Orr Iron, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1973

207 N.L.R.B. 863 (N.L.R.B. 1973)

ORR IRON, INC. 863
Orr Iron, Inc. and Chauffeurs, Teamsters and Helpers,
Local Union No. 215 , a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case 25-CA-5079
December 12, 1973
DECISION AND ORDER
On March 19, 1973, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.'
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 her recommended Order.
We agree with the Administrative Law Judge's
conclusion that Jim Collins does not possess the
authority to hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward, discipline, or
adjust the grievances of employees, nor does he
effectively recommend such actions. We further
agree that Collins does not responsibly direct the
night crew steel handlers within the meaning of
Section 2(l 1) of the Act, and, like the Administrative
Law Judge, we find that Collins is not a supervisor
within the meaning of the Act.
As more fully described by the Administrative Law
Judge, it appears that Collins, because of his superior
knowledge and experience, was frequently assigned
to train several night foremen as well as Superintend-
ent Simpson in the operation of various types of
equipment, and to acquaint them with the various
types of steel and alloys and the loading of trucks in
accordance with governing laws and regulations.
After such assignments, he normally returned to his
regular day-shift duties.
In 1970, Respondent was plagued with mistakes on
the night shift and Superintendent Simpson and
Collins were assigned to the night shift to correct and
restore the operation. At the time of his reassign-
ment, Collins told Vice President Fridrich that he
(Collins) did not want anything to do with employee
personnel actions and Fridrich agreed. Thereafter,
although consulted about work assignments on the
night shift, it appears that Collins was never
informed that he possessed any supervisory authority
and he did not attend any supervisory meetings.
Indeed, on those occasions of employee transfer,
recall, and hire for the night shift, Collins was not
consulted but was informed by Simpson, who had
subsequently returned primarily to the day-shift
operation, of the impending personnel action.
The night-shift warehouse operation was composed
of approximately five employees in addition to
Collins. There is some overlap between the day shift
and the night shift and it appears that the warehouse
manager, Merrick, and Superintendent Simpson
normally remain well after the departure of the day
shift, and normally Merrick remains at the plant
until 5:30 to 7:30 p.m. It further appears that upon
their departure from the plant Simpson and Merrick
left, telephone numbers with Collins as to where they
could be reached during the remainder of the night
shift. They also left standing instructions with Collins
to call one of them if any problems arose. Collins
complied with these instructions and frequently
called , sometimes nightly, for instructions as to what
should be done. If the matter was serious, one of the
supervisors came to the warehouse to handle it.
The record shows that Collins' primary responsibil-
ity was to get the trucks loaded for delivery the
following day. In carrying out this task, Collins
reported to work some 15 minutes early each
afternoon and received from Simpson the invoices to
be filled that night along with specific instructions as
to the night operation. Collins then spread the
invoices out near the loading dock where the
employees proceeded to fill the orders. Collins also
filled orders working alone or with one or more of
the steel handlers. During the course of the shift,
Collins was available to help other employees if they
had problems, he trained any new employees, and he
checked the trucks for loading readiness and to make
sure the loading operation complied with the various
applicable laws. If the loading for the next day
deliveries was not completed by 11:30 p.m., Collins
routinely asked the employees if they wished to
remain to complete the loading. Those who did not
wish to remain were free to leave. On the other hand,
if the overtime involved would be more than 1 hour,
it appears that Collins would call one of the
supervisors for instructions. Indeed, on one occasion,
no employee volunteered to stay after 11:30 p.m. and
Simpson refused to authorize Collins to assign
overtime.
From the foregoing, and on the basis of other
record evidence more fully set forth by the Adminis-
trative Law Judge, we conclude,` contrary to our
dissenting colleagues, that Collins functioned as a
leadman2 on the night shift and, at most, routinely
1 We find totally' without merit Respondent's allegations of bias, bias or incompetency in her analysis or discussion of the evidence.
prejudice, and incompetency on the part of the Administrative Law Judge. Accordingly, we reject these contentions.
We have fully considered the entire record and the Administrative Law 2 Although Collins carried the title of night foreman, it is well settled that
Judge's Decision and we perceive no evidence that the Administrative Law "functions performed and the authorities possessed ' or exercised," and not
Judge prejudged this case, made prejudicial rulings, or demonstrated either titles are determinative of supervisory status. E.g. D. H Overmyer Co., Inc.,
196 NLRB No. 117.
207 NLRB No. 133
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributed the work he had been given by Simpson.
Moreover, in our view, the assignment of the work
did not require any independent discretion, nor was
it anything but routine in nature. Indeed, Collins was
under instructions to contact one of the supervisors if
any matter of importance arose. It further appears
that the request to work beyond 11:30 was also
routine and in conformance with Respondent's
policy that the trucks scheduled to depart the next
day had to be loaded by the night shift. Clearly,
Collins could exercise no independent judgment in
the matter. If the trucks weren't loaded by the end of
the shift, overtime, of a minimal nature, would be
worked, and, if no one desired to remain, Collins
called Simpson for instructions.
In sum, in our view, the record does not reflect that
the work performed by the night shift required, or
received, significant direction by Collins, and the
sporadic direction referred to by our dissenting
colleagues was patently routine and nondiscretionary
in nature.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Orr Iron, Inc.,
Evansville, Indiana, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
CHAIRMAN MILLER AND MEMBER KENNEDY, concur-
ring in part and dissenting in part:
We concur in the Administrative Law Judge's
findings that the Respondent violated Section 8(a)(1)
of the Act by the interrogation of Allender, by
threatening the employees with loss of employment if
they did not remove their union insignia, by
Fridrich's statement that there was not going to be a
union at Orr Iron-he would fight it to the limit at all
cost any way he could, and by promising them
benefits in an effort to persuade them to abandon
their support of the Union. We do not, however,
agree with the Administrative Law Judge's conclu-
sion that Jim Collins was an employee and therefore
would not find those unfair labor practices which
flow from this conclusion.
The record shows that Collins was.designated the
night-shift foreman in October 1970 and held that
post until his discharge on June 30, 1972. He was
carried on Respondent's payroll as a foreman and
was paid, at the time of his discharge, $2.95 an hour,
some 45 cents an hour more than the next highest
paid member of the night crew. He wore a red hard
hat, which distinguished him from other members of
the crew who wore yellow hard hats, and had a
"foreman" insignia on his shirt. He testified that he
had been the "night shift foreman" and, in signing
his union authorization card, he gave as his occupa-
tion "foreman."3 He was introduced to a new
employee as the employee's foreman and three of the
four employees on the night shift identified Collins as
the "night shift foreman." It is also clear from the
record that Collins came in earlier than other
employees on the night shift, was involved in the
planning of the night's work, and was vested with
authority to assign overtime, at least up to an hour in
length, in order to complete the work required of the
shift. It thus appears that Collins was regarded by
management, the employees, and Collins himself as
being vested with the title and responsibilities
ordinarily conferred on a "supervisor" as that term is
used in the Act.
