Wirtz Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1974

215 N.L.R.B. 252 (N.L.R.B. 1974)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wirtz Manufacturing Company, Inc. andUnited Steel-
workers of America, AFL-CIO-CLC. Case
7-CA-10791
demeanor of the witnesses, and after due consideration of the
Company's brief and the General Counsel's closing argu-
ments at the trial, I make the following:
December 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 6, 1974, Administrative Law Judge Marion
C. Ladwig issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting 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 conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Wirtz Manufacturing Company, Inc.,
Port Huron, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This case
was tried at Port Huron, Michigan, on March 14-15,
1974.' The charge was filed by the Union on December 14
and the complaint was issued on January 22. After the Union
filed an election petition, the Company notified approxi-
mately 16 working leaders that they were supervisors; and
after the Union won the election, the Company discharged
four of the leaders for having supported the Union. The
primary issues are (a) whether the four leaders were statutory
supervisors and unlawfully discharged and (b) whether the
Company illegally attempted to remove them as employees
from the bargaining unit, and coerced and restrained them in
the exercise of Section 7 rights, in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act.
Upon the entire record,' including my observation of the
FINDINGS OF FACT
I JURISDICTION
The Company, a Michigan corporation, is engaged in the
manufacture of mechanical rubber molds and battery manu-
facturing equipment at its plant in Port Huron, Michigan,
where it annually ships products valued in excess of $50,000
directly to customers located outside the State. The Company
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
11 ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Notified of supervisory status
The working leaders, or leadmen, were never told they
were supervisors until after the Union began its organiza-
tional drive in October and filed an election petition on Octo-
ber 25. As explained by President Wirtz (who exercises
overall direction of the business), the election petition ex-
cluded "supervisors as defined in the Act," and "I didn't
have an idea what that meant. So I called our attorney
and I sent him a copy of the petition . . we went through
all that stuff and ... my impression was that these people
under the law, were supervisors. Now before that petition
was filed I didn't know what the law was, I didn't much
care what the law was."
President Wirtz called a meeting of the leaders in early
November and notified them they were supervisors. He
added, as he testified, "I consider you guys part of my ball
team . . we're going to work as a team ... we're going to
fight the Union . . . campaign against the Union. . . .
You're going to follow my policy." One of the four "lead-
ers in question" (the four, later discharged, were Clair
Kessler, Anthony Kamendat, Donald Loxton, and Ber-
nard Sharpe) asked, in effect, "Does that mean if we
don't we could get fired?" and "I said yes it does." (The
alleged restraint and coercion is discussed later.)
2. Changes made
Meanwhile, before the December 4 election, the Company
made certain changes affecting the leaders It began requiring
the leaders to "approve" vacation requests filed by employees
working in their departments. As an example, employee Jim
Hagle filled out such a request for a 2-week vacation begin-
ning November 13 and took it to the office on October 22.
Sometime between October 22 and November 13, General
Foreman Edward Mallorey took the request to leader Donald
Loxton, who had not previously seen such a vacation request
(which provides space for a "supervisor" and "foreman" to
I All dates are between October 1973 and May 1974 unless otherwise 2 The General Counsel's unopposed motion to correct transcript, dated
stated May 2, is granted.
215 NLRB No. 50
WIRTZ MANUFACTURING CO. 253
sign). It is undisputed, as Loxton credibly testified, that Mal-
lorey instructed, "Here, sign it." Loxton asked, "Where do
you want me to sign it?" and Mallorey answered, "Sign it
right there." Loxton protested, "I'm not a supervisor or fore-
man," whereupon Mallorey stated, "I don't give a s-, sign
it anyway." (Similarly, in early November, Frank Sharpe
brought leader Anthony Kamendat such a vacation request
for him to "approve," and had him sign it.)
Soon after the petition was filed, President Wirtz in-
structed General Foremen Mallorey and Steven Gross to
institute a written warning system for disciplinary purposes.
