United Electric Co.

National Labor Relations Board - Board Decisions

Dec 21, 1971

194 N.L.R.B. 665 (N.L.R.B. 1971)

UNITED ELECTRIC COMPANY 665
United Electric Company and International Brother-
hood of Electrical Workers, Local Union No. 379.
Case 11-CA-4300
December 21, 1971
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
On April 12, 1971, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
case, finding that Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, 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
Act, the National Labor Relations Board has delegat-
ed its powers in connectlonwith 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 and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
Unlike our dissenting colleague, we are of the
opinion that, as found by the Trial Examiner, Coffey
and White were not supervisors.2 We are convinced
that the Trial Examiner's findings of fact are
supported by substantial evidence ,and that his
conclusions therefrom are correct.
Little purpose would be served in our repeating or
paraphrasing the Trial Examiner's cogent analysis of
the evidence and his careful rationale leading to his
conclusions. However, in the light of the dissent we
are impelled to emphasize that, as found by the Trial
Examiner, the Respondent is a one-man operation,
employing about ' 12 electrical workers referred to as
journeymen, apprentices, and helpers. All these
employees report to the Respondent's shop every
morning, and Bentley, the owner, has visited the
projects on an average of once a week. Although as
many as 8 or 10 men may have been employed on
projects, the record shows that on the smallest jobs
White and Coffey have worked with 1 other employ-
1 The date of July 1, 1960, in the Trial Examiner's Statement of the
Case is amended to read July 1, 1970. Section 4 of the Trial Examiner's
Decision is amended to reflect the fact that White worked 10-1/2 hours
and Bolick worked 4 hours on Friday, June 26.
ee, and on the largest jobs White has worked on one
with 4 other employees and on another with 2
employees. The largest number of employees with
whom Coffey has worked are six on one job and three
on two others. As found by the Trial Examiner, White
and Coffey "worked with their hands all day, every
day.,,
Nor are we persuaded that the Trial Examiner is
incorrect with respect to his conclusions that the
record will not sustain a finding that White and
Coffey had authority effectively to recommend wage
increases or that White's recommendation was effec-
tive in the hiring and discharge of Lail so as to bring
him within the criteria for a finding of supervisory
status as set forth in Section 2(11) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, United Electric Company, Hickory,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
MEMBER KENNEDY, dissenting:
Unlike my colleagues, I cannot agree with the Trial
Examiner's conclusion that Coffey and White were
not supervisors.
As the Trial Examiner found, the Respondent is an
electrical contractor having crews of up to 10
employees in each working at various sites up to 55
miles away from the principal office. Coffey, White,
and another person not here involved each were in
charge of a separate crew. Respondent considered
each of them as superintendents or job foremen on
building and construction projects and referred to
them as such in discussions with representatives of
general contractors on jobs of which they were put in
charge. Coffey and White transferred employees from
one crew to another. They also recommended wage
increases. In addition, White recommended the hiring
of a friend, Lail; was consulted as to Lail's reliability;
and played a part in Lail's later discharge. On these
facts the Trial Examiner nevertheless found that the
authority of Coffey and White was routine, like that
of a journeyman over apprentices or a leadman over
employees, and that their recommendations were
made in a routine manner requiring the exercise of no
independent judgment.
The above findings and conclusions of the Trial
Examiner are, in my view, erroneous. The Trial
2 International Association of Heat & Frost Insulators & Asbestos
Workers, Local 127 (Cork Insulating Company of Wisconsin, Inc.), 189
NLRB No. 124.
194 NLRB No. 105
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner would hold that crews of up to 10
employees were for all practical purposes unsuper-
vised most of the time, although they were working at
various jobsites several miles away from the main
office. In so doing, the Trial Examiner would ignore
the industrial realities of the situation. To me it is
quite obvious that a crew of seven or more men sent
by an employer with equipment and materials to a
jobsite many miles away from the employer's princi-
pal office to perform electrical work in accordance
with plans and specifications, and pursuant to a
contract, which work is subject to inspection by local
municipal authorities and generally must be per-
formed by a licensed electrical contractor, cannot
function without a person in charge to responsibly
direct such crew. In the performance of any such
contract, electric wiring plans must be read, specifica-
tions followed, wire and fixtures installed, equipment
utilized, and time and materials accounted for. It is
clear that in the instant case Respondent recognized
this, for it had the practice of designating a
"superintendent" to "take a crew of men and a truck
and run the job." The situation is totally distinguisha-
ble from the journeyman-apprentice or the nonsuper-
visory leadman-crew relationship referred to by the
Trial Examiner, for it is plain that the direction over
the rest of the crew exercised by Coffey and White
was of a more than routine nature. Indeed, when
Coffey was discharged for disobeying orders to stop
assisting the union activities of the rank-and-file
employees, Coffey said that Respondent was making
a mistake because he, Coffey, was best able to keep
the employees working on a job instead of standing
around loafing.
