B & B Insulation, Inc

National Labor Relations Board - Board Decisions

Nov 26, 1984

272 N.L.R.B. 1215 (N.L.R.B. 1984)

B & B INSULATION

1215
B & B Insulation of Texas, Inc , doing business as B
& B Insulation, Inc and International Associa
tion of Heat & Frost Insulators & Asbestos
Workers Cases 14-CA-16853 and 14-CA-
17118
26 November 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 13 June 1984 Administrative Law Judge
Marion C Ladwig issued the attached decision
The General Counsel filed exceptions and a sup
porting brief and the Respondent filed a reply
brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 1 and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
' In affirming the judge s decision we note the following evidence fur
ther supports his finding that Quality Control (QC) Inspector Karen Case
was a statutory supervisor It is undisputed that Case was responsible for
directing and training QC inspectors Randy Pahl Tommy Nichols and
Jackie Kennedy and that she did in fact train and direct them and assign
them work Furthermore the record shows Case had to use Independent
judgment in performing these functions and could not rely solely on Nu
clear Regulatory Commission guidelines or the Respondent s established
QC procedures
The General Counsel relies on Tucson Gas & Electric Co 241 NLRB
181 (1979) and Wilhams Litho Service 260 NLRB 773 (1982) to support
the argument that Case s authority to assign and direct was that of a lead
person rather than a supervisor Unlike the instant case however the as
signments made by the individuals found to be leadmen were strictly rou
tine In addition the leadmen s authority to assign and direct was limited
by the day to day presence of and direction by at least one level of ad
nutted supervisors Tucson Gas & Electric 241 NLRB at 182-183 Wil
hams Litho Service 260 NLRB at 791-792 Karen Case s quality control
work was not routinely supervised at the jobsite For most of the period
when Case was responsible for training directing and assigning work to
Pahl Nichols and Kennedy her immediate supervisor was located at the
Respondent s headquarters some 850 miles from the jobsite Though she
often consulted her supervisor by phone for directions there were pert
ods of a week or more when she was out of communication with him
See Dixon Industries 247 NLRB 1446 fn 3 (1980)
DECISION
MARION C LADWIG Administrative Law Judge
These cases were tried at Jefferson City Missouri Janu
ary 24-27 and 31 and February 1-2 1984 The charges
were filed by the Union July 20 and November 17
1983 I and a complaint and consolidated complaint were
issued September 2 and January 6 1984
In October 1982 5 months after the Company assigned
a person to assist quality control (QC) Inspector Karen
Case at the Callaway nuclear power plant the Company
changed her title to QC supervisor without any change
in pay or duties On July 15 after she and two new QC
inspectors had met a union organizer at the jobsite the
Company discharged her The primary issues are (a)
whether Case was a supervisor (b) if not did the Corn
pany the Respondent discriminatorily discharge her
after interrogating and making coercive statements to her
about the Union and (c) whether the Company discri
minatonly discharged a QC inspector after coercively
stating that the inspectors would never be represented by
a union violating Section 8(a)(1) and (3) of the National
Labor Relations Act
On the entire record including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by the General Counsel and the Company 2 I
make the following
FINDINGS OF FACT
I JURISDICTION
The Company a Texas corporation installs insulation
and other materials at a construction site near Fulton
Missouri where it annually receives goods valued over
$50 000 directly from outside the State The Company
admits and I find that it is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A The Supervisory Issue
Under contract with Bechtel the Company installed
penetration seals flexible gap seals vapor and dust seals
and sleeve extenders at Union Electric s Callaway nude
ar power plant near Fulton Missouri The Callaway job
site Is about 850 miles from the Company s headquarters
in Houston where Quality Assurance (QA) Manager
Charles Spriggs has his office
On January 4 1982 near the beginning of the Compa
ny s work at the jobsite Spriggs hired Karen Case as a
level II quality control (QC) inspector at $8 an hour
with the same $252 a week per diem being given the
insulators on the job She was highly qualified knowl
edgeable and experienced in quality control work On
her last job at a nuclear plant where she hired and su
pervised 16 levels I and II QC inspectors her title was
quality control manager (Tr 267-268) Spriggs informed
her that that position did not exist at the Company but
that as the Company expanded the position could- be
created and she might be able to move to Houston at
that time (Tr 280)
' All dates are in 1983 unless otherwise indicated