There is also evidence in the record that Collins,
however reluctantly, exercised other prerogatives
normally associated with the position of supervisor.
Other employees on the night shift testified, without
contradiction, that Collins checked their work to see
if it was being done properly, gave orders to the
employees, told the employees with whom they were
to work, instructed them with respect to the perform-
ance of their work, and in one instance sent an
employee home because he would not do his work.4
Collins conceded that it was he who would decide
"who would work where," who "would work togeth-
er," checked on the employees' work, and referred
one employee to Simpson, the superintendent,
because of the employee's absenteeism.
All the foregoing factors are indicia of supervisory
status. Taken together they present, in our opinion,
strong evidence that Collins was a supervisor. That
the powers were infrequently exercised or that
Collins was free to engage in manual labor for
substantial periods of time is not surprising where the
crew consisted of only four men. We therefore find
that Collins was a supervisor within the meaning of
Section 2(11) of the Act.
Having concluded that Collins was a supervisor, we
would, of course, not find his discharge to be a
violation of Section 8(a)(3) of the Act.5 Nor would
we find his discharge to be a violation of Section
8(a)(1) of the Act. It is true, as the General Counsel
contends, that under some circumstances the dis-
3 This was later changed by a person unknown to "leadman."
4 The employee came in the following day and picked up his pay. It is
not clear from the record whether the employee was discharged or quit.
a See Member Kennedy's dissenting opinions in United Electric Compa-
ny, 194 NLRB 665, and CastA-Stone Products Company, 198 NLRB No. 66.
ORR IRON, INC. 865
charge of a supervisor may have an impact on the
rights of employees under Section 7, but the
circumstances in this case will not support such a
conclusion. Both at the time Collins was fired, and in
the remarks made by the Respondent's officials to
the assembled employees, it was made abundantly
clear that Collins was being discharged because he
had engaged in union activity in his capacity as a
supervisor. There was no basis, therefore, in fact or
in law, for any employee to fear that his job was in
jeopardy, as an employee, because of his union
activities. We can therefore find no invasion of the
employees' rights contained in Section 7 and conse-
quently would not find the discharge of Collins to be
a violation of Section 8(a)(1).6
The Administrative Law Judge also found that a
violation of Section 8(a)(5) of the Act occurred and a
bargaining order to remedy that violation is warrant-
ed by the Respondent's unfair labor practices under
the criteria enunciated in the Gissel case.? Her
finding was, in part, based upon the unfair labor
practices which-were grounded upon her conclusion
that Collins was an employee. As indicated, we have
found Collins to be a supervisor and therefore do not
find those actions of the Respondent to be violative
of the Act. The remaining violations of Section
8(a)(1) of the Act found by the Administrative Law
Judge, in which we have concurred, are not of a
caliber which, in our opinion, would prevent the
holding of a free and fair election which would more
accurately reflect the true desires of the employees.
Accordingly, we find that the Respondent has not
violated Section 8(a)(5) of the Act.8
6 Abitibi Corporation, 198 NLRB No. 176. Enterprise Products Company,
Enterprise Products Company, Enterprise Fractionation Company, 196 NLRB
549.
7 N.L.RB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
8 We would, however, find that the strike was a concerted protected
activity under the Act. The remarks of employees regarding wages and job
security at their meeting with Vice President John Orr clearly indicate that
the strike was, at least in part, occasioned by the employees' concern over
working conditions and that the, discharge of Collins had triggered that
concern into concerted action. The strike was therefore in support of an
effort to obtain improved working conditions and thus protected by the Act.
Kelso Marine Inc., Kel Stress Division, 199 NLRB No. 3. The rights of the
employees to reinstatement is, therefore, governed by the principles
enunciated in The Laidlaw Corporation, 171 NLRB 1366, enfd. 414 F.2d 99
(C.A. 7), cert. denied 397 U.S.920.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: Upon
due notice, this proceeding under Section 10(b) of the
National Labor Relations Act, as amended (29 U.S.C. 151,
et seq.), hereinafter referred to as the Act, was tried before
me at Evansville, Indiana, on November 20 and 21, 1972, 1
pursuant to a charge filed on July 21; a complaint issued
September 29, presenting allegations that Orr Iron, Inc.,
hereinafter called the Respondent, committed unfair labor
practices within the meaning of Sections 8(a)(1), (3), and
(5) and 2(6) and (7) of the Act; and Respondent's answer
denying those allegations. Present and participating in the
hearing were representatives of the Respondent and the
General Counsel.
Based on the entire record, including my observation of
witnesses, and after due consideration of briefs, I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is a corporation engaged at Evansville,
Indiana, in the business of selling at wholesale steel and
iron products and industrial supplies. During the 12
months preceding issuance of the complaint herein, a
representative period, Respondent manufactured, sold, and
shipped from its Evansville, Indiana, facility, to points
outside the State of Indiana, products valued in excess of
$50,000. During the same period, Respondent purchased
and caused to be transferred and delivered to its place of
business in Evansville, Indiana, directly from states other
than Indiana, goods and materials valued in excess of
$50,000. Respondent admits, and I conclude, that it is now,
and was at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
Respondent admits, and I find, that the Charging Party,
Chauffeurs, Teamsters and Helpers Local Union No. 215,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter
referred to as the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Contentions of the Parties
Briefly, the General Counsel contends that the Union
attained majority representative status in an appropriate
unit of Respondent 's employees and demanded recogni-
tion, whereupon Respondent refused to extend recogni-
tion, discharged one of the employees-a leadman-for his
union activity , and engaged in other unlawful conduct
causing employees to strike , then discharged all strikers,
thus, as previously indicated , violating Section 8(a)(1), (3),
and (5) of the Act. Alternatively, the General Counsel
argues that even if, as asserted by Respondent, the
individual discharged by it was a supervisor, his discharge
was for the purpose of interfering with the Section 7 rights
of employees and became an integral part of the other
violations of Section 8(a)(1) committed by Respondent, the
remedy for which is his reinstatement , and even if it is
found that the strike was an economic strike it is still
1 Unless otherwise indicated , all dates are in 1972.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protected concerted activity, and the participants are
entitled to reinstatement unless permanently replaced.
In addition to its defenses that the unit claimed is
inappropriate, that the Union did not represent a majority
of the employees in an appropriate unit, and that any
majority was tainted because of supervisory participation,
Respondent asserts that the individual involved, being a
supervisor, was lawfully discharged for refusing to remove
the union insignia from his hard hat, that his discharge
alone was the cause of the walkout, and that the strike-to
force the Respondent to take back a supervisor-was in
violation of Section 8(b)(l)(B) and, therefore, unprotected,
and, in any event, the strike is still in progress so that the
only remedy would be to reinstate those not replaced when
the strike is unconditionally terminated.