Because , as found by the Trial Examiner, Coffey
and White each "exercised the power of assignment of
work, evaluated the capabilities of the employees and
... recommended employment assignments and
promotions," and since in my opinion Coffey and
White each had authority to, and in fact did,
responsibly direct employees on their respective
crews, the exercise of which authority was not of a
merely routine nature, I would find them both to be
supervisors within the meaning of Section 2(11) of the
Act, and their discharge not violative of Section
8(a)(3) and (1) of the Act.3
Since I would find no violation in the interrogation
and discharge of Coffey and White, I would likewise
not find any violation of Section 8(a)(5) based on the
Union's alleged card majority. Nor would I find the
strike to be an unfair labor practice strike. I would
dismiss the complaint in its entirety.
3 As the Trial Examiner here observed , his decision in this case is
squarely at odds with the decision of Trial Examiner John Gregg in
Industrial Electric Company, Case 11-CA-4299, TXD-54-71, issued
February 8, 1971 , adopted by the Board on March 11 , 1971 , in the absence
of filing of a statement of-exceptions, in which on substantially similar
evidence in a companion case Trial Examiner Gregg held that the
individuals there involved were supervisors within the meaning of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Trial Examiner : This is the
third, in the order in which they were tried, of four
companion cases in which the respondents are electrical
contractors located in Hickory, North Carolina. The other
three involve Industrial Electric Company, Case
11-CA-4299; Hickory Electric Company, Case
11-CA-4302; and Electric Wiring, Inc., Case 1 l -CA-4301.
Industrial Electric Company is referred to herein as
Industrial; Hickory Electric Company, as Hickory; Electric
Wiring, Inc., as Electric ; and United Electric , as Respon-
dent or United. All four cases began on July 1, 1960,1 when
International Brotherhood of Electrical Workers, Local
Union No. 379, referred to herein as the Charging Party or
the Union, filed an unfair labor practice charge against
each company. The charge in this case was amended on
August 28. On September 2 the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region I1 (Winston-Salem, North Carolina), issued
complaint in this case . Respondent 's answer, duly filed,
admitted certain allegations of the complaint and denied
others, including the allegation that it had committed any
unfair labor practices.
All four cases were originally assigned to Trial Examiner
John Gregg . Gregg, after hearing Case 1l-CA-4299 and
Case 1l-CA-4302 , opened the hearing in this case on
December 9, then recessed without taking any testimony.
Subsequently, this case and Case 11-CA-4301 were
reassigned to me . I resumed the hearing in this case on
January 4, 1971. Thus, the hearing in this case was held in
Hickory, pursuant to due notice , before Gregg on
December 9 and before me on January 4, 5, 26, and 27,
1971. The issues litigated were (1) whether two electricians
discharged for engaging in union activities were supervisors
within the meaning of the Act , (2) whether, under all the
circumstances , Respondent violated Section 8(a)(1) and (5)
of the Act by refusing to recognize and bargain with the
Union, and (3) whether a strike in which Respondent's
employees engaged in concert with the employees of
Industrial, Hickory, and Electric was an unfair labor
practice strike . All parties appeared and were given full
opportunity to participate , to adduce relevant evidence, to
examine and cross-examine witnesses , to argue orally, and
to file briefs. Upon the entire record , including briefs filed
by the General Counsel and Respondent, and from my
observation of the demeanor of the witnesses while
testifying under oath , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a corporation with its office and principal
place of business in Hickory, North Carolina , is engaged in
the business of electrical contracting . During the 12 months
r Dates are 1970 unless otherwise indicated.
UNITED ELECTRIC COMPANY 667
just prior to issuance of the complaint herein, it performed
services valued in excess of $50,000 for enterprises each of
which, in the same time period, shipped its products valued
in excess of $50,000 directly from the State in which it is
located to customers located in other States. On the basis of
these admitted facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
1. The relationship of the four cases
The Union began a campaign to organize Hickory
electrical contractors around June 1. The first meeting was
held on June 16. Employees of United, Industrial, Hickory,
and Electric attended. Some, if not all, of them signed
authorization cards. Other employees signed cards at other
times and under other circumstances.
On June 25, S. Eugene Ruff, the Union's business
manager, sent identical certified letters to United, Industri-
al, Hickory, and Electric claiming to represent each
company's employees and requesting recognition as their
collective-bargaining representative. On June 26 each
company refused to accept delivery of the letter addressed
to it. On June 27 each letter was returned unopened to Ruff.
The Union held a meeting on the evening of June 28.
Employees of all four companies attended. After a
discussion of the companies' refusal to accept the Union's
demand letters and terminations of employees which had
taken place around the same time at Industrial and
Hickory, a motion to strike was made by Ronald Coffey, an
employee of United. It was seconded by Edgar Elmore, an
employee of Electric. The vote was taken by show of hands.
It was unanimous in favor of striking.
The Union held a meeting on the evening of June 30.
Ruff instructed the employees on how to conduct
themselves on a picket line Picket signs were prepared.
There was no discussion of the fact that Coffey and Ronnie
White had been discharged that day by United for
engaging in union activities.
On the morning of July 1 pickets appeared at the office of
each company and at various jobsites where the companies
were engaged in projects. The strike has not yet ended.