2 I grant the General Counsel s May 9 1984 motion to strike from the
Company s brief the references to a purported newspaper article dated 2
days before the trial began but not offered in evidence
272 NLRB No 185
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Case s employment letter Spriggs advised her that
she was being employed in the B&B Insulation Fire
Safety Division that her job training and orientation
would be done at the jobsite and that she would be
working for the B&B Quality Assurance Department
under the direction of (his brother) Kenneth Spriggs the
senior QC inspector at the Callaway jobsite You will
report to Project Engineer Mr Ernest Kutzley on all
administrative matters such as expenses work hours re
porting time etc (G C Exh 2) The Company s work
at the jobsite was slow at the time and Kenneth Spriggs
was the only other QC inspector on the job
In mid March 1982 the Company transferred Kenneth
Spriggs to its fabrication shop in Fulton leaving QC in
spector Case in charge of quality control at the jobsite
working alone about 6 or 8 weeks QA Manager Charles
Spriggs claimed that he told Case upon hiring her that
when Kenneth Spriggs went to the Fab Shop she
would take over the quality management (Tr 1103-
1104) and that at the time of his brother s transfer he
informed her she would be the quality management on
on the jobsite (Tr 1116) I find that this testimony was
fabricated Spriggs wrote on her employment application
the possible future position of QC Supervisor but not
at Callaway (R Exh 3) and Case credibly denied that
she was ever told that she was quality control manage
ment on the jobsite (Tr 239 1478) I also discredit as a
fabrication Spriggs claim that when she inquired about
the $252 weekly per diem before being hired I in
formed her that our per diem was paid for our su
pervisory personnel and that per diem would only be
going to people actually performing the QC management
function (Tr 1103) Case credibly testified that Spriggs
did not say that per diem was for management He
never discussed it as to who got it I said that I would
not work without it That I knew the insulators got it
That I could get it as a QC inspector from other compa
nies and that as part of my payment package I wanted
the per diem (Tr 1478)
Throughout her lengthy testimony Case impressed me
by her demeanor on the stand as being a most sincere
honest witness On the other hand Charles Spriggs as
well as four other company witnesses Ralph Block John
Gardner Earl Goodman and Susan Lampkin impressed
me by their demeanor as being untrustworthy witnesses
who were willing to give whatever testimony might help
the Company s cause
Although Case worked alone several weeks after Ken
neth Spriggs transfer and although there was no men
lion of any change of title or authority in her April 7
1982 90 day review (when she received a 50 cent raise
(G C Exh 23 R Exh 4)) the Company contends in its
brief that she began exercising supervisory authority
from the time she relieved Kenneth Spriggs in March
1982 I find the contention to be unfounded
In May 1982 without consulting Case the Company
transferred untrained employee Randy Pahl from the fab
rication shop to assist her in quality control at the job
site Case trained him to be a level I inspector and later
qualified him for promotion to a level II inspector Be
tween May 1982 and late April 1983 when trainees
Tommy Nichols and Jackie Kennedy were hired Nich
ols was Case s only assistant (except for part of March
and April when the newly appointed quality control
manager Goodman who was a level III QC inspector
worked as a level I inspector while auditing the job)
In October 1982 QA Manager Spriggs changed Case s
title from senior QC inspector to QC supervisor
without any change in pay benefits or duties (Tr 235-
237) This new title was shown on her January 3 annual
evaluation of performance (G C Exh 3) and also on the
Company s jobsite organization chart which Project
Manager Kutzley updated March 28 (G C Exh 16 Tr
462) On May 2 Spriggs gave Case a merit increase rais
ing her hourly rate from $8 50 to $9 50 and showing her
title to be QC supervisor assigned to Callaway (G C 4)
The change in title was QA Manager Spriggs re
sponse to a question raised by an auditor for the plant
owner Union Electric about the training of QC inspec
tors at the jobsite At the time Spriggs informed Case
that he was in the process of upgrading several of the
company procedures to fit the growing organization that
he could not train and evaluate all the new people and
that he was working on creating a position for others to
do the training at the local jobsites (Tr 235-236) As a
level II QC inspector Case was already doing this train
ing function Spriggs did not mention any change in her
duties or authority
Case asked QA Manager Spriggs for a job description
several times but she had not received one before she
was discharged July 15 (Tr 506)
2 Her authority as QC supervisor
