other maintenance employees, Murphy
and Higgenbothem, also reported at this time and they
assisted Wilson in the boilerroom . The work took about 30
or 45 minutes . Smith and the other employees came to
work normally at 7 a.m. Wilson was the only licensed
boiler operator and licensed electrician in the maintenance
department. In the boilerroom , every morning, Wilson
personally and physically , and the other two men, would
"blow down" the boiler, start the compressors , turn on the
plant heat or air conditioning and observe various gauges
and related instruments in the performance of the work.
The three men worked together. As the most skilled and
experienced of the three , Wilson was the skilled master
craftsman and undoubtedly the other two men assisted
him. In my opinion, the directions which Wilson gave from
time to time were routine in this daily task .12 If during the
heating season, for instance, one man was to turn on a
valve until a gauge registered 50 or some other established
figure, this would be a routine procedure. Smith admitted
12 Cast-A-Stone Products Company, 198 NLRB No. 66.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, without being told everyday, the men assigned to the
boilerroom knew "what they had to do." If something
unusual occurred, presumably the licensed boiler operator
would be expected to cope with it and if it required three
men, then Wilson, Murphy, and Higgenbothem would be
the men. If Wilson had been a licensed plumber, I assume
that he would handle plumbing matters and with such
helpers as he needed.
It is my opinion that, irrespective of title, Wilson, as a
skilled and experienced craftsman, was a leadman and not
a supervisor. Even in his bailiwick of the boilerroom,
Wilson did not choose and assign the men who were to
help him. Smith testified, "There were two men that I had
instructed would help Mr. Wilson consistently."
Q. Who were these men?
A. David Higgenbothem and Daniel Murphy.13
Smith, however, contends that both he and Wilson
assigned men to their work. Wilson states that Smith made
the assignments. Murphy testified that he received all his
assignments from Smith and that Wilson had not given
him an assignment since the time that Jordan had taken
over the department as foreman. I do not credit Smith. He
did not impress me as a particularly candid witness.
In endeavoring to illustrate that Wilson performed as a
supervisor, Respondent's counsel asked his witness , Smith:
Q. Did he [Wilson] complain to you about other
employees who were not performing their work
correctly.
A. Yes sir, at times.
Q. Do you recall a specific instance where Wilson
reprimanded an employee for various reasons?
A. No sir.
Counsel then asked the witness if he remembered an
incident involving Wilson, Murphy, and Higgenbothem.
Smith said that Wilson was in "early in the morning"
and Wilson came to him "twice" and complained
that Higgenbothem and Murphy "when they were
supposed to have been working" "have been drinking
coffee." 14 Smith states that Wilson "came to me about
the situation and we talked about it and decided a
course of action." The course of action was that Smith
"made it known immediately" that anyone "could
drop around the plant that time of the morning"
(presumably including the plant manager and other high
management people who would not be edified to see
men dunking coffee when they were supposed to be
working). According to Smith, these words from him
corrected the situation. In any event, the role played by
Wilson in the incident is unimpressive. Although the two
men were men who worked with him regularly (and, aside
from that, they were in the maintenance department where
the Company contends that Wilson was a supervisor
and the assistant foreman), there is no evidence that Wil-
son said anything to the two men who were drinking
coffee when they should have been working. The
situation was evidently a persistent or extended flaunting
of duty by the two men because Wilson came to Smith
13 As contrasted with his testimony given in general terms that Wilson
assigned men to their work, supervised them , and had supervisory power,
specific evidence and instances from Smith and others are to the contrary,
as we shall see hereinafter
14 As we have seen, these two men were in Wilson 's boilerroom crew that
about the matter on two occasions . It would seem that
any supervisor would have undertaken to admonish
the men under such circumstances . Moreover, even when
Wilson told Smith about the situation, Smith did not
delegate to Wilson the admonishing of the men but
handled the matter himself. It surely would be normal,
if Wilson was a supervisor, that Smith would have
delegated to him the task of telling the men that they
should not be drinking coffee when they were supposed
to be working, particularly if the men worked daily in
the boilerroom crew with the "supervisor ." 15 As far as
one man telling a supervisor that two other men, who
worked together with him, were drinking coffee when
they were supposed to be working , this is something
that any employee, particularly a long time loyal
employee, might do, especially if he was the boiler
operator with two men supposedly working with and
assisting him instead of drinking coffee.
