Southern Seating Co.

National Labor Relations Board - Board Decisions

Mar 29, 1971

189 N.L.R.B. 391 (N.L.R.B. 1971)

SOUTHERN SEATING COMPANY 391
Southern Seating Company, Nu Products Division and
North Carolina Laborers' District Council,
AFL-CIO. Case 11-CA-4208
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
March 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On November 20, 1970, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision 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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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, Southern Seating Company, Nu
Products Division, High Point, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order, as herein modified.
In footnote 15 of the Trial Examiner's Decision,
substitute "20" for "10" days.
I The Respondent excepts to the credibility resolutions made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions as to credibility unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Such a
conclusion is not warranted here Standard Dry Wall Products, Inc 91
NLRB 544, enfd 188 F 2d 362 (C A. 3). We do not adopt the Trial
Examiner 's statement regarding the absence of evidence that McDaniel's
job changed on or after April 13, 1970, the date of his discharge
LOWELL GOERLICH, Trial Examiner: A charge was filed
by the North Carolina Laborers' District Council, AFL-
CIO, on April 13, 1970, and was served upon the Southern
Seating Company, Nu Products Division, the Respondent
herein, on April 14, 1970. A complaint and notice of
hearing was issued on August 7, 1970, in which it was
alleged that the Respondent had violated Section 8(a)(3) of
the National Labor Relations Act, as amended, herein
referred to as the Act, by discriminatorily discharging
employee Guy David McDaniel on April 13, 1970.
The Respondent filed timely answer denying that it had
engaged in or was engaging in any of the unfair labor
practices alleged.
The case came on for hearing on October 7 and 8, 1970,
at High Point, North Carolina. Each party was afforded a
full opportunity to be heard, to call, examine, and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file briefs.
All briefs have been carefully considered by the Trial
Examiner. Upon the whole record' and upon his observa-
tion of the witnesses, the Trial Examiner makes the
following:
FINDINGS OF FACT, CONCLUSIONS,
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a North Carolina corporation
engaged in the business of manufacturing furniture. It owns
and operates a plant at High Point, North Carolina, which
is the only plant involved in this proceeding. The
Respondent during the past 12 months, which period of
time is representative of all times material herein,
manufactured, sold, and directly shipped from his High
Point, North Carolina, plant goods of a value in excess of
$50,000 to points and places outside the State of North
Carolina. During the same period of time the Respondent
caused to be shipped directly to its High Point, North
Carolina, plant goods and raw materials of value in excess
of $50,000 from points and places outside the State of
North Carolina.
At all times material herein, the Respondent is and has
been an employer as defined in Section 2(2) of the Act, and
engaged in commerce and operations affecting commerce
as defined in Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The North Carolina Laborers' District Council, AFL-
CIO, herein referred to as the Union, is now and has been
at all times material herein a labor organization within the
meaning of Section 2(5) of the Act.
I There being no oppostion thereto, General Counsel's Motion to
Correct Transcript is granted and the transcript is corrected accordingly
189 NLRB No. 57
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES Respondent insists was that of assistant foreman. McDan-
iel referred to it as jig setup man.
The welding department is headed by Foreman David J.
Twisdale. The department contained 17 welding booths. A
welder was assigned to each booth. Parts for the assembly
of metal chair frames and table bases were supplied to the
booths from the cutting and bending department. Welders
electrically welded these parts in the booths to form chair
frames and table bases. McDaniel and William Little,
whom the Respondent also referred to as an assistant
foremen, brought the parts to the booths by little hand
trucks and set up the jigs.5 When a welder ran out of a job,
either McDaniel or Little would select thejob from the "top
of the list" which had been prepared by the foreman
("anything that had to go out in a hurry would be on the top
of the list") and supply the parts and jig for the job to the
welder as above described. In addition to these duties
McDaniel inspected some of the work of the welders. Plant
Superintendent Robert S. Craven explained, "Well, he
cannot inspect every piece that's made, but every so often
they look at the work, and if they find a piece of welding
wrong, they take it back to the individual welder who
welded it, and they tell him what's wrong and they correct
it."
When Plant Superintendent Craven informed McDaniel
of his new duties shortly after he was assigned to the first
shift,6 Craven told him that McDaniel would be helping
Little and that he would be "nobody's boss" but that there
would be a chance to advance in the future.? Other
employees were not informed of McDaniel's new responsi-
bilities. Foreman Twisdale told Little that McDaniel was
going to be his "helper." 8 Little had performed the same
duties for several year prior to McDaniel's advent in the
welding department. When McDaniel was not engaged in
jig setup work he continued to weld.
Foremen were paid on a sala'y basis. Welders were paid a
maximum rate of $3 an hour. McDaniel received $3 an hour.
There is no credible evidence that McDaniel's job
changed in any respect on or after April 13, 1970, nor had
the Respondent at any time published any written
memorandum describing the duties or authority of its
supervisors including thejob of "assistant foreman."