a Falsely dated job description
At the time of Karen Case s July 15 discharge the
Company had not issued any description of her duties
and authority The March 28 organization chart (R Exh
16) merely indicated QC Supervisor Callaway—Karen
Case
On August 4 (about 2 weeks after the Union filed the
charge alleging Case s discriminatory discharge) QC
Manager Goodman wrote QA Manager Spriggs a memo
(G C Exh 30) concerning Case s employment and dis
charge The memo asserted that in Goodman s April 12
meeting with her (about 3 weeks before her $1 merit in
crease) Karen was informed that her duties involved
supervising coordinating and directing the Quality Con
trol functions at the Callaway jobsite Case credibly
denied that Goodman said anything about her superviso
ry duties in that meeting (Tr 1499) The memo was ob
viously prepared as part of the Company s defense to the
NLRB charge I find that in the absence of any written
description of Case s duties or authority as a QC super
visor Goodman fabricated the claim that he orally in
formed her of her supervisory authority before her dis
charge
By the time of trial however the Company had re
vised its Quality Assurance Program (R Exh 26) to de
scribe the duties and authority of the QC supervisor and
to add a new organization structure chart for the
QA/QC department (The new chart contained spaces
for four jobsites The Company s second penetration seal
B & B INSULATION 1217
contract was obtained at the Waterford nuclear plant
near New Orleans about March 1982 and its third at the
Wolf Creek nuclear plant near Burlington Kansas in
July 1983 the month after the June 30 date shown on
the chart )
The seventh page of the Quality Assurance Program
indicated that the page was revised June 30 and stated
under paragraph 3 4 2 1 (R Exh 26) that
The assigned Quality Control Site Supervisor shall
have the authority and responsibility to organize
and supervise the activities of assigned Quality Con
trol Inspectors The assigned Supervisor shall be re
sponsible for the control and implementation of ap
propnate procedure and maintenance of necessary
records The assigned Quality Control Supervisor
will report directly to the B&B Quality Control
Manager
Similarly on the 13th page in a Supplement II entitled
Authority and Responsibilities paragraph 2 8 stated
that the QC site supervisors in the B&B Insulation Fire
Safety Division shall be responsible for
a) Supervision of Quality Control inspectors
b) Control and Maintenance of site documents
c) Forwarding of site generated documents to ap
propnate offices 1
I discredit QA Manager Spriggs claim that this re
vised program was promulgated throughout the organi
zation on June 30 (Tr 1177) The practice was for revi
sions of policies and procedures to be transmitted to the
jobsite under cover of the Company s QC Form 13 and
for a signed copy to be returned to the sender with a
copy retained at the jobsite Case did not receive a copy
at the Callaway jobsite before her July 15 discharge and
no receipted copy was produced at the trial showing
when it actually issued (Tr 1460-1465)
I infer that the revised Quality Assurance Program
was issued at a later date and predated June 30 (15 days
before Case s discharge) to bolster the Company s de
fense that she had been assigned supervisory authority
before her discharge
b Other evidence of supervisory authority
(1) Hiring of QC inspectors
The Company contends in its brief that Karen Case as
QC supervisor did the hiring of QC inspectors Nichols
and Kennedy April 25 and 27 QA Manager Spriggs tes
tilled that Case had informed him that she and Project
Manager Kutzley were talking about needing additional
QC employees to perform the additional workload and
she told me that she was going to hire additional QC
personnel to accomplish this (emphasis added) and I
said make sure that you have the approval from Daniel
Construction Company (Tr 1160-1161) I find that this
testimony was clearly fabricated Case had been seeking
additional QC inspectors for months and she had no au
thonty to hire employees I discredit this testimony and
also the claim by document control clerk Lampkin that
Case told her that it was Case s decision to hire Nichols
and Kennedy (Tr 815) (As indicated above Spriggs and
Lampkin along with Block Gardner and Goodman im
pressed me as being willing to give whatever testimony
might help the Company s cause )
The actual facts were quite different Nichols credibly
testified that QC Manager Goodman met him at a gas
station where Nichols worked promised to give him a
job and gave him an application (Tr 676) Nichols wife
filled out the application Nichols took it to Goodman s
motel room and Goodman said for me to write down
Q C Inspector on the application because That would
help me get my job (Tr 677-678) Later Nichols had
an interview with Kutzley and Case in Kutzley s office
Both Kutzley and Case told him that they had to con
tact Houston to get it approved (Tr 678-680)