On August 31 the Union's attorney wrote to each
company. He alluded to the Union's letter of June 25 and
reasserted the Union's representation of a majority of that
company's employees. He demanded recognition.
On September 11 each company sent an identical letter to
the Union's attorney acknowledging receipt of his August
31 letter, asserting that it was the company's first notice of
the Union's demand, stating that it doubted the Union's
claim to represent a majority, suggesting an amicable Labor
Board election as the best method of resolving the dispute,
and referring the Union's attorney to its attorneys, who
were the same for each company.
On September 21 the Union's attorney wrote to each
company. He pointed out that the four letters he had
received were identical and concluded that they had been
written by company counsel. He took issue with each
company's assertion that it had no knowledge of the
Union's claim to represent its employees prior to his letter
of August 31. He pointed to the strike as obvious proof of
the employees' support of the Union. He expressed his
regret at the company's seeking to prevent its employees
from enjoying union representation.
On October 1 the law firm representing all four
companies sent identical letters to the Union's attorney on
behalf of each company. These letters chided the Union's
attorney for communicating directly with the law firm's
clients despite the wording of the September 11 letters,
continued the argument over whether Ruff's June 25 letters
constituted a legal demand for recognition, reasserted each
company's doubt of the Union's majority, and renewed the
suggestion of an election.
Neither the Union nor the management of any of the four
companies has filed a petition for a Labor Board
representation election.
2. What happened at United
United could not meet its payroll on Friday, June 26.
Consequently, Charles Bentley, the owner, asked his
employees to wait until Monday. They reluctantly agreed.
On Monday, June 29, 9 of United's 12 electricians failed to
report for work. After a phone call by one of their number
and Bentley's assurance their checks were ready, they
appeared at the office in a group and demanded them.
Bentley refused to give the checks to them on the ground
that the men were demanding to be paid in a group while he
had always paid them off individually. On Tuesday, June
30, the men enlisted the help of a Federal or state official.2
The official telephoned Bentley. Bentley told him the
checks were ready and he would give them to the men if
they came to the office. The men went to the office. Bentley
paid them off in a group, all but Ronnie White and Ronald
Coffey. He told Coffey and White he wanted to talk to
them. Coffey and White were reluctant to talk with him
unless a policeman who had been called to the office was
also present. Consequently, Bentley, White, Coffey, and the
policeman went into Bentley's office. Bentley asked his wife
to leave the room and closed the door behind her.
Bentley asked Coffey what he thought about the Union.
Coffey said he thought it was a good thing. Bentley asked
Coffey if he was going to support the Union and vote for it.
Coffey said he was. Bentley turned to White and asked,
"What about you?" White said he was for the Union also.
Bentley told White and Coffey they could not engage in
union activities because they were his superintendents. He
asked them why they were leading the men against him. He
demanded that they be loyal to him. White and Coffey said
2 The record is unclear whether the men visited an office of the Labor
Department's Wages and Hours Division located in Hickory or the office
of a state agency
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would stick with the Union. Bentley fired them. He
called his wife into the office and had her prepare their
paychecks. Coffey said this was the first Job he had ever
been fired from. He said that he thought Bentley was
making a mistake because he was the best employee
Bentley had. He said he could keep men working on ajob
and did not let them stand around loafing. Bentley said
Coffey was fired now, as far as Bentley was concerned. By
this time, White's and Coffey's final checks were ready. As
they left, they told Bentley they thought they would take a
few days off and then contact Bentley the following week.
They never did.
3. The supervisor issue
The key issue in this case is whether, as Respondent
contends, White and Coffey were supervisors within the
meaning of the Act when they worked for United. The
record reveals the following facts about their duties,
authority, and responsibility:
United is a one-man operation. It is owned and operated
by Charles Bentley. It employs around a dozen electricians
of varying skills. They are referred to in the record as
journeymen, helpers, and apprentices, although there is no
indication of any hard and fast distinctions between these
categories. The difference, apparently, is in the degree of
skill expected of the individual and the consequent level of
his pay, although, once again, there is no indication of
either the wages paid any particular individual or the range
of wages paid all the employees
United engaged in building and construction work,
factory work, and service work. Building and construction
work is doing the work of an electrical subcontractor in the
construction of new buildings. Factory work is doing
electrical contracting work, for example, the electrical work
required to install a new machine, in existing factories.
Service work is doing electrical construction or repair work
for private customers, such as installing an appliance in a
home.
All United's electricians report to its shop each morning
and are dispatched to jobs from there. They are dispatched
singly or in groups of varying sizes, depending on the
number of men needed on a particular job that day.
"Dispatched" does not mean that Bentley, each morning,
has to tell each man specifically where to go that day.