Smith testified that Wilson was in charge of the electrical
work and this included the ADT burglary and fire alarm
systems. He also stated that in this work Wilson had the
assistance of other men. Since Wilson was the only master
licensed electrician in maintenance , it is to be expected that
he had a major role in the electrical work as a skilled
working craftsman . This is borne out by the statement of
Sherwood and Colling to Wilson in 1969 that one of the
reasons why he was not being continued as a supervisor, as
he had been under Goforth and why Jordan was being
hired as supervisor foreman , was that Wilson was more
valuable on the plant floor and he might have his head in
the electric switch panel board as he repaired it and
therefore could not be watching and supervising other
men. On the ADT and alarm systems, Wilson's job was to
test them every Friday. These were basically electrical or
electronic systems and Wilson was the best qualified man
to test them and correct or diagnose malfunction. It is
admitted that almost any employee could assist Wilson in
this testing. On Fridays, Wilson would call the local police
and fire stations to check whether the plant alarm system
was registering at the police and fire stations . Presumably
the test went something like this: Wilson activated the
alarm system in the plant; he probably had some employee
who would go to this or that section of the plant to pull a
fire alarm lever or open a door protected by the burglary
alarm; Wilson would telephone the police and fire stations
to see if the plant alarm systems that were connected to the
police and fire stations were working . In my opinion,
Wilson's electrical work was that of a skilled and
experienced working craftsman and does not establish his
alleged supervisory position.
In 1969, when Goforth was foreman and when Goforth
had delegated supervisory functions to Wilson, the latter
had prepared and signed merit increase forms for various
maintenance employees . This was at Goforth 's direction
and the reasons for the increases as stated on the forms
were composed by Wilson since Goforth had so instructed
him. Neither before this incident in May 1969 nor
came to the plant early in the morning. Murphy also worked with Wilson on
other types of work
is Indeed it is difficult to understand why even a leadman would not
have exercised some degree of direction over men in his crew under such
circumstances
SHAKESPEARE OF ARKANSAS 987
thereafter has Wilson prepared or signed merit increase
form recommendations. Smith, who, as we have seen, came
with the Company in December 1969, testified that on
some merit increases in February 28, 1972, both he and
Wilson believed that certain men deserved wage increases.
However, the men themselves, according to Smith, had
initiated the matter of their increases and they had come to
Smith personally to ask for increases. Wilson had not taken
any initiative about the increases and the men had not
gone to him although elsewhere in his testimony Smith had
described Wilson as being his liaison with the men in the
department. Smith states that he discussed the matter with
Wilson. Smith filled out and signed all the paper work, i.e.,
the merit increase recommendation forms and so forth.
There is no discernible reason why a foreman would not
discuss the work of junior employees with the most
experienced and skilled employee in the department
inasmuch as the senior employee worked daily side by side
with the men and was aware of their capabilities. Smith
himself believed that the men in question deserved the
increases . There is no reason why Smith would not have
been aware of the performance of the total seven men in
the department, including Wilson, that Smith supervised.
They all, Smith, Wilson, and the others, all worked
together on the one shift.
The other incidents cited by Smith, from the time of his
advent as foreman on December 1, 1969, to March 6, 1972,
when Wilson was discharged, to demonstrate Wilson's
supervisory position, were as follows:
Employee Karlen performed general maintenance work,
painting and so forth, and he occasionally helped Wilson
in the latter's work. Smith states that "shortly after I came
there" Wilson spoke to him about Karlen. It is fairly clear
that since Smith had never worked in the plant before, it
took him some time to acquaint himself with his depart-
ment and his people. He had, however, known Wilson for
35 years and he obtained his job as foreman with the
Company through Wilson. That Wilson should speak to
Smith about an employee under the foregoing circum-
stances and in the aforementioned early period is therefore
unexceptional. This is particularly true since it is not clear
whether prior to the Karlen incident, Smith had as yet
issued his departmental edict that everyone in the
department was equal; that no one had any more status or
authority than the other; and that all authority rested in
Smith.
