Sunshine Homes, Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1973

205 N.L.R.B. 644 (N.L.R.B. 1973)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunshine Homes , Inc. and William Keith Shewbart,
Johnny M. Collum, Jack B. Tate , Harvel A. Hardin,
Jerry R. Terrell, Thomas Marvin Burns, and Ken-
neth Paul Winchester. Cases 10-CA-9763-1, 10-
CA-9763-2, 10-CA-9763-3, 10-CA-9763-4, 10-
CA-9763-5, 10-CA-9795-1, and 10-CA-9795-2
August 22, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 28, 1973, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, counsel for Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge as mod-
ified herein.
Unlike the Administrative Law Judge, we do not
find that employee Burns ceased work on the morning
of August 29, 1972, as a consequence of Respondent's
unfair labor practices in discharging the five leadmen.
Unlike employee Winchester who had discussed the
need for wage increases with employees before that
date, had offered to support the leadmen, and had met
with employees that morning to talk about a possible
walkout, there is no evidence that Burns was involved
in the employees' quest for a wage increase or that he
supported the leadmen. In fact, the only record testi-
mony concerning Burns, who did not testify, is
Winchester's recital that Burns joined him in
Respondent's office on August 29 and said that he
could not work under existing conditions. In our view
this vague, ambiguous statement does not establish
the relevant nexus between Burns' actions and the
unfair labor practices. Thus we find that the General
Counsel has not proven by a preponderance of the
evidence that Burns quit to protest Respondent's un-
fair labor practices and accordingly we dismiss this
allegation of the complaint.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Sun-
shine Homes, Inc., Red Bay, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Administrative Law Judge's recom-
mended Order, as herein modified:
1. Substitute the following for paragraph 2(b):
"(b) Upon application offer to Kenneth Paul Win-
chester reinstatement to his former position or, if it no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, dismissing, if necessary, any employee
hired after August 28, 1972, for such position. Re-
spondent shall make Winchester whole for any loss of
pay he may suffer by reason of Respondent's refusal,
if any, to reinstate him, in the manner set forth above
in the section entitled "The Remedy."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F .2d 362 (C A 3, 1951 ) We have carefully examined the record
and find no basis for reversing his findings
2 Member Fanning , in agreement with the Administrative Law Judge,
would find that Burns ceased work as a consequence of Respondent 's unfair
labor practices and is thus an unfair labor practice striker entitled to rein-
statement upon application Very shortly after Respondent illegally dis-
charged the five leadmen for their protected activities , employee Burns came
into Respondent 's office, said he could not work under existing conditions,
and quit The only unusual conditions at the plant immediately preceding
Burns' statement that he was quitting were the precipitate discharges of the
five leadmen without any explanation by the Employer In these circum-
stances Member Fanning is of the opinion that Burns' mention of existing
conditions clearly related to those discharges and that he is therefore an
unfair labor practice striker entitled to reinstatement upon application
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce em-
ployees by discharging them, or in any other manner
discriminating against them, for engaging in protect-
ed concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act.
WE WILL offer William Shewbart, Johnny Collum,
Jack Tate, Harvel Hardin, and Jerry Terrell reinstate-
ment to their former jobs or, if they do not exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights or privileges, and WE
205 NLRB No. 108
SUNSHINE HOMES , INC. 645
WILL make them whole for any loss of earnings they
have suffered.
WE WILL, upon application, offer Kenneth Winches-
ter reinstatement to his former or substantially equiv-
alent position, without prejudice to his seniority or
other rights and privileges, dismissing, if necessary,
any employee hired after August 28, 1972, for such
position. In the event we fail to reinstate said employ-
ee, we shall make him whole for any loss of pay he
may suffer because of our refusal to reinstate him.
SUNSHINE HOMES, INC
(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 compli-
ance with its provisions may be directed to the
Board's Office, 730 Peachtree Street N. E., Peachtree
Building, Room 701, Atlanta, Georgia 30308, Tele-
phone 404-526-5760.
DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT , Adminstrative Law Judge: Upon charges
of unfair labor practices filed by the above-named individu-
als I against Sunshine Homes, Inc., herein called Respon-
dent or Company , the General Counsel of the National
Labor Relations Board issued a complaint on November 6,
1972, alleging that Respondent had engaged in unfair labor
practices in violation of Section 8(a)(1) of the National La-
bor Relations Act, as amended , herein called the Act. Re-
spondent filed an answer and a hearing was held before me
in Russellville, Alabama , on December 12, 1972, at which
all parties were represented . Subsequent to the hearing,
General Counsel filed a brief which has been carefully con-
sidered.
Upon the entire record in the case and from my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
I JURISDICTION OF THE BOARD
Respondent , an Alabama Corporation , is engaged in the
manufacture and sale of mobile homes at Red Bay, Ala-
1 The charges in Case IO-CA-9763 were filed on August 31, 1972, and
those in Case 10-CA-9795 on September 25, 1971
bama . During the year prior to the issuance of the com-
plaint, Respondent sold and shipped finished products val-
ued in excess of $50,000 directly to customers located out-
side the State of Alabama.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharges
It is undisputed that Respondent discharged leadmen
Shewbart, Collum, Tate, Hardin, and Terrell on August 29,
1972, the day after they had engaged in a number of discus-
sions with Respondent 's officials about wage increases for
themselves and employees generally, but Respondent con-
tends that they were discharged, not because of any protect-
ed activities they had engaged in, but because they had
slowed down production on August 28. As a further de-
fense , Respondent indicated at the hearing that the dischar-
gees may have had sufficient responsibilities with respect to
the employees who worked under them to make them super-
visors within the meaning of Section 2 ( 11) of the Act, and,
as such, not covered by the guarantees in Section 7 of the
Act.
Just prior to August 28, 1972, some of Respondent's em-
ployees were talking about raises . On the morning of August
28, Plant Superintendent Williams called all of
Respondent's 9 or 10 leadmen to his office and having told
them that he had heard that they wanted wage increases,
advised them that he would consult with Respondent's offi-
cials about the matter and call them back when he had.
Near noon on the same day, the leadmen were again
summoned to Williams ' office where they found all of
Respondent's foremen gathered with Williams. Soon
Respondent's president , Harriet Bostic, entered . According
to leadmen Hardin 's and Collum 's credited testimony,
which is really uncontradicted , Bostic opened the discussion
by commenting that she had heard that they had problems,
and when leadman Tate agreed that they had, Bostic said
she assumed the problem was raises. After encouraging the
men to speak frankly , Bostic explained that there was no
chance of an increase at that time but there was a possibility
that something might be done in the spring. Tate suggested
that Bostic personally explain this to all of the employees,
but when she turned the idea down , Williams told the lead-
men to carry the message to the other employees, which they
did after they returned to their stations.
Leadman Tate visited Harriet Bostic 's office between 1
and 2 o'clock and told her and her father, Fred Bostic,
chairman of Respondent's board , that employees were talk-
ing about quitting if they did not get a raise. Fred Bostic
advised Tate that he and Harriet would consider the ques-
tion again and let him know later in the day what they had
decided. Tate testified credibly that a slowdown was not
mentioned in this meeting or in any other he attended that
day.
Tate met leadman Hardin when he left the Bostics and
told him what had occurred . Not having heard anything by
3:30 p.m., their regular breaktime , Tate , Hardin , and four
other leadmen went to Harriet Bostic 's office to talk with
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her.
Leadmen Hardin and Tate were the principle spokesmen
when they saw Harriet Bostic that afternoon, according to
the credited testimony of Hardin and leadman Collum. As
soon as they all entered, Bostic announced that a raise was
out of the question, and she indicated that the issue was
closed and ought to be forgotten. After first reminding her
that earlier she had urged them to be candid, Hardin com-
mented that on the basis of certain calculations and obser-
vations, he and the other leadmen estimated that the
Company was making a net profit of $10,000 or $12,000 per
week, and he wondered why the Company could not grant
a wage increase. Bostic was visibly irritated at this remark,
because she flushed and replied, "That's a damned good
way to put it.... " Repeating that she had already ex-
plained to them what the Company could and could not do,
she cautioned them that they could either return to work or
go home. Hardin testified that, "She was real red and talk-
ing pretty ill-tempered." Near the end of the meeting, Tate
again suggested that Bostic tell the rest of the employees
what she had told them. Although she declined to do so, she
told the leadmen that they could brief the employees. The
leadmen returned to the plant and did so.