Rather, in some instances, a particular man or group of
men go to the same job fairly regularly for a period of days
or weeks depending on the stage thatjob is in. The pattern
on United's building and construction jobs is the usual one
for craftsmen in that field. When work begins on a contract,
only one or two men are involved Then, as the project
advances, the size of the crew gradually grows until as
many as 8 or 10 men may be working at one time. As the
project nears its end, the crew size tapers off On the other
hand, men are switched from job to job often, and the size
of the crew on a particularjob varies from day to day, even
when the project is at its peak. Sometimes a man works on
more than one job on one day. When assignments are
changed, the switch is usually made by Bentley in the
morning. However, it is not unusual for Bentley's
superintendents to swap men from crew to crew according
to the exigencies of the day
In the period just prior to the strike, Bentley considered
Ronnie White, Ronald Coffey, and Gary Williams his
superintendents or job foremen on building and construc-
tion contracts. However, they had no such formal job title
or titles. Ronnie White went to work for United in late
1968, a few months after it was founded. He advanced to
superintendent status in March 1970. At that time, Bentley
asked White why he did not have his heart in his work.
White said he was unhappy because he had not had a raise
lately. Bentley said, "Well, Ronnie, the reason you haven't
got a raise is you've gone as far as you can go as a helper or
an apprentice or whatever, as far as money's concerned.
You been at this long enough, you're a good electrician, you
can do the work. But you've got to get out here and take a
crew of men and a truck and run the job to get more
money. "
White said, "Well, I'd like to try it."
Bentley said, "Well, I've got ajob coming up pretty soon.
It's a smalljob and I believe you could do a goodjob on it."
Shortly thereafter, when United started work on the
Claremont Elementary School contract, Bentley placed
White in charge of it.
Coffey was hired by United in November 1969. The
record does not reveal precisely when or how he became a
superintendent in Bentley's estimation, although it hap-
pened soon after he was hired. In Williams' case, the record
does not reveal when he went to work for United or when
or how he became a superintendent.
White was in charge of the Claremont School job and
then, for a week or two just before his discharge when it
started up, of the Ashworth Dental Clinic job. Coffey was
in charge of the recently started King's Mountain
Restaurant job at the time of his discharge. Prior to that he
had been in charge of the Arthur Smith Restaurant job in
Charlotte, North Carolina. Before that he had been in
charge of the Fred Smith Hosiery Millsjob. The Claremont
Schooljob is 10-12 miles from Hickory. King's Mountain is
35-40 miles from Hickory. Charlotte is approximately 55
miles from Hickory. Other building and construction
contracts on which United worked in the 6-month period
preceding the strike were Catawba Valley Technical
Institute and Western Piedmont Community College in
Morganton. Since Gary Williams was the only other
employee considered by Bentley to be a superintendent, I
assume he was in charge of both of them.
Being in charge of a project for United meant simply that
White or Coffey or Williams, as the case may be, was the
man with whom the general contractor or the architect or
the owner/builder or inspectors, as the case may be, dealt
on a day-to-day basis in connection with United's carrying
out of its contract. The superintendents worked with their
hands all day, every day. To the extent that such directions
were necessary, they told other United employees on the
jobs what to do and how to do it. In issuing such
instructions, they took into consideration the skill and state
of training of the various employees on the job. Bentley
visited the various projects, on an average, only once a
week. The smallest multiple number of United employees
on a job which White or Coffey was in charge of at any one
time was two, White or Coffey, as the case may be, and one
other. The largest numbers on the various projects on any
UNITED ELECTRIC COMPANY
one day were Claremont School, five (White and four
others); Ashworth Clinic, three (White and two others);
Fred Smith Hosiery Mills, seven (Coffey and six others);
Arthur Smith Restaurant, four (Coffey and three others);
King's Mountain Restaurant, four (Coffey and three
others). The Catawba Institute and Western Piedmont
College projects were roughly comparable to Fred Smith
Hosiery Mill in magnitude.
Both White and Coffey suggested raises on occasion to
Bentley for the men with whom they worked. Sometimes
the men got raises. Sometimes they did not. Around the
time Bentley put White in charge of the Claremont School
job,3 Benny Lail, a friend of White who had recently been
released from military service, asked White whether he
thought Bentley might hire him. White and Lail stopped in
at United's shop on a Saturday morning to see Bentley.
Bentley interviewed Lail and told him to return on Monday
for a decision. He asked White whether military service had
made Lail more reliable than he had been when Bentley
had worked with him in the past White said he thought Lail
had changed. On Monday morning Bentley put Lail to
work. He lasted only 3 months. He was unable to get along
with the other men. First Coffey and then Williams refused
to work with him. Bentley then asked White one morning to
take Lail with him. White said, in view of their relationship
as friends, he would rather not. Bentley fired Lail that
morning.
4 The Union's majority
On June 25, the day Ruff, the Union's business manager,
mailed a letter to United requesting recognition, United
had 12 electricians in its employ,4 viz, Albert Birdsong,
Jimmy Allen Bolick, Phil Bowman, Sonny Bowman,
Ronald Coffey, Earl Greene, Charles Jonas, Jr., Bill
Martin, Richard Watson, Ronnie White, Gary Williams,
and Thurman Allen Woodie. Ruff had in his possession
valid cards signed by Bolick, Phil Bowman, Coffey, Greene,
Jonas, Martin, White, and Woodie authorizing the
International Brotherhood of Electrical Workers to repre-
sent them for purposes of collective bargaining with their
employer. For reasons unexplained in the record, Bolick
and White did not work on Friday, June 26, the day United
refused delivery of Ruff's letter. White was not discharged
until June 30. Therefore, he was still employed by United as
of June 26. There is no basis in the record for finding that
Bolick was not still an employee on June 26. Therefore,
regardless of whether Coffey and White are included in the
units or excluded as supervisors and regardless of whether
the Union's demand for recognition is considered to have
been made on June 25 or 26, the Union represented a
majority of unit employees when it demanded recognition.