When Wilson came to Smith about Karlen, Wilson said
that Karlen did not follow his, Karlen's, work "very
closely" and that Karlen's attitude "was not conducive to
getting the job done." Wilson expressed the opinion that if
Karlen did not change he would have to be let go sooner or
later. Even at this early period of his incumbency, Smith's
reaction was to personally "look into the situation more
closely" and he then spoke with Karlen about the matter.
A short time later, Wilson told Smith that Karlen had
directly violated Smith's instructions and "now is the time
for action." As Smith describes Karlen's violation of
Smith's instruction it was a "direct violation of what we
had told him to do . . . he was told to remove shelves away
from its wall and paint the entire wall. He painted around
the shelves ...." Inasmuch as Smith states specifically
what Karlen had done or had not done about the painting,
Smith knew this was the fact . Smith then terminated
Karlen. Having originally personally investigated Karlen
and having spoken to him about his work, Smith
terminated him upon Karlen's next dereliction which
violated Smith's instruction to him. As Smith testified,
there was, first, Wilson's report about Karlen and Smith
investigated the matter in person ; "the second time he
[Karlen] did not follow the instructions that I [Smith] had
given him personally" and Smith thereupon discharged
Karlen . Although Respondent cites the Karlen affair as
proof that Wilson was a supervisor and had effectively
recommended discipline and discharge of employees, the
evidence does not sustain the contention . Smith discharged
Karlen based on his own investigation and knowledge and
because Karlen had violated an instruction given to him
directly and personally by Smith.
Smith states that Wilson recommended the promotion of
Stills , who worked as a janitor , into maintenance. This was
in December 1971. Smith testified that "eventually I
promoted him . . ." into maintenance. How long this
"eventually" was, after Wilson's recommendation, does
not appear. In any event, Smith admits that he was
personally "familiar" with Stills' ability and knew that "he
was doing a good job." However, although Smith states
that he agreed with Wilson's recommendation , Smith made
further contact with Stills before eventually promoting him
into maintenance. In my opinion, any respected senior
employee or leadman who had been in the department for
years like Wilson could have made the same recommenda-
tion regarding an employee whose work was known by
Wilson and Smith and who the latter knew had been doing
a good job. Moreover, we regard it as indeterminative on
the supervisor issue that Wilson would speak to Smith
about such a matter and that Smith would consider the
recommendation.16 Aside from the factors mentioned
above, Smith had known Wilson for 35 years and Wilson
had been the principal factor in the Company's hiring of
Smith as foreman. There is no reason why Smith would not
lend an ear to Wilson on a matter concerning which Smith
had personal knowledge, and on which he agreed with
Wilson, coinciding as it did with Smith's own appraisal of
Stills.
Respondent has introduced evidence that from 1968
through 1971, Wilson had signed about 15 pass out slips
for maintenance employees. The pass out slips are
provided by the company and are printed forms, one
yellow and one blue. One type is for property, such as
scrap lumber or other scrap material that employees are
permitted to take from the plant; or a company tool, such
as a wrench or so forth, which may be borrowed for
personal use but must be returned. The other type of pass
out slip permits an employee to leave the plant for personal
business, e.g., dental appointment ; illness; wife ill and so
forth, before regular quitting time.17 The property pass out
has a space for a brief description of the property being
taken. The personal pass out slip has a space for the
16 Smith testified that "the recommendation meant something to me." paid for time lost by reason of leaving early on a pass out slip.
17 Since all the employees in maintenance are hourly paid, they are not
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason, e.g., dental appointment. At the bottom of each slip
are two blank lines for signatures. Under one line is printed
the word "Foreman." Under the other line are the words
"Ind. Rel. Dept." The slips are not effective without two
signatures. The first, on the "Foreman" line, is affixed in
the plant department. The employee then takes the slip to
the personnel department for a signature over the "Ind.
Rel. Dept." line.
Wilson signed a number of these slips and all on the line
above "Foreman." The slips were then countersigned by
someone in the personnel department on the other line.
Wilson began signing those slips in 1968 when he had the
title of assistant foreman and when he was performing the
functions of a supervisor under Goforth. He continued to
have the title assistant foreman in the personnel records of
the Company until his discharge, irrespective of the change
in his duties and authority after Goforth left the mainte-
nance department and after Smith's advent as foreman.