Second: Section 2(3) of the Act excludes from the
definition of the term "employee," and therefore from the
protection of the Act "any individual employed as a
foreman over the welders, would be moved to Plexiglass , and I asked
him if he would be interes ted in coming out of the welding booth And
he asked me if he would be taking Paul Lackey's Job And I said, "No,
you will not be foreman You will work with Willie, William Little,
and be Jack's assistant "
8 Little described McDaniel's duties as he observed them
Oh, the same thing I was doing, go to get the list, go down it like I
had been doing He would even write some of it down sometime
Well, him and me would go out and get various jigs, you know, to put
in the booths and put the stuff in , and we had to look at the stuff to
see if it were right or wrong
Another welding department employee also described McDaniel's work
He was bringing in material that we needed in the booths If we
ran out , he would bring stuff in there, and then Willie Little would set
a jig up, both of them would set it up-they are heavy-and set it up
and push the material in there , and then they would take off and go
someplace else
First: On April 6, 1970, Guy David McDaniel and a
"couple of other guys" obtained union cards from the
Union at Greensboro, North Carolina. On April 9, 1970,
Foreman Paul Franklin Lackey, during a conversation with
McDaniel, among other things, told him that Plant
Manager Carl Robert Chastain knew what McDanial "was
doing" and that Chastain wanted a union card. Upon
approaching Chastain on the same day, McDaniel said, "I
understand you would like to see a union card." Chastain
answered, "Yes, being as I have never seen one I'd like to
see what it looks like.' 12 McDaniel handed a blank union
card to Chastain. Chastain then asked McDaniel why he
wanted a union. McDaniel responded that he thought "they
needed a union to better himself and the employees."
On Friday, April 10, 1970, a supervisors' meeting was
convened at which, among others, McDaniel and Respon-
dent's attorney, Arthur McM. Erwin appeared. Attorney
Erwin addressed the meeting . He described "what a
supervisor was" after which each person present was asked
if they understood "what the classification of a supervisor
was." All responded in the affirmative except McDaniel.
McDaniel denied that he was a supervisor. Attorney Erwin
read the definition of supervisor as it appears in the Act.
McDaniel continued to deny that he was a supervisor. After
the meeting was adjourned, Chastain, Erwin, and McDan-
iel remained. These parties met again after lunch.
McDaniel was told "that being a supervisor he would have
to accept his responsibilities as a supervisor and quit his
union activity . . or [the Respondent] would have to
discharge him." McDaniel said that "he would like to wait
and talk it over with his wife over the weekend and let [the
Respondent] know Monday whether or not he would quit
his union activity or not.3 This was agreeable to Chastain.4
On Monday, April 13, 1970, McDaniel informed
Chastain that as long as he worked there he was going to
continue with his union activities. McDaniel was terminat-
ed. McDaniel was an excellent employee
At the time of his discharge McDaniel was working on
the first shift in the welding department where he had been
working since January 30, 1970. Prior to January 30, 1970,
he had worked on the second shift in the welding
department. He worked for 3 days as a welder on the first
shift and thereafter he filled the position which the
2 Chastain's testimony
3 Chastain's testimony
4 Chastain testified that he told McDaniel "what he was doing that
made him a supervisor " He said, "due to the fact it was explained to us
that anybody that delegated work to another employee would be classified
as a supervisor , that he *as giving work , and could refuse the work of a
welder if it was not done right, then he was definitely a supervisor "
5 McDaniel explained this operation "I carried the jig in and set it up
for the welder, took the old jig out, pushed the parts in for the chair or
table he was making , and then I left him alone That's what we call
setup , Just setting the jig in for the man , and setting the parts in "
6 McDaniel had performed similar duties on the second shift , which was
discontinued shortly poor to January 30, 1970
7 Craven denied that he had told McDaniel that he would be "nobody's
boss " He described the incident
He was in a welding booth , welding , and I went to him and
explained to him that we were starting the Plexiglass Department and
that Paul Lackey who was foreman over the welders at this time, one
SOUTHERN SEATING COMPANY 393
supervisor." Section 2(11) of the Act defines the term
"supervisor" as-
any individual having authority, in the interst of
the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct the, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independentj udgment 9
it is well established that `theoretical or paper
power will not suffice' to make an individual a supervisor.
N.L R B v. Security Guard Service, 384 F.2d 143, 149. The
test is what power the worker actually exercises ... .
Almost any employee `directs' other employees in some
fashion." Food Employees, Local347v. N.L.R.B.,71 LRRM
2397, 2399, 2400 (C.A.D.C.). "The important thing is the
possession and exercise of actual supervisory duties and
authority and not the formal title." N L.R B v. Southern
Bleachery & Print Workers, supra, 239. Moreover, the
exercise of some supervisory tasks in a merely "routine,"
"clerical," "perfunctory" or "sporadic" manner is not
sufficient to bring an employee under the statutory
definition of supervisor. N.L.R B. v. A. E. Nettleton Co, 241
F 2d 130, 132 (C.A 2).