The respective counts are 8 out of 12 or 6 out of 10.6 The
eight card signers and Gary Williams were involved in the
June 26-30 pay dispute with Bentley. The eight card signers
have participated in the strike since it began July 1,
3 Whether before or after is unclear in the record
4 Its only other employee was Linda Bradshaw, an office clerical
5 The complaint alleges, Respondent admits, and I find appropriate for
collective bargaining a unit composed of all United's employees other than
office clericals, guards, and supervisors within the meaning of the Act
669
picketing United as well as other companies. Williams
returned to work sometime after July 2.
B. Analysis and Conclusions
1. The discharges and the interrogation
Charles Bentley admittedly discharged Ronnie White
and Ronald Coffey on June 30 because they were engaging
in union activities. The questions he asked them in the
course of the discharge interview about those activities and
their future intentions obviously are the sort of interroga-
tion which, if directed to employees, constitutes restraint
and coercion and is thus an independent violation of
Section 8(a)(1) of the Act. Therefore, whether Respondent
has violated Section 8(a)(1) and (3) turns on whether White
and Coffey were employees or supervisors within the
meaning of the Act,
I find that White and Coffey were not supervisors within
the meaning of the Act. In reaching this conclusion I have
not overlooked the fact that Trial Examiner John Gregg
held as follows in his decision in the Industrial Electric
Company? companion case:
I have considered the testimony of Moore and Ray
both of whom I credit as straightforward, in finding that
Bolick and Story were vested with supervisory authority
by the Respondent, and actually carried out such
authority. Meyers Bros. of Missouri, Inc., 151 NLRB
889, 899. I am also persuaded by the fact that I do not
believe that the Respondent would have left approxi-
mately six employees on a major unit of production
without supervision for the periods of time indicated on
this record, and I am convinced that the Respondent
relied on the immediate supervision by Bolick and Story
of their units on the Morganton and Drexel projects
during this period of time. The record shows that both
Bolick and Story exercised the power of assignment of
work, evaluated the capabilities of the employees and
effectively recommended employment assignments and
promotions in all of which they acted not in a merely
routine or clerical manner but in the exercise of
independent judgment. I was not convinced by the
testimony of Bolick in which he attempted in a
contrived manner to portray his relationship to the crew
on the project as that of a highly skilled technical
leadman who merely gave advice when queried and
made no recommendations. In any event I am
thoroughly convinced from the testimony of record that
Bolick and Story had and clearly exercised the authority
to responsibly direct their daily work activity and were
in fact supervisors within the meaning of the Act.
I have not read or relied on the record made before Trial
Examiner Gregg in Industrial in weighing this issue.
However, I have no doubt that Respondent's brief to me is
accurate when it states:
The evidence in the instant case concerning the
supervisory status of White and Coffey was very similar
United employs no guards
6 Even if the demand is limited to June 26 and Bolick is dropped from
the unit, of course, the Union still had a majority The respective counts
would than become 7 out of I I or 5 out of 9.
7 Case I I-CA-4299, TXD-54-71, issued February 8, 1971
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the evidence of supervisory status submitted in the
Industrial Electric Company case, supra, where the Trial
Examiner held that the individuals were supervisors
within the meaning of the Act (TXD 15, lines 26-46).
In concluding that White and Coffey were not supervi-
sors within the meaning of the Act, I have taken into
consideration the record made before me in Electric Wiring
Inc, Case 11-CA-4301, the fourth and last of these
companion cases.8 I have today issued my Decision
(TXD-186-71) in that case In it I find, on the basis of
evidence very similar to that in this case, that some,
although not all, of Electric's so-called superintendents or
job foremen are supervisors within the meaning of the Act.
I have not overlooked that fact either.
As discussed in that decision, my finding in Electric
Wiring is based on clear and uncontroverted evidence that
individuals found to be supervisors effectively recommend-
ed the hiring of employees. There was no evidence that
those whom I found not to be supervisors ever attempted to
exercise any such authority. Their roles in all other respects
were similar to White's and Coffey's. Whether, unlike them,
White and/or Coffey possessed authority "to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward,
or discipline other employees . . . or to adjust their
grievances, or effectively to recommend such action" is the
question to which I turn first.
The evidence in this area falls into two categories, Benny
Lail and pay raises. With respect to the first, Ronnie White
played a part in both the hiring and the firing of Benny Lail.
