Lenoir Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1975

216 N.L.R.B. 544 (N.L.R.B. 1975)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lenoir Industries , Inc. and Clarence Stinnett. Case
10-CA-10522
February 11, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On September 18, 1974, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
exceptions to the Administrative Law Judge' s Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found that Re-
spondent's October 19, 1973, discharge of Clarence
Stinnett, the Charging Party herein, was in violation
of Section 8(a)(3) of the Act. While Respondent
admits that Stinnett's discharge was for union-related
reasons, it contends that, since Stinnett was a
supervisor within the meaning of Section 2(11) of the
Act, its action in discharging him was not in
contravention of the Act. However, since the
Administrative Law Judge found that Stinnett was
an employee of Respondent rather than a supervisor,
he found Respondent's discharge of Stinnett a
violation of the Act. We agree with this conclusion of
the Administrative Law Judge as we note infra.
As more fully detailed in the Administrative Law
Judge's Decision, Stinnett was hired by Respondent
to work as a permanent member of its field repair
crew.2 Cedric Giles, the representative of Respond-
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F .2d 362 (C.A. 3, 1951 ). We have
carefully examined the record and find no basis for reversing his findings.
2 Respondent is engaged in the manufacture and sale of modular motel
units.
3 The Administrative Law Judge generally credited Stinnett's testimony.
a The Administrative Law Judge inadvertently found that this figure
comprised the amount of time Stinnett worked on a crew of himself, Brady,
and employee Campbell However, the 80-percent figure refers only to the
amount of time Stinnett worked with Brady as opposed to without him and
hears no reference to how many other employees worked with the two men
during those times that they worked together.
5 Since the repair work involved appears to have been on the same basic
modular motel unit on each job, it would appear too that there would be a
216 NLRB No. 109
ent who hired Stinnett, testified that he did not hire
Stinnett as a supervisor and stated that he told
Stinnett at the time of his hire that "all he would
have to do was to bring his tools and come in and
he'd be working for Mr. Brady [an admitted
supervisor]." Giles further testified that, if Brady,
who himself had only recently been hired, did not
work out, Respondent would then have given
thought to making Stinnett a supervisor. Stinnett
likewise testified that, at the time of his hire, Giles
told him that if there was ever an opening for a
supervisor, Stinnett would be considered for the job.3
Stinnett ultimately spent about 80 percent of his
time working on a crew under Brady4 and the
balance of his time was spent in taking repair crews
out without Brady. Respondent contends that during
this time, when Stinnett was out without Brady, he
exercised supervisory functions. The Administrative
Law Judge has detailed the work of the repair crew
and such appears to be clearly routine work.5
Further, it is undisputed that on the job itself,
whether he worked with or without Brady, Stinnett
worked with his tools his entire worktime.6 And on
those crews which Stinnett headed, the employees
worked either from an already prepared list of items
which needed repair or reported to the client
representative on the job to ascertain from him the
work that needed to be done.? We also note that Jack
Bond, Respondent's vice president for operations,
kept a close overall watch on any crew out in the
field. Bond testified that he would try to keep in
touch with the crew "every night or every other night
or so" by speaking by phone to the man heading the
crew and checking to see "how they're getting along"
or "what problems they've run into."
In such circumstances, as more fully detailed in the
Administrative Law Judge's Decision and for those
further reasons he notes, we agree with his conclu-
sion that Stinnett was an employee of Respondent
rather than a supervisor and that his discharge was
therefore in violation of Section 8(a)(3) of the Act.8
degree of repetition involved in any repair work done on each Job
6 While Respondent points to the fact that employees Galyon and
Campbell testified that Stinnett had in fact assigned work to the men on
trips when Brady was not present, the Administrative Law Judge
specifically credited Stinnett 's testimony that he had not assigned any such
work . Stinnett's testimony was corroborated by employees Phillips and
Harold Stinnett.
r And when the employees finished their work , although the man in
charge might have them do certain of it over , it appears that this was done
only after the client representative went over the work and determined that
it was not done acceptably.