Smith testified that he had a great deal of paperwork to
take care of as foreman and he personally handled all the
important maintenance department paperwork such as
requisitions, written recommendation forms for employee
merit pay increases and so forth. He also signed pass out
slips. However, he apparently was content to allow Wilson
to continue to sign some of these slips and the latter signed
six such slips during the more than 2 years when he was
under Smith's regime. Wilson, after all, was among the
oldest employees in point of service at the plant, and he
was a valuable and reliable employee who was a supervisor
and assistant foreman under Goforth, and he still bore the
title of assistant foreman in the Company personnel
records since no one had formally removed the title or
formally demoted him. The personnel department no
doubt recognized Wilson as a reliable employee and it
therefore countersigned pass out slips signed by Wilson.
In some other departments, also, pass slips were signed
on the "Foreman" line by nonsupervisors and were
countersigned by the personnel department although it was
aware that the particular department signer was not a
foreman or supervisor. Spillers, presently a leadman in the
anodize department for 1-1/2 years, testified, without
contradiction, that he has signed 20-25 pass out slips of
both kinds. He has signed these slips on the line over
"Foreman." The personnel department people were aware
of this and they countersigned the slips signed by Spillers.
He was never told that he was not supposed to sign such
slips because he was not a foreman or a supervisor.
Employee Wendt, who works in the paint shop, has been
signing both kinds of slips for about 2 years and up until
approximately the time of the instant hearing. The paint
shop has a foreman, Hinson. Wendt signed on the
"Foreman" line. He is hourly paid. In June 1972, Wendt
voted as a rank and file production or maintenance
employee in a Board election among Respondent's rank-
and-file employees. His vote was not challenged. Employee
Murphy has received pass out slips from various people,
some signed by Smith, some by Wilson, and some by
Pierce, "the guy that works in the lab," according to
Murphy's description. Murphy stated that Pierce was a lab
technician. Consequently, the signing of pass out slips
under all the circumstances aforesaid cannot be regarded
as determinative or persuasive in depicting Wilson as a
supervisor.
Respondent maintains a 5-page guard manual. This
contains instructions for its plant guards . On the last page
appears the following:
Company Officials To Be Telephoned In Case of An
Emergency
Mr. James Coiling-Personnel Problems or Fire (tel.
no.)
Shirley Blackston-Personnel (tel. no.)
Raymond Smith-(tel. no.)
James Wilson-Boiler Troubles (tel. no.)
Carl Richards-(tel. no.)
Contact Mr . Courtney in case the above cannot be
reached
Although the foregoing does not specify the subject
matter concerning which Raymond Smith was to be called,
it presumably was in the area of maintenance problems
generally since Smith was the maintenance foreman. As to
Wilson, he was to be called if there were "boiler troubles,"
since , quite clearly, he was the most experienced boiler
man and the only licensed boiler operator . However, even
on matters involving the boiler , which is a limited area of
responsibility even if Wilson were the only person to be
notified , it appears that Wilson was not the sole person to
be called . Instruction #24 in the same manual reads:
Mr. Smith and/or Mr . Coiling will be notified prior to
any one shutting off the water mains to the Shake-
speare Plant (boiler and compressors will have to be
shut down)
In short , although Wilson would probably be the man who
would shut down the boiler and compressors if the water
mains were to be turned off, he would not be the person
that the guards would notify that the water was being
turned off. They were to notify Smith or Coiling . Smith or
Coiling would then presumably personally notify Wilson
and see to it that he shut down the boiler and compressors.
I am not persuaded that the listing of Wilson 's name or the
fact that his name appears under the caption of "Company
Officials" is convincing evidence that Wilson was or is a
supervisor.
Various internal plant telephone rosters were introduced
in evidence by Respondent. These are one sheet mimeo-
graphed lists of names of Company personnel with the
particular inplant telephone numbers and call numbers at
which , or by which, the person can be reached. These
rosters are posted at telephone locations throughout the
plant, but all the names and titles on the rosters are not
those of supervisors . There are names followed by such
designations as "Accounting"; or "Expeditor"; or "secre-
tary to Les Courtney"; or "Payroll"; and so forth . On four
rosters Wilson 's name appears with the title "Asst.
Maintenance Supervisor"; on another roster his title is
"Asst. Foreman , Maintenance." The March 1970 roster is
fairly typical . It contains 72 names with titles or designa-
tions and their plant telephone and call numbers. Smith's
name and the title "Maintenance Supervisor" appears.