Project Manager Kutzley confirmed that the Nichols
interview was in his office (Tr 1292) (I discredit Lamp
kin s fabricated claim that Case interviewed Nichols
alone at the other end of the trailer from Kutzley s
office (Tr 812-813) ) Kutzley also recalled that when
Case noticed the different handwriting on Nichols appli
cation (where Nichols had added the words & Q C In
specnon to his work experience at a former employer
(G C Exh 24)) Kutzley suggested that Case contact the
employer to find out what his work and job had been
(Tr 1292)
After Case checked the reference and determined that
Nichols had falsified his application as she credibly testi
fled she relayed the information to Project Manager
Kutzley QC Manager Goodman (who was at the jobsite
at the time) and QA Manager Spriggs (Tr 104 513-
514) Case opposed the hiring of Nichols explaining (Tr
104-105) that
A It s enormously important that when they re
filling out the forms that they pay attention to
detail that they fill them out honestly and reliably
Quality control inspection on a nuclear facility is
very important and it s very important that the
people be willing to maintain their integrity and not
be falsifying different types of materials
But Spriggs did not agree He told Case it wasn t fair to
hold it against [Nichols] because Mr Goodman advised
him to put it on there so it would look good on his appli
cation (Tr 101) (Spriggs claimed that he did not recall
having a conversation with anyone concerning the prob
lem with Nichols job application (Tr 1164) )
Contrary to Case s recommendation that Nichols not
be hired the Company proceeded to hire him The Corn
pany also decided to hire Jackie Kennedy 2 days later
As Case credibly testified I wasn t saying much of any
thing about Kennedy being hired I was angry because
my recommendations about not hiring Nichols were to
tally ignored and I made no comment for or against
Jackie because my nose was out of joint about being ig
nored the first time And I wasn t going to venture an
opinion a second time (Tr 469)
I therefore reject the Company s contention that
Karen Case hired QC inspectors Nichols and Kennedy
She opposed the hiring of Nichols and did not recom
mend for or against the hiring of Kennedy
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also reject the Company s contention that Project
Manager Kutzley had no authority over the Quality
Control Inspectors because the production and QC de
partrnents were entirely separate and had different lines
of supervisory authority The evidence shows that
Kutzley exercised a substantial role in the hiring corn
pensation and other conditions of their employment
The Company s QA Policy in section III paragraph
3 2 1 requires that the QA department shall function as
a separate entity and paragraph 3 4 2 2 requires that in
spection activities be made without intervention from
other departments (R Exh 26) 10 CFR Part 50 App
B provides under X Inspections that Such inspec
lions shall be performed by individuals other than those
who performed the activity being inspected
(2) Management meetings
The Company further contends in its brief that Karen
Case as QC supervisor actively participated in man
agement level meetings and made effective recommenda
tions concerning hiring pay and promotions
As Case credibly testified she never attended any
meetings with QA Manager Spriggs QC Manager Good
man or Project Manager Kutzley in which the wages
and hours of the QC employees were discussed (Tr 249)
She did oppose Kutzley s idea of offering trainee appli
cants only $5 an hour when the competition and the
Company itself at its other nuclear plant were paying
more but she did not suggest what rate to pay (Tr 471-
472) She suggested to Kutzley that the Company place a
newspaper ad for QC inspectors but Kutzley refused
(Tr 183)'
Over a period of several months before the Company
hired Nichols and Kennedy to assist Case and Pahl in
performing the increasing quality control work Case re
peatedly urged Spriggs to promote level I inspector
Pahl I told [Spriggs] I desperately needed him to be a
level II inspector I had to have help in performing cer
tam inspections a level I inspector was not permitted to
do Her recommendations were never granted Finally
in the first week of May Pahl was promoted upon QC
Manager Goodman s recommendation (Tr 299)
Both before and after October 1982 when her title
was changed to QC supervisor Case went with Kutzley
to progress meetings held by Daniel Construction Com
pany (which administered the Company s contract with
Bechtel) Case s role was to answer questions (Tr 437-
441 ) Also when authorized and approved by Kutzley or
Spriggs Case prepared correspondence to Daniel sign
ing the letters as the QC supervisor Contrary to the po
sition taken by the Company in its brief I find that in
performing these duties she was exercising neither mana
genal authority nor supervisory authority (over QC in
spector Pahl before late April or over him and two new