Bentley hired Lail after asking White's opinion as to
whether military service had changed Lail's attitude toward
work. However, Bentley was acquainted with Lail even
before White brought him into United's shop to see Bentley
about a job. Bentley interviewed Lail personally before
telling him to return on Monday to find out whether
Bentley would hire him. I do not think this rises to the level
of a recommendation by White to hire Lail so effective that
Bentley substituted White's judgment for his own. I in
especially persuaded to this view of Lail's hiring by this
testimony of Bentley on cross-examination.
Q. Did that happen on any other occasion with Mr.
White that he brought someone by and recommended
them to you?
A. Yes, sir.
Q. Who else did he recommend?
A. He brought a boy by the name of Allen or
something or other, I forget his last name . This is
another case similar to Lail.
Q. That would have been toward the end of 1968?
A. I would say on up in `69.
Q. Well, what about January of `69?
A. No, I'd say June or August of `69.
This similar incident occurred long before Bentley told
White in March of 1970 that he would have to run jobs if he
wanted to make more money than a helper or an
apprentice. There is no contention by Respondent that
White was a supervisor within the meaning of the Act
I Trial Examiner Gregg issued his decision in Hickory Electric Company,
Case 1l-CA-4302, TXD-129-71, on March 9, 1971 It contains no
before that conversation. If White could recommend a
friend for a job before his status changed, the fact that he
did so after has no significance in deciding whether the
change boosted him into a supervisory position.
White's role in Lail's discharge is equally insignificant.
The fact that Bentley decided to get rid of Lail after White
said he would prefer not to work with him falls far short of
establishing that White's and not Bentley's judgment was
the operative cause of Lail's departure.
Both White and Coffey mentioned to Bentley from time
to time that they thought one or another of the men
working with them deserved a raise. But there is no
indication in the record of which men got raises, if any, and
which did not. Absent more detail about such incidents,
especially about how Bentley went about dealing with
White's and Coffey's suggestions, this record will not
sustain a finding that White and Coffey had authority
effectively to recommend raises for employees.
The question of whether White and Coffey were
supervisors within the meaning of the Act at the time of
their discharges must turn, in the final analysis, on whether
they had authority, in the interest of Respondent,
responsibly to direct other employees. And that question, in
turn, hinges on the nature of the authority and responsibili-
ty they were given by Bentley when he placed them "in
charge of" building and construction jobs. In the part of the
Industrial Electric Company decision which I have quoted
above, Trial Examiner Gregg finds, on the basis of the
record made before him, that men in assignments similar to
White's and Coffey's had to exercise their independent
judgment in overseeing the work of other electricians on the
projects they had been placed in charge of. My disagree-
ment with Trial Examiner Gregg, if disagreement it be, is
that I cannot, on the basis of the record made before me,
find that White and Coffey ever acted in a more than
routine manner insofar as their relationship with other
employees on the project was concerned.
Unlike Trial Examiner Gregg, I have no problem with
credibility of any of the witnesses who testified before me.
While Bentley, on the one hand, and White and Coffey, on
the other, placed a different emphasis on the facts they
testified about and while White and Coffey resisted
admitting, in so many words, that they were "in charge of"
projects, there is no serious disagreement between them
about what White and Coffey did. As set forth in the
section entitled "Facts-The supervisor issue" above,
White and Coffey told other men on the job what to work
on and, in so doing, took into consideration what the other
men were capable of doing. But it is equally clear that the
amount of such direction was minimal. By and large, when
the crew came on the job or started a new phase of it, the
men set to work to do what obviously had to be done. As
men "in charge," White's and Coffey's main function was
to deal with those over United, i.e., the general contractor
or the architect or the like, on behalf of United, rather than
with those under United; i.e., the other electricians on the
job. White and Coffey both worked alongside the other
men. On most days that they worked on projects they had
been placed in charge of, there was only a handful of men
reference to any supervisory issue
UNITED ELECTRIC COMPANY 671
with them. On many days they did not work on such
projects at all. Trial Examiner Gregg based his supervisor
conclusion on the finding that the men who worked for
Industrial "exercised the power of assignment of work,
evaluated the capabilities of the employees and effectively
recommended employment assignments and promotions."
In this case, it seems clear to me, White and Coffey did all
these things (except effectively recommend promotions)
but did them in, a routine manner requiring the exercise of
no independent judgment. Their relationship to the men
who worked on United projects with them was not that of
supervisor and subordinates. It was, rather, that of
journeyman and apprentice or, at the most, leadman and
crew.
Finally, the most significant part of the record in this
case, insofar as this issue is concerned , is Bentley's account
of his conversation with White at the time he promoted
White in March. Bentley did not tell White that he was
going to be a "superintendent" or "job foreman." (In fact,
Bentley never told either White or Coffey that he had such
a title although he did refer to them in that manner in
discussions with such persons as general contractors'
representatives on jobs they were put in charge of.) He told
White that he was going to have to "take a crew of men and
a truck and run the job to get more money." But the money
that White wanted more than was the pay of "a helper or an
apprentice or whatever." The implication is inescapable
that the promotion Bentley had in mind, at a time long
before supervisory status for White and Coffey became a
defense to serious and expensive unfair labor practice
charges leveled against Bentley's company, was a promo-
tion to journeyman electrician, not to supervisor.