Also listed is Hicks with the designation "maintenance."
Hicks is a rank-and-file nonsupervisory employee in the
maintenance department. Wilson's name appears with the
title "Asst . Maintenance Supervisor."
SHAKESPEARE OF ARKANSAS 989
As previously indicated, the evidence has satisfied me
that from March 13, 1967, to October 14, 1968, Respon-
dent's personnel records show that Wilson was classified
as, and had the title of, "leadman." On October 14, 1968,
he was reclassified from leadman to "assistant foreman" at
the same hourly rate as he had received as leadman. His
classification and title remained unchanged until his
discharge on March 6, 1972.
In the same realm of titles that Respondent introduced,
it also introduced two 1969 and one 1970 inspection
reports of the insurance company that insured the plant
against "Fire and Associated Perils." On these reports the
insurance company's representative refers to Wilson as
"Maint. Supv." on two reports and as "Maint. Supt." on
one report.
Colling testified that Wilson was the man who customar-
ily conducted the insurance company inspector on the
latter's inspection tour of the plant. Wilson no doubt knew
more about sprinklers and shutoff valves and such matters
of interest to the inspector than anyone else in the plant.
He had also worked in the maintenance department from
its inception and would know the location of all equipment
and so forth. There is no indication that the plant manager
or the assistant plant manager , or the personnel manager,
or any foreman , was eager to conduct an insurance
inspector through the plant. It was a chore delegated to a
long time technically knowledgeable and reliable employ-
ee, Wilson. In the absence of evidence that Wilson or
anyone else told the inspector that Wilson was the
maintenance superintendent or supervisor, this title was
probably assumed to be appropriate by the insurance man.
In any event, this is still an example of titles and the latter
are not the determinants under the Act of whether a man is
or is not a supervisor.
Other matters cited by Respondent to support its
contention that Wilson was a supervisor is that he had a set
of keys to the plant. Smith, Colling, and Richards also had
the same set of keys. Such keys obviously allowed access to
the plant and its equipment in the event of emergencies. I
would assume that if the boiler malfunctioned during the
night or if the alarm system kept ringing because of a short
circuit, Wilson, owing to his skill and experience, would be
the likely candidate for a call. Wilson, in substance, so
testified.
The fact that Wilson worked on the boiler and was the
only licensed boiler operator is part of Respondent 's claim
that Wilson was a supervisor; the contention being that he
had the responsibility for the boiler. This has been
discussed earlier in our decision. A further aspect is that in
the last few weeks prior to Wilson's discharge, three other
men were trained to secure , and did secure , boiler licenses.
Smith, who had had some boiler experience in the Navy,
secured a license; Murphy was trained by Wilson and
secured a license; and Higgenbothem was trained by
engineer Richards and secured a license. This concerted
and simultaneous training and securing of licenses was
quite apparently pursuant to a higher management
decision and direction. Wilson's training of Murphy for the
license was no doubt due to Wilson's technical qualifica-
tions and the fact that he already held a license as a result
of passing the necessary state tests. Moreover, if Wilson
was a supervisor because of his boilerroom work, and
boiler operator status, as Respondent argues, Wilson's
status as sole licensed boiler man was considerably thinned
and watered down by the emergence of three additional
licensed boiler operators shortly prior to Wilson's dis-
charge.
The Company has about 25 or 30 supervisors in a total
complement of 350-375, including supervisors , office
people, and production and maintenance employees. Up
until approximately March or April 1971, the Company
had held dinner meetings for supervisors at night at a local
motel . As Colling stated , Wilson was on the invitation list
and was invited . One of the two notices or invitations that
are in evidence states, inter alia,
The social hour will begin at 6:30, with dinner being
served at 7 p.m. After dinner a short film will be shown
followed by a discussion.
Wilson states that he received an invitation to and
attended one of these meetings in 1969 and again in 1970.
What took place at these meetings does not appear other
than as indicated above by an invitation in evidence.