B. The Issues
Threshold factual questions on which the legal issues
turn are:
1. Was Jim Collins a supervisor?
2. Did the Union represent an uncoerced majority in
an appropriate unit when Respondent declined to recog-
nize it?
3. What was the reason for, or cause of, the strike?
C. The Respondent's Operation
Respondent's executive and general offices and its
industrial supplies and equipment operation are all located
in a five-story brick building which is connected at the rear
by a fire door to two adjoining warehouse buildings where
the wholesale steel warehouse operation is carried on.
Overall active management reposes in Respondent's
executive vice president and treasurer, Robert Fridrich.
The merchandising manager , who is responsible for all
purchasing, sales , and advertising, the industrial supplies
and equipment superintendent, who is in charge of that
operating division, and the steel operations manager,
Charles Merrick, who supervises the steel warehouse
division, each report directly to Fridrich. Subdorinate to
Merrick in the steel division is Superintendent James
Simpson.2
The steel warehouse is laid out in three great bays
encompassing both buildings in which the steel products
are stored. Each bay is equipped with a huge crane used to
move the steel . These bays converge into a single area
known as the steel room opening onto the loading docks.
Warehouse offices are located in the middle of the steel
room near the loading docks from which vantage point
both the docks and the bays can be observed. Steel arrives
by rail car or on "piggybacks" and is unloaded and stored
in the bays, generally by the day crew, according to type
and size. From these bays material is selected, cut to size
with saws, shears, and cutting torches as necessary to fill
customer orders, and loaded on the trucks, generally by the
night crew, then delivered by Respondent's one city and
three over-the-road truckdrivers. Steel orders, direct from
2 Both are on a salary and it is admitted that the named individuals are
officials of Respondent and supervisors within the meaning of the Act.
3 All truckdrivers and warehousemen employees of Respondent em-
ployed at its Evansville, Indiana, facility exclusive of all office clerical
customers or placed by any of the I I salesmen attached to
the merchandising division, are received in the warehouse
office either through the mail or on the phone by Manager
Merrick or John Orr, Respondent's vice president. Invoices
of these sales are coordinated into routes according to
location and delivery dates by Superintendent Simpson.
Any cutting required is posted in its order of priority and
the invoices, assembled in accordance with the sequence of
delivery, are entered on the loading schedule and physical-
ly placed on a clipboard which is passed by Simpson to the
warehouse crew to be worked. The warehouse crew is
made up of a working foreman and three-to-five steel
handlers on each shift, all hourly rated.
Merchandise for the industrial operation, generally
delivered by common carrier, is received and stored in the
area occupied by that division in the 5-story building by
the three hourly rated employees assigned the classifica-
tions of receiving clerk, order clerk, and shipping clerk.
Orders for such merchandise, also received from customers
or from Respondent' s salesmen, are assembled and
prepared for delivery by these employees all of whom work
only on the first shift. Shipment is usually made by
common carrier, but occasionally some orders or parts
thereof are coordinated with steel orders for delivery on
Respondent's trucks. In the latter event the merchandise is
either brought to the warehouse dock area or instructions
are left for it to be picked up. Warehouse Superintendent
Simpson instructs the night shift foreman with respect to
the inclusion of such merchandise, the location it is to take
among the steel orders on the truck, and where it is to be
found.
D. The Appropriate Unit
The General Counsel contends, and I find, contrary to
the assertions of the Respondent, that the unit claimed by
the Union and set forth in the Complaint3 is appropriate
for collective-bargaining purposes within the meaning of
Section 9(b) of the Act. Respondent agreed to the
exclusion of clerical and other employees in the executive
and general offices, except for the janitor, and of
employees in the merchandising division, except for the
salesmen . The General Counsel contends that the salesmen
and the office janitor should be excluded from the unit, but
would include the two working foremen in the steel
warehouse.
Salesmen , under the merchandising manager, work on a
commission basis in assigned territories away from
Respondent's place of business, personally coming in to
the general offices only for about 4 hours a week to make
reports, turn in orders, or attend sales meetings. They do
contact the heads of the two operating divisions if it is
necessary to make a follow-up inquiry or expedite delivery
of a sale, but they have no occasion for direct contact with
the hourly rated employees and truckdrivers. Accordingly,
although they have the benefit of the Respondent's
uniform insurance and vacation plans, etc., I find that their
working conditions and interests are substantially different
employees, all guards, professional employees , and all supervisors as
defined in the Act. By its general terms this unit includes the three clerks in
the industrial equipment and supply division. On June 30, 1972, this unit
covered 18 employees in all.
ORR IRON, INC. 867
from those of the hourly rated employees and that they are
appropriately excluded from the proposed bargaining unit.
The janitor in dispute works 2 to 3 hours each evening
cleaning in and around the executive and general offices in
the brick building, coming to the warehouse occasionally
only to bring soap and paper supplies or to clean the toilets
and water fountain. Warehouse division employees are
assigned the tasks of cleaning in the warehouse area and of
hauling and disposing of trash and cuttings. I find that the
office janitor does not have a sufficient community of
interest in common with unit employees to require his
inclusion.
E. Supervisory Status of Collins
There is an overlap in the warehouse shifts, the first
working from 7:30 a.m. to 4:30 p.m. and the second from 3
to 11:30 p.m. Both the warehouse manager and superin-
tendent are normally present during the day shift but
remain later, particularly Merrick who remains usually
until at least 5:30 and frequently until. 7 or 7:30 p.m.
Jim Collins was a steel handler and relief truckdriver
when Respondent" operated only one shift. In January
1968, the Respondent instituted a second shift with hours
from 12 noon to 8:30 p.m. At that time Collins was
assigned to work from 10 a.m. to 6:30 p.m. to assist the
warehouse superintendent in training a foreman and the
second-shift crew. Collins was told that the reason for this
assignment was his superior knowledge and experience in
the work. Collins expressed his preference for his regular
first shift work, declining the second shift foreman job on a
regular basis, and after training a foreman to take over the
night shift he was returned to his regular day-shift hours
and duties. Thereafter whenever a new night foreman was
needed Collins, without any change in wage rate, was
assigned to night work to train someone. This occurred five
or six times between January 1968 and October 1970, with
Collins training each night foreman, among them Superin-
tendent Simpson.4 Each time, after a few months training
period, Collins was returned to his regular day-shift duties,
except for the last occasion when he was given a regular
truckdriving assignment.
In October 1970, Collins asked Simpson to take him off
the regular truckdriving assignment. Simpson told Collins
the only thing available at that time was night-shift
foreman. Collins said he would accept this work on
condition that Simpson would get someone for him to train
for that job and return him to his former day-shift work.
Simpson promised he would do this and Collins, as before,
went on the night shift without any change in the hourly
rate or mode of pay from what he had received before he
was shifted to truckdriving.