QC inspectors after then)
(3) Other duties and authority
Although Karen Case used the title of QC supervisor
since October 1982 the evidence is clear that she did not
regard herself as the site supervisor over inspector Pahl
or the new inspec ors Nichols and Kennedy
It is undisputed that Case never disciplined any of the
employees She did not have the authority to grant em
ployees time off (Tr 193) and she was never told she
had the authority to hire fire suspend discipline pro
mote reward lay off or recall employees or adjust their
grievances She did not have the authority to approve
vacation requests (Tr 200-201) or to grant overtime
without approval (Tr 193) and on various occasions her
requests to work overtime were not approved (Tr 198-
199) Except when doing documentation work or other
administrative duties in the office trailer she was per
forming QC inspections daily
Once in late March (when Case and Pahl were the
only persons performing QC inspections) Kutzley and
General Foreman Fred Greer arranged for a set of draw
ings to be placed in a stand up toolbox in the power
block for Case and Pahl to use instead of having to
return to the trailer office to check on drawings delay
ing the insulators work When Kutzley spoke to Case
about it and said He didn t want people to come back
to the office and grab a cup of coffee or anything else
where they were looking things up she pointed out that
it was his job to establish the rule I can t do anything
here and suggested that he post a memo on the bulletin
board about it He agreed and she prepared the memo
for him signing her own name as QC supervisor He ap
proved it and told her to go ahead and put it on the
board (Tr 195-197 GC Exh 10)
In late April when the Company hired QC inspectors
Nichols and Kennedy neither QA Manager Spriggs nor
QC Manager Goodman was at the jobsite to prepare the
type employment letter Spriggs had written Case upon
hiring her Spriggs told Case he was very busy and in
structed her to send a similar letter to the new employ
ees to pattern the letters on hers and send him copies
Case did so spelling out the Company s terms for their
employment stating that each would be assigned to the
Callaway Site under the supervision of myself and sign
ing her name as the QC supervisor at the jobsite (Tr
186-187 GC Exhs 6 & 7 )
Despite the repeated use of the new title Case still did
not regard herself in a supervisory position over the
three QC inspectors When asked on cross examination
whether she was surprised to see inspector Pahl outside a
restaurant in Fulton on June 28 even though he had
called in sick Case credibly answered no It s none of
my business what he does with his sick days (Tr 432)
She was still being paid on an hourly basis (plus the pre
mium of $252 a week per diem for her expertise) and the
Company still had not given her a job description stat
ing any supervisory authority over the other QC em
ployees
The substantial question is whether she possessed su
pervisory authority in assigning the QC inspectors and
responsibly directing their work
Case was in charge of the exceedingly important qual
ity control function for the Company at the nuclear job
site Her work required the use of independent judgment
and discretion for the safety of the billion dollar nuclear
project She carried out this function without issuing
orders and disciplining the other QC inspectors yet she
B & B INSULATION 1219
established high standards for the QC work on the job
site trained the other QC personnel (with Pahl s assist
ance after early May) to comply with those standards
assigning the work to the persons who in her judgment
were qualified to perform it and made sure that her high
standards were met QA Manager Spriggs relied primari
ly on her judgment in evaluating the QC inspectors Case
readily admitted in her direct testimony that she did at
times use judgment and discretion in giving work direc
lions and training directions (Tr 306) She also admitted
that she based her judgments in assigning the work on
her experience in the field and her knowledge of these
individual people and what their strengths and weakness
es were (Tr 528)
3 Contentions and concluding findings
The General Counsel argues that Case was only a
lead person lending her experience in the nuclear quality
control inspection field to the less experienced new em
ployees at the jobsite and was therefore not a supervi
sor According to the General Counsel Case did have
responsibilities for assigning work to inspectors training
indoctrinating and preliminarily evaluating the less expe
rienced inspectors attending with Kutzley meetings
with clients regarding QC matters acting as a conduit
between admitted supervisors and the inspectors but
There is no evidence that Case used independent judg
ment in these activities He contends that Kutzley and
Goodman were on the jobsite making and participating
in the making of crucial labor relations decisions affect