Colling testified that although there have been no supervi-
sory dinner meetings since March or April 1971, there have
been supervisory meetings "on various levels" since that
time . There is no claim or evidence that Wilson was invited
to or attended any of these other meetings . But the fact is
that in the past , Wilson had been invited to and had
attended supervisory dinner meetings and presumably ate
the dinners paid for by the Company. He did not declaim
that he was not a supervisor and not entitled to a free
dinner . He was invited and he came . The invitations were
sent out by the personnel department . As far as that
department 's records showed , Wilson was an assistant
foreman and, by title , therefore , a supervisor . If a man had
been shown in the records as classified as a "leadman," he,
in all probability, would not have received an invitation, in
my opinion, regardless of his actual duties and power
exercised in his job.
More significant evidence on the matter of Wilson's
actual status and authority is Wilson's testimony that in
Smith's absence on vacation , Richards took charge of the
maintenance department and not Wilson. Richards, an
engineer, was Smith's superior but the on-the-spot daily
supervision of the department was performed by Smith. In
the latter 's absence, it is apparent that Wilson did not
supervise the department . Wilson 's testimony on the
foregoing aspect is not controverted. In fact , Murphy was
asked,
Q. Does Mr. Smith have occasion to be away from
the plant on off days?
A. Sometimes he goes deer hunting.
Q. Who is in charge when Mr. Smith is gone?
A. Well, it always has been that Carl Richards was.
Richards, a witness for Respondent , did not deny the
foregoing testimony of Wilson and Murphy.
In early March 1972, or shortly before , the Company
became aware that the Union was engaged in an
organizational drive among its employees. Plant manager
Courtney testified that he convened meetings with "several
groups of supervisors ." Wilson was in one of these groups.
Courtney addressed the groups , advised them of the union
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drive and advised his supervisors what they could and
could not do under the Act. At the end of the meeting,
Wilson asked Courtney if he could speak with him.
Courtney had some out-of-town visitors but agreed to meet
with Smith the following morning. The next morning,
Courtney, Richards, and Smith met with Wilson in an
office near Courtney's office. As described by Courtney,
Wilson told him that Wilson did not feel that he was a
supervisor. Courtney, according to his testimony, respond-
ed:
I told him that I felt that he was a supervisor and that
he was being paid additional money for being a
supervisor, and as far as I was concerned, as manager
of the facility, he was a supervisor and that he should
be bound by the regulations.
Soon, thereafter, Courtney held a second meeting with
his "supervisors." He reviewed the "do's and dont's" that
had been discussed at the prior meeting. At the end,
Courtney asked those present if, to their knowledge, they
had done anything, "that we had asked them not to do."
Wilson spoke up and said that he had attended a union
meeting. He was discharged because of that on March 6,
1972.
On the subject of Wilson's wage rate, the record shows
that he was the highest paid hourly employee in his
department. Smith was salaried. Wilson's received rate
when he was discharged was $3.84 per hour. A week before
his discharge he had received a merit increase that brought
his rate to $3.99. He had not actually received wages at that
rate prior to his discharge but that was his most recent rate.
The next highest rate in maintenance was that of Hicks, a
3-year employee, at $2.87.
Wilson's wage rate, in my opinion, reflects principally
the following factors: he had the greatest length of service
of anyone in maintenance, including foreman Smith and
the latter's superior, Richards; Wilson was also among the
first group of employees hired in the plant; with the
exception of the first maintenance foreman, Mitchell,
Smith had greater service than all subsequent foremen of
the department, Goforth, Jordan, and Smith; until shortly
before his discharge, Wilson was the only licensed boiler
operator in the plant; he was throughout his employment,
the only licensed electrician in maintenance; he was the
most skilled man craft-wise in the department; by reason
of his greater length of service, dating from December
1964, he was the recipient of more general plantwide wage
increases than anyone else in his department and probably
more than most of those in other departments; by reason
of his length of service and accompanying experience, as
well as his superior technical and craft qualifications, and
also because he contributed valuable inventive and
technical ability to improving company products and
equipment, and because he was a good, reliable, and
16 Four of Wilson's merit increases , with three of them being in 1966,
were received when he was classified as maintenance electrician and had
not even attained the classification of leadman . One merit increase was
received as a leadman This tends to indicate that it was technical skill and
performance rather than supervisory title that was the major factor. From
1%8, when Wilson was classified as assistant foreman , to March 1972,
Wilson received one merit increase each year. In view of actual skill and job
performance it is highly probable that even if Wilson's title had remained
that of maintenance electrician or leadman , he would have received at least
one merit increase per year from 1968 to 1972.