That night a meeting was held at Respondent's plant
attended by Harriet Bostic, Fred Bostic, Jr., Superintendent
Williams, and all of the foremen. One of the foremen had
not worked that day, and Harriet Bostic testified that, at the
meeting, "we went over the events of the day." She said that
no instructions of any kind to fire any particular person
were given at the meeting, but she also stated that after
reviewing the events of the day, she said, "Gentlemen, you
know we've had a problem here today. You know that I
have a problem as far as some of my people. I think it is time
that I take care of my problems. If you have any problems
with any of your people or if you think they are creating
problems I think that you might do this also." Bostic testi-
fied that the personal problem she was referring to was the
Company receiver and not production. She also stated that
she did not know why the foremen selected the five leadmen
named in the complaint for discharge, but she added that
"I assume that they knew that these people were participat-
ing in a slowdown in our production."
The following morning, August 29, 1972, five of the six
leadmen who had attended the last meeting with Harriet
Bostic, namely, Shewbart, Collum Tate, Hardin, and Ter-
rell, were discharged when they reported for work. Superin-
tendent Williams and all foremen were present when the
dischargees were given their checks without any explanation
for their termination. Hardin asked Williams if they had
been discharged because they had asked for a raise, and he
testified, without contradiction, that Williams replied that
they had not, and when pressed further for an explanation,
said, "Well it was for bugging Harriet."
As indicated above, one foreman had been absent from
work on August 28 and had to be brought up to date on the
events of the day at the meeting of supervisors which Har-
riet Bostic addressed that night. Leadman Collum testified
credibly, without contradiction, that during a social conver-
sation with Superintendent Williams after his discharge in
which he again querried Williams about why he had been
fired, Williams told him that when Foreman Robinson was
advised at the evening meeting that one of his leadmen had
been asking for an increase in wages, he stated that he had
no use for a person who would "go behind my back and cut
my throat while I am out."
I do not believe the testimony of Respondent's witnesses
that the complainants were discharged because they had
engaged in a slowdown.
As appears above, Harriet Bostic's testimony about her
role in the discharges is most abbreviated and somewhat
cryptic, and her detachment in leaving it all up to each
individual foreman to "solve" whatever "problems" he had
strongly suggested that she was avoiding the delicate area
of employee dissatisfaction with wages with which she had
been so deeply involved on August 28 and was reaching for
a reason other than the real one to justify the discharges.
This was not only an apparent evasion of reality, but she
also exaggerated what she said she observed in regard to a
slowdown. She testified that on the same day that she met
with the leadmen, the assembly line was "all torn up," and
was being slowed down, and foremen were upset and franti-
cally attempting to straighten things out. There is no evi-
dence anywhere else in the record to support these
statements, and Plant Superintendent Williams, admittedly
more experienced than Bostic, testified that he first noticed
the effects of what appeared to have been a slowdown on
August 29, the day after the meetings with the leadmen and
after the decision to terminate them had been made. I find
that the word "problems," if that is how Bostic described the
days' events to the foremen assembled on the night of Au-
gust 28, meant concerted and persistent actions by the lead-
men, on behalf of themselves and others, seeking an answer
from her on their request for a wage increase, not a deliber-
ate involvement by them in any interference with produc-
tion, and it had to be so understood by the foremen
attending the meeting, if Bostic and Williams accurately
briefed them on what had happened that day.
It appears that Respondent produced one less trailer on
August 29 and two less on August 30 than it normally does.