The credited evidence in this case does not support a
finding that McDaniel in his assigned job exercised (nor is
it reasonable to find that in the foreseeable future, in such
job, he would have exercised) any authority which would
bring his job within the statutory definition of supervisor.
"There was no showing . that [McDaniel's] duties gave
him the feeling of control, power, or superiority that one
finds in a supervisor." N L R B v. Security Guard Service,
supra
And where as, here, the employer's conduct causes an
employee to suffer adversely as the result of his espousal
of or adherence to a union, such conduct has the
inherent effect of discouraging union activity and
carries with it the implication of the required intent.
Specific evidence of intent is not an indispensable
element of proof of violation of § 8(a)(3) and an
employer's protestation, in such circumstances, that he
did not intend to discourage union adherence or activity
is unavailing Cf Radio Officers' Union, etc v. N.L.R B.,
347 U S. 17, 45, 74 S Ct. 323, 98 L.Ed. 455, Local 357,
International Brotherhood of Teamsters, etc v. N.L.R B,
365 U S 667, 675, 81 S Ct. 83, 85, 6 L.Ed.2d 11.
[N L R B v. Merchants Police, Inc., 313 F.2d 310, 312
(C A 7) ]
In that there is not a simulacrum 10 of credible evidence
that McDaniel was a supervisor within the meaning of the
Act, the Trial Examiner finds that he was an employee
within the meaning of the Act and that his discharge
because he refused to forgo Section 7 rights violated
Section 8(a)(1) and (3) of the Act. 11
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act for junsdiction to be
exercised herein.
3. By unlawfully discharging Guy David McDaniel
from employment on April 13, 1970, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
having been found that the Respondent unlawfully
discharged Guy David McDaniel and thereby violated
Section 8(a)(3) and (1) of the Act it is recommended in
accordance with Board policy 12 that the Respondent offer
Guy McDaniel immediate and full reinstatement to his
former position or if such position no longer exists to a
substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him whole
for any loss of earnings he may have suffered as a result of
the discrimination against him by payment to him of a sum
of money equal to the amount he would have earned from
the date of his discriminatory discharge to the date of an
offer of reinstatement, less net earnings during such period
to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
per annum in the manner set forth in Isis Plumbing &
Heating Co, 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record, and pursuant to
Section 10(c) of the Act, the Trial Examiner hereby issues
the following recommended:
ORDER 13
Respondent, Southern Seating Company, Nu Products
Division, its officers, agents, successors , and assigns , shall:
1. Cease and desist from: discouraging membership in
the North Carolina Laborers' District Council, AFL-CIO,
or any other labor organization by discriminatonly
9 See N L R B v Southern Bleachery & Print Works, 257 F 2d 235, 237
(C A 4)
10 In this respect it is indeed significant that Chastain's explanation to
McDaniel as to "what he was doing that made him a supervisor," i e, "that
he wa, giving work, and could refuse the work of a welder if it was not
done right" contained no definitive criterium of statutory supervisory
status
11 In drawing this decision the Trial Examiner has taken official notice
of Case 11-RC-3113
12 See The Rushton Company, 158 NLRB 1730, 1740
13 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 , recommendations , 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
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging any of its employees or discriminating in any
other manner in respect to their hire or tenure of
employment or any term or condition of employment for
the purpose of discouraging membership in a labor
organization.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Guy David McDaniel immediate and full
reinstatement to his former position or, if such position no
longer exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges and
make him whole for any loss of pay that he may have
suffered by reason of the Respondent's discrimination
against him in accordance with the recommendations set
forth in the section of this Decision entitled "The
Recommended 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 to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Notify the aforementioned person if presently serving
in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Post at its High Point, North Carolina, plant, High
Point, North Carolina, copies of the attached notice
marked "Appendix." 14 Copies of said notice, on forms
provided by the Regional Director for Region 11, after
being duly signed by Respondent's representative, shall be
posted by it 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.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.i5
14 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 "
15 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
A Trial Examiner for the National Labor Relations
Board after a hearing in which all parties were permitted to
introduce evidence found that we discharged Guy David
McDaniel because he was for the Union and that this
violated the law. We are also ordered to assure employees
that we will give Guy David McDaniel back his job or, if
his job no longer exists, a substantially equivalent job, his
seniority, and his backpay which he lost because we
discharged him.
WE WILL NOT discharge any employee for the same
reason for which the Trial Examiner found that we
discharged the above-named employee.
WE WILL NOT unlawfully discharge employees who
are lawfully engaging in union activity.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
The Act gives all employees these rights:
To organize themselves to form, join, or help unions, to
bargain as a group through a representative they choose, to
act together for collective bargaining or other mutual aid or
protection, and to refuse to do any and all these things.
All of you are free to become or remain or refrain from
becoming or remaining members of any labor organization.
SOUTHERN SEATING
COMPANY, Nu PRODUCTS
DIVISION
(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, 1624
Wachovia Building, 301 North Main Street,
Winston-Salem, North Carolina 27101, Telephone
919-723-2300.