valuable employee, he received 10 merit increases in the
period of his over 7 years of service ; is additionally when
Wilson was reclassified and promoted from maintenance
electrician to department leadman he directly and simulta-
neously received a wage increase reflecting his promotion
and new status ; precisely the same thing, a wage increase,
reflected his promotion and reclassification from depart-
ment leadman to maintenance electrician leadman and air
conditioning repair. All the foregoing elements entered into
Wilson's eventual wage rate.is
When Wilson was reclassified and promoted from
leadman to assistant foreman his wage rate remained
unchanged , although his prior promotion from mainte-
nance electrician to leadman was directly and immediately
reflected in a higher wage rate . In the light of the fact that
there was no written job description for maintenance
assistant foreman and no wage rate directly related to that
job, there is room to doubt that the Company ever
contemplated having or ever had more than one full-time,
on-the-job supervisor to handle the one-shift maintenance
operation of seven or eight men.
For approximately the first 3 years, the Company had a
full-time maintenance foreman , Mitchell. Mitchell devoted
all his time to his maintenance supervision although he was
absent occasionally. During the Mitchell foremanship, the
plant manager , in March 1965 told Wilson that he would
run the department on the occasions when Mitchell was
absent . In the performance of such duty , the manager
advised Wilson, the latter would be or was the assistant
foreman . Despite the fact that Wilson acted in Mitchell's
place on occasion , there is reason to doubt that the
Company contemplated that it now had two full fledged
supervisors, or that in fact, it did have two supervisors in
that department. Wilson was not reclassified or promoted
in 1965 or 1966 from electrician to assistant foreman.
Indeed, it was not until March 1967, that he even attained
the promotion and reclassification to leadman.
After Mitchell's departure, Goforth was foreman of
maintenance ; foreman of tool-and-die department; and
foreman of toolcrib, all at the same time . Admittedly,
Goforth devoted his time to, and spent his time in, the tool-
and-die department. He delegated to Wilson the running of
the maintenance department and Wilson of course spent
all of his time in that department?c During this period,
Wilson was reclassified from leadman to assistant foreman
but with no immediate change in wages reflecting this
change . And during this Goforth period, there was only
one supervisor, on the spot, in the maintenance department
and devoting full time to maintenance . That man was
Wilson. There was therefore one full-time supervisor in
maintenance , not two, since during this period there was
no second assistant foreman or even a leadman assisting
Wilson who was virtually the acting foreman . I do not
IS The indication also is that an hourly employee , with a substantial
wage rate, attributed to skill , merit increases, and long service , could earn
more than a salaried foreman or other supervisors , however paid, and
particularly if the employee had opportunities to work overtime at time and
one-half or double time.
20 Goforth testified that the only requirement that he placed on Wilson
was to keep Goforth informed on what Wilson was doing . Goforth also said
that when "elaborate" decisions had to be made, he and Wilson discussed
them . We are not told what "elaborate" decisions there were or how often
they arose, but, in our opinion , they were probably infrequent.
SHAKESPEARE OF ARKANSAS
doubt that some of the merit increases received by Wilson
during this period were attributable to the task he was
performing.
When Goforth's remote relationship as foreman of
maintenance ended, the Company did not give the job to
Wilson, despite the fact that he had run the department
during Goforth's reign. The reasons given for this declina-
tion were that there had been friction in the department
when Wilson had been functioning as supervisor and in
any event he was more valuable as a skilled worker than as
a supervisor.
Jordan was then hired as a supervisor and once again
there was one full-time supervisor devoting all his time to
the department. Jordan did not last long and was
discharged. Once more an outside man, Smith, was hired to
supervise the department. As we have seen, Smith had full
authority and responsibility for the department and he
made it clear both expressly in words and in deeds that he
was supervising the department and that there was no
other authority in the department. Thus, from Mitchell
through Smith there had been, factually, at a given time,
only one full-time supervisor, not two, exercising day to
day, on-the-spot, supervisory power in that department
-Mitchell; Wilson (in the Goforth period); Jordan; and
Smith.
As to why Wilson's title of assistant foreman that was
bestowed in the Goforth period of 1968 was not thereafter
changed, we can only speculate. Colling testified he knew
of no instance where the Company had formally or
otherwise demoted one of its people. Moreover, Wilson
was a long time good employee and a valuable employee
who, despite his title and past service, had been passed
over in favor of hiring Jordan, and outsider, as foreman.