As just indicated, Superintendent Williams testified that he
learned of a slowdown in production the day after it hap-
pened, and he explained that poor production on the line on
any given date will show up a day or two later. Although he
also said that it did not appear to him that leadmen were
pushing employees as hard on August 28 as they should
have, he was vague about whether he observed them work-
ing or not, and only after having been led by counsel, who
asked if the leadmen were performing their duties as they
were supposed to, replied, uncertainly, "Well, I wouldn't
think so." I find that Williams, like Harriet Bostic, exagger-
ated what he observed on August 28 about production and
the complainants' responsibility for any decrease in its level.
Williams' testimony also appeared unrealistic where he, too,
described the night meeting of supervisors on August 28 in
2 Even if the dischargees had participated with other employees in a tempo-
rary refusal to work for a brief period in support of their request for a wage
increase which was being discussed and considered by Respondent, their
conduct could not be considered so "indefensible" as tojustify their summa-
ry dismissal See N L R B v Washington Aluminum Company, Inc, 370 U S
9, 17 (1962), N L R B v Kennametal, Inc, 182 F 2d 817 (C A 3), N L R B
v Leprino Cheese Co, 424 F 2d 184, 186-187 (C A 10, 1970), First National
Bank of Omaha v NLRB, 413 F 2d 921 (C A 8, 1969)
SUNSHINE HOMES, INC.
Harriet Bostic's terms and claimed that there was no discus-
sion about firing anyone because they had asked for a raise.
Apparently, only undefined "problems" were discussed, for
there is no suggestion in his direct examination that produc-
tion as such was mentioned by anyone at the meeting. I do
not consider Williams to have been a reliable witness, and
I do not credit his testimony that the dischargees were ter-
minated "for slowing down production."
Other factors make it hard to accept Respondent's de-
fense. Foreman Raper testified that he, without any instruc-
tions from anyone else, decided to discharge leadmen
Shewbart, Hardin, and Terrell, whom he supervised, be-
cause they were his "problem," since they were slowing
down the line. As with Respondent's other witnesses, he
offered no specific examples of how or when any of the
three accomplished this, which makes his testimony suspect
on that ground alone, but more importantly, his explanation
contradicts an earlier statement he made in a letter written
at Shewbart's request after he was terminated. In that letter
he stated that Shewbart had been discharged, contrary to
Raper's wish, because "Harriet told [him] to release [him]
because he and a number of others asked for their men a
raise...... Although it is understandable how a former
supervisor might give an employee who had been dis-
charged for cause a good reference to help him get a job,
Raper's succinct attribution of Shewbart's and the other
leadmen 's terminations to Harriet Bostic's orders based on
their actions in seeking raises coincides too much with what
the leadmen had actually done just before they were dis-
missed from employment to be discounted. Moreover, Ra-
per never denied that what he said in the letter was not the
fact.
Another inconsistency or contradiction is found in Super-
intendent Williams' statement to all of the leadmen on the
day they were discharged that they had been discharged for
"bugging" Harriet Bostic. Still another is Williams' remark
to Collum that Foreman Roberston fired his leadman for
going behind his back while he was absent, and Harriet
Bostic's own actions throughout August 28 also contradict
her assumption that the leadmen were discharged for engag-
ing in or advocating a slowdown, because never in her meet-
ings with the leadmen or her own supervisors did she charge
that such conduct was occurring.'
No one in management mentioned a slowdown as the
basis for termination when the leadmen were fired on Au-
gust 29. Hardin testified without contradiction that some
foremen indicated displeasure with Respondent's action as
they handed the leadmen their final checks. Raper said he
was sorry, but he was doing only what "the man" wanted.
Fred Bostic and Superintendent Williams were also present
as the discharges were effected, but the simple explanation
now offered tojustify them was not volunteered by anyone,
even though Williams was pressed for one.