ing the inspectors and that her possession of the title
QC site superivsor is not dispositive of her status
The Company contends in its brief that The only su
pervisory functions which Karen Case apparently failed
to exercise were firing disciplining or effectively recom
mending such matters that she clearly possessed the
powers of hiring of inspectors certification assigning
work and overtime The fact that there is no evidence
that Karen Case exercised her disciplinary powers does
not indicate she did not have them and quoting the
court in Maine Yankee Atomic Power Co v NLRB 624
F 2d 347 362 (1st Cir 1980) It is the existence of su
pervisory authority which is critical And that authority
which plainly exists here is not less so because it is
couched in nondemanding terms
The Company also argues that the General Counsel s
position is incredible and that no employer providing
quality control in the construction of a nuclear power
plant would attempt to do so without providing real on
the scene supervision of its Quality Control inspectors
through a jobsite supervisor (as defined in the Act) who
was fully qualified as at least a Level II Inspector
Pointing out that the Nuclear Regulatory Commission
the owner and Daniel Construction each audited the
Company s jobsite QC Department operations and proce
dures it argues (without record support) that they
would not permit it It adds that It is incredible to
think that Union Electric Daniel or B & B would jeop
ardize the health and safety of an inestimable number of
people or would jeopardize the certification of a billion
dollar plant by permitting new and untrained employees
to certify penetration seals without close daily and
expert supervision That supervision was provided by
Karen Case
The Company further argues that the number of su
pervisors at the jobsite was for itself and not the Board
to decide Relying on discredited testimony that Case
was a supervisor even when working alone in the jobsite
QC department for 6 to 8 weeks it contends that Its de
cision to have one supervisor in that department at all
times was not unreasonable That business decision was
B & B s alone to make
The Company hired Karen Case as a level II QC in
spector at a premium rate (including the $252 weekly per
diem) because of her expertise As found she was not a
supervisor when hired or when she was first placed in
charge of quality control at the jobsite working alone
several weeks
The question is not whether the Company should
have but whether it did assign her supervisory authority
when she was training assigning and directing first one
and later two other QC inspectors In October 1982 (5
months after she began training inspector Pahl) the
Company did change her title from senior QC inspector
to QC supervisor but it did not change her pay benefits
or duties and never gave her a job description or inform
her what supervisory authority she had over the QC in
spectors
After weighing all the evidence I find that Case did
not have the authority to hire transfer suspend lay off
recall promote discharge reward or discipline the QC
inspectors to adjust their grievances or effectively to
recommend these actions On the other hand she was
placed in charge of the exceedingly important quality
control function for the Company at the nuclear jobsite
she did have the responsibility for the training assign
ment and direction of the other inspectors to ensure the
quality and safety of the work and the Company did be
latedly assign her atsupervisory title
Although Case acted as if she were merely a leader
when she trained assigned and directed the QC inspec
tors without issuing orders or disciplining them I find
that the Company had delegated her the authority in its
interest to use her independent judgment in assigning
and responsibly directing them (I make this finding de
spite obvious fabrications that detract from the persua
siveness of the Company s supervisory defense )
Accordingly I find that Karen Case was a supervisor
as defined in Section 2(11) of the Act
B Interrogation and Discharge of Case
At lunchtime on June 28 one of the Union s Interna
tonal representatives held an organizational meeting
with Karen Case and QC inspectors in the office trailer
That afternoon Case returned QA Manager Spriggs call
from Houston As she credibly testified Spriggs asked
about the Union s coming to the jobsite to organize the
QC inspectors asked who the union representative was
and which of the inspectors spoke with him asked what
was said and who signed up and He told me that we
weren t going to have a union that it was illegal as
hell and that he did not want his people answering to a
business agent that he expected them to answer to
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him (Tr 219-220 1484) (I discredit Spriggs denials
that this conversation occurred ) On July 15 the Compa
ny discharged Case
The General Counsel contends that this June 28 inter