Since Wilson knew that he could not succeed Jordan, he
acted gracefully under the circumstances, and instead of
sulking, he procured Smith for the Company. Why,
therefore, should the Company heap coals upon Wilson's
head by removing the title of assistant foreman. He had
been called assistant foreman beginning in March 1965,
when he was a maintenance electrician at $2.15 per hour,
although he was not made leadman until March 1967, at
$2.60 per hour, and assistant foreman in October 1968.21
The evidence in this case has persuaded me that Wilson,
despite his title, was not a supervisor within the meaning of
the Act at the time of his discharge. He was an employee,
and in function, authority, and performance of his duties at
the time of his discharge, I would equate him with a
leadman irrespective of his title.22 Wilson's discharge on
March 6, 1972, for his union and concerted activity was
therefore a violation of Section 8(a)(1) and (3) of the Act.
21 In a representation case decision of May 25, 1972 , the Board held that
certain named section leaders and assistant foremen in other departments of
the Company were supervisors. The decisional basis in each instance is set
forth in the decision . The hearing in the case was held after Wilson's
discharge . If there was a successor assistant foreman to Wilson in the
maintenance department it does not appear in any event there is nothing in
the decision to indicate that there was a current assistant foreman in
maintenance who was assertedly a supervisor and thus to be excluded from
the voting unit of rank-and-file employees
22 Iroquois Telephone Corp, 169 NLRB 344, In 6, Cast-A -Stone Products
Company, supra
23 F W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating
CONCLUSIONS OF LAW
991
1. Respondent is an employer within the meaning of
the Act.
2. On March 6, 1972 , Respondent discharged James
Wilson, an employee within the meaning of the Act,
because of his union and concerted activity.
3. By the foregoing discharge of Wilson , Respondent
has violated Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has violated the Act by
discharging James Wilson, the customary and appropriate
remedy of reinstatement and backpay will be recommend-
ed.
It is recommended that Respondent offer Wilson
reinstatement to his former or substantially equivalent job,
with his seniority and other rights. He is to be paid the
wages he may have lost from the date of his discharge,
March 6, 1972, to the date of the offer or reinstatement,
less any intermediate earnings that Wilson may have had.
The computation is to be made on a quarterly basis and
with interest at 6 percent 23
RECOMMENDED ORDER24
Respondent Shakespeare of Arkansas, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging union activity by discriminatorily
terminating James Wilson , an employee because of his
union and concerted activity.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to James Wilson immediate reinstatement to his
former or substantially equivalent job, without prejudice to
his seniority and other rights, and make him whole for any
loss of pay he may have suffered, as more fully described
in this Decision under the section entitled "The Remedy."
(b) Post at its Fayetteville, Arkansas, plant, copies of the
attached notice marked "Appendix." 25 Copies of said
notice on forms provided by the Regional Director, Region
26, after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places , including all places
where notices to employees are customarily posted.
Co, 138 NLRB 716.
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
25 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken to ensure that such notices
are not altered , defaced, or covered by other material.
(c) Preserve and , upon request, make available to the
Board or its agents , for examination and copying, all
records necessary to analyze the amount of backpay that
may be due James Wilson, including payroll records,
timecards , social security records and other personnel or
financial records.
(d) Notify the said Regional Director, in writing , within
30 days from receipt of this Decision , what steps have been
taken to comply herewith.26
26 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 26, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties participated and were
represented, it has been found that we have violated the
National Labor Relations Act by discharging employee
James Wilson. To remedy this violation, we advise you:
WE WILL NOT discriminate against James Wilson
because of his union and concerted activity.
WE WILL offer James Wilson reinstatement to his
former job or to a substantially equivalent job with his
seniority and other rights.
WE WILL pay James Wilson any wages he may have
lost from the date of his discharge on March 6 , 1972, to
the date of our offer of reinstatement , with interest at 6
percent , and less any interim earnings he may have had
after his discharge.
WE WILL NOT in any like or related manner interfere
with employees in the exercise of their rights guaranteed
in Section 7 of the National Labor Relations Act.
SHAKESPEARE OF ARKANSAS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board 's Office , Clifford Davis Federal
Building, Room 746, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.