I have already indicated that there is no credible evidence
3 I have not credited her testimony that leadman Tate told her privately
on August 28 that the leadmen had been slowing "the line down all day
" If he had, it would be even more difficult to understand why she did
not make it clear to her supervisors that this was the "problem" they had,
or confront the leadmen with this evidence when she met with them prior to
quitting time on August 28
647
that any of the leadmen engaged in or advocated a slow-
down. Although five of them were fired, there is not even
a suggestion from any witness that Collum did anything
improper, and there is no explanation of why Ewing, one of
the six leadmen who attended the last meeting with Harriet
Bostic, was not let go .4 Respondent offers nothing but gen-
eralizations and a conclusion about the basis for the dis-
charges, and this bare-boned account is another reason for
discrediting its defense. Moreover, it is more than likely that
the general gossip among employees and the leadmen's
meetings with management and later explanations to em-
ployees of Respondent's position on wage increases, all
done with Respondent's permission, not to mention the
discharge of five of the leadmen and the walkout of others
as described below, were the principal factors responsible
for any lowered output which appeared on August 29 and
30 .5
I find and conclude that Respondent discharged the lead-
men because they persistently presented requests for wage
increases and questioned the validity of Respondent's rea-
sons for not acceding to their requests. Since I find below
that the leadmen are not supervisors under the Act, Respon-
dent violated Section 8(a)(1) of the Act by discharging them
for engaging in concerted activity for their mutual aid and
protection within the meaning of Section 7 of the Act.
B. The Unfair Labor Practice Strike
Prior to August 28, employee Kenneth Paul Winchester
discussed the need for a raise with other employees. On
August 28, having learned that the leadmen intended to ask
Respondent for raises for all employees, he assured leadman
Tate that he would support them if they did. On August 29,
Winchester learned from leadmen Terrell and Hardin that
they and other leadmen had been discharged. Thereafter,
Winchester and other employees stood around and talked
about a possible walkout, but before anything developed
along that line they were ordered over a loudspeaker to
report to their work areas. Winchester and the other em-
ployees were then told by Foreman Raper that if they did
not like what had happened to the leadmen, they could go
home but if they wanted to work they could, but he added
that he did not want to hear anymore about "raises or
slowing the line down." As Winchester started for his work
area, Raper followed him and asked him what he intended
to do. Winchester thought for a moment and then said,
"let's go get the checks." While he was in the office, employ-
ee Bums came in and said that he could not work under
existing conditions, and he was paid off with Winchester.
They left the plant together.
I find and conclude that Winchester and Burns, having
ceased work as a consequence of Respondent's unfair labor
practices, are unfair labor practice strikers entitled to rein-
4 Cullum credibly testified that he had no knowledge of leadmen partici-
pating in a slowdown on August 28, and he himself worked overtime until
6 ps in that day
Indicating Respondent's uncertainty and inconsistency in this area also,
Superintendent Williams at one point in his testimony indicated that the fact
that the leadmen were frequently in the office during the day "when they
were supposed to be on the line working" was a contributing factor in the
decision to discharge them, but he quickly added, "of course, I called them
in 11
648
statement upon application.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Supervisor Issue
The question here, which arises frequently and whose
resolution depends on the facts in each case, is whether this
group of "leadmen," as Respondent calls them, or "group
leaders or utility men" as they are sometimes called else-
where, who occupy a level somewhere above a rank-and-file
worker but below a foreman, have enough supervisory indi-
cia to constitute them supervisors under Section 2(11) of the
Act, which it is well established must be read in the disjunc-
tive. I find that they do not.
Leadmen are under the immediate supervision of a fore-
man who reports to a plant superintendent. There were
approximately 10 leadmen employed when the events in this
case took place, working alongside 15 or so rank-and-file
production employees 100 percent of the time.6 Leadmen,
in addition to doing their own jobs, fill in for other employ-
ees when they are absent or assist them if they get behind
in their work or appear to have some problem with it. Win-
chester, a rank-and-file worker who struck when the lead-
men were fired, testified credibly, and there is no specific
evidence in the record to contradict him,' that leadmen
employed by Respondent did not tell employees what to do,
but he also said he "guessed" they were in charge when the
foremen were "gone."