B As an indicia of Stinnett's alleged supervisory status, Respondent notes
that, in an election held at Respondent , Stinnett's name was not on the
eligibility list and he did not cast a ballot . The Administrative Law Judge
noted Stinnett 's explanation that he did not vote because he was on an out-
of-town job on the day of the election . While not contesting this,
Respondent notes employee Campbell 's testimony which indicates that
Stinnett told Campbell that he , Stinnett, could not vote because he was a
LENOIR INDUSTRIES, INC. 545
While the Administrative Law Judge correctly
found that Respondent violated Section 8(a)(3) of the
Act by discharging Stinnett for engaging in union
activities, he inadvertently set out in his Conclusions
of Law and recommended Order as the violation he
had found a refusal to reinstate Stinnett. General
Counsel has excepted to these inadvertent errors of
the Administrative Law Judge and we herein amend
his Conclusions of Law and his recommended Order
so that they are consistent with the balance of his
findings, remedy, and proposed notice.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 3 of the
Administrative Law Judge's Conclusions of Law:
"3. By discriminatorily terminating the employ-
ment of Clarence Stinnett on or about October 19,
1973, and not thereafter reinstating him to his
position because of his engagement in union activi-
ties, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Lenoir Industries , Inc., Lenoir City, Tennessee, its
officers, agents , successors , and assigns , shall take the
action set forth in the said recommended Order as so
modified:
Substitute the following for paragraph 1(b):
"(b) Terminating the employment of Clarence
Stinnett and refusing to reinstate him because of his
union activities."
supervisor . We note, however, that Stinnett denied making such a
statement, stating rather that he had told Campbell initially that the field
repair crew was not eligible to vote and later that Campbell was eligible to
vote.
While we do not agree with the Administrative Law Judge that Sunnett's
and Bond 's versions of the Galyon-Davis disciplinary incident are
"substantially parallel " to each other , we agree with his conclusion that this
incident in which Stinnett may have imposed a penalty on the two
employees for their failure to report to work was an isolated incident which
does not compel a supervisory finding here.
In concurring with the conclusion of the Administrative Law Judge that
Stinnett was not a supervisor , Member Kennedy does not rely upon Dad's
Foods, Inc., 212 NLRB 500 (1974), which he finds to be clearly
distinguishable from the present case.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF , Administrative Law Judge: This case
came on for hearing before me in Knoxville, Tennessee on
August 6, 1974. The charge was filed on December 26,
1973 and the complaint was issued on June 17, 1974. The
complainant is an individual, Clarence Stinnett (hereinaf-
ter referred to as the Charging Party or Stinnett). The
Union involved is the Sheet Metal Workers' International
Association, Local 464 (hereinafter referred to as the
Union or Local). The complaint alleges that Lenoir
Industries, Inc. (hereinafter referred to as Respondent or
Company) discharged Stinnett because of his membership
in and activities on behalf of the Union, thus violating
Section 8(a)(3) and (1) of the Act. Respondent does not
deny that it discharged Stinnett because of his union
activities but defends on the ground that the Charging
Party is a supervisor within the meaning of Section 2(11)
and therefore beyond the protection of the Act.
The parties were given opportunity at the trial to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Briefs were carefully consid-
ered.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Tennessee corporation with its principal
office and place of business located at Lenoir City,
Tennessee, where it is engaged in the manufacturing and
sale of modular motel units. During the past year
Respondent sold and shipped goods valued in excess of
$50,000 directly to customers located outside the State of
Tennessee. I find that it is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The sole issue litigated at the hearing was whether or not
Stinnett was a supervisor within the meaning of Section
2(11) of the Act.
A. Preliminary Statement
Jack Bond, vice president in charge of operations,
explained the nature of the Company's operations. Lenoir
Industries is engaged in the manufacture of motel
modulars the basic module consists of a unit 12 feet wide
by 52 feet long. It consists of two motel rooms, back to
back, with a 4-foot service chase in the center where all the
plumbing and electrical parts are subbed out. It is of wood
frame construction. All the interiors of the rooms are
finished. The plumbing fixtures are set. All the electrical
wires are pulled. The carpet is on the floor; and the mirrors
are attached to the wall.