For the reasons stated, I conclude that Ronnie White and
Ronald Coffey were not supervisors within the meaning of
the Act. Therefore, Respondent violated Section 8(a)(1) of
the Act when Charles Bentley, the owner, interrogated
them and Section 8(a)(3) and (1) of the Act when he
discharged them on June 30.
2. The refusal to bargain
Respondent argues that it has not violated Section 8(a)(5)
of the Act on several grounds. All are without merit.
First, it contends that September 1, the day it received a
demand letter from the Union's attorney, and not June 25 is
the crucial date for determining whether the Union
represented a majority of United's employees. This position
is based on two separate aspects of the case. Respondent
would find Ruff's June 25 letter an equivocal demand in
that it was couched in teems of an all-employee unit without
specifying any exclusions such as supervisors. The all-
employee unit for which Ruff requested recognition on
June 25 was an appropriate one for collective bargaining.
Respondent had no supervisors within the meaning of the
Act other than the owner, Bentley, and no guards at all. The
fact that Ruff did not specifically exclude Linda Bradshaw,
United's lone office clerical employee, is a minor deviation
from the unit description found appropriate in footnote 5
above and not significant enough to render the demand
legally insufficient.
The other aspect on which Respondent relies is its refusal
to accept delivery of Ruff's letter on June 26. The letter was
enclosed in an envelope clearly marked as coming from
"International Brotherhood of Electrical Workers, Local
Union 379, 2121 Commonwealth Ave., Room 101,
Charlotte, N.C. 28205." Mrs. Bentley was working in
United's office on June 25 because Miss Bradshaw was on
vacation . I do not credit Bentley's story that his wife
refused to accept delivery of Ruff's letter of her own
volition . However, the point is not important . Whether she
did it because her husband had told her not to accept any
letters from the Union or whether it was her own idea,
Respondent is chargeable with the legal consequences of
that act. One legal consequence is rejection of the Union's
demand for recognition in a unit appropriate for collective
bargaining at a time when the Union represented an
uncoerced9 majority of the employees in that unit. To
permit Respondent to prevail in its argument that it did not
reject the Union's demand because , not having opened the
letter and read it, it was unaware that the Union was
demanding recognition would turn the National Labor
Relations Act into a game which the clever player could use
to frustrate rather than implement the national policy of
encouraging collective bargaining.
Respondent also contends that an order to bargain is
inappropriate under the Gissel io principle, relying, once
again, on its contention that no violations of Section 8(a)(1)
and (3) of the Act resulted when Bentley interrogated and
discharged White and Coffey on June 30. The key finding
of this decision , i.e., that White and Coffey were not
supervisors within the meaning of the Act, disposes of that
argument . The outrageous nature of the violation commit-
ted when Bentley discharged White and Coffey for
engaging in union activities because they thereby put their
own interests as employees ahead of his interests as their
employer , especially when viewed in the light of Respon-
dent's total rejection of the principle of collective
bargaining evidenced by its inexcusable refusal even to
receive a letter from the Union its employees wanted to
represent them, puts this case in the extreme category the
Supreme Court had in mind when it said in Gissel that an
order to bargain is an appropriate remedy for unfair labor
practices so pervasive and outrageous that their coercive
effects cannot be eliminated by the application of
traditional remedies , with the result that a fair and reliable
election cannot be held. I find , therefore, that Respondent
violated Section 8(a)(5) and ( 1) of the Act when, on June 26,
it refused the Union 's demand for recognition as the
representative of its employees for purposes of collective
bargaining and persisted in that position thereafter.
3. The nature of the strike
Employees of United, Industrial, Hickory, and Electric
voted to strike on June 28 because all four companies had
refused delivery of the Union's demand letters and because
two of them, Industrial and Hickory, had discharged
9 The finding that white and Coffey were not supervisors within the
meaning of the Act disposes of any contention that the authorization cards
Ruff had in his possession on June 25 were tainted because supervisors had
participated in the organizing campaign.
10 N LR.B v G,ssel Packing Co , 395 U S 575.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. The fact that White and Coffey had not yet
been discharged when that strike vote was taken cannot
keep the strike which began on July 1 from being
attributable to United's unfair labor practices. United's
refusal to bargain, implicit in its refusal of the Union's
demand letter on June 26, was a major part of what
triggered the strike. To say that the strike was not also
triggered by the illegal discharge of White and Coffey on
June 30 because the strikers did not specifically say to each
other that they felt aggrieved by this particular act would
ignore the real world in favor of a legal fiction. Therefore,
regardless of the outcome of the Industrial and Hickory
cases and Trial Examiner Gregg's findings therein that the
strike is an unfair labor practice strike, I find that the strike
which Respondent's employees have participated in since
July 1 was caused, in part, by Respondent's unfair labor
practices.
Upon the foregoing findings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. United Electric Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers,
Local Union No. 379, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All Respondent's employees other than office
clericals, guards, and supervisors within the meaning of the
Act constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times on and after June 25, 1970, the Union has
been and is now the representative for the purpose of
collective bargaining of the employees in the unit described
above within the meaning of Section 9(a) of the Act.
5. By refusing, on June 26, 1970, to accept delivery of
the Union's letter requesting recognition as representative
for the purpose of collective bargaining of the employees in
the unit described above and by refusing then and at all
times thereafter to recognize and bargain with the Union,
Respondent has violated Section 8(a)(5) and (1) of the Act.
6. By discharging Ronnie White and Ronald Coffey on
June 30, 1970, for engaging in union activities Respondent
has violated Section 8(a)(3) and (1) of the Act.
7. By interrogating employees about their union
activities and desires on June 30, 1970, Respondent has
violated Section 8(a)(1) of the Act.
8. 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
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and remedy them.
Because the manner in which it dealt with the efforts of its
31 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
employees to organize themselves demonstrates its disdain
for their statutory rights, I will recommend that Respon-
dent be ordered to cease and desist from any violations of
its employees' Section 7 rights. In order to remedy the
discriminatory discharge of Ronnie White and Ronald
Coffey, I will recommend that Respondent be required to
offer them reinstatement with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716. In order
to remedy Respondent's illegal refusal to bargain with the
Union, I will recommend that Respondent be required to
bargain collectively, upon request, with the Union as the
duly designated representative of its employees and, if an
understanding is reached, embody it in a signed agreement.
Since the strike in which some of its employees have
participated since July 1, 1970, was caused in part, by
Respondent's unfair labor practices, I will recommend that,
upon their unconditional applications, Respondent offer
reinstatement to Jimmy Allen Bolick, Phil Bowman, Earl
Greene, Charles Jonas, Jr., Bill Martin, and Thurman Allen
Woodie, discharging, if necessary to make room for them,
persons hired by Respondent on and after July 1, 1970, with
backpay computed as specified above for any period in
excess of 5 days between their respective unconditional
applications and Respondent's offers of reinstatement.
Finally, I will recommend that Respondent be required to
post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: ii
ORDER
Respondent, United Electric Company, its officers,
agents, successors, and assigns, shall:
1. Cease,and desist from:
(a) Discharging its employees in order to discourage
membership in International Brotherhood of Electrical
Workers, Local Union No. 379, or any other labor
organization.
(b) Interrogating its employees about their union
activities or desires.
(c) Refusing to recognize and bargain with International
Brotherhood of Electrical Workers, Local Union No. 379,
as the exclusive representative of its employees in the unit
found appropriate herein.
(d) In any manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Ronnie White and Ronald Coffey immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, and
pay them for the earnings they lost as a result of their June
30, 1970, discharges, plus 6 percent interest.
(b) Upon application, offer Jimmy Allen Bolick, Phil
Bowman, Earl Greene, Charles Jonas, Jr., Bill Martin, and
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
UNITED ELECTRIC COMPANY 673
Thurman Allen Woodie immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, discharging, if necessary
to make room for them, persons hired on and after July 1,
1970, and, in the event more than 5 days elapse between
applications and offers, pay them for earnings lost as a
result of Respondent's failure to reinstate them by the fifth
day after their applications, plus 6 percent interest.
(c) 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 Order.
(d) Upon request, bargain collectively with International
Brotherhood of Electrical Workers, Local Union No. 379,
as the exclusive representative of the employees in the unit
found appropriate herein and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(e) Post at its shop in Hickory, North Carolina, copies of
the attached notice marked "Appendix." 12 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.
(f) 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.13
Dated at Washington, D.C.
12 -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 "
13 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 11, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
organization, by interrogating employees about their union
activities and desires, and by refusing to recognize and
bargain with the union of your choice:
WE WILL offer Ronnie White and Ronald Coffey
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, and pay them for the earnings they
lost as a result of their June 30, 1970, discharges, plus 6
percent interest.
WE WILL, when they apply, offer Jimmy Allen
Bolick, Phil Bowman, Earl Greene, Charles Jonas, Jr.,
Bill Martin, and Thurman Allen Woodie immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, discharging, if necessary to make room for
them, persons we have hired on and after July 1, 1970,
and, in the event more than 5 days elapse between
applications and offers, pay them for earnings lost as a
result of our failure to reinstate them by the fifth day
after their applications, plus 6 percent interest.
WE WILL NOT discharge or discriminate against any
employee for supporting International Brotherhood of
Electrical Workers, Local Union No. 379, or any other
union.
WE WILL NOT interrogate you about your union
activities or desires.
WE WILL NOT unlawfully interfere with your union
activities in any way.
WE WILL, upon request, bargain collectively with
International Brotherhood of Electrical Workers, Local
Union No. 379, as your exclusive representative and, if
an understanding is reached, embody such understand-
mg in a signed agreement. The unit appropriate for such
bargaining is:
All our employees other than office clericals,
guards, and supervisors within the meaning of the
National Labor Relations Act.
Dated By
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal law by discharging employ-
ees in order to discourage membership in a labor
UNITED ELECTRIC COMPANY
(Employer)
(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.