Leadman Hardin testified credibly that he had a regular
job like every other production worker and that he and nine
other men built sidewalls for trailers. He said he was sup-
posed to see that blueprints were followed, that he helped
other employees, and did the work of others if they were
absent. Most of the men had regular jobs assigned to them,
he said, and knew what they were supposed to do. As a
consequence, he seldom had to tell any employee to do
anything.
Leadman Collum testified credibly that he understood a
leadman's function to be assisting other employees who fall
behind in their work and filling in on the line for them when
they are absent. He said that he understood that he had no
authority to order an employee to do anything, such as
repairing poor work, but could ask the employee to do it
over and then tell the foreman about it if an employee
refused. He has filled in for a foreman only once for a period
of 3 hours, but at the same time he continued to work like
every other employee and another foreman was available in
the department. He did not understand that his authority
increased when he took the foreman's place, and no one has
told him that it does. In addition, he said that his powers
have never been defined. With respect to assignments, he
said he believed that the foreman, not he, has the authority
to direct one employee to assist another. He and other lead-
men are paid 15 cents an hour more than the other employ-
ees, but he said he understands this premium is paid for
helping other employees when they need it and for filling in
for them when they are absent.
6 Respondent employed approximately 185 employees at the time
7 Respondent 's evidence consists of conclusions on the part of Superinten-
dent Williams, Foreman Raper, and President Bostic, of what they consid-
ered or believed leadman's responsibilities to be
Leadmen Terrell illustrated the extent of what he consid-
ered a leadman's authority to direct employees to be by an
incident which occurred when he, following Foreman
Raper's instructions, told employees to clean up their de-
partment. When he did, they told him to, "Kiss my ass," and
when he reported this lack of cooperation to Raper, Raper
told him to foreget the whole thing. He said this was repre-
sentative of what happens when he tries to exercise authori-
ty.
Superintendent Williams testified that every production
employee has a specific job to perform and that 90 percent
of the time he does that work. Occasionally, however, a
worker finishes his task early or cannot continue with his
operation for some reason and he is then supposed to help
other employees. Williams said that "most of the time" the
foreman would tell the leadmen to instruct the employee
what to do in such a situation, but it was very unclear how
often this would happen. Asked if the leadmen would assign
the employees to other tasks in such cases if the foreman
was absent, he said "I would say so, right." He agreed,
however, that foremen are seldom absent and aside from a
recent absence, he could not remember the the last time it
has happened.
Williams also stated that leadmen have the right to rec-
ommend hiring and firing and that they are expected to fill
in for the foremen if they are absent from work. In such a
case, the leadman, who would be assigned to substitute for
the foreman on the day he was out but who would not
necessarily be the same person in each case, would have the
right to fire an employee, he said.
Based on Williams' testimony and demeanor, I find that
he completely exaggerated the authority of leadmen to rec-
ommend hiring, firing, and promotions, and was otherwise
an incredible witness. As indicated above, Williams was
prone to generalize with no supporting facts, thereby leav-
ing the impression from his direct examination that leadmen
have very substantial responsibilities, which is a clear distor-
tion of their duties. I have found that leadmen Hardin,
Collum, and Terrell accurately described the extent of their
responsibility, which is basically to keep the line moving by
assisting and filling in for other employees. An apparent
exaggeration appears in Williams' testimony where, after
attributing a number of powers to the leadmen in regard to
hiring and firing, including the right to terminate an em-
ployee in the foreman's absence, he replied, "I don't think
so," when asked if a leadman could discipline an employee,
which fits Terrell's testimony about what employees told
him he could do when he gave them a dirLt order. He also
said that foremen make decisions whether to fire employees,
and he was only able to say, "I would think so," when asked
if foremen follow leadmen's recommendations in that area.