4 The training Collins gave the night foremen involved the operation of
the steel moving and cutting equipment; how to set up the material for
cutting and how to apply the shears, saw, or torch to the various material.
He also acquainted each foreman with the various types of steel and alloys,
and taught him how to load the trucks in accordance with the governing
laws and regulations on overhang, maximum weights, and weight distribu-
tion, as well as sequence of orders, etc.
5 Collins did not receive a copy of this announcement but did see
something similar on Merrick's desk in the office. Simpson never sent
anyone for Collins to train, and Collins continued in this assignment until
his discharge.
Apparently at this time Respondent was experiencing
difficulties with the functioning of the night shift, being
plagued by numerous mistakes because of improperly
performed cutting and mix-ups in truckloading. The night
foreman was discharged, Collins was assigned to the night
shift, and Simpson went on nights for several months to
help Collins restore the night shift to proper functioning.
An announcement to this effect was addressed by Fridrich
to salesmen and supervisors advising that "Jim Collins is
capable of doing a good job" and requesting that their
cooperation be extended to him and Jim Simpson.5
At the conference in the steelroom office with Merrick
and Fridrich concerning the night-shift problems which
they expected Collins to correct, Fridrich told Collins to
get rid of anyone he did not want to work with. Collins
stated that he did not want anything to do with such
matters, and Fridrich replied "O.K., then just send them to
us."s Thereafter, Respondent's officials frequently dis-
cussed the work assignments with Collins. However,
nothing was said to Collins about any supervisory
authority, Collins was not included in supervisory meeting,
and aside from the initial exchange with Fridrich, at no
time was anything said to Collins indicating that he had
any authority to effectuate or recommend such actions as
wage increases, hire, discharge, suspension, discipline,
layoff, recall, transfer, assignment of overtime, granting of
time off, adjustment of grievances, or otherwise affect
terms and conditions of employment. Early, in, 1972,
Simpson again came to work on the night shift for a period
of 1-1/2. months. At that time Simpson told Collins that
Fridrich had told him to do this to ascertain why the men
were not able to complete the night work set up for them.
Since Collins assumed the duties of night foreman,7 there
have been occasions of employee transfer, recall, and hire
for the night shift. On these occasions Collins was not
consulted but was merely told by Simpson of the
impending personnel action. After an employee came on
the night shift Collins did ascertain the extent of his
experience in order to determine what training would be
necessary. On one occasion Collins spoke to an employee
who he believed was not working fast enough, telling this
employee that if he did not perform his work with more
dispatch his fellow employees would have to do his work
for him. The employee involved testified Collins said it
would be appreciated if he would work faster and he
attempted to do this. Collins reported the incident to
Simpson but was not advised he had authority to discipline
or recommend discipline of an employee. Collins com-
plained to Simpson, regarding the poor attendance of a
steel handler and sent that,employee to Simpson who told
the,employee he would have to start working every night.
Early in 1972, after Respondent changed the night-shift
6 `Collins wore a "foreman" insignia on his shirt and a red hardhat, as did
the day foreman, in contrast to yellow hardhats worn by steel handlers and
a white hardhat wom by Simpson, This was the first, time, in Collins'
awareness, that the foreman title was applied to hmi.
7 In 1969, while training a foreman, Collins told a steel handler to do his
"work or go home." The employee chose to go home. The'next morning the
employee called Simpson, told him about the incident, and quit the job.
Simpson advised Collins of the call from the employee and said he did not
blame Collins for what '. happened. Employees testified that this was a
comment commonly used by employees to goad another into more fruitful
cooperation.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours to 3 to 11:30 an employee or two quit. When no
replacements were hired, Collins complained to Simpson
about working shorthanded and having difficulty complet-
ing the scheduled loading. Some time thereafter another
man was added to the crew. Night-shift employees
frequently complained to both Collins and Simpson, and
Collins complained to Simpson, that the day shift was
stacking the steel in an untidy and dangerous fashion, but
nothing was ever done about this. Night-shift employees
also spoke to both Collins and Simpson about raises and
Collins dropped comments to both Simpson and Merrick
almost weekly about the need for raises for all of the night
crew, but was "ignored." Warehouse Manager Merrick
testified that even he had no authority to grant raises, but
that he could only recommend such action.
Although a supervisor cannot escape that status by
failing or refusing to exercise the authority bestowed upon
him, in the absence of a clear vestment of supervisory
authority, these factors may be significant in determining
whether supervisory status was conferred,s and I find they
are significant here. Collins' repeated past reluctance to
take the night foreman's job instead of training someone
else might be viewed in other circumstances merely as a
preference for day work. However, the difference between
his hours and those of the day crew was not that significant
until January 1972. Moreover, his specific refusal to accept
any responsibility for the selection of the night crew
suggests that it was also a reluctance to assume any
responsibility for the work performance of others, and a
refusal to make decisions affecting other employees. That
Respondent was aware of and acceded to this reluctance is
demonstrated not only by the number of times Collins,
because of his superior knowledge and skill, was utilized to
train night foremen then returned to his regular work, but
also by Fridrich's acquiescence in his refusal to have
anything to do with "such matters" as would affect the
work status of other employees. And even though the
Respondent failed to send Collins someone to train for the
night foreman job, it did not thereafter call upon Collins to
make decisions or recommendations with respect to the
employment status of night crew employees .9 Accordingly,
I conclude that Collins was not, at any time material
herein, vested with any of the supervisory authority listed
above. There remains, however, the question of whether
Collins responsibly directed the night crew steel handlers
in a manner indicative of supervisory authority. To this
end, Collins' duties and the manner in which the night shift
functioned is set forth in substantial detail.
Manager Merrick testified that Collins' primary respon-
sibility was to get the trucks loaded, which involved
assigning the work and performing advance cutting, and to
make sure that all the deliveries were cleared off the truck
or ascertain from the driver the reason any merchandise
was returned and arrange for its further shipment.
Secondarily, he was responsible for Respondent's property.
s See Almo Express Inc., 170 NLRB 215.
9 Respondent placed in evidence a job description prepared at Fridrich's
direction at some unspecified time after Collins took over night foreman
duties. Fridrich testified that he instructed the warehouse manager and
superintendent to explain the job descriptions to each of the warehouse
foremen, and that those of the day and night foremen differed . Simpson did
not testify. Merrick related Collins' job duties but made no reference to a
Other testimony establishes that as a rule Collins reported
to work about 15 minutes early each afternoon, received
from Simpson the clipboard of routed and numbered
invoices to be filled that night along with any specific
instructions , and spread the invoices out on the banding
rack by the dock. Much of the work of gathering, cutting,
and loading required the operation of a crane and a man to
guide the placement of material. Consequently steel
handlers frequently worked in pairs. Once they were
teamed together, whether for training or by assignment,
they usually resumed this mode of operation in the same
particular bay, taking the invoices in the order laid out,
accumulating the merchandise called for from that area
and placing it on "barrel" trucks or on skids, performing
any cutting indicated by the specifications of size on the
invoice and any necessary banding, and depositing these
with the invoice in another bay for completion by
employees working there, or at the dock for loading. When
one invoice was completed the next one was taken in turn.