rogation some of Spriggs statements during that conver
sation and Spriggs further interrogation of Case July 13
(2 days before her discharge) were coercive and violated
Section 8(a)(1) of the Act He also contends that the in
terrogation and coercive statements the Company s
union animus and the Company s shifting defense at the
trial demonstrate that the Company discriminatorily dis
charged her because of her union activity
I agree with the Company that its motive for dis
charging Karen Case and the merits of the discharge are
irrelevant because she was a supervisor as defined in the
Act Parker Robb Chevrolet 262 NLRB 402 404 (1982)
I therefore find that the discharge did not violate Section
8(a)(3) and (1) of the Act and that the alleged coercion
of a supervisor not an employee did not violate Section
8(a)(1)
C Discharge of Kennedy
1 The circumstances
QC Supervisor John Ringo who replaced the dis
charged Karen Case told QC inspectors Jackie Kennedy
and Randy Pahl October 25 (during the election cam
paign) that there would not be a union there On No
vember 22 he attempted to give Kennedy a written rep
rimand and discharged her The General Counsel con
tends that the discharge which was reduced to a suspen
sion without pay when she was reinstated December 8
was discriminatorily motivated and violated Section
8(a)(3) and (1)
The smooth efficient operation of the QC department
at the jobsite ended with the discharge of Case Ringo
was a young new supervisor who did not have the expe
rience competence or leadership ability that Case had
He complained that (1) the QC employees resented me
very greatly (Tr 855) (2) Pahl did a minimum of work
causing a very large backlog of inspections (Tr 857-
858) (3) Kennedy was inaccurate in he records
did not pay attention to detail and her records were
often incorrect I talked to her several times and
then I called her in for an official verbal warning Sep
tember 22 and gave her a copy of his report to the
project manager on her documenting penetrations as
being completed when they were still empty (Tr 859-
861 G C Exh 18) (4) Nichols work performance was
satisfactory but His attitude was a little poor and (5)
Nichols Pahl and Kennedy responded negatively to his
efforts to develop a rapport with them They wouldn t
speak to me unless they were spoken to They were very
rude They were discourteous (Tr 863-864)
Kennedy s attitude toward Ringo (who the parties
agreed was a supervisor) eventually led to her discharge
for insubordination She had not regarded Karen Case
Ringo s very knowledgeable predecessor as a real super
visor but merely a lead Q C (Tr 654) and she did not
respect Ringo s supervisory status As she expressed it
It was just his way of doing things to show his dU
thorny I know he was you know over me
but he tried to show authority you know he just
didn t do it in a professional manner I guess being
older than him I just was kind of shocked at some of the
tactics that 1-e used (Tr 634-635)
On at least two occasions before November 2 Ringo
talked to Kennedy about staying on the job Once was
when he rechecked some penetrations she had inspected
and found that they were not properly sealed He cau
boned her that she needed to stay with her machine
and inspect each penetration as the insulators were
completing the seals (Tr 951-952) On another occasion
he saw her away from the machine talking with other
employees at a water fountain He told her she needed
to stay with that machine so that she could be available
if and when they did start their machine back up (Tr
885)
On November 2 Ringo observed Kennedy in the Rad
waste Building about a 7 minute walk from the Control
Room where he had assigned her She was talking to the
more experienced level II inspector Randy Pahl about an
X dimension (Tr 548-549) Ringo asked if her machine
was pumping and she said yes Without first inquiring
why she was away from her job he asked if she didn t
think she ought to be with the machine She responded
I don t have to have my nose stuck up their ass (Tr
891-892) (She did not deny making this statement but
testified that she did not recall doing so and I usually
don t use such language ) (Tr 550) Ringo ordered her
to return to her work crew and left
Kennedy testified that she was stunned and
shocked at his attitude (Tr 550 642) She left and got
part way back and then I turned around and I came
back and talked to Pahl about why Ringo acted that
way (Tr 643) After about 20 minutes Ringo returned
Kennedy was still away from her job talking to Pahl
When she saw Ringo drive up in the van she rushed
from the side door and finally returned to work (Tr
895-897 965-966)
By quitting time Ringo had prepared a letter of repri
mand for being away from her work area (G C Exh
18) When Kennedy stopped by the office to get her
purse Ringo asked to talk to her outside After going
down the steps he tried to hand her the reprimand (Tr
905 907) Upon seeing his and her names on the letter
(Tr 556) Kennedy shouted Did you write me up again