In regard to hiring, he said he himself interviews all appli-
cants regardless of who recommends them for employment,
which is consonant with leadman's Shewbart's testimony
that months before he became a leadman he brought a
friend who was looking for ajob into the plant, at Williams'
suggestion , and introduced him to the superintendent who
told him to take him back to a department and put him to
work hanging metal, which Shewbart did. Shewbart had not
recommended anyone for employment since he became a
leadman, and I find that the example he gave illustrates that
SUNSHINE HOMES, INC.
the recommendations of rank-and-file employees are given
as much weight by Respondent as leadmen's. I also find in
accordance with Williams' testimony, that no employee has
been fired without his counsel and consent, a clear indica-
tion that whatever recommendations leadmen may make to
their foremen in that area then are not particularly effective.
Williams was vague about what he based his opinions on
in regard to what powers he claimed leadmen had. He stated
at first that such was the way he had been "working for eight
years," but when it was pointed out to him that
Respondent's plant had been in operation for less than 2
years, he added that he and the superintendent who preced-
ed him had discussed the authority of leadmen and "it is
wrote up someway at the plant" as he described it, but he
also added that his predecessor might have taken these writ-
ings with him when he left Respondent. He also agreed that
his answers with respect to leadmen and their responsibili-
ties were based, in part, upon his experiences in other plants
in the industry.
Three of the leadmen who were fired worked for Fore-
man Raper, who testified that he expected them, if he were
away for 30 minutes, to have things running smoothly when
he returned. He described their relationship to their crews
as helping employees who have problems or need help, but
he also said they assign work to employees. Leadmen, he
said, "to a certain extent," fill in for the foreman when he
is not there, but he added that Hardin and Shewbart had
not, but Terrell had.8 In such a case, Terrell "would have to
work with the plant superintendent Williams," he said and
"keep my department going." He stated that he thought that
the leadmen would have to give orders if the foreman was
not present, but he amended this slightly to substitute the
words "ask" or "tell" for "order." He could recall no in-
stance where a leadman had recommended discipline or
discharge, but he said they have recommended hiring and
promotions and he claimed that he would "back up" his
leadmen in their recommendations.
I also find that Raper attempted to create the impression
that leadmen have more authority than they really do. Be-
sides a group of welders, for example, who make 10 cents
an hour more than the rest of the employees, all employees
got the same wage, and so there are few promotions that
leadmen can effectively recommend.' It also turned out that
Raper, in talking about authority to recommend promo-
tions, was including the privilege of a leadman who was
resigning his employment to suggest someone in his depart-
ment as a replacement.10 I reject any implication in Raper's
testimony that leadmen effectively recommend hiring or
promotions.
The question remains as to whether leadmen assign or
responsibly direct the work of others. Harriet Bostic testi-
fied they have done so and that their exercise of this authori-
ty requires the use of independent judgment. I find that
leadmen only infrequently assign work to other employees
8
Terrell testified that he had substituted for his foreman once for 3 hours
9 Raper said he had made recommendations , but he had never secured a
raise for anyone
10 Raper personally selected his three leadmen from the ranks, but he never
defined their powers for them, although he said that he was sure that Shew-
bart and Terrell well knew what they were supposed to do, but Hardin
probably did not
649
and that they cannot be held to be accountable for "respon-
sibly" directing them. In addition, I find that any actions
they do take in those areas are of a routine nature not
requiring the exercise of independent judgment.
First of all, it should be recalled that Superintendent Wil-
liams testified that since all of the production employees
have regular jobs, they do not have to be assigned to tasks
by anyone, except when they run out of work. In such
instances the foreman tells a leadman to put the employee
somewhere else and the leadman transmit his instructions.
Leadmen are the most versatile and knowledgeable of all
the employees and any assignments they might make in this
small segment of time, either with or without the previous
direction of their foreman, would appear routine to me. I
also have credited Collum's testimony that he did not un-
derstand that he could direct anyone's work, as well as
Terrell's graphic description of how employees reacted
when he tried to.t2
Harriet Bostic's testimony regarding leadmen' s responsi-
bilities is very brief and touches only on assignment of work.