When all were completed for a given area, those steel
handlers sought out employees in other areas to help in
completion of all remaining invoices or in the loading of
the trucks. Employees who could not read the invoices or
who did not know the location of the various materials
usually operated equipment.
Collins worked either with one or more steel handlers or
alone, accumulating parts of orders, or performing cutting
operations. Collins was available to help other employees
who may encounter difficulties. Occasionally Collins
entered the bay where a pair of steel handlers were working
to see what they were working on, but he seldom had
occasion to check their work for accuracy. His overseeing
primarily involved the loading of trucks. Collins, or one of
the handlers, checked the trucks for loading readiness and
for any remaining undelivered merchandise. If a driver had
not returned with his truck before Merrick left, and had a
message for anyone, including the repair shop, Collins
would take such information and relay that message for the
person indicated. At the end of each night Collins dated
and separated the completed invoices, leaving a copy on
the clipboard and placing the remaining copies on
Simpson's desk. He also left any other pertinent informa-
tion including the reason any particular invoice could not
be filled as well as the reason, if loading had not been
completed. His office duties involved only from 2 to 5
percent of his working time.
Each night when they departed Simpson and Merrick
left telephone numbers with Collins as to where they could
be reached and Collins had standing instructions to call
one of them if any problem arose. This he did frequently,
sometimes nightly, at which time Collins would receive
instructions as to what should be done. However, if the
matter concerning which he called was serious or compli-
cated, one of the supervisors would come to the warehouse
to handle it. In Collins' absence, or if he was otherwise
job description. Collins testified he never saw the job description and never
was told about it. I credit Collins . In view of the foregoing , and other
testimony as to Collins' duties, including the description of his work
supplied by Merrick , I am not persuaded that the job description was
prepared or put into effect at any time relevant herein and find the job
description of little value in determining Collins' supervisory status.
ORR IRON, INC. 869
occupied, another experienced and capable employee,
Cameron, would perform any and all of Collins' duties
outlined above.
There were standing instructions from Fridrich that the
loading of the trucks for the next morning's deliveries
should be completed each night. If loading of the
scheduled deliveries was completed before the, end of the
shift, employees relaxed or played cards until time to close.
If employees had been unable to finish the loading by
11:30 p.m. and the work could be completed within a half
hour, Collins would ask the mien if they wished to remain
and complete the work. Those who did not wish to remain
merely left. On one occasion no one volunteered to stay
and Collins called Simpson but received no authority to
assign overtime. A record of those who worked overtime,
and length of time involved, was recorded in the office by
Collins. If the required overtime would be an hour or more
and Collins could ascertain this at an early enough hour,
he would call one of the supervisors for authorization or
instructions . There were times when the need for overtime
could be anticipated and Simpson would assign such
overtime. There were also times when circumstances
required extra shift overtime work and this also was
assigned by Simpson . Such a situation existed in June 1972,
when Collins and one of the night shift steel handlers were
alternating days working a double shift, concentrating their
daytime efforts in preparing a large cutting order.
Although all the truckdrivers and several other second-
shift employees had keys to the property, Collins was the
one who was primarily responsible for locking up at the
end of the night shift.
From the evidence presented it does not appear that the
direction exercised by Collins was of a type requiring
significant independent judgment. Once an employee had
learned to recognize the product listed on the invoice, the
work performed was of a routing and repetitions nature,
varying only with the requirements of each invoice.
Simpson, laid out the work, and was present every day at
the beginning of the shift as was Merrick for a substantial
part of the shift. Assignment merely involved the spreading
out of the invoices and the overseeing of their progress
through the loading stage according to an established
pattern. Even the pairing of workmen in bays followed the
pattern established initially and continuing from day to
day and week to week with the team deciding among
themselves who would perform which of the needed
functions . Directing the placement of merchandise on the
truck for weight distribution and in its order of delivery is
not a matter requiring independent judgment, but rather
one involving the exercise of superior knowledge of the
weight of the items, the requirements of regulations
involved, and the schedule of orders. Similarly, Collins'
responsibility with respect to merchandise left on a
returning truck is not by its nature authority over the truck
drivers. Rather Collins is merely furthering the smooth
flow of the delivery operation. His other duties in this
respect qualify as no more than messenger service.
That Collins' responsibility is quite limited is attested to
by the fact that when the night crew was having difficulty
getting the loading completed, Fridrich asked Simpson to
go on that shift and observe to ascertain the reason rather
than call on Collins to explain the difficulty. In all the
circumstances, I conclude that Collins, because of his
superior knowledge and ability in the work, has been called
upon to, function as a leadman for the night-shift
warehouse employees, but does not possess or exercise
independent judgment in the exercise of his duties and is
not a supervisor within the meaning of the Act 10
Although testimony indicates that the job description of
the day foreman differs from that of Collins, no evidence
was presented as to the nature of this difference or of the
day foreman's duties, except as they were mentioned in
relation to Collins'. There is no specific assertion that the
day warehouse foreman is a supervisor. Accordingly, I find
that both warehouse foremen, as contended by the General
Counsel, are part of the appropriate unit herein.
F. The Events and Conduct Involved
The union campaign commenced on June 26, when
employee Don Nally went to the union office and obtained
union authorization cards. At or about 7:30 that evening
Nally returned with 10 signed cards." During the supper
break at 7 p.m. on June 29, employees attended a meeting
at the union hall. All of the night-shift and four of the day-
shift warehouse employees were present and received
union "buttons." All of the night-shift employees returned
to work wearing the union insignia pinned to the fronts of
their shirts. Their allotted supper time had not yet expired
when they returned, and Merrick was still there. He sat
with several of the employees and played a game of cards
with them. He also talked with Collins for about a half
hour before he left. That night before employees left
Collins took the hardhats and union insignia to the
toolroom and fastened the union buttons to the hats. As
previously scheduled by Simpson, Collins reported to work
the next morning at 7 a.m. to perform overtime work on a
cutting order. He wore his hardhat with the union insignia
attached, and during the morning fastened the union
buttons of the day crew to their hardhats.
During the morning of June 30, a letter addressed to
Fridrich was hand delivered to Respondent demanding
recognition of the Union as collective-bargaining repre-
sentative of employees in a truckdriver and warehouse
unit, and requesting a meeting. By letter of the same date,
Respondent refused to extend recognition, questioning the
Union's majority status in any appropriate unit and
declining to meet with the Union.