Wirtz testified, "I found out since October 25th that things
aren't written down . . . it's awful hard to prove that certain
people did certain things." (No written warnings had been
given for 5 or 6 years, although the Company had on hand
some employee warning notice forms, which provided spaces
for the signatures of the "Foreman or Supervisor" and an
"Official.") A leader was required to fill in the warning slip;
to sign it as the "Foreman or Supervisor" (a designation
previously used by the five supervisors/area foremen, John
Andre, Duane Cornwell, Al Delano, Jack McLane, and
Frank Sharpe); and (as Wirtz revealed) to turn it in directly
to General Foreman Mallorey (for his signature as "Offi-
cial"). The evidence does not reveal which of the leaders was
required to sign the warning slips as foreman or supervisor.
(The warning slip in evidence was signed by leader Robert
Vercnozke who, like leader Horst Giese and certain other
leaders, may have had more authority than other leaders.)
The company counsel explained at the trial that he had re-
frained from bringing in evidence of the written warning
system "because I think this system was instituted after the
NLRB petition was filed, and I thought maybe General
Counsel would argue that it was dreamed up."
Also after the petition was filed, some of the leaders (who
previously had attended only the leaders' meetings) began
attending supervisors' meetings. It is undisputed, as credibly
testified by leader Bernard Sharpe, that early in November he
asked General Foreman Gross why leaders Bill Sanders and
Dave Picklehaupt (who worked with Gross and Sharpe in the
battery division) were attending supervisors' meetings. Gross
answered, "Well, we're considering them as junior supervi-
sors." Sharpe asked, "I'm not?" and Gross responded, "No "
Thereafter President Wirtz told all the leaders that they were
"supervisors" (although they continued to be called working
leaders). I note that the Company took the position that all
or none of the leaders must vote. None of them did.
3 Strike in protest of discharges
On December 5, the day after a majority of the unit em-
ployees voted for union representation, the Company dis-
charged leaders Kessler, Kamendat, Loxton, and Sharpe.
Thereafter, the employees elected discharged leader Kessler
as their local union president and they went on strike on a
vote to protest the discharge of Kessler and the three other
leadmen, as fellow employees. (In view of the fact that the
strike was still current at the time of trial, and no question
had been raised concerning the right of returning strikers to
reinstatement, any issue over whether the strike was an unfair
labor practice strike was apparently considered premature
and not litigated in this proceeding.)
B. Shifting Defense
Paragraph 11(b) of the complaint alleged that the Com-
pany discharged the four working leaders because of their
"activities on behalf of and adherence to the Charging Party
and because they had engaged in other concerted activities.
. . ." In its answer the Company denied that the leaders were
statutory employees and added:
Respondent denies each and every allegation of para-
graph 11 (b) of the Complaint and specifically denies that
any individual was terminated from employment as the
result of their activities on behalfofand in adherence to
the Charging Party, or because they had engaged in other
concerted activities . . . . In support of said denial, Re-
spondent says that termination of employment of each of
said individuals was for reasons totally unrelated to any
of the matters alleged in paragraph 11(b) of the Com-
plaint . (Emphasis supplied.)
Despite these specific denials, the Company admitted at
the trial that the four discharged leaders "were terminated
because of their union sympathy and union activities."
C. Status of Working Leaders
1. In general
a. Large number of purported supervisors
The Company's plant is divided into 18 production depart-
ments, employing 99 workers (plus working leaders) at the
time of the December 4 election . (According to a company-
prepared document in evidence , employment in 1973 fluc-
tuated from a high of 112 workers to a low of 65.) The
undisputed supervision consisted of eight persons . They were
President Wirtz, two general foremen (Mallorey over the
rubber division and Gross over the battery division), and five
supervisor/area foremen (Andre, Cornwall , Delano,
McLane, and Frank Sharpe, herein called foremen).
The two general foremen and five foremen directly
supervised the employees in 5 of the 18 departments.