Some of it is obviously not based upon personal knowledge
but upon her understanding of what foremen have permit-
ted their leadmen to do. She also said that in some cases
leadmen tend to have more authority than in others based
on their relative abilities. Earlier in the hearing, counsel for
Respondent agreed that the responsibilities of all leadmen
were basically the same. This lack of precision in regard to
exactly what powers each leadman exercises is probably an
indication that they never have been clearly defined, but in
any case, it is an added reason for not accepting the conclu-
sion of the witness that the job of leadman is not " routine,"
but "requires the use of independent judgment."
I find and conclude that leadmen Shewbart, Collum,
Tate, Hardin, and Terrell were not supervisors within the
meaning of the Act at the time of their discharge.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging William Shewbart, Johnny M. Collum,
Jack B. Tate, Harvel A. Hardin, and Jerry R. Terrell be-
cause they engaged in concerted protected activity for mu-
tual aid and protection of themselves and other employees,
Respondent interfered with, restrained, and coerced its em-
ployees in violation of Section 8(a)(1) of the Act.
3. Employees Thomas Marvin Burns and Kenneth Paul
Winchester, who struck in protest of the unlawful dis-
charges, were engaged in an unfair labor practice strike, and
are unfair labor practice strikers who are entitled to rein-
statement upon unconditional application for employment.
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 Respondent has engaged in certain
1 Section 2(11) of the Act
12 Cullum said that before telling an employee to patch or replace a dam-
aged carpet, he checks with his foreman
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices, it shall be recommended that Re-
spondent cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
Having found that Respondent discharged Shewbart,
Collum, Tate, Hardin, and Terrell because they engaged in
concerted activity for the employees' mutual aid and protec-
tion, it shall be recommended that Respondent be ordered
to offer them full and immediate reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings they may have suffered as a result of the
discrimination against them, by payment to them of a sum
of money equal to that which each of them would have
normally earned as wages from the date of discharge to the
date of Respondent's offer of reinstatement, less net earn-
ings during such period, with backpay and interest thereon
to be computed in the manner prescribed in F. W. Woolwoth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRD 716.
It will also be recommended that Respondent, upon ap-
plication, offer Burns and Winchester reinstatement to their
former positions or, if they do not exist , to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges , dismissing, if necessary, any em-
ployees hired after August 28, 1972, for such positions. Re-
spondent shall make whole said strikers for any loss of pay
they may suffer by reason of Respondent's refusal, if any,
to reinstate them, upon request, by payment to each of them
of a sum of money equal to what he would have normally
earned as wages during the period beginning 5 days after the
date on which he applies for reinstatement and terminating
on the date of Respondent's offer of reinstatement, such loss
to be computed in the manner and with interest as in F. W.
Woolworth, supra, and Isis Plumbing & Heating Co., supra.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 13
Respondent, its officers, agents, successors, and assigns,
13 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings , conclusions , and order , and all objections thereto shall be deemed
waived for all purposes
shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating
against them because they engage in protected concerted
activities.
(b) In any other manner interfering with, restraining or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer Shewbart, Collum, Tate, Hardin, and Terrell
immediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make each whole for any loss of
pay he may have suffered as the result of his discharge, in
the manner set forth above in the Section entitled "The
Remedy."
(b) Upon application, offer to Burns and Winchester re-
instatement to their former positions, or if they no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges , dismiss-
ing, if necessary, any employee hired after August 28, 1972,
for such positions. Respondent shall make Burns and Win-
chester whole for any loss of pay they may suffer by reason
of Respondent's refusal, if any, to reinstate them, in the
manner set forth above in the section entitled "The Reme-
dy.,,
(c) Preserve and, upon request, make available to the
Board or its agents all payroll and other records necessary
to compute the backpay and reinstatement rights, as set
forth in the section of this Decision entitled "The Remedy".
(d) Post at its Red Bay, Alabama, plant, copies of the
attached notice marked "Appendix." 14 Copies of said no-
tice, on forms provided by the Regional Director for Region
10, shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof, in conspicuous places,
including all places where notices to employees are custom-
arily posted, and be maintained by it for 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 10, in writing
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
14 In the event the Board's Order is enforced by a Judgment of the 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 "