Between 9 :30 and 10 a.m., while Collins was at the coke
machine with employee Allender, Merrick sought to speak
with Collins alone, but when he attempted to dismiss
Allender, Collins told Merrick that if he wanted to talk, he
could talk to the employees as a group, whereupon Merrick
walked away. Later in the day Merrick approached
Allender and asked him what the button was, to which
10 See Consolidated Rendering Company, 161 NLRB 1. to Nally who marked through foreman and substituted the word leadman.
11 Steel handler Fnelds and Collins were going "to wash up for supper " Frields then joined three other night steel handlers by the shears where they
when Don Nally approached Collins to sign an authorization card for the were signing cards for Nally. Other evidence supports this finding that all 10
Union. Collins did so, filling in his occupation as foreman , and gave it back cards were signed on the same day.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allender replied "You know." Around noon as Collins was
removing chains from a truck trailer Merrick approached
him and asked what was going on and what employees
wanted. When Collins replied that they wanted more
money, Merrick asked how much. Collins told him and
Merrick walked away.
About 15 minutes before 3 p.m. that afternoon Collins
was outside the office where he usually picked up the
invoices for the night-crew loading when he was called to
the phone to speak with Fridrich who asked Collins to
meet him by the coke machine. Collins did so, and together
they entered the unoccupied office of Sam Orr, the
company president. Presently Merrick and John Orr came
in. On Fridrich's inquiry, Collins handed him the hardhat
with the attached insignia . Fridrich looked it over, handed
it back to Collins, and stated, "No supervisor of mine is
going to wear a union button." Collins testified that
Fridrich gave him the choice of removing the union button
or being fired. Collins refused to remove the union insignia
and Fridrich told him in that event he was fired.12
At or about 10 minutes before 3 p.m. Collins left the
office and went to the back of the warehouse. He told
members of both the day and night shift who were there
that he had been fired because he refused to remove the
union button when they told him to do so or go home.
Thereupon, the employees decided to walk out with him,
and started leaving the warehouse.
Simpson came out of his office and called for all
employees to report to the salesroom for a meeting. They
did so. At this meeting Fridrich spoke first.13 He told
employees that there had never been a union at Orr Iron
and that there was not going to be one; that he would fight
it "to the limit," "at all cost," and "any way he could."
Fridrich also told employees that he would not permit any
supervisor of his to take part in union activities, that
Collins would have to take the union button off before he
could go to work, and that if he did not do so he was fired.
Several employees recalled that Fridrich also indicated that
he was going to give the other employees the same choice
he had given to Collins; "to go home and think about it
and take the buttons off, or-he just finished the statement
with `or'." At this point John Orr stood up and said "wait a
minute," and asked Fridrich, Merrick, and Simpson to
leave the meeting.
Orr then continued the meeting with employees. Orr
testified he did this because he felt he had been close to the
employees, that he could reason with them, and that they
would tell him what led them to seek the Union and what
their problems were. Orr told employees the Company had
operated without a union for 135 years and that he did not
want a union but if that was what the employees wanted he
12 I do not credit Fridrich's testimony that he merely read to Collins the
prepared statement submitted in evidence , except for the last paragraph
which was added after this meeting and before the meeting that followed
immediately . I do believe, however, as indicated by this statement, that
Fridrich refused to permit Collins to work that night with the union insignia
on his hat but told him to go home, talk it over with his wife , and let them
know Monday whether he would remove the button and resume his night
foreman duties.
13 Again I do not credit Fridrich' s testimony that at this meeting he read
the statements submitted in evidence . Admittedly the statements were typed
after the meeting . Whether or not Fridrich prepared written notes in the
extremely limited time available before the meeting, I find, on the credible
could not do anything about it. He told them he thought
they were making a bad mistake, and tried to get them to
return to work. Employees stated all they wanted was a
decent wage and job security written in a contract. He
inquired as to how much money they wanted and promised
to take the matter up with his father.14 One of the men said
if they fired Collins, everybody was going to walk out. Orr
told employees he agreed with Fridrich that Collins would
have to take off the union button or go home, whereupon
the employees departed and left the premises.
While employees were on the dock, Simpson came out
and asked Collins if he was going to work. Collins replied
he was not going to take the union button off, and Simpson
said in that case Collins was fired. After employees left
Respondent's property, Merrick accompanied by Simpson
came to where they were and demanded from Collins the
return of the keys to Respondent's property. Merrick told
other employees there that they could go back to work if
they wanted to but that Collins could not as Respondent
no longer needed him. When the two employees who had
gone to the union hall returned with picket signs employees
removed their automobiles from Respondent's parking
area and set up the picket.
On July 19, Respondent wrote a letter to each striker.
The letter to Collins confirmed that he had been dis-
charged. The letter to each of the other strikers gave
notification that he had been permanently replaced.15
Although the testimony reveals that several of the strikers
have since undertaken other employment, no evidence was
adduced to establish that any of them have abandoned the
strike or have communicated that fact to the Respondent.
G. Analysis and Conclusions
The refusal by Respondent to permit Collins to work
while wearing the union insignia on his hardhat, and the
ultimatum delivered to him by Fridrich to remove the
button or be fired, constituted a constructive discharge16
which became finalized in the course of that days events by
Simpson's statement to Collins on the loading dock after
the Respondent's meeting with employees and Merrick's
conduct in relieving Collins of his set of the keys to the
premises, all of which related to his refusal to remove the
union button. As Collins was an employee whose right to
engage in concerted activity of the type involved herein is
protected by Section 7 of the Act, I find that his discharge
on June 30, 1972, was violative of Section 8(a)(3) and (1) of
the Act.
In addition, I find that Respondent violated Section
8(a)(1) of the Act by the following conduct:
(I) Merrick's interrogation of Allender about the union
testimony of numerous witnesses , that Fridrich did not read from any paper
during his remarks but paced in front of employees with one hand in his
pocket and the other holding a cigar as he talked.
14 Orr testified he told employees he did not think the Union was in the
best interest of the Company and that he would fight their trying to put the
Union in ; that he made no promise on wage increases but said he would go
to the proper authorities and see what could be worked out; and that he did
not relate this to their giving up the Union.
15 In view of my holding herein , I find it unnecessary to consider
whether certain employees hired by Respondent were permanent replace-
ments or which of the striking employees were never replaced.
16 See American Enterprises, Inc., 191 NLRB 866.
ORR IRON, INC. 871
button he was wearing, and of Collins as to what and how
much money employees wanted.
(2) Fridrich's statements at the meeting with employees
that Collins would have to take the union button off or be
fired; that there was not going to be a Union at Orr
Iron-he would fight it to the limit at all cost any way he
could; and that they should go home, think about it, and
take the buttons off, "or," 17 all of which constitute direct
and indirect threats.
(3) Orr's inquiries of employees as to what problems
caused them to seek the Union and how much money they
wanted, his promise to speak to the proper authorities on
their behalf in this respect, and his statement that he
agreed with Fridrich that Collins would have to take off
the union button or go home, which I find are direct and
indirect promises of economic benefits and threats of
reprisal.