Three of these five departments (3D, Tape Mill, and Elec-
trical), which operate without leaders, employed an esti-
mated 11 to 14 employees ; and the other two (milling
machine and battery mold test ), where the leader 's posi-
tions were temporarily vacant on the date of the election,
employed an estimated 6 to 18 employees . Therefore, the
undisputed supervisors directly supervised an estimated
total of 17 to 32 employees.
Each of 13 working leaders headed 1 of the remaining 13
departments , which together employed between 67 and 83
employees (that is, 99 minus the 17 to 32 employees working
without leaders). Some of these employees worked on the
night shift , under two additional leaders. Thus, atthe time of
the election , there were 15 leaders: 2 working at night, and
13 working over an average of from about 5 to 6.5 employees.
The Company therefore contends that it had a total of 23
supervisors (1 president , 2 general foremen , 5 foremen, and
15 working leaders) over 99 employees.
When asked by company counsel why it was necessary to
have a leader-supervisor over a department with only three
to eight employees , President Wirtz answered , in part.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. In my mind, there is no way that an area foreman
can take five or six of those departments and control
what is happening in them Each department is very
technical; the work is often very difficult when you're
working on the same mold. The operations are different
. .. we are expecting the leader to be the most competent
man in that department, he should decide which of those
jobs his people should handle. Now we couldn't have Ed
Mallorey [general foreman over the rubber division], as
long as he's been with us, he cannot go into the battery
mold department and tell [the shaper operator] how to
shape the wires in a grid mold, he doesn't know.. . .
Somebody has to know their job . . . these departments
are different . . . We require one man in each depart-
ment who is experienced, who can lead the people in that
department, assign the work, and be responsible for what-
ever they do. (Emphasis supplied.)
President Wirtz was obviously describing the typical role
of a leader. The question remains whether the four leaders in
question-apart from the large number of other asserted
supervisors-were merely high-skilled employees, routinely
directing the work in their respective departments, or
whether they exercised independent judgment, with real
supervisory authority.
b. Posted rules
The Company has several pages of posted rules, which are
supplemented from time to time. These rules make it clear
that the real supervisory authority in the plant lies (under
President Wirtz) in the general foremen and the supervisor
/area foremen (referred to either as "supervisor," "area fore-
man," or "foreman," as distinguished from leader and lead-
man).
On page 2 of the rules, an injured employee is required to
"report back to Ed Mallory' (the general foreman). Under
the more serious offenses listed in group "A" rules on page
3, rule 6 requires that "Authorization from Foreman is re-
quired for all items taken from premises"; and rule 9, defining
"Gross insubordination," refers to refusal to perform work
"as required by supervision or threatening a supervisor." Un-
der the less serious offenses listed in group "B" rules on pages
3 and 4, rule 1 states that an employee who knows in advance
he will be late or absent "notifies his foreman personally";
and rule 9 prohibits an employee from leaving his work area
or visiting another department "without permission of your
supervisor," or from leaving the plant during working hours
"without permission of your supervisor." Under safety rules
on page 4, rule 2 requires employees to "Report to your
supervisor" certain defects in equipment, etc. The telephone
policy on page 5 states that the receptionist will take an
emergency call and "deliver it to a foreman." Under general
shop rules on page 6 , rule 1 states that all employees are
expected to be present and on time "unless excused by
foreman." These general shop rules (in which leaders-as
distinguished from supervisors and foreman-are mentioned)
also refer to giving full attention to work, producing quality
work within time standards or estimates , cleanliness and 10-
minute period for cleaning up at end of shift, turning out
lights , returning steel bars to rack after cutting , oiling and
greasing machines , making out time tickets, and punching
timecards. The leader is given the responsibility of enforcing
these routine matters: rule 3 stating that each employee is
responsible to his leader "and will receive work instructions
from his leader"; rule 8 stating that each leadershall see that
his men abide by these rules and is given authority to enforce
these rules ; and rule 9 stating that employees will take up
problems with the leadman or foreman on the shift. Under
vacation pay on page 7, rule C states. "An employee may
request time off in accordance to his vacation pay hours by
obtaining a vacation request form from his foreman." (As
noted above, between the filing of the petition and the holding
of the election, the Company began requiring leaders to "ap-
prove" vacation requests.) Under overtime pay on page 8,
rule B states that "All unscheduled overtime must be ap-
proved by the shop foreman." And finally, under jury duty on
page 9, rule 4 requires that the employee "must advise his
supervisor of the time he must report to jury duty." (Emphasis
supplied in this paragraph.)
I reject, as clearly lacking merit, the Company's contention
that the posted rules establish supervisory status on the part
of the leaders. To the contrary, I find that the rules reflect the
limited authority of the leaders.
c. General responsibility and duties
In its brief, the Company concedes that the leaders "do not
have the authority to discharge or discipline an employee,"
and that "higher supervision " makes an "independent inves-
tigation" of recommendations made by the leaders. Explain-
ing the restrictions on their authority, Presidnet Wirtz testi-
fied, "I was concerned that these leaders were going to fly off
the handle and fight. . . with people . Because we had some
trouble in hiring . . . experienced people . . . I hated to lose
anybody . . . we wouldn't let a leader fire anyone. If he
thought somebody should be fired I want him to go to his
supervisor, his foreman. I didn't want anybody fired before
[General Foreman] Ed Mallorey had a chance to check into
it."
Schedules of work come from the foreman, general fore-
man, and the office. The leader, as the "most competent
man" in the department, is expected to assign the work (when
the workers do not simply take the next assignment in order).
I find that these assignments by the leaders, to those they
know to be competent to do the work, are merely routine
assignments , not requiring the exercise of independent judg-
ment. The foreman or general foreman reassign employees
within the department, or between departments, usually after
checking with the leaders involved, and sometimes upon the
recommendation of the leader or one of the workers in the
absence of the leader. As testified by President Wirtz, "In
transferring employees from one department to another, usu-
ally it was worked out between Steve and Ed" (referring to
General Foremen Gross and Mallorey).
Leaders' meetings are held to discuss problems that arise
in the shop, to sound out the leaders for the views of the
employees working under them, and to assure that the leaders
do their best to see that the work is performed properly and
that the routine general shop rules (discussed above) are car-
ried out. (As mentioned above, it is admitted that the leaders
do not have the authority to discipline employees.) The Com-
WIRTZ MANUFACTURING CO 255
pany solicits the leaders' suggestions -which are thereafter
considered by it. Often, after the leaders' meeting, General
Foreman Mallory talks to workers in the plant about prob-
lems raised in the meetings . In leaders ' meetings , President
Wirtz told the leaders that "if you need one of those pieces
of equipment or tools, or clamp or anything that you need in
your department, you can get them through the requisition."
He explained to them that "all you have to do is write out a
requisition and give it to the guy and he would come back and
question you why you needed it," and "if you need stuff, you
got it." Or they would orally notify one of the general fore-
men, who would have the item ordered after verifying the
need. Before the election petition was filed, the leaders did not
attend the "supervisors' meetings" with the foremen and gen-
eral foremen. (As mentioned above, however, after the peti-
tion was filed, some of the leaders began attending as "junior
supervisors.")
The leaders have the responsibility, emphasized at leaders'
meetings, of checking and turning in the workers' time tick-
ets. They also sign material tickets, as do other workers in the
leaders' absence.
Inasmuch as the leaders work closely with the few em-
ployees working under them, the leaders' opinion is solicited
by the Company concerning whether the workers are doing
well, and whether they deserved a wage increase or a promo-
tion. Similar opinions are solicited from workers themselves,
either in the absence of the leaders, or when a particular
experienced worker is in closer contact with the employee in
question. On one occasion in June 1973, leader Sharpe was
required, in the company of the foreman and general fore-
man, to formally evaluate employees in his department.
However, in view of the limited authority of the leader and
the close observation by the foreman and general foreman of
the employees on the job, I find that the opinion of the leader
was considered to be that of an experienced worker, for wha-
tever assistance it would be in helping the Company to evalu-
ate the coworkers.
The leaders, and sometimes experienced employees work-
ing under them, train new employees. The leaders, as well as
other workers, sometime recommend the hiring of new em-
ployees, but the evidence clearly shows that the Company
makes the decision whether to hire or not, independently of
the recommendation.
The leaders do not have the authority of permitting or
preventing the leaving of the plant early. As indicated above,
the posted rules forbid "leaving the plant during working
hours without permission of your supervisor." (I note that
General Foreman Mallorey testified that when an employee
desires to leave the plant early, he goes to his leader and the
leader gives him permission to go. However, Mallorey im-
pressed me as being less than a candid, reliable witness.)
Leaders sometime check with employees working, under
them whether they desire to work overtime but, as provided
in the posted rules, "All unscheduled overtime must be ap-
proved by the shop foreman." (General Foreman Mallorey
claims that leaders Vercnozke and Giese have assigned un-
scheduled overtime. However the supervisory status of these
two particular leaders was not specifically litigated, and I
need not decide whether or not this actually happened.)
Leaders are expected to attempt to handle routine prob-
lems that arise in their department. However, they do not
have the authority to resolve greivances. Either the leaders,
often as spokesmen for the employees working under them,
or the employees themselves, take problems or grievances to
the foremen or higher supervision. Rule 9 of the general shop
rules specifically provides that "Employees will take up prob-
lems with the Leadman or Foreman on their shift."
The Company has a "job related education program,"
providing for payment of college tuition and books. The an-
nouncement of the program states that employees are to see
Foreman McLane for more details and for an application
form. The notice also requires a recommendation from the
leader. However, as disclosed by General Foreman Mallorey,
this requirement is to assure that the requested course is
job-related, and needed by the employee. I find that this
recommendation by the leader is merely routine, not requir-
ing the exercise of independent judgment.
d. Compensation
The leaders (like Foremen Andre, Cornwall, and Sharpe)
are paid on an hourly basis. (Foremen Delano and McLane
are salaried.) They are paid 20 cents above the top rate in the
department, and are given an annual bonus which is about a
third or half as much as the foremen's bonus. They are given
more life, sickness, and accident insurance, but less than the
foremen's insurance.
After considering all the foregoing, I now rule on the status
of the four discharged leaders-without passing on the super-
visory status of other leaders (like Sanders and Picklehaupt,
whom General Foreman Gross referred to as "junior supervi-
sors," and leaders Vercnozke and Giese).
2. Clair Kessler
Leader Clair Kessler (now president of the local union) is
a highly-skilled toolmaker who had only one toolmaker
working with him in the tool department at the time of his
discharge. He usually had one or two toolmakers working
under him, and he usually spent all of his workday working
as a journeyman, except for perhaps 5 minutes in the morn-
ing. He was never told he was a supervisor until after the
election petition was filed.
Once when he had two toolmakers working for him, "we
were in a pretty busy period . . . they felt that they should
be making more money. They wouldn't go in and ask for a
raise so I went in and stated their business and what I thought
they were worth." He recommended a 20-cent wage increase,
and General Foreman Mallorey (his immediate supervisor)
said he would think about it. Later, Mallorey told the two
employees themselves that Mallorey had gotten them a 10-
cent raise.
Kessler did little directing of the employee or employees
working under him, and clearly had no authority effectively
to recommend any wage increase, transfer, or other action. I
find that he had no supervisory authority, and was not a
supervisor as defined in Section 2(11) of the Act.
3. Anthony Kamendat
Kamendat, the leader in the shaper department, was over
six employees (including one evening-shift employee, whose
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time tickets Kamendat checked). Kamendat spent about 80
percent of his time working as a journeyman machinist.
Kamendat performed the customary duties of a leadman,
checking material tickets and time tickets, training new em-
ployees, and making routine assignments of work. On one
occasion when employees in his department were complain-
ing about the absenteeism of one of the coworkers, Kamendat
recommended to General Foreman Mallorey that strong ac-
tion to be taken against the employee. Mallorey investigated
and took no action after learning that the employee had been
sick. Both before and after Kamendat became a leader, he
recommended raises for others. "Some of them got raises,
some of them did not. I don't know if it was from my recom-
mendation or not." When Foreman Sharpe would come to
the department and say that Sharpe was overloaded with
work in another department and needed a certain employee,
"I'd say all right . . . because he knew that work was in
there."
Grinder Mayhew, in Kamendat's department, credibly tes-
tified that he never asked Kamendat for a raise, but directly
asked General Foreman Mallorey; that he applied to Fore-
man Sharpe (not Kamendat) for a vacation; and that he, at
Mallorey's request, trained two employees before Kamendat
became a leader. On those occasions, Mallorey asked May-
hew his opinion of the new employees: "How's the guy doing,
is he catching on fast, how's his work," etc.
I find that Kamendat engaged in mere routine direction of
employees in the shaper department, and that he had no
authority effectively to recommend any discipline, wage in-
crease, or any other action affecting the employees in the
department. I therefore find that he was not a supervisor as
defined in the Act.
4. Donald Loxton
Lathe operator Loxton was the leader of the lathe depart-
ment . He spent about 95 percent of his time running his
machine and about 5 percent checking time tickets and going
for stock.
There was only two other workers on the day shift with
Loxton, and three on the night shift. Loxton, or one of the
other day-shift workers, might show the evening-shift em-
ployee relieving him what he had been doing on the machine.
Or, if an evening-shift employee was late arriving, Loxton
would stay a few minutes "to tell him what we are doing and
... how I was doing it." One morning, when Loxton was
checking the evening time tickets, "this one fellow, he didn't
quite run as many pieces as he was supposed to run. I told
him about it the next . . . time he came in . He didn't really
appreciate me telling him about it. . . . I would have fired
that man right then and there, but I had no authority to fire
him . . . he told me he wasn't going to listen to me, and he
never did. He went to [General Foreman] Mallorey about it,
and I told Mr. Mallorey about it, and he thought I was going
to have to work it out the best that I knew how... . He told
me I had to work it out by myself. No authority, I couldn't
work it out by myself." (Loxton refused to recommend re-
quested raises for this employee, and Mallorey did not give
the raises.)
Loxton would train new employees. When an operator
would have a problem on a lathe, he would either ask Loxton
or the other operator for help. In assigning the work, Loxton
would determine which lathe to use and which employee to
use it: "I've been there for 10 years, and I know what ma-
chines can do what" and "I know just about which fellows
can do what, after you've been there a couple of weeks or so."
He sometimes checks on operator's work, and "If I looked up
and I thought maybe a guy was having a little trouble, I'd
walk over and see." On one occasion, General Foreman Mal-
lorey asked Loxton if he thought two new employees were
worth a 50-cent raise (to the top rate). Loxton replied that he
thought one of them was worth it, and the other was not.
However, Mallorey did not follow his recommendation and
gave each of them a 25-cent raise. (I discredit Mallorey's
testimony that Loxton had recommended a 25-cent raise
for both of the employees.) The evidence is clear that even
though Mallorey asked Loxton's opinion from time to time
about how employees were doing or whether they deserved
a raise, Mallorey exercised his own independent judgment
in deciding on wage increases.
As previously indicated, the posted rules forbade leaving
the plant early without the foreman's permission, and the
leaders had neither the authority to permit or prevent the
leaving. In Loxton's department, an employee would either
ask Loxton if it was all right to go home, or "they just went,"
and Loxton considered it to be his responsibility to tell Gen-
eral Foreman Mallorey or Foreman Sharpe. I find that Lox-
ton had no real discretion in the matter, despite Loxton's
affirmative response when asked on cross-examination if the
employee would come and say, "I've got to go home," to
which Loxton would say, "Okay, if your work's done." (I also
note that Loxton began "approving" vacation requests-as
discussed above as one of the pre-election changes made by
the Company-after Loxton protested to Mallorey that he
was not a supervisor or foreman, and Mallorey stated, "I
don't give a s-, sign it anyway.")
I find that leader Loxton (who the Company characterized
in its brief as being a forthright witness) did not have au-
thority effectively to recommend discipline or reward of ei-
ther the two day-shift or the three evening-shift employees in
his department, or authority to exercise independent judg-
ment in directing the employees or the work. Contrary to the
Company's contention that his testimony "demonstrates con-
sistent exercise of supervisory authority," I find that Loxton
neither possessed nor exercised supervisory authority; that
his work assignments and directions were merely routine; and
that he was not a supervisor as defined in the Act.
5. Bernard Sharpe
Leader Bernard "Mike" Sharpe, as he credibly testified,
was usually over two, and sometimes three, employees in the
machine assembly department. He worked under Foreman
Andre-who was in and out of the department throughout
the day-and under General Foreman Gross.
Sharpe worked as a machine builder about 80 percent of
the time. He also checked time tickets, kept records on the
building of the complex machines, chased stock, and signed
material tickets (as did other employees in his
department-"whoever happens to be there"). Foreman An-
dre would bring work assignments to the department, and
Sharpe would sometimes pass them on, and make new assign-
WIRTZ MANUFACTURING CO. 257
ments unless the employees simply started on the next job in
order. He shows new employees what to do. Sometimes he,
and sometimes one of the other experienced employees work-
ing with a new employee, are asked by Foreman Andre or
General Foreman Gross how the new employee is working
out. As mentioned above, Sharpe was required in June 1973,
in the company of Andre and Gross, to formally evaluate
employees in the department.
A total of seven employees have worked under him since
he became a leader about November 1972. He was not asked
for his opinion about who should be assigned to that depart-
ment, except before he became the leader. His recommenda-
tion that a person be hired was not followed. Soon after he
became a leader, he warned employee Bill Sanders (now a
leader himself) that Sanders' production was too low and that
Sanders' job would be in jeopardy unless Sanders improved.
They had a heated argument over it and, later that day (as
Sanders recalled), Sharpe "informed me that most of the
rough time he had given me was to prove something, he had
been a leader then less than a week and another leader had
said he wasn't capable of being a hard a-." (Instead of losing
his job, Sanders became a leader about 5 months later, and
was one of the leaders to whom Gross later referred as being
a "junior supervisor," entitled to attend supervisors' meet-
ings.)
On one occasion, Sharpe commented to General Foreman
Gross that Bud Levandowski (who delivered parts to Shar-
pe's department) was doing a pretty good job, and Gross
"told me to mind my g-d- business." On another occasion,
when Sharpe went to work while sick with the flu, he com-
plained to General Foreman Mallorey about a janitor, who
was not in his department, but who "wanted to give me a hard
time." Sharpe told Mallorey "either he goes or I go." The
janitor was not there the next day, and apparently was dis-
charged, but the evidence does not further disclose the basis
for the discharge. Also, after becoming a leader, Sharpe com-
plained to Gross about an employee being habitually late.
Gross took no action against the employee until later, when
the employee was working for another leader.
It is clear that Sharpe did not have any supervisory au-
thority, and that he was not a supervisor as defined in the Act.
Wirtz for many years and operated prior to the petition just
as it operated following the filing of the petition."
As found above, the four discharged leaders were not
supervisors, and the Company made certain changes before
the election (having leaders "approve" vacation requests for
the first time, having them sign disciplinary warning forms as
the "foreman" or "supervisor," and permitting certain lead-
ers to begin attending supervisors ' meetings). And as also
found, the Company attempted to compel the nonsupervisory
leaders to campaign against the Union , and to cease support-
ing the Union.
Accordingly, I find that the Company illegally attempted
to remove nonsupervisory leaders from the bargaining unit,
and coerced them in the exercise of Section 7 rights, in viola-
tion of Section 8(a)(1) of the Act.
2. Threat of discharge
As previously found, the Company admittedly threatened
to discharge nonsupervisory leaders if they continued to sup-
port the Union. Such a threat was clearly coercive, and vi-
olated Section 8(a)(1) of the Act.
In view of this finding of coercion, I do not deem it neces-
sary to rule on the alleged coercive interrogation and other
alleged restraints on the exercise of Section 7 rights.
CONCLUSIONS OF LAW
1. By discharging nonsupervisory leaders Clair Kessler,
Anthony Kamendat, Donald Loxton, and Bernard Sharpe on
December 5, 1973, for supporting the Union, the Company
engaged in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of
the Act.
2. By illegally attempting to remove nonsupervisory lead-
ers from the bargaining unit, and coercing them in the exer-
cise of Section 7 rights, the Company violated Section 8(a)(1)
of the Act.
3 By threatening to discharge employees if they continued
to support the Union, the Company further violated Section
8(a)(1) of the Act.
6. Concluding findings
I find that all four of the discharged leaders were em-
ployees, not supervisors, and that their discharge on Decem-
ber 5 for having supported the Union violated Section 8(a)(3)
and (1) of the Act.
D. Coercion and Restraint
1. Attempt to "gerrymander" the unit
The complaint alleges that the Company "attempted to
gerrymander the appropriate bargaining unit by converting
all working leaders into statutory supervisors and compelling
said working leaders to cease and desist from engaging in
Section 7 activities and to begin engaging in antiunion activi-
ties " The Company contends that the leaders were supervi-
sors, and that "the leader system has been in existence with
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatonly discharged four
employees, I find it necessary to order the Respondent to
offer them full reinstatement, with backpay computed on a
quarterly basis plus interest at 6 percent per annum as pre-
scribed in F W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
from date of discharge to date of proper offer of reinstate-
ment
Upon the foregoing findings of fact and conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER'
Respondent , Wirtz Manufacturing Company , Inc., Port
Huron , Michigan , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against non-
supervisory working leaders for supporting United Steel-
workers of America , AFL-CIO-CLC.
(b) Threatening to discharge nonsupervisory leaders for
supporting the Union.
(c) Illegally attempting to remove nonsupervisory leaders
from the bargaining unit and to prevent them from support-
ing the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer leaders Clair Kessler , Anthony Kamendat,
Donald Loxton , and Bernard Sharpe immediate and full
reinstatement to their former jobs or, if their jobs no long-
er exist , to substantially equivalent positions , without
prejudice to their seniority or other rights and privileges,
and make them whole for their lost earnings in the man-
ner set forth in the Remedy.
(b) Preserve and , upon request , make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records , timecards, person-
nel records and reports , and all records necessary to analyze
' 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.
4 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
the amount of backpay due under the terms of this Order.
(c) Post at its plant in Port Huron, Michigan, copies of the
attached notice marked "Appendix."4 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being duly signed by Respondent's authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Resonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20 days
from the date of this Order, what steps the Respondent has
taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
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 found, after teal,
that we violated Federal Law by discharging four non-
supervisory working leaders for supporting a union and
by interfering with their right to support the Union:
WE WILL OFFER full reinstatement to leaders Clair
Kessler, Anthony Kamendat, Donald Loxtoi's, and Ber-
nard Sharpe, with backpay plus 6-percent interest.
WE WILL NOT discharge any of you for supporting
United Steelworkers of America, AFL-CIO-CLC.
WE WILL NOT threaten to discharge nonsupervisory
leaders for supporting the Union.
WE WILL NOT illegally attempt to remove nonsupervi-
sory leaders from the bargaining unit.
WE WILL NOT unlawfully interfere with your union ac-
tivities in any similar manner.
WIRTZ MANUFACTURING COMPANY, INC
J