The Company employs approximately 75 men most of
whom are working in the plant where all the above items
are manufactured, they are then shipped to the sites for
installation in finished condition. These units are then sold
to individual owners of motels. At the present time
Respondent sells the modules in about 18 different States
throughout the Eastern part of the United States. After the
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units are completed in the factory they are transported
from the plant to the field . A large crane is rented in the
area and there are teams of men who go out in the field to
check up and correct, when necessary, the electrical and
plumbing fixtures which are built onto foundations
provided by the customers. The crews consist of from 3 to
5 men including a carpenter , electrician, and plumbing
man. The owner of the motel has his own general
contractor who does the foundation work and all the
electric and plumbing hookups, puts on the permanent
roof and builds the parking lot. The principal responsibility
of the teams is to check whatever has already been
installed, check on the installations and correct any
carpentry work, plumbing and electrical work that requires
adjustment. It is important to note that the teams consist of
highly experienced workmen who need no supervision on
the job since these men are all experts . Occasionally the
leadman of the group , while he does not actually supervise
the team, does help to maintain discipline . One of such
leadmen, Stinnett, acts somewhat in the role of Respond-
ent's representative on the job and he has the additional
responsibility of reporting back to top management the
progress on the job or any special problems that may have
arisen.
B. The Testimony of the Witnesses
The Charging Party testified that he has been working
with his tools as a carpenter for 20 to 25 years. When he
was hired, in July 1972 by Cedric Giles, who was then the
plant superintendent , he was told he would be hired to
work with a field crew with his tools and that he (Giles)
"needed a man out there with my experience on the unit to
help." Also that Giles told him "that if there was ever an
opening out there for a supervisor that I would be
considered for it." Stinnett went on to say that there never
was such an opening . At the time of his being hired he was
paid $ 175 a week and after about 90 days on the job he was
raised to $200 per week . He was discharged on October 19,
1973.
Stinnett was called in from Pennsylvania and told to
report for work on Monday morning. Bond called him into
his office and the following colloquy took place:
(Bond) said "I've got some bad news for you." He said,
"I'm going to have to let you go."
(Stinnett) said, "I asked him what for?" He said, "Well,
I'm going to put on your separation papers that
unsatisfactory work ." He said, "Now we both know
that that's not the reason."
I said, "No, Mr. Bond, I know that 's not the reason.
What is the reason?" He said , "Well the reason is this
union." He said, "I been told that you have been active
in the union , getting union in the plant here."
(Stinnett) . . . and I told him that I couldn 't take a
separation notice with unsatisfactory work on it, that I
wanted the truth put on it, whatever he was firing me
for...
Bond then told him he would investigate it for 1 more week
and for Stinnett to come back to see him. He did as
instructed, and returned to see Bond who told him that
"I'm going to put on it what we're letting you go for." The
separation notice appears in the record as General
Counsel's Exhibit 2. The reason for the discharge states
". . . conduct unbefitting a Supervisor in connection with
union activities."
The testimony of Stinnett continues as follows:
Q. Now when you're on the job, describe for the
hearing what you do ... .
A. If I was on the job, and we didn't have
carpenters and plumbers and electricians I had to
check the plumbing . . . for leaks and correct them,
check all the wiring, to correct them, and I had to
adjust the motel unit doors and do general repair inside
the rooms, which is bad ceilings, and bad fixtures and
moldings and whatever needed to be repaired.
Stinnett further testified that when he started to work for
Respondent he was sent on an assignment with James
Brady who was and is a supervisor. The General Counsel
asked Stinnett on direct examination:
Q. Now what, from your observation, what did Mr.
Brady do when you were out, away from Lenoir City at
a motel establishment?
A. Mr. Brady was our supervisor. He assigned us
our work and checked our work when we finished with
it to see that we had done it satisfactory.
Q. Now tell us whether or not Mr. Brady did any
of the manual work?
A. Mr. Brady might have worked some if he
wanted to. Sometimes he would stop and give you
something, if you was in a strain or something, why he
would help you. But otherwise, he checked the work
and assigned us to our work.
Q. Okay. Now were there any times that you made
trips without Mr. Brady?
A. Yes, sir.
Q. All right. What number was on the crew when
you went without Mr. Brady?
A. How many times?
Q. No, what was the number of the crew?
A. Anywhere from one to maybe five.
Q. Who told you you were to go without Mr.
Brady?
A. Sometimes Mr. Brady told me I'd be going and
sometimes Mr. Bond told me I would be going.
Q. All right. What would Mr. Bond tell you?
A. He would tell me, give me a list of work, if he
had a list, of the things that needed to be done. And if
he didn't have a list, he would tell me to check with the
manager for room number and work to be done.
LENOIR INDUSTRIES, INC. 547
Q. Well would he tell you where you were going?
How did you find out where you were going? What
specific city?
A. Well sometimes Mr. Bond would tell me that I'd
be going to a certain place in Florida , and sometimes
Mr. Brady would tell me before we came in that I
would be going to, next week , somewhere else.
Q. Well then who would assign the crew members
to this crew?
A. Mr. Bond and Mr. Lane.
Q. Did you have any sayso in who you wanted?
A. No, sir.
Q. Now can you remember the trips you made to
Florida?
A. Yes sir.... I made one trip to Tampa, Florida
for the purpose of straightening some window walls.
They was trying to stucco the front of the units and the
window walls had to be straightened out. And me and
three more fellows went on this trip.
Q. And what, did you have verbal or written
instructions?
A. I was told that we had some window wall
trouble down there; to check with the superintendent
on the job, the contractor.
Q. How about where do you people stay when
you're on the road?
A. We stay in motels.
Q. Who handles that?
A. Well on that particular trip, Mr. Bond made the
room arrangements himself
Q. . . . Did you go to Tampa any other time?
A. Yes, sir I returned to Tampa ... Me and two
more fellows , Mr. Lester Lawson and Mr. James
Galyon got in a truck and went back to Florida.
In answer to a further question as to who assigned these
men to that job Stinnett replied , "I don 't recall whether it
was Mr . Bond or Mr. Brady . It could have been either. I
don't remember ." The second time the men went to Tampa
to adjust doors and check both the electrical and carpentry
work . Motel arrangements on this occasion were made by
Stinnett. Payment for the motel was made by a gasoline
credit card. The Charging Party went on to say that the
crewmembers got to the sites in the field in a Dodge van
which was driven by Brady. When he was not there the
men traveled by plane sometimes and occasionally they
took a bigger truck . The men and supplies went with the
truck. Also sometimes some of the men were brought to the
site after the original crew had already reached the job. So
far as driving the truck was concerned when Brady was not
along on the trip the men would take turns driving on long
trips.
The lady in the Company's office gave the men cash
expense money . Sometimes the money was given to them
by Mr. Bond himself. Stinnett was in charge of the expense
money . He, in turn, gave the expense money to the rest of
the men . Expense money started at $6 and later was raised
to $8 per day. He remembered that after completing a task
at Tampa he and the crew proceeded to Orlando, Florida.
Once again Stinnett did not assign the men at a time when
Brady was not with them. On this occasion Stinnett had
trouble with Galyon and Davis. They went out on a drunk,
stayed out all night, and did not report to work the next
morning.
Stinnett had material in the truck and Davis had the key
to this truck. He went on lunchtime, saw the men who
asked what was going to happen to them. Stinnett called
Bond that night and reported to him. He asked Bond to be
lenient with the men and suggested that they be docked a
day's pay and denied their usual expense money. Bond
said that would be all right with him.
Stinnett said that when he was with a crew, out of town,
he would work with his tools, either as a carpenter when
that work was required to be done, or, if the crew consisted
of a carpenter, he would do plumbing work; also if both
plumbing and carpentry work was being handled by men
trained to do this type of work he would sometimes do
electrical work. He also testified that when he was out on a
jobsite when Brady was not along, Stinnett worked with his
tools 100 percent of the time. The usual hours spent on a
job away from Respondent's plant was 10 hours per day.
The only other duties performed by Stinnett was to handle
the -men's expense money and he also turned in their time.
Further elaborating on the typical work week when a crew
was in the field Stinnett said the men, himself included,
worked 10 hours a day Monday through Saturday and 8
hours on Sunday. All the men received overtime pay
except for Stinnett and Brady who were paid on a salary
basis.
Oftentimes when the crew was out of town on a job,
Stinnett and the others in the crew worked 7 days a week,
for 10 hours a day. When they returned to Respondent's
office Brady and Stinnett were given days off in the form of
compensatory time off because of the excessive hours
worked. Both Stinnett and Brady received their regular pay
when they were given compensatory time off.
