Iron Mountain Forge Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1986

278 N.L.R.B. 255 (N.L.R.B. 1986)

IRON MOUNTAIN FORGE CORP.
Iron Mountain Forge Corp. and Teamsters, Chauf-
feurs, Warehousemen and Helpers Local Union
No. 574, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America. Cases 14-CA-1754
and 14-RC-9880
27 January 1986
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 25 June' 1985 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The Union 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," and
conclusions and to adopt the recommended
Order.2
I The Respondent has excepted to some of the judge's credibility find-
ings, The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
The Board agrees with the judge's finding that the leadmen exercise
independent judgment in responsibly directing the work of employees.
However, in adopting the judge's finding that the leadmen are supervi-
sors within the meaning of Sec 2(11), we rely also on the evidence, fully
discussed by the judge, that the leadmen regularly prepare detailed writ-
ten evaluations which constitute "effective recommendations regarding
the Employer's future treatment of employees" with respect to terms and
conditions of employment We especially note that the record shows that
in addition to a yearly wage increase to all employees the Respondent
does, on occasion, grant individual merit increases.
Chairman Dotson notes that with respect to the 8(a)(1) violations
found by the judge to have been committed by leadman Gibson, the Re-
spondent's exceptions and brief fail to set forth any ground other than the
contention that Gibson is neither a statutory supervisor nor an agent Be-
cause the Chairman adopts the judge's findings on Gibson's status, he
also adopts the 8(a)(1) findings' in the absence of any exceptions to the
merits which comport with the requirements of Board Rule 102.46(b)
Member Babson finds it unnecessary to pass on the judge's finding that
the Respondent violated Sec 8(a)(1) of the Act, based on Supervisor
StnckIm's remarks to employees Sales and White on 14 September 1984,
because the finding of these additional violations merely would be cumu-
lative and would not affect the Order
We correct the following inadvertent errors by the judge Employee
Johnston testified that leadman Grogan assigns and reassigns employees
within the paint shop not the lumber room. Also the judge found that at
the time of the hearing, March 1985, the Respondent employed 125 unit
employees on two shifts In fact the record shows that during the period
from early winter to late spring the Respondent operated three shifts.
This fact does not, however, materially change the import of the judge's
finding concerning the ratio of supervisors to employees.
2 The judge recommended that the ballots of Brad Bayless and Shirley
Bowen not be open and counted. However, pursuant to the Board's 13
February 1985 denial of the Employer's request for review of the Re-
255
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Iron Moun-
tain Forge Corp., Farmington, Missouri, its offi-
cers, agents, successors, and assigns, shall take the
actions set forth in the Order.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for `Teamsters, Chauffeurs,
Warehousemen and Helpers Local No. 574, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, and that it is the exclusive collective-bargain-
ing representative of the employees in the unit
found appropriate.
All production and maintenance employees
employed by the Employer at its Farmington,
Missouri facility, excluding office clerical and
professional employees, guards, and supervi-
sors as defined in the Act.
gional Director's supplemental decision in Case 14 -RC-9880, the Region-
al Director ordered that these two ballots be opened and counted. Both
ballots were cast against the Petitioner. Thus the tally of ballots when
this consolidated proceeding came before the judge was 31 for, and 26
against, the Petitioner with 8 determinative challenged ballots remaining.
Bradley G. Kafka, Esq., for the General Counsel.
Thomas M. Hanna, Esq., and Tim A. Garnett, Esq., of St.
Louis, Missouri, for the Respondent Employer.
Bruce S. Feldacker, Esq., of St. Louis, Missouri, for the
Charging Union.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFS, Administrative Law Judge. This
consolidated proceeding was litigated before me at St.
Louis, Missouri, on 5, 6, 7, and 14 March 1985. The
amended-complaint in Case 14-CA-17541 alleges numer-
ous violations of Section 8(a)(1) of the National Labor
Relations Act. At issue in Case 14-RC-9880 are chal-
lenged ballots and one objection posed by the Union to
conduct allegedly affecting the results of the representa-
tion election in that case. All these matters were vigor-
ously litigated and ably briefed.
After considering the record evidence before me, t the
comparative testimonial demeanor of the witnesses, and
the able arguments of the' parties, I make the following
findings and conclusions.
i The Union's pending motion to strike a portion of the testimony of
Randy Grogan is denied
278 NLRB No. 38
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. JURISDICTION
The pleadings establish that - Iron Mountain Forge
Corp. (Respondent or the Employer) is a corporation en-
gaged in the production and nonretail sale of park serv-
ice equipment from its Farmington, Missouri facility
where, during the 12 months ending 31 August 1984, it
purchased and received products , goods, and materials
valued in excess of $50,000 directly from points outside
the State of Missouri . It is admitted and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Teamsters, Chauffeurs, Warehousemen and Helpers
Local Union No. 574, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union) is a labor organization
within the meaning of Section 2(5} of the Act.
III. CASE 14-RC-9880 CHRONOLOGY
The Union filed 'its petition for representation election
on 13 July 1984.2
The Regional Director for Region 14 issued a Deci-
sion and Direction of Election on 17 August directing an
election by secret ballot among employees of the em-
ployer in an appropriate collective-bargaining unit con-
sisting of "All production and maintenance employees
employed by the Employer at its Farmington, Missouri
facility, excluding office clerical and professional em-
ployees, guards, and supervisors as defined in the Act"
who were employed during the payroll period ending
immediately preceding the date of the decision.
The Board denied the Employer's request for review
of the Regional Director's decision, and the election was
conducted on 14 September. The tally was 31 for the
Union, 24 against, and 12 determinative challenged bal-
lots. Both the Union and the Employer filed timely ob-
jections to conduct affecting the results of the election.
The Regional Director issued a supplemental decision
on 17 October overruling the Employer's objections, all
but one of the Union's objections, and the challenge to
the ballot of Brad Bayless. The supplemental decision
also sustained the challenges to the ballots of Gary Hon-
erkamp and Joseph Naused and directed a hearing on the
remaining union objection and challenges to the ballots
of Allen Bayless, Shirley Bowen, Stephen Gibson,
Randy Grogan, Roger Smith, Mark Stricklin, Paul
Usher, Tony Walker, and Raymond Watkins.
On 13 February 1985 the Board, ruling on the Em-
ployer's request for review of the Regional Director's
supplemental decision, overruled the challenge to the
ballot of Shirley Bowen, but denied the request for
review in all other respects. It is in this posture that Case
14-RC-9880 came before me for hearing.
IV. THE CHALLENGED BALLOTS
In order to be an eligible `voter, an employee had to be
employed in the unit during the payroll period ending 3
August, and on 14 September, the election date.
A. Paul Usher II
Paul Usher is a 17-year old student at the Farmington
Christian Academy who impressed me as an entirely
credible witness. The Company had one order for 2000
tables to be made of stained lumber. In order to accom-
plish this , Usher and Vic Brown were hired in late May
to stain boards at 6 cents a board. As Mike Bohman,
owner and vice president of the Company, explains re-
garding Usher, "He was hired on a part-time basis, on a
piecework basis to do a particular job staining lumber."
Bohman further explains that this work was only done
on sunny days and only as needed to fill this one order.
Consistent with this-'testimony of Bohman; Usher credi-
bly testified that this was summer employment ; he could
not have continued on that schedule once school started;
and he was not told how long he would work or that the
work would continue after the school year began. He
was, however, told by Al Bordewick, assistant plant
manager, that he could possibly work through the
summer , depending on the orders.
Usher discovered he, had a hernia,3 and therefore
stopped working after 3 July. On 5 July he told' Gary
Harrison, the Company's sales manager who had secured
the summer employment for him, that the hernia pre-
vented him from working. Harrison told him to come
back and talk to Harrison when he got better, and they
would see what they could do about Usher's job.
Usher had surgery on 27 August. He had visited Iron
Mountain's premises a few times between 5 July and 27
August to talk to acquaintances. They asked about his
health but they did not talk to him about his work or the
job. Usher told no one during these visits that he intend-
ed to come back, and he was not told that his job was
being held for him. About 3 September, Bohman called
him and asked if he was available for light work. Usher
replied that he was not. According to Bohman, Usher's
piece rate job was over when Usher and he talked.
Bohman did not furnish a date for the conversation, but
Usher seemed reasonably certain of the 3 September
date. I am therefore persuaded that the lumber staining
work was over by 3 September. Thereafter, probably
within' or shortly before the week'precediiig the election,
Usher was given a date by, his doctor on which he
would be released to work so he called Bohman and told
him he was released to work. They discussed the possi-
bility of setting up a schedule 'so Usher could work after
school. Bohman advised Usher that the Company would
see what it could do and Usher should come in and talk
to Bohman when he could. Usher did meet with Bohman
before the election. The twa of them then arranged a
work schedule which did not interfere with school and
school-related activities. Shortly after this meeting,
S The hernia was not the result of an on-the-job injury Ushes received
no workman's compensation nor did the Company or its insurer pay his
z All dates are 1984 unless otherwise specified medical or surgical bills.
IRON MOUNTAIN FORGE CORP.
whether on the same day or later is not clear , Bohman
and co-owner Terry Braxton called Usher on the phone
and asked him to secure a doctor 's statement on his
physical condition . Pursuant to this request Usher fur-
nished the Company with two letters, one from his
doctor noting Usher's referral to a surgeon and one from
the surgeon dated 19 September and advising Usher
could return to work on 8 October . A couple of days
after 8 October , Usher went to work on the new sched-
ule at an hourly rate and has apparently since been per-
forming unit work.
The Union challenged Usher's ballot on the ground he
was not an employee-on the day of the election . The Re-
gional Director directed a hearing on Usher's status
during his absence after 5 July, and that direction was
not disturbed by the Board's decision on the Employer's
request for review . The Union further argues in its post-
trial brief that Usher lacked a community-of-interest with
other unit employees and was a casual employee not eli-
gible to vote . The issue of eligibility properly before me
for determination is whether Usher remained an employ-
ee on the eligibility dates. The other issues raised by the
Union are in the nature of postelection challenges which
may not now be entertained , NLRB v. A. J. Tower Co.,
329 U.S. 324 (1946).
The Employer contends that Usher was on a leave of
absence and had a , reasonable expectancy of recall, but
furnished no documentation or testimony that such a
leave was granted . Usher's credible testimony establishes
that Harrison only told him on 5 July that he should talk
to Harrison when he got better and they would see what
they could do about his job.4 There is no evidence Har-
rison had any authority to grant leave, to hire, or, to
make any final personnel decisions . All such authority
resides in Braxton , Bohman , and Bordewick . Nothing
further was said to Usher about the possibility of a
return to work until Bohman called him on 3 September.
Even then Bohman did not tell Usher he was on a leave
of absence . The parties did not raise the matter, but I
have noted that Usher's affidavit, secured by one of the
Employer's counsel on 19 September 1984 , and in evi-
dence as part of the formal papers, General Counsel's
Exhibit 1(p), which is the Employer 's request for review
of the Regional Director 's Decision and Order of 17 Oc-
tober 1984 states, "I told the company about the hernia
and I was informed that I could take a sick leave of ab-
sence and that my job would be there for me when I
could return to work." This affidavit statement is lacking
in details , unsupported by record testimony, and in the
nature of a post litem motam statement to be treated
with caution . It was not offered or received into evi-
dence as a past recollection recorded . Usher was not
asked to explain this statement, but it is outweighed by
his record testimony which had the ring of truth. Not-
withstanding the paucity of evidence that Usher was af-
firmatively granted sick leave, it has long been estab-
lished that when an employee leaves work for reasons of
health, and there is.no evidence that employee has quit
or been discharged , he or she is , considered to be on sick
leave, Wright Mfg. Co., 106 NLRB 1234, 1236-1237
4 Harnson did not testify.
257
(1953). The Union adduces no affirmative evidence, nor
does the record contain any , that Usher quit or was dis-
charged. An employee on sick leave is presumed to
remain in that status until recovery . Bohman 's call of 3
September 5 and the subsequent preelection arrange-
ments for Usher to return after 8 October affirm that he
had a reasonable expectancy of employment when he
voted in the election . For these reasons, sick ' leave and a
reasonable expectancy of reemployment , I find Usher
was an employee during the payroll eligibility period and
on election day. Accordingly , the challenge to his ballot
should be overruled.
B. The Leadmen
The Union contends that Allen Bayless, Stephen
Gibson, Randy Grogan , Roger Smith, Mark Stricklin,
Tony Walker, and Raymond Watkins are statutory su-
pervisors . All are now leadmen except Raymond Wat-
kins, who was a leadman from 7 March to 23 June 1984.
The Employer answers that leadmen are not statutory
supervisors.
Section 2(11) of the Act defines a supervisor as one
who has "authority, in the interest of the employer, to
hire, transfer, suspend , lay off, recall,- promote, dis-
charge, assign, reward, or discipline other employees, or
responsibly to direct them , or to adjust their grievances,
or effectively to recommend such action , if in connection
with the foregoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the
use of independent judgment." Whether or not any or all
of the leadmen possess any of these authorities or exer-
cise them on the basis of independent judgment cannot
conveniently be explored solely on-a group or individual
basis. The evidence permits a discussion of group charac-
teristics , but also requires an examination of some matters
raised pertaining to specific leadmen.
1. Considerations applicable to all leadmen except
where noted otherwise
None have the independent authority to hire, suspend,
lay off, recall , promote, discharge , or reward employees.
In so concluding , I ' have considered evidence which
might militate to the contrary . In the case of Roger
Smith, leadman in shipping and receiving , employee
Danny Howlett gave testimony , which Smith agrees
might be accurate, that Smith told him "they" liked his
work and asked if Howlett , then a, part-time employee,
would like to be full time . Smith credibly testified that
he had nothing to do with the subsequent decision to put
Howlett on full time. I cannot agree with the Union that
Howlett's evidence indicates Smith effectively recom-
mended Howlett's conversion to full time. Similarly, the
fact that some of ,the individuals recommended for em-
ployment by Tony Walker were later hired means little
because some were not and there is no showing his rec-
5 Although Bowman's sudden interest in Usher's ability to work after
the election was directed may raise suspicion in some quarters , the evi-
dence will not support a finding that his efforts were directed toward se-
curing Usher 's vote against the Union There is no indication Usher was
so inclined.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ommendations were determinative. There is also some
testimony from former employee Joseph Naused that he
was told by leadman Gibson on 10 July that he would
probably be suspended or fired for unsatisfactory work;
was laid off for 3 days by Gibson on 11 July because of
that poor work; and was discharged on 24 July by
Gibson, who on that date called Naused into the office
and fired him.6 Naused was a rather slow and deliberate
witness who impressed me as one reporting the truth as
he recalled it. His testimony is credited as a reasonably
accurate summation of the relevant events of 10, 11, and
24 July. Gibson was not a particularly impressive witness
on this subject, and his statement that he does not believe
or recall telling Naused on 10 July that he would prob-
ably be fired or suspended is given little weight. I do not
believe Naused made his story up out of whole cloth.
However, Gibson was then acting on the orders of
Bordewick who decided to suspend Naused. Gibson did
tell Naused on 24 July that he was fired for poor work,
but he believably testified that he sent Naused home in
the heat of the moment. Any conclusion that Gibson
might have indeed possessed the authority to take such
action was dissipated on 25 July when, at a meeting of
Naused, Bohman, Bordewick, Watkins, and Gibson in
Bordewick's office, Bohman stated that nobody was fired
until he fired them. I do not think the evidence shows
Gibson has the authority to layoff or discharge, or to ef-
fectively recommend it, nor does it impress me as strong
enough to outweigh the credible testimony of Respond-
ent's leadmen and supervisory managers that no such au-
thority exists. On another subject, there is no substantial
evidence to support a conclusion that leadmen have inde-
pendent authority to adjust grievances or assess and
impose discipline on employees or authority to effective-
ly recommend such action. Leadmen may neither pre-
vent employees from leaving the plant nor excuse their
absences. Their duty to attach doctors' certificates to em-
ployee timecards is purely ministerial involving no dis-
cretion.
We now turn from a consideration of authority not
possessed to an examination of duties, policies, and prac-
tices common to all leadmen. They all receive their daily
work assignments from Al Bordewick, who prepares and
distributes a list to each leadman setting forth the daily
production schedule. The leadmen in turn inform the
other employees in their respective departments what
their individual duties will be for the day. Most of these
employees need no further instruction for they work on
the same machine and/or at the same duties every day.
Others who are not so permanently assigned or lack ex-
perience receive duty station assignments and job in-
structions from their leadmen. During the course of the
work shift, the leadmen are responsible for ensuring the
requisite quality and quantity of production. This respon-
sibility has been delegated to them by their superiors. To
meet this duty, they spend much of their time checking
the work of other departmental employees to ascertain
whether their work is of acceptable quality and amount
and, when it is not, directing them to adjust their pro-
ductivity rate and quality level to satisfy production re-
6 Naused's discharge is not at issue and presumed for good cause
quirements. The leadmen all spend a portion of their
workday doing production work either on a fill-in basis
for absentees or as otherwise needed. The evidence on
how much time a particular leadman may spend doing
production work is fuzzy at best, but sufficient to per-
suade me that, in general, the leadmen devote less than
half of their time to hands-on productivity. If an employ-
ee completes the work assigned to him before his shift
ends, he reports to his leadman who then assigns the em-
ployee to other duties in the department. This reassign-
ment by the leadman is, as are other intradepartmental
assignments , made on the basis of his evaluation of em-
ployee ability to perform the new work to which he is
assigned, his availability, and, in some instances, his rela-
tive seniority and experience. The leadmen do not con-
sult with their superiors in making these temporary reas-
signments in their departments, but the departmental
leadman generally do not make permanent position as-
signments without direction by Al Bordewick or Mike
Bohman. The leadmen, with the exception of Gibson and
Watkins, have no independent authority to make or
cause interdepartmental transfers to be made, either tem-
porary or permanent. There are, however, occasions
when a department leadman receives permission from
Bordewick to borrow an employee from another depart-
ment. The borrowing leadman then goes to the depart-
ment from which he is getting the employee and advises
that department's leadman of his mission. The employee
selected-for a temporary interdepartmental assignment is
selected by the leadman of his department on the basis of
his personal judgment which employee can be most
easily spared from his home department for the time re-
quired.
Considerable evidence was adduced regarding the Em-
ployer's use of the term "supervisor" in its employee
handbook, and on its employee performance evaluation
form. The handbook issued 12 February 1982 and lists,
inter alia, the following employee responsibilities:
4. Report unsafe conditions to supervisor.
5. Report all injuries to supervisor.
8. Your supervisor must initial your time card
when "Clock In" or "Clock Out" times are hand
written. All employees must clock in and out only
their card. Failure to do so shall result in an omis-
sion of pay for the time in question.
15. Notify supervisor before 7:30 a.m. (1st Shift)
or 4:00 p.m. (2nd Shift) when unable to, work or
when employee will be late.
17. Limit trips to office as well as to your super-
visor.
A memorandum to all employees issued by Al
Bordewick on 21 March 1984 entitled "SAFETY
POLICY" contains the following instruction: "II. Lead
men are responsible for developing safe working atti-
tudes for all their employees."
The Employer contends Bohman was the only super-
visor when the handbook was prepared by him, co-
owner Braxton, and Roger Petrie, the predecessor to
Bordewick, and further contends there were no leadmen
in February 1982. This position is not entirely consistent
IRON MOUNTAIN FORGE CORP.
with Bohman's testimony. He did indeed state that he
was the only supervisor the Employer had when the
handbook was written; but he also testified that there
were probably leadmen in February 1982.
7 I am inclined to agree with Bohman's estimate of
probability for various reasons. Bohman does not claim
the use of the term "supervisor" in rules 4, 5, 8, 15, and
17 does not currently refer to leadmen. Bordewick was
not an employee in 1982, but nevertheless conceded that
the title "supervisor" in rule 8 now refers - to leadmen.
On the other hand, in talking about rule 17 Bordewick
evaded answering whether "supervisor" referred to lead
men, and took refuge in an assertion the handbook rules
are outdated . I cannot accept the claim that the rules are
outdated because the record is chock full of credible evi-
dence, including a stipulation related to-rule 8 and a con-
cession in the Employer's posttrial brief that employees
do regularly report injuries and unsafe conditions to their
leadmen and do have -their timecards initialed by their
leadmen. There is no persuasive evidence anyone else is
responsible for the timecard initialing. The evidence pre-
ponderates in favor of a conclusion the handbook rules
are still in effect. The evidence also warrants a conclu-
sion that "supervisor," when appearing in the rules, does
refer to leadmen. Were it otherwise, rule 17 would make
little sense for it clearly separates trips to the office,
wherein Bordewick, and/or Bohman, regularly dwell,
from trips to the supervisor. If I were to conclude that
the term applies only to Bordewick and Bohman, I
would also have to conclude that the latter part of the
rule refers to trips to see Bordewick or Bohman at some
other undisclosed location. Such a conclusion is not war-
ranted by evidence of record.
7 That Bohman then answered "No" to his counsel's
leading,question, "You don't recall for sure either way?"
has little evidentiary weight.
All leadmen are responsible for making annual written
evaluations of the performance of each employee in their
respective departments or shifts. The evaluation form,
which the Employer started using after Bordewick's ar-
rival on 1 December 1983, lists 10 job criteria.8 Each of
the 10 is assigned a numerical rating between "1. (UN-
ACCEPTABLE)" and "5 (OUTSTANDING )." Imme-
diately below each listed criteria and the space for the
numerical rating are the words "SUPERVISOR'S COM-
MENTS:" following which leadmen enter their com-
ments on that 'specific job element. After the total rating
score is entered on the form there appears a line en-
closed box for "SUPERVISOR'S GENERAL COM-
MENTS AS TO EMPLOYEE'S STRENGTHS,
WEAKNESSES AND ACTION TAKEN TO IM-
PROVE JOB PERFORMANCE." Below this item are
spaces for the signatures of "Supervisor," "Reviewing
Officer," and the employee. All items above the signa-
tures are completed by the employee's leadman. After
the leadman completes the form he signs it in the "Su-
pervisor" space and forwards it to Bordewick who then
meets with the leadman and the rated employee. During
8 The 10 criteria are amount of work, quality of work, cooperation,
judgment, initiative, job knowledge, interest in job, ability to communi-
cate, dependability, and ability to be supervised
259
this meeting the employee may question the leadman's
rating. If he does, Bordewick listens to both leadman and
employee, and then either approves the evaluation as is
or adjusts it before he signs it as approved by the re-
viewing officer. Of the 53 evaluations in evidence which
were submitted to Bordewick, only 39 show any evi-
dence that the original independent ratings by the lead-
man were ever altered, and it appears these alterations
were made by the leadman. Roger Smith gave uncontra-
dicted testimony that Bohman changed Smith's evalua-
tion of employee Don Mullins to a higher score, but that
evaluation is not in evidence. In addition to these evalua-
tions, there are three on slightly different forms with
fewer criteria signed by leadmen in the space reserved
for the "`Supervisor" and by "Reviewing Officer" Roger
Petrie, Bordewick's predecessor, all in early 1983.10 The
form requires the leadman 's evaluation of the degree of
direction and supervision that the evaluated employee re-
quired. The fact that the leadman is called on to evaluate
the necessary amount of direction and supervision im-
plies that he or she is qualified to make such an evalua-
tion and further implies that the leadman operates on a
higher level than the rank-and-file employee, and is expe-
rienced in matters of direction and supervision. More-
over, the very fact the leadman rates the employees from
unacceptable to outstanding, with 3 intermediate ratings,
on each of the 10 listed job criteria illustrates that the
leadman is left to utilize his independent judgment on
each factor, some of which calls for largely subjective
judgment by the leadman. It'seems clear that Bordewick
placed considerable reliance on the rating by the lead-
men, and it is obvious that the evaluations once ap-
proved by Bordewick, which appear, to' be rather pro
forma, l l become the Employer's estimation of the evalu-
ated employee's worth, which has a direct bearing on
that employee's, tenure, and is reasonably calculated to
affect the employee's age and promotion future. The
importance of the leadmen's evaluation is illustrated by
employee Van Gunter's credible testimony, as compared
with Bordewick's claim that he does not recall the inci-
dent, that Bordewick told Gunter he must be evaluated
by his leadman before Bordewick could evaluate him be-
cause Bordewick did not know Gunter's work. The lead-
man does not recommend the amount of wages or wage
increases to be paid an employee , but wage increases, if
any, are discussed privately between Bordewick and the
evaluated employee immediately after the evaluation has
been discussed and the leadman has been excused from
the meeting. From this sequence I conclude that a favor-
able evaluation has a considerable -effect on whether and
how much a wage increase is given to the evaluated em-
ployees. It is clear to me, from all the foregoing that the
employee evaluations are considerably more than routine
clerical' functions and are more closely akin `to effective
9 The three are evaluations of Gary Honerkamp, Greg Mel], and Tim
Lober.
10 These ratings and reviews during Petrie 's tenure are not relevant to
1984.
11 There is no showing Bordewick routinely conducts his own mvesti-
gation of the employee's qualifications, or, that anyone but the evaluated
employee initiates any inquiry into the accuracy of the evaluation
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations regarding the Employer's future treat-
ment of employees with respect to how they should be
supervised, rewarded, disciplined, or otherwise treated to
ensure their future satisfactory performance. The evalua-
tions are not just routine memoranda to keep Bordewick
and/or Bohman advised. They are important documents
on which management relies to appropriately manage the
work force.
The parties stipulated that on election day the lead-
men's basic wages ranged from $6 to $7.75 per hour and
averaged $6.75 per hour, whereas production employees
were paid from $4.50 to $6 per hour and averaged $5.11
per hour. Leadmen, like other employees, receive time-
and-a-half pay for overtime hours worked and enjoy the
same fringe benefits. The need for overtime is deter-
mined by Bordewick. Overtime is worked by volunteers
and employees cannot be compelled to work overtime.
The factors previously discussed apply to all leadmen
except to the extent there may be a variance in individ-
ual cases as set forth below.
2. Additional considerations peculiarly relevant to
an individual leadman
Stephen Gibson, unlike the other leadmen who lead
specific departments on the day shift, is head of the
entire second shift . He has held that position since 11
February 1983, and is the highest paid leadman at $7.90
per hour since 1 July 1984, which includes a 15-cent shift
differential. There are from 20 to 22 employees on the
second shift. Gibson is the only leadman on the shift but
for those occasions about three times a week when
Bordewick, Bohman, or Braxton may be present for an
hour or more at the beginning or end of the shift.
Because he usually does not have a supervisor present
for most of the shift, Gibson has been instructed to write
notes on production, "discipline, or other problems for
Bordewick to review the following morning . There are
20 such notes from Gibson in evidence dated in May,
July, and August 1984. One, dated 8 May, reports that
Gibson had warned Bob Bequette he would be given 3
days off without pay if he missed another day's work.
Two relate to Jeff Johnson. The first, dated 8 May, re-
peats the same warning given to Bequette if he missed a
Friday or Saturday , and adds a warning of termination if
he did it twice or missed any other 2 days of the week.
True to his word, Gibson suspended Johnson for 3 days
on 21 May for missing the previous Saturday. Gibson's
written report to Bordewick on this - suspension notes
Johnson had previously been "officially warned." Other
Gibson notes to Bordewick report, respectively, that on
12 May he had warned James Watkins of suspension for
missing work, and discharge for a second offense. On 20
July he told Watkins and Harold Hahl not to be caught
abusing breaks. On 10 August he had suspended Watkins
3 days without pay for absenteeism and told him he
would be terminated if he had another unexcused ab-
sence in 2 months. Gibson wrote several notes regarding
Joe Naused and Gary Honerkamp. Of them, five contain
the following information on Honerkamp: on 12 July
Honerkamp was drilling boards incorrectly, which
Gibson reported to Bohman, who then instructed Honer-
kamp on the work; on 24 July Honerkamp quit working
after completing the minimum product required, where-
upon Gibson told him to return to work; on 25 July
Honerkamp was "written up" for failure to perform his
work properly; on S July Gibson warned Honerkamp he
was not doing his job properly, would be suspended 3
days if this continued, and discharged if it continued
after a suspension; on 8 August Honerkamp was not
doing his work and seemed unhappy with his job and
was deliberately trying to get fired. Gibson made three
reports on Naused and three on Naused and Honerkamp
jointly which relate the following: on 11 July Naused
was laid off for 3 days as a disciplinary action for ne-
glecting to do his job as instructed; on 18 July Naused
and Honerkamp were warned about smoking in a no-
smoking area ; again on 18 July the same warning for
repetition of the offense; on 20 July Naused and Honer-
kamp were taking too many smoke breaks and Gibson
told them he expected them to produce and'they were
not to be caught taking smoke breaks again; on 24 July
Naused and Honerkamp were cutting boards incorrectly;
on 24 July Gibson fired Naused for improper job per-
formance; on 24 July Naused was suspended until 25
July when he met with Gibson, Bohman, and
Bordewick. Naused was then fired.
The warning to Bequette on 8 May was at
Bordewick's instruction, as was the warning to Johnson
on 8 May that he would be suspended. However,
Gibson, on his own, added the warning of termination.
The suspension of Johnson on 21 May was directed by
Bordewick. The 12 May warning and 10 August suspen-
sion of Watkins was ordered by Bordewick. The warn-
ing of termination was not directed by Bordewick, and I
am persuaded that in this case, as in the 8 May incident
with Johnson, the warning of termination was Gibson's
addendum. The evidence is convincing that the warnings
given to Naused and Honerkamp, except those about
smoking, were given at Bordewick's instruction, as was
the suspension of Naused. I have already noted above
that Gibson exceeded his authority when he fired
Naused on 24 July.
Returning to Gibson's duties, he makes the decision
which department employees are assigned when they
first come on the second shift, and then dispatches them
to that job. He also shifts employees from department to
department as needed. This movement is based on the
need, as he perceives it, as is the reassignment of employ-
ees from job to job within a department on the second
shift. He issues work assignments to the entire shift on
the basis of a list, issued each day by Bordewick, detail-
ing production needed. Gibson works at welding a few
hours a night as needed.
Raymond D. Watkins was the leadman for the third
shift ,from early January until 23 June 1984 when the
shift was discontinued and he was transferred to the
shipping department. He has not been classified as a lead-
man since leaving the third shift. Like Gibson, he was
the only lead person on this shift. Watkins credibly testi-
fied that Bordewick was present in the plant for the last
hour of the third shift. There were 115 or 16 employees
on the third shift, all of whom worked doing either
painting or packing. Walker had the responsibility for
IRON MOUNTAIN FORGE CORP.
meeting shift production and quality goals set by
Bordewick . He did transfer employees from job to job as
needed . Bordewick had told Watkins to call him if there
were problems he could not handle . Watkins took advan-
tage of this by frequently calling Bordewick to report
machine problems, and Bordewick has gone to the plant
during the third shift . Bordewick lives but a 5-to 7-
minute trip from the plant.
Watkins, like Gibson , made reports to Bordewick on
the conduct of third -shift employees . On 4 May he wrote
that John Calvert did not like his job , and that he told
Calvert he would be fired the next time . Watkins noted
on 7 June that he told Harry Hahl he would be suspend-
ed 3 days if he missed one more Saturday and would be
fired if he missed another . On 19 June Watkins wrote up
Joe Naused for neglecting to do the job correctly. Wat-
kins concedes he was angry and did tell Calvert on 4
May that he would be fired the next time. Bordewick
says Watkins had no authority to tell Calvert this. The
warning to Hahl on 7 June was issued at the instruction
of Bohman and Bordewick, but Bohman merely states he
told Watkins to tell Hahl he could no longer be absent
on Saturday . Bordewick states that he and Bohman au-
thorized a warning of a 3 -day suspension . Watkins, in
agreement with Bordewick, testified Bordewick and
Bohman told him to tell Hahl he had to work Saturdays
or get 3 days off. Although a warning was authorized by
his supervisors, I am not convinced that Watkins was
told to warn Hahl of termination . I am convinced that he
did warn Hahl of termination , as the note relates, just as
he warned Calvert . The 19 June note is only a report on
poor production.
John Calvert claims that Bordewick told him when he
was hired on the third shift on January 1984 that he was
to listen to Watkins who would be his supervisor.
Bordewick denies ever using the word supervisor with
respect to a leadman , and I credit him . Neither Calvert
nor Bordewick were superior to the other in terms of de-
meanor. Other evidence that Bordewick is given to call-
ing leadmen supervisors is conspicuous by its absence. It
is more probable, in my opinion , that Calvert was testify-
ing to his conclusion of the meaning of Bordewick's
statement, approximately 14 months after the fact, rather
than Bordewick's exact words . I do, however, credit
Harry Hahl 's testimony, which was most convincing,
that Petrie told him when he was hired that he would be
working for a leadman and was to take his instructions.
Hahl is further credited that Bordewick told employees
in early 1984 that the leadmen we re to enforce work
rules and safety procedures , and employees were to
follow the leadmen's instructions on these matters.
With respect to Watkins ' duties since leaving the third
shift, an examination of the evidence reveals that when
Watkins went from the third to second shift he returned
to loading and unloading trucks as he had previously
done before being on third shift . He was supervised by
Gibson on the second shift and was not a statutory su-
pervisor during that period of time . The conclusion I
draw from the credible evidence is that the only control
Watkins exercises over other employees is that derived
from his superior experience . This does not make him a
261
statutory supervisor , 12 and it is found that he was not a
supervisor during the payroll eligibility period or on
election day . The challenge to his ballot must therefore
be overruled.
Alley Bayless , who was a most impressive witness
giving forthright and believable testimony , has been the
leadman in the lumber room (sometimes called the wood
shop) on the day shift since July 1984 . Bayless credibly
testified that when he becamea leadman Bordewick told
him to make sure orders were completed and put some
employee on to rout or drill boards . When Bordewick
directs him to send employees to help in the paint de-
partment Bayless selects the, employees to go , usually
someone who is finishing a job that Bayless can complete
in his absence . Bayless also asks employees to move from
one job to another during the day , as needed , for depart-
mental production . When Bayless took over from Roger
Smith as leadman Bordewick told the lumber room em-
ployees that Bayless would be taking over ;` they would
not have to listen to Roger Smith any longer, and they
would get their instructions from Bayless.
Randy Grogan has been the leadman in the ,paint de-
partment on the day shift about 2 years . He was a candid
and believable witness whose testimony seemed truthful,
is credited , and supports the findings in section IV,B,l'of
this decision . There are four employees, including
Grogan, in the department . William Johnston , a rather
mechanical but not unbelievable witness, reports that
Grogan assigns and reassigns department employees
within the lumber room , and has sent him to other de-
partments to work with instructions to report to the
leadmen of those departments. Grogan has also sent him
to leadman Tony Walker to employees to help in Gro-
gan's department . This is not inconsistent with Grogan's
testimony that lumber room employees are loaned out to
other departments and the reverse is true , all with prior
authorization from Bordewick . There is no probative evi-
dence from Johnston or others that these temporary
transfers of men between departments - are carried out
without such prior authorization from Bordewick. There
are no glaring inconsistencies between the testimony of
Grogan and Johnston , both of whom are credited with
the caveat that where the two may appear to be at odds,
Grogan is credited on the basis of superior testimonial
demeanor.
Roger Smith is the leadman in shipping and, receiving.
There are seven employees, including Smith, in the de-
partment . New employees in the department are assigned
to their jobs by Bohman. When Smith became a lead-
man, Bohman said Smith's responsibilities were to make
sure everything shipped and received was in good condi-
tion, and that all department employees had something to
do. When Company President Braxton sent Howlett to
work in the department , he told Smith to put ,-Howlett to
work. Smith assigned Howlett to load common carriers
because that was where help ,was needed . Smith decides
when to use the warehouse employee ,to load a truck. He
also decides where the employee in receiving is to work
12 See, e g ., Bugle Coab Apron & Linen Service, 132 NLRB 1098, 1100
(1961).
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when he runs out of receiving work, and what other em-
ployees are to do when they have nothing to do. Smith
selects the, department employees who are to help in
other departments by considering their relative seniority
or, work skills. Employee John Sherrill gave uncontro-
verted and therefore credited testimony that about half
of the time Smith moves men from one job to another,
he says that Bordewick wants the change.
Mark Stricklin is the leadman in the first-shift welding
department. He did not testify. There are four or five
welders plus Stricklin in the department. Stricklin does
welding work like that of other employees about 3 hours
a day, sometimes more, sometimes less. There is no spe-
cific evidence differentiating his, status or duties from
that from other departmental leadmen.
Tony Walker is the leadman in the cutting and fabrica-
tion department. There are nine other employees in the
department. When he temporarily reassigns employees
within the department, he does so on the basis of need,
relative skill, and experience on the machine to which
the employee is to be assigned . Bordewick has told him
it was his responsibility to see employees follow the
safety rules and has also told him to speed employees up.
There are no significant' differences between Walker's
duties and authority and those of other departmental
leadmen which are discussed above in section IV,B,1 of
this decision,
3. Conclusions on Leadmen
The Employer has approximately 125 employees,, on
two shifts. If Bohman and Bordewick are the only statu-
tory supervisors directing the work force, as the Em-
ployer contends,' each would have 60 or more employees
to supervise if the _ force was evenly divided. Any un-
equal division would result in one of them directly super-
vising even more . This would,be an inordinately high
ratio of employees' to supervisors in either case, and it is
well established that such a disproportionate ratio is evi-
dence that the leadmen are supervisors.18 With respect
to the use of the term "supervisor" in the employee
handbook14 and on the evaluation form as a reference to
leadmen , "Titles and symbols . . . do not constitute a
person a supervisor," 15 but the use of the title is proba-
tive evidence of supervisory status16 and also shows that
the Employer, by means of documents, the handbook
issued to employees, and the evaluation forms discussed
with employees after their completion, conveyed the
notion to employees that it considered its leadmen to be
supervisors. The record before me shows that employees
do consider their leadmen to possess the full authority of
a supervisor and do not question that authority. All the
leadmen are made responsible for production and quality
is See, e.g, Bama Co., 145 NLRB 1141, 1143 (1964); Staco, Inc, 244
NLRB 461; 465 (1979).
14 The claim of carelessness as the cause for the appearance of "super-
visor" in the documents is rejected After more than 2 years of the hand-
book and at least 53 written evaluations containing the term the Employ-
er has made no effort to correct its alleged carelessness by removing the
word from its documents or by advising employees it is an inappropriate
title for leadmen It is the Employer's term and I conclude it was meant
to be what it is.
15 Saladmaster Corp., 216 NLRB 769, 773 (1975).
16 Colorflo Decorator Products, 228 NLRB 408, 410 (1977).
in their respective departments or shifts. This responsibil-
ity, particularly on the second -and third shifts where, for
most of the shift, no other supervisor is -present, 17 to-
gether with the leadmen's reassignment of employees to
other work without consulting anyone when they, run
out of work or another product is more urgently needed;
the frequent monitoring of employees' work and the cor-
rection of quality and quantity defects detected in that
work without consulting anyone; the spontaneous on-the-
spot- oral warnings to employees who persist in poor per-
formance or abuse of break and other work rules; and
the total absence of any evidence of regular direct super-
vision of rank-and-file employees by Bo'hman, Braxton,
or Bordewick lead to a conclusion, which I make, that
each and every leadman has and exercises the authority
to make independent judgments in responsibly directing
employees in fulfilling their duties, as described by
Bordewick, in assigning work to the other people in
their respective departments, and in making sure that ev-
erybody is kept busy and the work is produced accord-
ing to schedule. The possession and exercise of that au-
thority is sufficient to confer supervisory status on the
leadmen . The disproportionate supervisory ratio if it
were otherwise, the Employer's continuing long-term ap-
plication of the term "supervisor" to leadmen in its em-
ployee handbook and evaluation forms, thereby holding
leadmen out to employees as supervisors, the instruction
given to employees on hire and at other times to obey
the instructions of their leadmen, and the clear evidence
that employees uniformly consider their leadmen to have
supervisory authority support the same conclusion.18
Accordingly, I conclude and find that the challenges to
the ballots of Allen Bayless, Stephen Gibson, Randy
Grogan, Roger Smith, Mark Stricklin, and Tony Walker
must be sustained because they were at all times material
supervisors within the meaning of Section 2(11) of, the
Act.19 For the same reasons, Raymond Watkins was a
statutory supervisor when he was leadman on the third
shift. He was not a Section 2(11) supervisor after he left
that position and was therefore an eligible voter, the
challenge to whose ballot is overruled.
V. THE ALLEGED UNFAIR LABOR PRACTICES
The alleged violations of Section 8(a)(1) of the Act are
based on alleged conduct of Stephen H. Gibson, Mark
Stricklin, and Raymond D. Watkins. I have found'them
all to be supervisors within the meaning of Section 2(11)
of the Act when serving as leadmen an d agree with the
General Counsel that even if this were not so, they, as
leadmen, served as conduits for information from Re-
spondent to its employees, were held out by Respondent
as supervisors, and were clothed with apparent authority
sufficient to render them agents of Respondent for whose
17 Phalo Plastics Corp., 127 NLRB 1511, 1513 (1960) (Cunningham and
Sherran).
is Certain duties such as initialing timecards are purely routine clerical
functions.
is S. L Industries, 252 NLRB 1058, 1070-1071 (1980) (Hazel Mann),
Colorflo Decorator Products, 228 NLRB 408, 409-411 (1977); Bama Co,
145 NLRB 1141, 1141-1143 (1964) (Charles Loveless), Phalo Plastics
Corp, 127 NLRB 1511 (1960).
IRON MOUNTAIN FORGE CORP.
conduct discussed herein Respondent may be held liable
if it is unlawful.
20 As elsewhere noted in this decision, the status of
Watkins as a supervisor and/or agent ended when his
tenure as leadman ended.
A. Conduct of Stephen H. Gibson
1. According to employee Michael Shaw, he was leav-
ing the lunchroom in early May when an employee (oth-
erwise unidentified) said he had thrown a union-authori-
zation card away, and Gibson then volunteered to the
employees present that Respondent had a legal right to
discharge anyone who signed such a card. Gibson denies
ever telling Shaw or anyone that Respondent had a legal
right to fire card signers.
2. Kenneth Montgomery, an employee, testified to
events of 7 June as follows: As he and other employees,
including Shaw, were turning in their production sheets
in Bordewick's office, one of the employees, whose iden-
tity not given, mentioned the Union. This drew the com-
ments from Gibson that employees would be sorry be-
cause they would be paid $3 an hour; he knew who had
signed cards and attended union meetings; he had
worked for• Chrysler when the Umon did nothing for
him; and employees would be sorry when they had to
pay the big initiation fee. Michael Shaw only asserts that
Gibson said the company had a legal right to fire anyone
who signed a card and everyone would be working for a
minimum wage if a union came in. Gibson denies these
statements attributed to him by Shaw and Montgomery.
3. Shaw relates that some time in the first week of
June, in the plant parking lot, an employee asked what
would happen if the Union got in. Gibson stated that if
the Union was voted in, they would all be working at
the minimum wage. Gibson denies this occasion took
place.
4. Kenneth Montgomery recalls an incident in mid-
June when Gibson told a group of employees there
would be no more standing around if the Union got in
because "Cape's too far away for them to come up here
and help you guys." "Cape" is a reference to Cape Gir-
ardeau, Missouri, where the Union has offices. Gibson
testified only that he does not believe he told Montgom-
ery there would be no more standing around if the
Union organized the plant.
5. Donald Myers, an employee at the time, says that
on 14 September, after the election, Gibson asked if he
had gone to a union meeting. When Myers denied so
doing, Gibson said he had the names of everyone, in-
cluding Myers, Hartley, and Cook, who had attended the
meeting. Myers says Gibson showed him a paper with
the above three names on it, and said that he was no
longer going to do any favors for "you guys" because
every time he did they stabbed him in the back. Gibson
denies having any conversation with Myers about the
Union on 14 September, accusing employees of stabbing
him in the back, or asking if he had attended a union
meeting.
6. On 17 September, according to Donald Myers, he
asked Gibson if he thought the Union would get in. To
263
which Gibson allegedly replied that he did not care if it
did or not, but that "you S-O-B-s" would regret the day
they went to a union meeting because now the company
would be run the way it was supposed to be run. After
reading his pretrial affidavit, and in response to a leading
question posed by the General Counsel, Myers added
that Gibson during the 17 September conversation again
said that every time he did the employees a favor, they
always stabbed him in the back.
Gibson says he may have discussed the Union with
Myers at work on 17 September. He does not recall
Myers asking if he thought the Union would come in,
and specifically denies each and every element of Myers'
testimony in regard to 17 September.
B. Conclusions in Regard to Gibson
Of all these witnesses to Gibson's conduct, including
Gibson, the most straightforward and believable was
Montgomery. Gibson was not an overly impressive wit-
ness, nor was Shaw. On cross-examination Shaw repeat-
edly used "I believe" as an answer, which seemed to be
an evasion at the time . Myers left the impression that he
was earnestly testifying truthfully as best he recalled.
In terms of comparative demeanor, neither Shaw nor
Gibson was superior. Moreover, I find nothing in the
record to indicate one's testimony is more likely to be
true than the other's. This is a "one-'on-one" situation
with equally credible witnesses, neither of whom was
overly impressive in demeanor. Gibson has' denied
Shaw's allegations, and the allegations and denials are in
equipose. That being the case I must, and do, find that
the General Counsel has not proven by a preponderance
of the evidence that Gibson made the statements attrib-
uted to him by Shaw, as set forth in section V,A,1 and
V,A, 3, above.21
Montgomery's believable testimony in sections V,A,2
and V,A,4 above is credited over Gibson's denials.
Shaw's claim that Gibson said on 7 June that the Compa-
ny has a legal right to fire anyone signing a union card is
not credited. Montgomery, a credible witness, did not
give any testimony to this effect and the statement al-
leged by Shaw is not of a sort Montgomery would have
easily forgotten or neglected to relate as part of Gibson's
7 June statements.
The complaint allegations that Gibson, about 7 or 8
June, violated Section 8(a)(1) of the Act are supported
by the credible evidence. His statement that employees
would be sorry because they would be paid .$3 an hour
was plainly directed at employees supporting the Union,
was indeed.a threat of reduced wages if the Union were
successful, reasonably tended to restrain and coerce em-
ployees in the exercise of their statutory right to form,
join, or assist labor organizations, and violated Section
8(a)(1) of the Act. Gibson 's claims that he knew who
signed cards and went to union meetings, without any
explanation how he knew, could reasonably convey only
one impression to employees, and that impression was
that Respondent was keeping their union activities under
close surveillance. This creation of an impression of sur-
20 Injected Rubber Products Corp, 258 NLRB b87 ( 1981). 21 See Blue Flash Express, 109 NLRB 591 (1954)
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
veillance of employee union activities violated Section
8(a)(1) of the Act. The statements of Gibson set forth in
section 4 above might have been permissible if they had
been restricted to a bare instruction not to stand around,
a perfectly proper instruction by a supervisor, but the
statement the restriction on standing around would be
imposed if the Union were successful in its organizing
campaign violated Section 8(a)(1) of the Act because it
was a threat of reprisal by way of harsher working con-
ditions if employees persisted in their union action to the
point the Union became their collective-bargaining repre-
sentative.
Noting that the statements of Gibson, testified to by
Myers, parallel statements by Gibson credibly testified to
by Montgomery, and further noting that Myers' testimo-
ny seemed uncontrived and a truthful recitation of his
recollections in some detail , I do not believe Myers con-
cocted the 14 September scenario as Gibson's denial of
any conversation with Myers on election day would
seem to imply. Gibson's bare denials simply were not
convincing when delivered and are not now convincing.
Myers' credited testimony requires a finding Respondent,
by its supervisor and agent Gibson, violated Section
8(a)(1) of the Act by creating an impression of surveil-
lance of employees ' union activities. I do not agree with
the General Counsel's allegations that the facts of 14
September warrant a finding Gibson threatened more on-
erous working conditions or told or implied to any em-
ployee that union activity amounted to disloyalty to the
Employer.
Myers' version of his 17 September talk with Gibson is
credited. I do not, however, agree with the complaint
that an impression of surveillance was created this date.
The only violation of Section 8(a)(1) present on 17 Sep-
tember was the suggestion by Gibson's prediction of em-
ployee regret that imminent changes in operation, what-
ever they might be, would be to the employees' detri-
ment because they sought out union representation.
There is no evidence Gibson's prediction was based on
anything other than his irritation at the question posed
by Myers, but 'this does not alter the restraining effect
such statements can reasonably be expected to have on
employee union activity.
C. Conduct of Raymond D. Watkins
The complaint alleges that Watkins violated Section
8(a)(1) of the Act about 7 June by interrogating an em-
ployee about his union activities and sympathies. Joseph
Naused, a former employee, testified that he was in the
office getting his third-shift work assignment from Wat-
kins on 7 June when Watkins asked him to sit down.
Watkins then said he had heard Naused had been at a
union meeting . Naused said he had. Naused had in fact
attended a union meeting on 7 June. Watkins asked how
he felt about it. Naused replied it was good for some
people but not for others, he was one of those it was not
so good for, and he did not hear anything he liked. Wat-
kins made no further comment.
Watkins' version is that he did have a conversation
about the Union with Naused about 8 June, and the fol-
lowing occurred. Naused asked him what he thought
about the Union. Watkins opined that they worked for a
good enough company that they needed no union. Wat-
kins denies telling Naused he had heard Naused was at a
union meeting; denies asking how Naused felt about the
Union; and denies telling Naused the Union would not
be good for him.
As I have earlier noted, Naused was a credible witness
and his detailed version had the ring of truth. Watkins'
testimony on this occurrence impressed me as an effort
to neutralize Naused's testimony by admission of a con-
versation, construction of a brief version in Watkins'
favor, and then brief denials of the salient points of
Naused's testimony. I did not believe Watkins' version
when I heard it, and I do not believe it after reading it.
Naused is credited, and I find Watkins violated Section
8(a)(1) of the Act by coercively interrogating Naused in
the office about his union activity. This is not an example
of questioning an open and well-known union activist
why he is so active. This is a case of eliciting informa-
tion to confirm a suspicion of union activity (attendance
at the meeting) and to ascertain the degree of union sym-
pathy (how Naused felt about it). This instance of inter-
rogation, considered in context with surrounding circum-
stances as Rossmore House22 instructs, did have a reason-
able tendency to restrain, coerce, or interfere with
.Naused's statutory rights.
D. Conduct of Mark Stricklin
Stricklin did not testify and the testimony of employ-
ees regarding his statements is uncontroverted. Respond-
ent urges no violations because Stricklin was neither a
supervisor nor an agent; his statements were not on
behalf of or approved by management; his comments
were his own personal opinion; his allegiance was known
by employees to be with the Union; and he was permit-
ted to vote in the election. It is well settled that the acts
of a supervisor are imputed to his employer under the
principle of respondent superior, and Stricklin is both a su-
pervisor and agent. Respondent made no effort to inform
employees that it repudiated Stricklin's conduct and, to
the extent the evidence may require a finding his state-
ments violated the Act, Respondent is responsible for
that conduct. Whether or not Stricklin made it clear to
employees he was expressing his personal opinion has
been considered in each instance discussed below. The
evidence does not warrant Respondent's broad conclu-
sion that "[the employees] . . . regarded him as the in-
plant leader of the Union!!" All the record shows is that
Stricklin at one time was active on behalf of the Union,
but later ceased to be because he feared for his job, and
thereafter made the statements in question. Voting a
challenged ballot did not make Stricklin a supervisor in-
cluded in the unit, but raised the question whether he
was an eligible voter. I have found he was not. Respond-
ent's reliance on Montgomery Ward,23 which deals with
supervisors included in the unit by agreement of the par-
ties and is therefore not applicable to this case, is mis-
placed. The further argument that Respondent had no
authority to restrict its leadmen's statements because
22 269 NLRB 1176 (1984)
23 Montgomery Ward Co, 115 NLRB 645, 647 (1956)
IRON MOUNTAIN FORGE CORP. 265
such a restriction might violate leadmen 's Section 7
rights if they were found not to be supervisors does not
impress me. I cannot and do not believe Respondent was
not aware of the possible alternative finding of superviso-
ry status at least as early as the representation hearing
and decision in Case 14-RC-9880, both of which preced-
ed the conduct of Stricklin considered herein . Yet Re-
spondent took no steps to notify its employees that state-
ments by leadmen did not reflect Respondent 's position
vis-a-vis the Union , which it might have done without
affecting anyone's rights.
The several incidents of Stricklin 's conduct at issue are
as follows:
1. On 29 August employee Tim Lober asked Stricklin
if he thought the Union would come in and what would
happen if it did . Lober says that he posed these questions
to Stricklin because everyone was talking about the
Union and he wanted Stricklin 's opinion . Stricklin re-
plied that if the Union got in Respondent would prob-
ably move to Arkansas where it had a building . The evi-
dence indicates that Respondent has no facility or real
property other than the location involved in this case.
Stricklin apparently manufactured an Arkansas building
'in order to emphasize his prediction that Respondent
would move if union organization were successful. Al-
though there is no evidence Stricklin was particularly
hostile when he answered Lober's question , and although
his comments were elicited by Lober' rather than volun-
teered , I am persuaded that his response , which Lober's
request indicates had some weight with Lober , clearly
advised that Respondent had another facility to which it
could and probably would move if unionized , and cer-
tainly had a reasonable tendency to intimidate and inter-
fere with employees , specifically Lober , in the exercise
of their Section 7 rights. Accordingly , I find that Strick-
lin's comments conveyed a threat of plant removal in the
event the employees selected the Union to represent
them, and thereby violated Section 8(a)(1) of the Act.
2. Van Gunter, a current employee, credibly testified
to a series of conversations with Stricklin on 6 and 7
September . On 6 September he told ' Stricklin it looked
like the employees would have a union the following
Friday and asked what Strlcklin thought about it. Strick-
lin responded, " It's a money back guarantee , they'll close
the plant because they have property in Arkansas and
Mississippi, if the union gets in." Gunter said that he did
not believe this. Gunter then went to the breakroom and
was talking to employees "Richard and Don" [surnames
not given] when Stricklin , who had evidently overheard
their conversation, which I conclude from the circum-
stances concerned Stricklin's previous remarks to
Gunter, interjected , "That's light . It's a money back
guarantee."
The following day, 7 September , Gunter asked Strick-
lin what made him think the plant would be closed.
Stricklin replied that the Union would have unreasonable
demands and before Terry Braxton would knuckle under
to the Union , he would move the "facility because he had
property in Arkansas or Mississippi . Stricklin added that
Respondent was a young company and the Union would
ruin it. In addition to the fact the Company has no prop-
erty in Arkansas or Mississippi , there is no evidence to
support Stricklin 's hypothesis that the Union would
make unreasonable demands nor is there any evidence,
other than Stricklin 's comments which are unreliable,
that management had any plans to close the facility in
case of unionization . On 7 September, Stricklin was not
making a lawful prediction based on objective fact,24 but
was violating Section 8(a)(1) by making an unlawful
threat of plant removal in retaliation for employee sup-
port of the Union . His comments on 6 September also
violated Section 8(a)(1) of the Act because they threat-
ened plant closure as a reply to union success. That
Gunter may have doubted Stricklin 's 6 September state-
ments does not make them protected . The hearer's sub-
jective response is not controlling . The test has long
been whether the statements reasonably tend to coerce,
restrain, or interfere with employees in the exercise of
their Section 7 rights. Moreover , there is no evidence
that the other two employees to whom Stricklin on 6
September guaranteed plant closure entertained any
doubts of the accuracy of his remarks.
3. A couple of days before the election , probably 11 or
12 September , Stricklin told welder David Sales that the
plant would be moved if the Union got in . This violated
Section 8(a)(1) of the Act for the same reason similar
statements previously made by Stricklin were unlawful.
4. On election day, 14 September , but before the elec-
tion, Stricklin told David Sales that he had heard
through his church that Terry Braxton's wife had' said
that if the Union got in, the plant would be moved to
Arkansas. About the same time, still before the election,
Stricklin told welder Gary White that he had heard at
church, through a secretary, that Terry Braxton's wife
had told her that if the Union got in , the Company
would move to Arkansas. The General Counsel contends
these are threats of plant closure by Strlcklin . Stricklin's
comments are obviously hearsay twice removed but that
does not impair their , admissibility .25 On this evidence I
cannot find that Stricklin 's reports to Sales and White
were truthful, but this is not dispositive of the complaint
allegation. The question , as always, is whether Stricklin's
statements , hearsay or not, had the requisite reasonable
tendency to restrain , coerce, or interfere with employees'
exercise of Section 7 rights. Given the timing of the
statements on the very day of the election and the fact
that Stricklin's hearsay report was given in a , surrounding
context of several prior threats of plant closure or relo-
cation made to employees by Stricklin , and another made
on 14 September , I am persuaded that his comments vio-
lated Section 8(a)(1) of the Act. The hearers had no basis
on which to doubt the accuracy of the hearsay reported.
Delivered by the same person previously, threatening
plant closure , its impact was thereby enhanced. The
matter, is arguable, but I believe Stricklin 's statements to
Sales and White, given on election day, would reason-
ably tend to restrain them from making a free, uncoerced
decision whether or not they , would vote that day for the
Union as their representative.
24 See NLRB v Gzssel Packing Co, 395 U.S. 575, 618 (1969)
25 RJR Communications, 248 NLRB 920 (1980).
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Objection
Union Objection 1 to the election, which is before me
for hearing, alleges that the Employer threatened em-
ployees with plant removal if the Union won the elec-
tion.
The petition for representation election in Case 14-
RC-9880 was filed on 13 July 1984 and the election was
held 14 September 1984. To be found objectionable the
conduct complained of must occur between these two
dates.26 On 29 August and 6, 7, 12, and 14 September,
Respondent by its supervisor and agent Stricklin threat-
ened employees with plant closure or removal if they se-
lected the Union as their representative. These threats
have been found violative of Section 8(a)(1) of the Act.
They, a fortiori, also constitute objectionable conduct.27
Objection 1 is sustained.
On the foregoing findings of fact and conclusions
based thereon, and on the record as a whole, I make the
following
CONCLUSIONS OF LAW
1. The Respondent, Iron Mountain Forge Corp., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union, Teamsters, Chauffeurs, Warehousemen
and Helpers Local Union No. 574, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for
collective bargaining:
All production and maintenance employees em-
ployed by the Employer at its Farmington, Missouri
facility, EXCLUDING office clerical and profes-
sional employees, guards, and supervisors as defined
in the Act.
4. Shirley Bowen, Brad Bayless, Paul Usher II, and
Raymond Watkins were eligible voters in Case 14-RC-
9880 at times material, and their ballots cast 14 Septem-
ber 1984 are valid.
5. Allen Bayless, Stephen Gibson, Randy Grogan,
Roger Smith, Mark Stricklin, and Tony Walker were su-
pervisors within the meaning of Section 2(11) of the Act,
and agents of Respondent at all times material to this
case.
6. By coercively interrogating employees about their
union activities, Respondent violated Section 8(a)(1) of
the Act.
7. By creating an impression of surveillance of employ-
ees' union activities, Respondent violated Section 8(a)(1)
of the Act.
8. By threatening employees with reduced wages,
harsher working conditions, and plant closure or reloca-
tion if they selected the Union to represent them, Re-
spondent violated Section 8(a)(1) of the Act.
26 Ideal Electric Co., 134 NLRB 1275 (1961), Goodyear Tire Co, 138
NLRB 453 (1962)
27 Dal-Tex Optical Co, 137 NLRB 1782, 1786 (1962).
9. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
10. Respondent has not committed any other unfair
labor practices alleged in the complaint.
11. The Union's Objection 1 to the election held in
Case 14-RC-9880 on 14 September 1984 is sustained.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
ORDER
The Respondent, Iron Mountain Forge Corp., Farm-
ington, Missouri, its agents, officers, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union activities and desires.
(b) Creating an impression that employees' union ac-
tivities are under surveillance.
(c) Threatening employees with reduced wages, harsh-
er working conditions, or plant closure or removal be-
cause they engaged in union activities.
(d) In any like or, related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its premises at Farmington, Missouri, copies
of the attached notice marked "Appendix."29 Copies of
the notice, on forms provided by the Regional Director
for Region 14, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that Case 14-RC-9880
be severed and transferred to and continued before the
Board in Washington, D.C.
IT IS ALSO FURTHER RECOMMENDED that the chal-
lenges to the ballots of Allen Bayless, Stephen Gibson,
Randy Grogan, Roger Smith, Mark Stricklin, and Tony
Walker be sustained; the challenges to the ballots of Brad
Bayless, Shirley Bowen, Paul Usher II, and Raymond
Watkins be overruled but that their ballots not be opened
and counted because they are not determinative of the
28 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.
29 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
IRON MOUNTAIN FORGE CORP. 267
results of the election; Union's Objection 1 be sustained,
but the election of 14 September 1984 not be set aside;
and an appropriate Certification of Representative be
issued by the Board to Teamsters, Chauffeurs, Ware-
housemen and Helpers Local Union No. 574, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America for the ap-
propriate collective-bargaining unit set forth above.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you with reduced wages,
harsher working conditions , or plant removal or
closure because you support Teamsters , Chauffeurs,
Warehousemen and Helpers , Local Union No. 574,
affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America or any other labor organization.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
IRON MOUNTAIN FORGE CORP.
WE WILL NOT coercively interrogate you about
your union support or union activities.
WE WILL NOT create the impression of surveil-
lance of your union activities by informing you that
we know which employees are involved in union
activities.