Since it has been found that Collins' discharge was
violative of Section 8(a)(3) of the Act, and it is undisputed
that the work stoppage and subsequent strike was a direct
reaction to that discharge, the striking employees were
unfair labor practice strikers. The rule is firmly settled that
unfair labor practice strikers are protected against dis-
charge and against permanent replacement.18 As to the
question of whether Respondent's letters of July 10,
containing the notice to strikers of their replacement, were
tantamount to discharges, I hold that such is the legal
effect of Respondent's' action notwithstanding the nomen-
clature used to describe the termination of the employment
relationship. The fact that the striking employees were not
told "you are discharged" in those precise words is
immaterial. Certainly, in view of Fridrich's admonition to
return without their badges, "or," in the context of the
discussion of Collins' discharge for refusing to remove his
badge, and statements of Respondent's firm determination
that there would be no union at Orr Iron, employees could
logically infer from the notice of replacement that their
employment status had been terminated at that point.19
Accordingly, I find that the July 10 letters to strikers other
than Collins were discharge letters which violated Section
8(a)(3) and (1) of the Act.20
There is no dispute that the Respondent refused to honor
the Union's bargaining request. I have found that the unit
covered by that request is appropriate for collective-
bargaining purposes. The record shows that when the
Union made its demand it had authorization cards signed
by 10 of the 18 employees covered by the aforesaid unit.
There remains, however, the question of whether in the
circumstances of this case, considering particularly the
Respondent's other unfair labor practices, a finding of a
Section 8(a)(5) violation and a remedial bargaining order
are warranted under the principles declared in N.LR.B. v.
37 I do not view John Orr's actions in stopping Fndrich at this point and
requiring all supervisors to leave the room as mitigation of this threat. Orr's
explanation for his sending the supervisors out does not suggest he meant a
retraction of anything Fridrich had said. Rather, this remark had a ring of
fmahty which, Orr, consistent with the reason he gave for sending them out,
hoped to avoid. Therefore, I find that by this statement, as well as the entire
purpose of the meeting revealed by the statements made, constituted a
threat of reprisal against employees who persisted in their union activity.
is'See , e.g., Mastro Plastics Corp. v. N.LR B., 350 U.S. 270 (1956);
N.L.R.B. v. Cone Bros Contracting Co., 317 F 2d 3 (C.A. 5, 1963), cert.
denied 375 U.S. 945; N L.R.B. v. Fitzgerald Mills Corporation, 313 F 2d 260
Gissel Packing Co., 395 U.S. 575 (1969). I find, for the
reasons stated below, that they are.
As shown by the findings earlier made, all 10 of the card
signers reported to work on their respective shifts with the
relatively large union insignia prominently displayed on
their attire, and the circumstances were such that these
displays of union adherence could not, indeed did not,
escape, the notice of Respondent's officials. Not only did
the warehouse manager sit down at a table of cards with
most of the night shift when they returned from the union
hall with the insignia prominently displayed on the shirt of
each, and talk face to face with the night foreman who
similarly displayed the insignia , but the day-shift ware-
housemen similarly displayed the insignia the next morn-
ing and at least two were interrogated about it. Respon-
dent's rejection of the Union's demand later that day was
immediate , and without the slightest hesitation to evaluate
the validity of the Union' s claim of majority. Indeed,
Respondent's firm rejection of the principles of collective
bargaining is demonstrated by its immediate attempts to
ascertain what the' employees would accept both by
individual interrogation and by group interrogation at the
meeting with the employees in the context of discussing the
discharge of one employee for refusing to remove the
union button, and the pronouncement by a top official that
there would be, no union there, all within 24 hours of the
time employees first displayed their union insignia.
Respondent contends, however, that the strike is still in
progress and that it bears no responsibility to the
employees who went on strike until the strike and picketing
is unconditionally terminated and the strikers apply for
reinstatement . Although in principle the Respondent far
underestimates its responsibility to unfair labor practice
strikers whom it may not permanently replace, the Board
and courts do generally require even unfair labor practice
strikers to identify with some gesture of willingness to
resume work, whether or not the strike has terminated,
before backpay liability is imposed.21 This principle has
been applied even though the striker has been unlawfully
discharged while on strick,22 and with full awareness of the
inconsistencies which exist between the normal remedies
for reinstatement of unfair labor practice strikers and for
reinstatement of unlawfully discharged employees.23 How-
ever, as the Respondent's discharge of the strikers would
reasonably impress upon each the futility of making such a
request for reinstatement , I shall require Respondent to
mail to each of the striking employees a copy of the
required notice together with a letter rescinding its July 10,
1972, letter terminating his employment.
The Respondent's unfair labor practices were substan-
tial, pervasive, and extensive, directly reaching most of the
employees in the unit and resulting in the unlawful
(C.A. 2, 1963), cert. denied 375 U.S. 834.
19 N L KB. v. International Van Lines, 409 U.S. 48 (1972); 177 NLRB
353. Also see Bob White Target Co., 189 NLRB 913.
20 Id
21 See Comfort, Inc., 152 NLRB 1074, enfd. 365 F2d 867 (C.A. 8, 1966);
Cf. N.L.R.B. v. Valley Die Cast Corp., 303 F.2d 64 (CA. 6, 1962); Piasecki
Aircraft Corporation v. N.LR.B., 280 F.2d 575 (C.A. 3, 1960).
22 E.g. International Van Lines, supra.
23 See Sea-Way Distributing Inc., 143 NLRB 460, particularly the
dissenting opinion therein , and the Trial Examiner's discussion in Comfort,
Inc., supra, pp. 1090.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge of a majority of the unit employees. In their
totality, the unfair labor practices committed by Respon-
dent, in my opinion, are so egregious as to require a
finding, under Gissel, that a bargaining order is the only
effective remedy for such unlawful conduct. Accordingly, I
find that, by failing and refusing, since June 30, 1972, to
recognize the Union as the majority representative of its
employees in the aforesaid appropriate unit, and bargain
with it as requested, the Respondent violated Section
8(a)(5) and (1) of the Act, and that, to effectuate the
policies of the Act, a bargaining order is necessary not only
to remedy that violation, but also to remedy the Respon-
dent's independent 8(a)(3) and (1) violations.24
IV. CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2) and (6) of the Act.
2. Chauffeurs, Teamsters and Helpers, Local Union
No. 215, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. All truckdrivers and warehousemen employed by
Respondent at its Evansville, Indiana, facility, including
working foremen, but excluding all office clerical employ-
ees, salesmen, office janitor, professional employees, and
all guards and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Union, at all times since June 26, 1972, has
been, and now is, the exclusive representative of all the
employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on June 30, 1972, and at all times since,
to recognize and bargain collectively with the Union as the
exclusive representative of its employees in the appropriate
unit, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By discharging Jim Collins on June 30, 1972, for
refusing to remove the union insignia, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
7. The strike, which commenced on June 30, 1972,
because of Respondent's discharge of Jim Collins, was an
unfair labor practice strike.