you son of bitch and slapped the letter from his hand
He told her she was fired and went back into the office
(Tr 907-908) (Kennedy did not deny making the state
ment or slapping the paper from his hand She merely
denied that she recalled making the statement claiming
I doubt very much that I did and testified that if the
papers fell to the ground they fell on accident I
didn t smack him—I didn t hit him (Tr 558) )
Kennedy followed Ringo back into the office and
shouted I am not fired If I am fired you are fired
(Tr 908) She recalled asking him what his problem
was and what was wrong with his attitude (Tr 558-
559) She went next door and reported that John just
fired me to the project manager who expressed surprise
at her being discharged (Tr 557)
B & B INSULATION 1221
On December 8 Ringo reinstated her without back
pay after she agreed (as he testified) that she could
work in a professional like manner and not exhibit un
professional like behavior and work under my authority
or under my supervision (Tr 9 16-917 G C Exh 27)
On October .25 about a week before the discharge
QC inspectors Kennedy and Pahl were discussing the ad
vantages of union representation in Ringo s presence As
Pahl credibly testified Ringo said not to worry about
it there wouldn t be a union here (Tr 692-693) (Ken
nedy recalled that Ringo said it would be all right but
that we weren t going to go union' We weren t going to
be organized—the QC department (Tr 544-545) Ringo
denied making such a statement Although I rely on
much of his testimony (beheiving that it is generally
more reliable than that of Kennedy concerning her dis
charge) I discredit his denials
2 Contentions and concluding findings
The General Counsel contends that the Company
violated the Act when supervisor Ringo told employees
Kennedy and Pahl that the Respondent would never
have a union He argues that the earlier discharge of
Case to quell unionization and Ringo s October 25 ad
monishment that the Company would not have a union
were not enough the Company considered another dem
onstration of its power to stop unionization was neces
sary Thus the discharge of Jackie Kennedy the second
employee to be discharged at the Callaway jobsite He
contends that a prima facie case of discriminatory dis
charge has been established and that the Company s pur
ported reasons for the discharge and the suspension with
out pay were mere pretexts
The Company contends that the alleged October 25
statement which Ringo flatly denied was not a threat
was nothing more than an expression of opinion on
whether the QC department would be organized and did
not indicate an antiunion attitude It argues that Ringo
decided (a) to reprimand Kennedy for being out of her
assigned area after she disobeyed his order to return to
her crew (b) to terminate her for insubordination when
she slapped the reprimand from his hand and called him
a son of a bitch and (c) to reduce the discharge to sus
pension when she assured him she understood the work
rules would work in a professional manner and would
follow his directions It contends that Ringo s actions
were not motivated in any way by union animus
I agree with the Company despite its union animus in
dealing with QC Supervisor Karen Case 3 months earli
er I find that the October 25 statement made by Ringo
whom Kennedy did not respect as a real supervisor indi
cated only his personal opinion about the outcome of the
organizational drive in the QC department was not a
threat and did not tend to coerce the employees in the
exercise of their Section 7 rights
I also find that the credible evidence shows that Ringo
made the decisions to reprimand her November 2 for re
fusing to obey his order to return to his crew and to dis
charge her for slapping the reprimand from his hand and
calling him an SOB Thus I find that he reprimanded
and discharged her for challenging his supervisory au
thority not because she supported the Union Accord
ingly I conclude that the General Counsel has not made
a prima facie case of discriminatory motivation and that
the Company would have reprimanded and discharged
her anyway
I therefore find that the Company did not violate Sec
tion 8(a)(1) and (3) and that the allegations must be dis
missed
CONCLUSIONS OF LAW
1 Karen Case was a supervisor within the meaning of
Section 2(11) of the Act
2 Because of her supervisory status Case s discharge
her interrogation and the alleged coercive statements to
her did not violate Section 8(a)(1) and (3)
3 Supervisor Ringo s personal prediction that the or
ganizational drive would not succeed was not a threat
and did not tend to coerce the employees in the exercise
of their Section 7 rights
4 Ringo s reprimand discharge and suspension of
Jackie Kennedy were not discriminatorily motivated and
did not violate Section 8(a)(3) and (1)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 3
ORDER
The complaint is dismissed
3 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses