Scott & Fetzer Co.

National Labor Relations Board - Board Decisions

Jan 20, 1972

194 N.L.R.B. 1201 (N.L.R.B. 1972)

THE KIRBY CO. 1201
The Kirby Company , Division of the Scott & Fetzer
Company and George Sieger. Case 8-CA-6099
January 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
At the trial the General Counsel, the Respondent, and the
Charging Party, were represented by counsel. All parties
were given full opportunity to examine and cross-examine
witnesses, to introduce relevant evidence, and to file briefs.
The parties waived oral argument and on July 26, 1971,
both the General Counsel and the Respondent submitted
bnefs.2
Upon the entire record in the case, including the bnefs of
counsel, and from his observation of the witnesses, the Trial
Examiner makes the following:
On October 4, 1971, Trial Examiner Robert E.
Mullin issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.1
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 Trial Examiner and hereby orders that
the Respondent, The Kirby Company, Division of
The Scott & Fetzer Company, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order.
1 In adopting the Trial Examiner's finding that Sieger was not a
supervisor, we note there is some evidence in the record that, within the
Hands-Butler unit, Sieger assigned work to employees and transferred them
between jobs as needed. However, in view of the routine and repetitious
nature of the assembly operation, the small number of employees involved,
and the position Sieger occupied within the group, we find that Sleger's
authority in this respect was routine and did not entail the type of
independent judgment necessary to confer supervisory status.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: The trial of this case
was held on June 14 and 15, 1971, in Cleveland, Ohio,
pursuant to a charge duly filed and served,' and a
complaint issued on December 30, 1970. The complaint
presents questions as to whether the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended. In its answer, duly filed, the Respondent
conceded certain facts with respect to its business
operations, but it denied all allegations that it had
committed any unfair labor practices.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation with its office and
plant in Cleveland, Ohio, is engaged in the business of
manufacturing vacuum cleaners. Annually, in the course
and conduct of its business operations, the Respondent
ships products valued in excess of $50,000 from its
Cleveland plant to points located outside the State of Ohio.
Upon the foregoing facts, the Respondent concedes, and
the Trial Examiner finds, that The Kirby Company,
Division of the Scott & Fetzer Company, is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Union Local 293, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, or
Teamsters, is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent's Cleveland plant employed approxi-
mately 300 employees at all times material herein. Insofar
as the record indicates, its employees have never been
organized. In 1963, the International Brotherhood of
Electrical Workers conducted a campaign among the Kirby
workers, but in a Board election that union lost overwhelm-
ingly. No objections or unfair labor practices were filed by
the losing party. Late in 1969 and during the first 6 months
of 1970, the Teamsters conducted a drive to organize the
Kirby employees which eventuated in a Board election on
July 7, 1970.3 Out of approximately 286 eligible voters, 276
ballots were cast. Of this number 109 were for the Union
and 150 were against. There were challenged ballots, but
the number was insufficient to affect the results of the
election. The Union filed timely objections to the election
which, on August 25, the Regional Director overruled. On
September 15, after an appeal by the Union, the Board
sustained the Regional Director.
On November 3, the Respondent asked that George
Sleger, the Charging Party, retire, and thereafter placed him
on retirement status. The General Counsel contends that
1 The charge was filed on November 4, 1970 accordance with the aforesaid motion was issued on September 17, 1971.
2 On the same date , the Respondent submitted an extensive motion to 3 All dates hereinafter are for the year 1970, unless otherwise
correct various typographical errors in the transcript . There being no specifically noted.
objection to the proposed corrections, an order correcting the transcript in
194 NLRB No. 184
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this action constituted a discharge and that it was taken
because of Sleger's union activities. The Respondent
contends that Steger voluntarily quit and that, in any event,
he was an assistant supervisor and beyond the protection of
the Act. To the facts in connection with these issues we will
now turn.
B. Sleger's Employment History; the Union
Campaign and Sleger's Termination
At the time of his separation from the Respondent's
employ in November 1970, George Sieger had been
working for the Company approximately 21 years. For a
few months after he was first employed he worked as an
assembler. Thereafter he was assigned to what was known
as the Handi-Butler unit where he remained for over 20
years and until his termination. In this unit the employees
assembled, and packaged an, attachment to the Kirby
vacuum cleaner which was known as a Handi-Butler.
There was no issue as to Sleger's work record. Arthur P.
MacTaggart, vice president of the Respondent, testified
that he had never heard any complaints as to Sleger's
performance. Earl Walter, plant superintendent and
personnel manager, testified to the same effect. In his
testimony, Walter's only qualification as to Steger was that
during the Teamsters campaign the latter had engaged in
conduct inconsistent with the rules of the Company by
acting as a partisan of the Union.
Sieger was an active proponent of the Union during the
Teamsters' organizational drive. He signed an authoriza-
tion card early in the campaign, was one of the six
individuals on the organizational committee which the
Teamsters appointed and thereafter, according to his
testimony, Sieger solicited from 20 to 30 of his coworkers to
sign authorization cards. At the Board conducted election
he acted as the Union's official observer.
Sleger's organizational activities were well known to the
Respondent's management. Plant Superintendent Walter
testified that he knew that Sieger was active in the union
campaign almost from its outset. Vice President MacTag-
gart "conceded that prior to the election he also knew of
Sleger's efforts on behalf of the Union. President Warren J.
Blanke testified that he was aware of Sleger's activities
during the union campaign and of Sleger's continued
advocacy of the Union after the election. Subsequent to the
Board's certification of the election results, Sieger was,
apparently, the only vocal supporter which the Union had
left. In this connection, Mr. Blanke testified that after the
representation proceeding was concluded "the plant was
reasonably quiet. I think at that time the only one making
any agitation was Mr. Steger."
On about September 25, Walter and MacTaggart visited
Sieger at his bench. MacTaggart testified that they were
concerned about Sleger's attitude and at this time asked
him, as MacTaggart put it, "What's your beef?" According
4 Thus, the opening paragraph of Mr. Blanke's speech read as follows:
Good Afternoon We haven't gotten together in person since our
friends, the Teamsters, were trying to invade our-Kirby family. I think
everything that has happened since the N L R.B. election of July 7 has
proved that you were right in rejecting Local 293. In spite of adverse
economic conditions, our Kirby distributors continue to do an
outstanding job of buying and selling Kirby Classics and
you-everybody in the Kirby family, have also done an outstanding
to Walter, although initially Steger told them he had no
problems, thereafter he complained about not getting
enough overtime and about an occasion when he had been
passed over for an assignment to the machine shop. Walter
testified that after he explained the situation as to overtime
and reminded Steger that he had never bid on the job in the
machine shop when it had been posted, the latter expressed
satisfaction with the explanation and the conversation was
concluded. Sleger's own testimony corroborated that of
Walter's.
President Blanke testified as to management efforts in the
postelection period to restore harmony among the employ-
ees. Thus, he and J. A. Kemper, chairman of the board,
wrote letters which were sent to all the employees asking
that they put aside any feelings of bitterness and resolve to
work together in a spirit of amity. He also conveyed the
same message to the employees in announcements which he
made to them over the plant public address system.
Similarly, the foremen and supervisors were ordered to
advise everyone that peace and harmony were to be
restored.
On October 30, President Blanke spoke to all the
employees at a meeting in the plant receiving area. At the
trial, the text of the speech which Mr. Blanke made was
offered as an exhibit and received. As set forth in the
manuscript, the president spoke about the results of the
election, the Company's pride in the long service which
many employees had rendered, the prospects of a good
business year ahead and the fact that all employees would
get a 5-cent an hour raise effective on November 30. At the
trial Mr. Blanke testified that he read from the manuscript
and did not deviate from the text during the course of the
speech. That, however, could not have been entirely correct
for at the hearing he testified that in his speech he also
announced that a new manual for employees would soon be
available for them and that it would provide for extending
their vacations to 4 weeks each year. In the written text, no
reference appears to such an announcement.
Sleger, who was present and standing in a very prominent
position in the forefront of the assembled employees,
testified that after discussing the election results, President
Blanke asked those present "Aren't you glad that we
defeated the Union?" Sieger testified that during this
portion of the speech, and after Mr. Blanke's comments
about the election he (Steger) shook his head to manifest his
personal disagreement with what the president had said.
Mr. Blanke denied that he had made the remark attributed
to hum by Sieger. Whereas the president may not have made
the precise comment about which Sieger testified, a portion
of his speech wherein he referred to the election and to the
Teamsters could well have been construed as Sieger
verbalized,it.4
President Blanke testified that he was very annoyed and
irritated by Sleger's attitude throughout the course of his
job in producing more Kirbys than have ever been produced in the
history of our Company. Our distributors appreciate it, the factory
staff appreciates it, and I think you are just great' As many of you
have told me "We never could have done it with the Teamsters. We never
would have had not only full employment, but almost continuous overtime
and all the financial benefits and security that come with full
employment." [Emphasis supplied.]
THE KIRBY CO. 1203
speech to the employees. In describing his reactions, Mr.
Blanke testified "I did not become concerned ... until the
October 30th meeting when he so vigorously ... exhibited
... his disbelief in the things I was saying. I felt the pot
had boiled long enough and it was time to find out
personally just what the problem was."
On November 3, President Blanke called Sieger to his
office and asked that he retire. Mr. Blanke testified that at
the outset he questioned Sieger as to what his problem was
and when the latter denied that he had any, he told Sieger
that he must have because of the way he had "continued to
agitate within the plant" since the election. According to
the president, he told Sieger that "prior to the election and
since the election and during the election, he had been a
source of agitation within the plant that contributed to an
unhappy situation and I felt that it was not consistent with
the responsibility of a supervisor." According to President
Blank, Sleger's response was to deny that he was a
supervisor and to describe his duties as no more than those
of a "pusher." Mr. Blanke testified that he concluded the
meeting by suggesting to Sieger that the latter contact him
the following morning as to his retirement wishes.
Much of Sleger's testimony was in substantial accord
with the foregoing. In addition, Sieger credibly testified that
during this meeting the president told him "Your activity
with the Union is detrimental to the Company. So I am
asking you to retire . . . I have a card here and if you will
sign this card immediately . . . I will give you $42 a month
. .. ." According to Sieger, when he asked what would
happen if he did not sign the card requesting retirement,
Mr. Blanke's response was "if you don't sign ... as of
today, your job is terminated." Steger testified that he
concluded the meeting by telling the president "Now that I
am fired ... I would like to leave" and that he thereupon
left.
Sieger did not sign the request for retirement or
communicate further with either the Respondent's presi-
dent or any other company official. Nor did any
management representative subsequently attempt to con-
tact Sieger as to his wishes. After November 3, 1970, and
pursuant to the Company's retirement plan, Sieger began
getting monthly retirement checks in the amount of $42.50
each. He testified at the trial that, on advice of counsel, he
had cashed none of them.
The Respondent contends that by his action; Sieger
accepted voluntary retirement. There is nothing in the
record to support this contention. On November 4, and the
very next day after the foregoing conference, Sieger filed
the unfair labor practice charge out of which the present
proceeding arose. At the trial, Mr. Blanke acknowledged
that shortly thereafter the Respondent received a copy of
Sleger's charges and that this document in itself indicated
that Sieger was not voluntarily retiring. On the findings set
forth above, it is the conclusion of the Trial Examiner that
the Respondent terminated Sieger on November 3, and that
President Blanke took this action because of Sleger's
continued advocacy of the Union.
C. The Question of Sleger's Status; Findings of
Fact and Conclusions of Law in Connection
Therewith
The principal issue in this case still awaits resolution, for
the Respondent contends that Sieger was not an employee,
subject to the protection of the Act, but an assistant
supervisor, and that it was, therefore, free to discharge him
at will. All parties presented a great volume of testimony on
the question of Sleger's status and it is this evidence which
must now be considered.
The Respondent's witnesses Arthur P. MacTaggart, vice
president, and Earl Walter, plant superintendent and
personnel manager, testified that the Company had three
levels of supervision, namely, foremen, supervisors, and
assistant supervisors. MacTaggart further testified that
during the period in question the Respondent had about 44
individuals in its supervisory hierarchy and that this figure
included 5 assistant supervisors. According to MacTaggart,
all three levels have the power to recommend hiring, firing,
transfers , and disciplinary action. While MacTaggart was
on the witness stand, the Respondent offered in evidence a
large chart which purported to describe the plant superviso-
ry structure. On this, Sieger was listed as assistant
supervisor of the Handi- Butler unit.
MacTaggart testified in general terms as to the authority
which Sieger allegedly exercised as an assistant supervisor.
He was not, however, a convincing witness . He obviously
had very little, if any, firsthand knowledge as to Sleger's
actual duties. Thus, he testified that at frequent intervals
supervisory meetings were held for the foremen and
supervisors, but that assistant supervisors never attended
them except on rare occasions . He described such an
occasion as a Saturday morning meeting held when a new
product was being introduced. Even as to such meetings,
however, he conceded that he had no recollection of ever
having seen Sieger present . MacTaggart testified that, in the
event of a layoff, as an assistant supervisor Sieger had
superseniority. Sieger himself credibly testified that he had
never heard of superseniority at the plant. On cross-
examination , MacTaggart conceded that he had never told
Sieger of any such purported superseniority and that,
whereas the employee handbook discusses the plant rules
on layoffs and seniority, it contains no reference to any
such prerogative as superseniority.
MacTaggart further conceded that the elaborate chart
which the Respondent offered to establish Sleger's niche in
the supervisory hierarchy had been drafted in December
1970 in connection with the preparation of the Respon-
dent's case . Although he also testified that a similar chart
had been prepared for Mr. Blanke in 1969 when the latter
first joined the Company , it is of some significance that this
chart was never produced. Finally, MacTaggart conceded
that the Respondent had nothing in writing on the
authority and responsibilities of assistant supervisors and
that he himself had no personal knowledge whether Sieger
ever exercised any of the numerous attributes of supervi-
sion which he averred that all assistant supervisors had.
The only other document which the Respondent
produced to establish that Sieger was classified as an
assistant supervisor was a personnel card. This was offered
in evidence when Walter was on the stand. This document
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
listed Sleger's various pay levels and raises from the time he
was hired in 1950. Opposite the date of April 8, 1957, there
appeared the lettering "Asst. Supvr." Walter testified that
this must have been written on the card by a Mrs. Hanson,
the secretary to a former president of the Respondent.
Walter, however, could only offer surmise or conjecture as
to this issue, for he admittedly had no personal knowledge
as to who wrote the words in question on the card. Mrs.
Hanson was never called to the stand and no other witness
testified for the Respondent as to this particular document.
Both MacTaggart and Walter conceded that they had
never told Sieger that he was an assistant supervisor. Sieger
himself testified that shortly after he came to work for the
Respondent in 1950 Foreman Jedlinski told him that he
would be the group leader for the Handi-Butler unit, that
subsequent to that time he had never been told that he had
supervisory status, and that he had never seen anything in
writing to that effect. Sieger testified that, as group leader,
he received 10 cents an hour more than the highest paid
employee in the unit, and that he was responsible for
training new employees assigned to the unit as well as for
the completion of the group work. Sieger credibly testified
that for over a year prior to his termination there had never
been more than three employees in the Handi-Butler unit.5
The work of the Handi-Butler unit consisted of the
assembling and packaging of the vacuum cleaner attach-
ment known by that name. Sieger testified at length as to
various steps connected with the assembly of the Handi-
Butler and the packaging of the attachment in a cardboard
carton. According to Sieger, each of the various operations
connected with the actual assembling process could be
taught to a new employee with no more than 5 to 10
minutes of instruction. He estimated that each year he had
trained 2 to 3 new employees in the various phases of the
work and that over a period of 20 years he had trained from
20 to 30 new employees. Sieger testified that he spent only a
few hours a year on his training responsibilities and that all
the rest of the time was spent on production work alongside
the rest of the employees in the Handi-Butler unit. Sleger's
testimony as to the amount of time necessary for him to
spend in training a new worker was corroborated by John
Leicher, an employee, who had been in the unit with Sieger
some time before Sleger's termination.
The Respondent endeavored to establish, through Walter
as a witness, that the work of assembling the Handi-Butler
and the training of personnel to perform that job was
substantially more complicated. Much testimony was
offered as to each particular phase of the work involved .6
Notwithstanding the diligence of counsel for the Respon-
dent and a great deal of rhetoric, it was evident to the Trial
Examiner that the work of assembling and packaging this
comparatively simple attachment to the Kirby cleaner was
not complicated and very obviously did not require a
5 Steger credibly testified that about 10-12 years earlier there had been
as many as 14 employees in the unit, but that since that time the number
had fallen steadily At one point in his testimony Walter stated that in
November 1970 there were 8 to 10 employees in the Handi-Butler unit.
Walter's testimony on this issue, however, was somewhat confused, for, on
cross-examination, he testified that at the time of Sleger's termination there
were only four employees in the Handi-Butler unit, including Sieger
himself. Walter also subsequently corroborated Sieger in that he testified
that a maximum of 8 to 10 employees had been in the unit about 1957 and
prolonged period of training. Whereas Sieger may have
been somewhat wide of the mark in estimating that he only
spent an hour or two per year at training new employees, it
was even more apparent to the Trial Examiner that the task
of training new personnel in this unit could not possibly
have been as complex as Walter endeavored to establish.
Sieger credibly testified that the supervisorial direction
for the small number of employees in the Handi-Butler unit
was provided by Ernest Jedlinski, foreman of the assembly
department. According to Sieger, only Jedlinski had the
authority to hire and fire employees working on the Handi-
Butler, and it was Jedlinski who assigned employees to the
section and transferred employees out. Sieger denied that
he had authority to assign overtime to anyone and testified
that such matters were handled exclusively by either
Jedlinski or Walter. Steger credibly denied that he had
authority: to hire or fire or to recommend hiring or firing;
to interview job applicants; to transfer employees or
recommend the transfer of employees; to order anyone to
punch out; to layoff or recall any employees, or recom-
mend such action; to select employees to be laid off or
recalled; to act on employee requests to leave the plant or
to grant any similar privileges; to discipline employees or
recommend the discipline of any employees; or to
participate in the formulation of management policies.
Sieger further testified, credibly, that he had never relieved
an acknowledged supervisor. Sieger also testified, credibly
and without contradiction, that he never maintained any
records on employees, that he never issued written
reprimands or warnings, that he had no authority to excuse
tardiness or absences, and that he never participated in the
rating of employees. Sieger likewise testified, credibly and
without contradiction, that he punched a timeclock as did
all other production workers, that he received the same
overtime rate as all other regular employees, and that he
used the same lunchroom, and other plant facilities, as the
rank and file.
Whereas Sieger received 10 cents an hour more than the
employees in the Handi-Butler unit, other admittedly rank-
and-file employees received similar premium pay. Walter
described these employees as those who were getting what
was known in the plant as "red circle" rates. He described
these as being wages from 5 to 10 cents an hour more than
that paid to the rank and file and he estimated that from 15
to 20 employees in the plant received such premium pay.
Walter and Jedlinski testified as to several instances when
Sieger allegedly recommended the hire of an employee or
the transfer of an employee into or out of the Handi-Butler
unit. Thus, Walter testified that on one occasion he
inquired of Sieger as to the work record of Ron Charro, a
former employee. According to Walter, after Sieger
characterized Charro as a good worker, Charro was rehired.
In this connection, however, Walter conceded that it was
that since that time the number had declined.
6 The General Counsel had marked for identification a Handi-Butler as
a physical exhibit and it was used for demonstration purposes throughout
the interrogation of both Steger and Walter. At the request of counsel, this
exhibit was received in evidence by the Trial Examiner Although it is,
indeed, a bulky and cumbersome addition, its presence in the record gives
greater substance and meaning to those extended portions of the transcript
in which it is discussed.
THE KIRBY CO. 1205
not unusual to ask a rank-and-file employee about an
applicant as to the work record of an individual. According
to Walter, on another occasion, he wanted to transfer
Elizabeth Krogg from the Handi-Butler unit to another
section, but that he did not do so when Sieger protested.
Jedlinski offered a few similar examples. At the same time,
Jedlinski also testified that in one instance Steger was
dissatisfied with the work of an employee named Gunder-
man and asked that Gunderman be transferred, but that he
(Jedlinski) refused to do so. Jedlinski likewise testified that
in another instance Sieger recommended that an employee
named Mattox be discharged, but that he refused to take
this action.
The testimony of Walter and Jedlinski that was offered to
establish Sleger's status as a member of the plant
supervisory force was significant in that, notwithstanding
Sleger's long tenure, neither the plant superintendent nor
the foreman was able to offer any examples other than the
type of evidence described above. That a respected
employee of many years' standing, such as Sieger, should
occasionally comment favorably on an applicant for
employment or protest as to the inadequacies of an
inefficient coworker and suggest that the individual be
transferred somewhere else, is not unusual and does not rise
to the level of evidence that, in so doing, Sieger thereby
exercised supervisory authority.
In this connection, it is likewise evident that until it
became necessary to justify Sleger's summary dismissal, the
plant management did not consider him a member of the
supervisory hierarchy. Both Vice President MacTaggart
and Plant Superintendent Walter conceded that almost
from the outset of the union campaign early in 1970 they
were aware of Sleger's participation therein and of his vocal
advocacy of the Teamsters. Notwithstanding this knowl-
edge, at no time did they, or any other representative of the
Respondent, admonish Sieger on the ground that he was an
assistant supervisor and that any open partisanship would
result in his being disciplined. During the period prior to
the election, the Respondent carefully instructed the
foremen and supervisors as to what they could and could
not say and do as to the employees' organizational efforts.
Sieger, however, was never ordered to attend any of these
meetings. It is inconceivable, with their admitted knowl-
edge of Sleger's participation in the employees' union
campaign, that if MacTaggart or Walter considered him a
member of the supervisory staff at that time they would
have remained silent and never reprimanded or disciplined
him. Their failure to take any action against him then, is, in
the opinion of the Trial Examiner, telling evidence that
during that period they themselves did not look upon Sieger
as a member of supervision.
Whereas it is well settled that the statutory definition of a
supervisor7 must be construed in the disjunctive (Ohio
Power Co. v. N.LR.B., 176 F.2d 385, 387 (C.A. 6), cert.
denied 338 U.S. 899), it is equally well established that it is
the existence of supervisory authority in the individual
which is determinative, regardless of the title which he may
hold. Mississippi Valley Barge Line Co., 151 NLRB 676, 678,
enforced, 353 F.2d 904 (C.A.D.C.); Red Star Express Lines,
of Auburn, Inc. v. N.L.R.B., 196 F.2d 78, 79-80 (C.A. 2).
Moreover, in N.L.R.B. v. Southern Bleachery & Print
Works, Inc., 257 F.2d 235, 239 (C.A. 4), cert. demed, 359
U.S. 911, the Court there stated, with reference to this issue
"It is . . . clear . . . that the employer cannot make a
supervisor out of a rank and file employee simply by giving
him the title and theoretical power to perform one or more
of the enumerated supervisory functions . The important
thing is the possession and exercise of actual supervisory
duties and authority and not the formal title." So here,
notwithstanding the Respondent' s contention that Sieger
was an assistant supervisor, it is the conclusion of the Trial
Examiner, on the findings set forth above, that Sleger's
authority and duties did not go beyond "the customary
control of an experienced workman over his less skillful
helpers," s that Sieger was no more than what he described
himself as being, namely, a group leader or "pusher," and
that he neither had the statutory authority of a supervisor,
nor did he exercise it.
After the election, it was apparent that President Blanke
was annoyed at Sleger's continued advocacy of the Union.
Finally, on October 30, a Friday, after his speech to the
shop personnel during which Sieger publicly manifested his
disagreement with Mr. Blanke's position as to the
Teamsters, the plant president concluded that Sieger had to
go. According to Mr. Blanke, after witnessing Sleger's
display, he felt that the time had come to take action, or, as
he put it "the pot had boiled long enough . . . ." The
following Tuesday, Sieger was terminated. Since this was
because of Sleger's continuing support of the Union, and as
found herein, Sieger was not, as the Respondent contends,
a supervisor within the meaning of the Act, his termination
violated Section 8(a)(3) and (1) of the Act. Moreover, as
Sieger was an employee protected by the Act, it was
likewise a violation of Section 8(a)(1) for the Respondent's
president to tell him that his union activities were
detrimental to the Company and that as a consequence of
this conduct he would have to cease working for the
Respondent.
The General Counsel also alleged that MacTaggart and
Walter unlawfully interrogated Sieger on about September
25. This was the conversation in which the vice president
and plant superintendent questioned Sieger as to why he
appeared dissatisfied. From Sleger's own testimony,
however, it does not appear that the plant officials
questioned him directly about the Union. In fact, on cross-
examination Sieger testified that insofar as the organiza-
tional issue was discussed, MacTaggart assured him that
the employees had a right to organize. From an examina-
tion of the testimony as to this particular allegation of the
General Counsel, the Trial Examiner concludes and finds
that the record is lacking substantial evidence to sustain the
allegation that the Respondent violated Section 8(a)(1) by
the conduct of MacTaggart and Walter on the foregoing
occasion.
7 Section 2(11) of the Act reads as follows. to recommend such action , if in connection with the foregoing the
The term "supervisor" means any individual having authority, in the exercise of - such authority is not of a merely routine or clerical nature,
interest of the employer, to hire, transfer, suspend, layoff, recall, but requires the use of independent judgment.
promote, discharge, assign, reward, or discipline other employees, or 8 Southern Bleachery, supra, at 238.
responsibly to direct them, or to adjust their grievances, or effectively
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
George Sleger, thereby discouraging membership in the
Union, the Respondent has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
3. The General Counsel has not proved by a preponder-
ance of the evidence that the Respondent interfered with,
restrained, or coerced its employees in the exercise of the
rights safeguarded by the Act, except by the specific acts
and, conduct found herein to have been violative.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , the Trial Examiner will
recommend that the Respondent be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily
terminated George , Sleger, the Trial Examiner will recom-
mend that the Respondent be ordered to offer Slege;
immediate and full reinstatement without prejudice to his
seniority or other rights and privileges , and make him whole
for any loss of earnings he may have suffered from the time
of his discharge to the date of the Respondent's offer of
reinstatement . The backpay for the foregoing employee
shall be computed in accordance with the formula
approved in F. W. Woolworth Co., 90 NLRB 289, with
interest thereon computed in the manner and amount
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716,
717-721. It will also be recommended that the said
Respondent be required to preserve and make available to
the Board , or its agents , on request, payroll and other
records to facilitate the computation of backpay due.
Since "a discriminatory discharge of an employee .. .
goes to the very heart of the Act" (N.LR.B. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (CA . 4), it will be
recommended that the Respondent be ordered to cease and
desist from infringing in any manner upon the rights
guaranteed in Section 7.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, the
Trial Examiner hereby issues the following recommended:
ORDERS
Respondent, The Kirby Company, Division of the Scott
& Fetzer Company, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging, or otherwise discriminating against any
employee because of activity on behalf of, or membership
in, Teamsters Union Local 293, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, or any other labor organization.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or engage in ,concerted activities for the purpose
of collective bargaining or other mutual aid, or to refrain
from any or all such activities. -
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to George Sleger immediate and full reinstate-
ment to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges and make him whole
in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) 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 reports, and all other records
necessary or appropriate to analyze the amount of backpay
due.
(c) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of his right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service and the Universal Military Training and
Service Act.
(d) Post at its plant in Cleveland, Ohio, copies of the
attached notice marked "Appendix." 10Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by the Respondent's
authorized representative, shall be posted by it for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.11
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
9 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 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.
io 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."
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 8, in wasting, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
THE KIRBY CO.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Teamsters
Union Local 293, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , or any other union , by discharging,
or otherwise discriminating against our employees
because of their union or concerted activities.
WE WILL NOT in any other manner , interfere with,
restrain or coerce employees in the exercise of their
right to self-organization , to form , join, or assist the
above-named union, or any other labor organization, to
bargain collectively through representatives of their
own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities.
WE WILL offer George Sleger immediate and full
reinstatement to his former job, or if that job no longer
1207
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered as a
result of discrimination against him.
THE KIRBY COMPANY,
DIVISION OF THE SCOTT & FETZER COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This Notice must remain posted for.60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions, may be directed to the Board's Office, 1695
Federal Office Building , 1240 E . Ninth Street , Cleveland,
Ohio 44199 , Telephone 216-522-3715.