8. By letters to the striking employees dated July 10,
1972, Respondent discharged the following named strikers
in violation of Section 8(a)(3) and (1) of the Act:
9. By interrogation and threats summarized in section
IIIF, and G 1, 2, and 3, above, the Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
V. THE REMEDY
Having found Respondent engaged in and is engaging in
certain unfair labor practices it will be recommended that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that Respondent discharged Jim Collins in
violation of Section 8(a)(3) of the Act it will be recom-
mended that Respondent offer him full and immediate
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges and make him whole for any loss of earnings
or any other monetary loss he may have suffered as a result
of such discrimination. Having also found that Respondent
unlawfully discharged the striking employees and that the
strike was an unfair labor practice strike from its inception,
I shall recommend that Respondent be required to mail to
each a copy of the notice herein and a letter rescinding it
July 10, 1972, letter, and reinstate or offer immediate and
full reinstatement of each such employee to his prestrike or
substantially equivalent position with all of the rights and
benefits he would have accumulated but for the discrimi-
nation against him, discharging, if necessary, any strike
replacements. The Respondent should also be required to
make whole the above employees for any loss they may
have suffered as a result of the Company's failure to
reinstate them beginning 5 days after their unconditional
applications for reinstatement and continuing until the
date of their reinstatement.
Any backpay due will be determined in accordance with
the formula set forth in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
Having found that the Union represented a majority of
the employees in an appropriate unit, and that, for the
reasons stated in section III,G, above, a bargaining order is
required, it will be recommended that the Respondent
recognize and bargain with the Union upon request.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 25
ORDER
William K. Allender Ronald E. Taylor
Billy D. Frields Donald R. Bridges
Guy Fulkerson John O. Majors
Albert Johnson, Jr. Thomas Cameron
Donald W. Nally
24 See Bob White Target Company, 189 NLRB 913.
25 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.
The Respondent, Orr Iron Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating and directly or indirectly threatening
employees with loss of employment, or with any other
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.
ORR IRON, INC. 873
economic reprisal, unless they cease weanng union
insignia, or engaging in any other concerted activity.
(b) Directly or indirectly promising employees economic
benefits to dissuade them from joining or remaining
members of, or supporting, the Union, or any other labor
organization.
(c) Threatening to fight recognition of their representa-
tive at all cost and to the limit.
(d) Discouraging membership in Chauffeurs, Teamsters
and Helpers, Local Union No. 215, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by discharging or in any other manner discriminating
against employees in regard to hire or tenure of employ-
ment or any term or condition of employment.
(e) Refusing to bargain collectively with the Chauffeurs,
Teamsters and Helpers, Local Union No. 215, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
bargaining representative of the employees in the following
unit:
All truckdnvers and warehousemen employed by
Respondent at its Evansville, Indiana, facility, includ-
ing working foremen, but excluding all office clerical
employees, salesmen, office janitor, professional em-
ployees, and all guards and supervisors as defined in
the Act.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the Union, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the Union named above
as the exclusive representative of the employees in the
appropriate unit described above with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Offer to Jim Collins immediate and full reinstatement
to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges and
make him whole for any loss of earnings or other monetary
loss suffered by him, in the manner set forth in the section
hereof entitled "The Remedy."
(c) Offer to William K. Allender, Billy D. Frields, Guy
Fulkerson, Albert Johnson, Jr., Donald W. Nally, Ronald
E. Taylor, Donald R. Bridges, John O. Majors, and
Thomas Cameron immediate and full reinstatement to
their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any employee hired subsequent to
the day the unfair labor practice strike began, in the
manner set forth in "The Remedy," and make them whole
for any losses they may have suffered as a result of any
failure to reinstate them beginning 5 days after any prior
request for their reinstatement and continuing until the
date of their reinstatement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and all other records necessary for
determination of the amount of backpay due and the rights
of reinstatement under the terms of this Order.
(e) Post at its place of business in Evansville, Indiana,
copies of the attached notice marked "Appendix." 26
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Mail to each employee named in (c) above, a copy of
the aforesaid notice together with a letter rescinding
Respondent's July 10,
(g) Notify the Regional Director for Region 25, in
writing within 20 days from the date of this Order what
steps the Respondent has taken to comply herewith.
zs In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the chance to give
evidence, it has been decided that we, Orr Iron, Inc., have
violated the National Labor Relations Act and we have
been ordered to post this notice. t8 The National Labor
Relations Act gives you, as employees, certain rights,
including the right to support and join a labor union and to
bargain through your representative, without fear of
discharge or other interference, restraint, coercion, or
discrimination.
Accordingly, we give you these assurances:
WE WILL bargain, upon request, with Chauffeurs,
Teamsters and Helpers, Local Union No. 215, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of all employees in
the unit consisting of:
All truckdnvers and warehousemen employed by
Respondent at its Evansville, Indiana, facility,
including working foremen, but excluding all
office clerical employees, salesmen, office janitor,
professional employees, and all guards and
supervisors as defined in the Act,
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment,
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, if an understanding is reached , embody such
understanding in a signed agreement.
WE WILL offer to Jim Collins immediate and full
reinstatement to his former or substantially equivalent
position , without prejudice to his seniority and other
rights and privileges previously enjoyed , and make him
whole for any loss of pay suffered by reason of his
termination in the manner set forth in the section of
this Decision entitled the "Remedy."
WE WILL notify the following named employees that
we withdraw our July 10 , 1972, letter discharging them,
and WE WILL offer immediate and full reinstatement to
each without prejudice to their seniority or other rights
and privileges , dismissing if necessary any employee
hired subsequent to the day the strike began , and make
them whole for any losses they may have suffered as a
result of our failure to reinstate them beginning 5 days
after any prior request for their reinstatement and
continuing until the date of their reinstatement:
against any of our employees because of their union or
concerted activity.
WE WILL NOT interrogate employees concerning their
union activities or those of other employees, threaten
employees with discharge or other reprisal if they do
not remove their union insignia , or otherwise refrain
from union activity, or promise employees economic
benefits for the same purpose.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their rights to
self-organization , to form labor organizations , to join
or assist the above-named Union , or any other labor
organization , to bargain collectively through represent-
atives of their own choosing and to engage in other
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any or and such activities.
ORR IRON, INC.
(Employer)
William K. Allender Ronald E. Taylor
Billy D . Frields Donald R. Bridges
Guy Fulkerson John O. Majors
Albert Johnson, Jr. Thomas Cameron
Donald W. Nally
WE WILL NOT discourage membership in Chauffeurs,
Teamsters and Helpers, Local Union No. 215, a/w
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or any other
union , by discharging or otherwise discriminating
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 614 ISTA Center, 150 W.
Market Street, Indianapolis , Indiana 46204, Telephone
317-633-8921.