In sum Stinnett's duties while on the job involved the
following: he worked with his tools approximately 100
percent of the time; sometimes he spent at least 80 percent
of the time he worked in a crew consisting of himself,
Brady, and employee Campbell; on five or six occasions
during the 15 months of his employment with Respondent
Stinnett was sent out in the field with a crew for which he
was responsible. Besides actually working on the job
Stinnett did keep a record of expense money, he also kept
time records of the crew and he checked out the completed
project with a representative of the customer.
It is the contention of the General Counsel that the work
performed by the crew was routine in nature and it was not
necessary for Stinnett to oversee or direct the work of the
men on the crew. Stinnett himself usually performed
carpentry work and he occasionally did some plumbing
and electrical work when this became necessary. Stinnett
testified credibly that he neither assigned work to the men
nor did he inspect the jobs performed by them. His
testimony on this point was corroborated by employees
Phillips and Harold Stinnett. In further substantiation of
the lack of knowledge of the men with whom he worked
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was in charge of the job, Phillips testified that he
was unaware that Stinnett had charge of the crew.
On one isolated occasion , while on a job in Orlando,
Florida, two members of the crew stayed out all night on a
drunk and failed to report to work the next day. They did
show up at their motel rooms during the day but Stinnett,
evidently of the view that they were not in condition to
work, did not allow them to come to work and "docked
them their time and expense money" for that day. He
reported this incident to Vice President Bond that night
and recommended leniency . His suggestion not to impose
any additional disciplinary measures was agreed to by
Bond. Respondent points out that both Bond and one of
the employees involved stated that action against the men
was taken prior to the report to Bond.
Respondent contends, in support of its position that
Stinnett is a supervisor , that he is frequently out on
assignments without Brady, an acknowledged supervisor,
and on such occasions Stinnett is the only company
representative present to oversee the job. Further that
Stinnett, like Brady, is carried on the salary payroll while
the men who work with him are all hourly paid employees.
The Company underscores its argument that Stinnett was a
supervisor by emphasizing the incident regarding the two
employees who went out on a drunk and were penalized by
Stinnett. It also urges that Stinnett assigned men to his jobs
and that he gave them orders and inspected their work.
These contentions are stoutly denied by Stinnett . Finally
Respondent argues that even when Stinnett was not always
in charge of a given job the fact remains that he was the
regular alternate in supervision. Also that the supervisory
role occupied by Stinnett was a recurrent and anticipated
part of his job.
Credibility Resolutions
The Company states that Stinnett is an incredible witness
in that his testimony "lacked candor and his explanations
were at variance with proven facts." My evaluation of the
testimony offered by Stinnett is that he testified in a
straightforward and convincing manner and I credit his
testimony.
In fact Bond also made a credible witness and some of
the versions offered by both men did not necessarily
contradict each other . For example the stories told by each
of them with respect to imposing discipline in the incident
involving employees Galyon and Bob Davis were substan-
tially parallel to each other . It is not disputed that Brady
was hired at $200 per week ; Stinnett was initially paid $175
per week. They both received raises in pay-Brady
ultimately earned $240 and Stinnett $200 per week. At the
time of hire Stinnett was told that if the Company needed
an additional superintendent in charge of repair crews he
would be considered for the job. Testimony also was
uncontradicted that on occasion clearly nonsupervisory
men were sent out on jobs alone , without any supervisors
being along on the assignment.
There was a clear conflict in some of the testimony.
Stinnett said he neither assigned men, picked them, nor
inspected their work on its completion . Bond stated that
Stinnett did select men to accompany him on jobs,
assigned them to work when they reached the jobsite and
was responsible for checking the work done. It should be
noted that there was no convincing evidence adduced at
the hearing in support of Bond 's contentions in this regard.
I am persuaded that the fact all men on the repair crews
were expert craftsmen in their several specialties (plumbe-
rs, electricians , and carpenters) makes it seem reasonable
that they did not need supervision.
Miscellaneous
There is testimony in the record that in an election
conducted by the NLRB , Stinnett's name was not on the
eligibility list and he did not cast a ballot. According to
Respondent Stinnett was excluded from participation in
the election because he was a supervisor . Stinnett's
explanation is that he did not vote because he was sent out
of town on a job on the day the election took place. This
testimony stands unrefuted on the record.
