Northern Virginia Steel Corp., 714 (1961)

Docket Number:05-CA-01587
 
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DECISION AND ORDER

On October 10, 1960, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed a motion to remand the proceeding to the Trial Examiner,' and the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs.

The Board has reviewed the rulings of the Trial Examiner made at 1On December 7, 1960, the Board's Executive Secretary notified the Respondent by letter that its motion would be considered by the Board along with the entire record in the proceeding.

132 NLRB No. 50.

the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's motion, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications.

  1. The Trial Examiner found that E. B. Combs was a supervisor within the meaning of the Act. We do not agree with this finding.

    Combs worked with a crew of from two to eight welders. He was handed blueprints for particular projects by the shop superintendent and, in following the blueprints, he performed manual work along with the rest of the crew. The personnel of the crew changed frequently and assignments to the crew were made by the shop superintendent with Combs playing no part in the selections. Combs could not himself hire or fire employees and any recommendations he made in that regard were subjected to review by superior authority. Unlike Night Supervisor Pence, there is no indication in the record that Combs ever granted employees time off the job.

    While the Trial Examiner found that Combs was salaried, as distinguished from other employees, and that he was expected to work overtime without additional compensation, we are not persuaded that this constitutes sufficient indicia, of supervisory status in an overall appraisal of Comb's duties. Moreover, we note that at no time during this proceeding, before the Intermediate Report was issued, did the Respondent contend that Combs was a supervisor, nor was his status placed in issue. In point of fact, during the hearing herein, the Respondent affirmatively indicated that it considered Combs to be within the bargaining unit and not among its supervisory personnel.

    We find, in agreement with the General Counsel's contentions, that Combs was not a supervisor, but at most was a leadman or gang leader who was more experienced and skilled than the other members of the crew. We further find that the discharge of Combs, based upon the evidence and reasons found by the Trial Examiner, was violative of Section 8 (a) (3) and (1) of the Act.' 2. The Trial Examiner found that the Respondent violated Section .8 (a) (5) of the Act on July 2, 1959, when its secretary-treasurer,

    Hengen, failed to call at the post office for the Union's certified letter requesting recognition, as fully set forth in the Intermediate Report.

    'The Respondent ' s request for oral argument is denied as the record, including the exceptions and briefs , adequately present the issues and positions of the parties 11 In view of the fact that we find Combs not to be a supervisor, we do not adopt or pass upon the Trial Examiner's holding that the discharge of a supervisor under these circumstances is violative of Section 8(a) (1) of the Act Nor do we find it necessary to consider the Respondent's contention that the organizational activities such as engaged in by Combs would taint a union's majority status if engaged in by a supervisor See Insular Chemical Corporation and Rubber Corporation of America ( Insular Division), 128 NLRB 93

    In finding'the Respondent's bad faith in failing to claim- the letter, the Trial Examiner imputed to the Respondent Pence's knowledge of the contents of the letter and of the Union's majority status. The Respondent attacks this finding of the Trial Examiner in its motion to remand 4 We find it unnecessary to predicate our finding of a violation based upon Hengen's failure to call for the letter in view of the fact that the Union's attorney made a clear telephonic request for recognition to Hengen on July 3, 1959. Thereafter, the Respondent engaged in a course of conduct indicative of a bad-faith approach to its duty and obligation to meet and bargain with the Union, as found by the Trial Examiner. We find, therefore, that the Respondent violated Section 8(a) (5) of the Act on and after July 3, 1959.

    ORDER

    Upon the basis of the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent,

    Northern Virginia Steel Corporation, Springfield, Virginia, its officers, agents, successors, and assigns, shall:

  2. Cease and desist from :

    (

    1. Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other conditions of employment, with Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representative of its 'employees in an appropriate unit of production, maintenance, and warehousing employees, exclusive of professional, office, clerical, and custodial employees, guards, and supervisors as defined in the Act.

    (b) Discouraging membership in Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization, of its employees, by discharging employees or refusing to reinstate them, or in any other manner discriminating against them in 'regard to their hire or tenure of employment or any other term or condition of employment.

    (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named or any 4 The substance of the Respondent's motion and Pence's supporting affidavit is that while he had knowledge of the concerted activities in the plant and the extent thereof, he -did not convey this knowledge to any other person in the management level of the Respondent and that the officers of the Respondent were not aware that the Union's certified letter contained a request for recognition Since we do not rely upon this letter In fixing the date of the violation , we do not find it necessary to consider the merits of ,Respondent' s motion, nor do we find it necessary to consider whether Pence's knowledge at that time is chargeable directly to the Respondent solely by virtue of his supervisory status. Consequently, the Respondent' s motion is dismissed.

    other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities.

  3. Take the following affirmative action which the Board finds will effectuate the policies of the Act :

    (

    1. Upon request, bargain collectively with Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representative of all employees in an appropriate unit, concerning rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement.

    (b) Offer E. B. Combs, Denver Colley, Preston N. Hippeard,

    Charles D. Lingafelt, and Arnold R. Taylor immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and make each of them whole for any loss of earnings suffered by reason of his discharge or discrimination against him, in the manner set forth in the section in the Intermediate Report entitled 'The Remedy.' (c) Upon their timely and unconditional application for reinstatement, offer to the unfair labor practice strikers listed below in this paragraph, immediate and full reinstatement to their former or substantially equivalent.positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any individual hired on or after July 3, 1959, or if employment is not available, place such employees on a preferential hiring list, in the manner set forth in the section of the Intermediate Report entitled 'The Remedy,' and make such employees whole for any loss of earnings suffered by reason of the Respondent's refusal or failure to reinstate them or to give them preferential hiring status as set forth in the section entitled 'The Remedy.' These unfair labor practice strikers are :

    1. C. Allison H. R. Hizer J. M. Patrick David Bohlman J. E. Jones T. D. Rutherford D. C. Connor T. R. Justice B. R. Sanders R. E. Devine A. D. Keesucker H. L. Scott P. C. Dotson Eugene Kelly Charles Sirovy T. L. Dotson J. C. Lyle J. C. Sliger Leroy Frazier James Mullins M. N. Tighe H. J. Halsey K. B. Mullins C. M. Williams M. S. Halsey A. J. Moses B. C. Bates S. J. Halsey H. S. Moses C. J. Halstead C. L. Northcutt (d) 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 amounts of backpay due and the rights of reinstatement under the terms of this Order.

      (e) Post at its plant at Springfield, Virginia, copies of the notice attached hereto marked 'Appendix.'...

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