The record also contains numerous references to the
wearing of hard hats by the men. All hats initially are white
but some have been painted blue. These latter were
differently painted to denote that the wearers were
supervisors . This record information proves • nothing
because it was not controverted that the men in the repair
crews did not wear hard hats at all.
Concluding Findings and Analysis
Respondent contends that "Stinnett was hired as
assistant field crew superintendent and was accorded
supervisory status throughout his employment. He was
carried on the supervisory payroll account, as was the plant
manager. He was given time off following extended field
trips , with full compensation, and, similarly was entitled to
his salary during periods of illness."
Stinnett claimed he exercised no supervisory authority.
Apart from the single isolated instance when he imposed a
penalty on Galyon and Davis for failing to report for work
the record does not include any other evidence that
Stinnett disciplined the men . It is admitted that he kept the
time of the men, that he reported on the progress of the job
to Bond, and that he kept and disbursed expense money,
whenever Brady was not along as a part of a repair crew,
but the record is devoid of any convincing evidence that he
exercised any of the supervisory duties enumerated in
Section 2(11) of the Act. While this latter point is disputed
by Respondent I am. not persuaded by the evidence in the
record as a whole that Stinnett regularly exercised duties
normally associated with supervision of employees.
Respondent cites numerous cases which it claims support
its conclusion that Stinnett was a supervisor . I have read
the cases adverted to by the Company and have concluded
that each one is substantially different on its facts from the
matter at bar and therefore are not apposite . On the other
hand many cases , indeed the weight of authority as set
forth in adjudicated cases much closer to the facts , point to
the opposite conclusion , viz, that Stinnett was not a
supervisor.
LENOIR INDUSTRIES, INC.
In a very recent case decided by the NLRB on July 22,
1974, Dad's Foods, Inc.,' the Board concluded that "the
fact that an individual may have authority to discharge
employees under certain circumstances does not mean that
he is a supervisor as defined in the Taft-Hartley Act, ...112
The facts in the Dad's case are even stronger than those in
the instant case.
The employee in question opens the employer' s plant
each morning some 30 to 45 minutes before the plant
manager arrives , and during this time he works with other
employees performing the routine tasks necessary to
prepare the plant for the day's production. The plant
manager leaves the plant each morning for 30 to 45
minutes to visit another company of which he is part
owner, and on these occasions the alleged supervisor is "in
charge" of operations and has the limited authority to
discharge employees for intoxication on the job or
involvement in a fight.
The Board held that it is "less than persuaded" that the
employees in question have "genuine or meaningful"
authority to discharge or discipline . At most, it says, the
authority he has is "only a very restricted, and sporadic
kind of authority, limited to certain predetermined kinds of
misconduct." Authority "so narrowly confined both in
time and scope, if it can be said to exist at all," is not
sufficient to establish supervisory status . The Board also
found that any directions that the employee gives' to
coworkers are of a routine nature or pursuant to instruc-
tions of the plant manager.
In the light of this case , just decided on July 22, 1974, it
seems clear that in a factual situation analagous, if not
even stronger than the facts of the instant case, I am
persuaded that Stinnett is not a supervisor and is therefore
entitled to the protection of the Act. I therefore find that
Stinnett, admittedly discharged for union activities, was
discharged in violation of his Section 7 rights. I therefore
will recommend that he be reinstated to his former job with
backpay computed with interest as is customary where an
employer has been found to have violated Section 8(aX3)
and (1) of the Act . I so find.
Respondent places considerable reliance to support its
contention that Stinnett is a supervisor on the admitted
fact that he is carried on the payroll as a supervisor and is
paid on a salary basis as distinguished from being an
hourly paid employee . The fact that he has been described
as assistant superintendent has no great significance. As is
succinctly stated by the General Counsel in his brief:
In making a determination as to whether an individual
is a supervisor, title alone is insufficient to confer
supervisory status . It is the function, duties and
authority of the individual which must be determina-
tive.3
Stinnett's handling of expense money and time records
and his one isolated incident of disciplinary action *did
not involve the degree of independent judgment or
i 212 NLRB 500 (1974).
9 Ibid.
3 Capitol Transit Company, 114 NLRB 617 at 618 ( 1955); Trumbull
549
responsible authority sufficient to find him a supervi-
sor.
Likewise, the fact that Stinnett was paid a salary rather
than hourly is insufficient to establish an individual as a
supervisor.4
The Board has held that an employee usually left in charge
when the general manager and the assistant general
manager are away is not a supervisor because any
supervisory authority exercised was sporadic in nature.5
With respect to the emphasis placed by Respondent on
the fact that Stinnett was a salaried employee rather than
an hourly paid man, it should be noted that Respondent's
brief in explaining the Company's supervisory hierarchy
states:
Plant employees are supervised by a plant superintend-
ent and assistant plant superintendent, who are both
salaried employees, and hourly paid foremen and
assistant foreman. [Emphasis supplied.]
Thus it can be seen that in the Company's structure,
being paid on a salary basis rather than on an hourly basis
is not determinative as a significant factor in declining
whether an employee is a supervisor or a rank-and-file
man. From the facts as found-supra and the determinative
legal precedents I find and conclude that Stinnett was not a
supervisor within the meaning of Section 2(11) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above , have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Clarence Stinnett is not and never
was a supervisor within the meaning of Section 2(11) of the
Act. Respondent admits that Stinnett was discharged for
union activities. Such action on the part of the Company is
a clear violation of Section 8(a)(3) and (1) of the Act. I
shall therefore recommend that Stinnett be reinstated to his.
former position, or, if that is no longer available, to a
substantially equivalent position with backpay from the
date of his discharge to the date Respondent makes a
proper offer of reinstatement . Such offer of reinstatement
shall be without prejudice to his seniority or other rights
and privileges. Backpay and interest shall be computed
Asphalt Co. of Delaware, 136 NLRB 1461, 1469 ( 1962).
4 Muscle Shoals Rubber Company, 157 NLRB 829 at 832 (1966).
5 Mon-Clair Grain and Supply Co., 131 NLRB 1096, 1099 (1961).
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the established standards of the Board .6
Upon the foregoing fmdings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By failing and refusing to reinstate Clarence Stinnett
upon his unconditional request for reinstatement, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct which interferes with,
restrains, and coerces employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby recommend the following:
ORDER 7
Respondent, Lenoir Industries, Inc., Lenoir City, Ten-
nessee, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of
Sheet Metal Workers' International Association, Local
464, or any other labor organization by failing and refusing
to reinstate Clarence Stinnett to a properly available
position upon his unconditional application for reinstate-
ment , or in any other manner discriminating in regard to
hire or tenure of employment or any term or condition of
employment.
(b) Refusing to reinstate Stinnett upon his unconditional
application because he has engaged in union or concerted
activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Clarence Stinnett immediate and full reinstate-
ment to his former position , or, if such position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make whole for any loss of earnings he may have suffered
by reason of his discriminatory discharge and failure to
reinstate him in the manner set forth in the "Remedy"
section of the Decision of the Administrative Law Judge.
(b) Preserve and, upon request , make available to the
Board or its agents all payroll and other records , social
security payment , records , timecards , personnel records
and reports , and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Lenoir City, Tennessee, plant copies of the
attached notice marked "Appendix." 8 Copies of said
notice , on forms provided by the Regional Director for
Region 10, shall after being duly signed by Respondent, be
posted immediately upon receipt thereof in conspicuous
places, and be maintained for 60 consecutive days.
Reasonable steps shall be taken to ensure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
6 F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
a In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, Lenoir Industries , Inc., violated the
National Labor Relations Act, and has Ordered us to post
this notice. We intend to carry out the order of the Board,
the Judgment of any court, and abide by the following:
The Act gives all employees these rights
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything to interfere with you in
the exercise of these rights.
WE WILL NOT fire or otherwise discriminate against
any employee because he joins, assists , or supports a
union.
As it has been found that we violated the law when
we fired Clarence Stinnett, WE WILL offer him his old
job back if the same exists , and if not a substantially
equivalent job, and we will make up the pay he lost,
together with 6-percent interest.
LENOIR INDUSTRIES, INC.
(Employer)