NLRB v. Schill Steel Products, Inc.

• Decision Date: 11 January 1965
• Docket Number: No. 21110.,21110.
• Citation: 340 F.2d 568
• Parties: NATIONAL LABOR RELATIONS BOARD, Appellant, v. SCHILL STEEL PRODUCTS, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

340 F.2d 568 (1965)

NATIONAL LABOR RELATIONS BOARD, Appellant, v. SCHILL STEEL PRODUCTS, INC., Appellee.

No. 21110.

United States Court of Appeals Fifth Circuit.

January 11, 1965.

Lawrence Gold, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Arnold Ordman, Gen. Counsel, Elliott Moore, Robert A. Armstrong, Attys., N. L. R. B., Washington, D. C., for appellant.

Henry L. Scott, Houston, Tex., Trotter, Childs, Fortenbach & McClure, Houston, Tex., of counsel, for appellee.

Before WISDOM and GEWIN, Circuit Judges, and HANNAY, District Judge.

WISDOM, Circuit Judge:

The National Labor Relations Board seeks enforcement of two orders against the respondent, Schill Steel Products, Inc. These orders are based on two Board decisions holding that Schill: (1) violated Section 8(a) (1) of the National Labor Relations Act by improper interrogation of employees and by making threats and promising benefits during a union organizational drive; (2) violated Sections 8(a) (3) and (1) by discriminatorily discharging two men, Wilburn Brown and Columbus Caldwell; (3) violated Sections 8(a) (5) and (1) by refusing to bargain with the certified representatives of its employees. We grant enforcement of both orders.

Schill Steel Products, Inc., a Texas corporation engaged in the distribution of steel and metal products, maintains its principal office and warehouse in Houston, Texas; branch warehouses in Dallas and Odessa, Texas, and in Tulsa, Oklahoma. At its Houston warehouse the Company employs about fifty men, including a warehouse foreman, two supervisors, and four so-called "bay leadermen". The warehouse is divided into four interconnecting bays and a shear department. Each bay handles a different type of steel.

In May 1962 some of the Company's Houston employees were collaborating with the United Steelworkers to organize a union at the Houston warehouse. May 21, the Union petitioned the Board for certification. The Union forwarded a copy of the petition to the Company with a letter informing it that the Union represented a majority of the employees in the Houston warehouse and requesting recognition and bargaining. During the second week in June, warehouse foreman Sanders discharged Columbus Caldwell and Wilburn Brown; both actively supported the Union.

July 13, 1962, the Board's regional director ordered an election at the Houston warehouse. The Company filed a motion for reconsideration, on the ground that the collective bargaining unit should have been company-wide, and not confined to the Houston plant. The regional director denied the Company's motion. The Board, acting through a single member, denied the Company's petition for review. In the ensuing election, the Union received a majority vote and was certified August 31. Shortly after the election, following the respondent's refusal of the Union's request for wage and other information, the Union filed a charge alleging that the Company would not recognize it as the duly certified bargaining representative of the Houston workers, in violation of Section 8(a) (5) of the National Labor Relations Act. December 13, 1962, the Board, five members participating, issued a "Ruling on Reconsideration", affirming the action of the regional director in ordering an election limited to the Houston warehouse. The Company persisted in its refusal to bargain with the Union, and granted two unilateral wage increases in February and March 1963. From March 11, 1963, to April 4, 1963, the employees in the certified unit engaged in a strike, called because the Company refused to recognize the Union.

Meanwhile, the Board, August 1, 1962, had issued a complaint based on the Union's charge that Columbus Caldwell had been discharged for union activity and that the Company had interfered with its employees in the exercise of their rights under Section 7 of the Act. The trial examiner, finding for the Union, recommended that the Company cease and desist from the unfair labor practices found, and that it reinstate Caldwell, making him whole for any losses suffered. In a decision and order dated February 8, 1963, the Board upheld the findings and recommendations of the examiner. May 27, 1963, after a hearing on two other consolidated complaints based on charges and amended charges by the Union, the trial examiner recommended that the Company stop interfering with its employees in the exercise of their right to engage in union activity; that it reinstate and make whole Wilburn Brown; that it reinstate, on application, and make whole all workers who had engaged in the strike and not been rehired; and that it recognize and bargain collectively with the certified unit. The Board, in a decision and order dated August 20, 1963, again adopted all findings and recommendations of the trial examiner. 140 NLRB 1164; 144 NLRB No. 11. The Company appeals from both decisions.

I.

Substantial evidence supports the Board's finding that the Company violated Section 8(a) (1) of the Act by interrogating employees concerning their attitude toward the Union, by threatening employees with loss of benefits if they selected the Union to represent them, and by promising benefits during the organizational campaign.

We are not faced with the all too familiar task of trying to divine at two degrees removed the coercive force of mere interrogation in a more or less hostile atmosphere: specific and literal threats of reprisal came from the respondent's top executives. Three of the Company's employees, Henry Wilson, Henry Johnson, and Predo Braden, testified that leaderman Lovett arranged a meeting between them and John and Richard Schill, the president and vice-president of the Company. At this meeting vice-president Richard Schill said that if the Union came in he would cut out the Christmas bonus and trust fund. President John Schill recalled the meeting, and admitted alluding to instances in which neighboring companies had eliminated pension plans as a result of unionization by their employees; Richard Schill did not testify at the hearing. The respondent's brief is eloquently silent on this incident.

Leaderman Alsobrooks testified that he, leadermen Griffin and Brownschidel, and supervisor Miller, attended a meeting where warehouse foreman Sanders told them that they were to report anyone seen talking about the Union. There was testimony that Alsobrooks and Brownschidel had asked Caldwell, Brown, and certain other employees about their feelings toward the Union. Employee Wilburn Brown testified that leaderman Lovett told him that John Schill, the Company's president, intended discharging the Union leaders when he found out who they were. Another employee testified that Lovett had made similar threatening statements to him. There is no doubt that such conduct interferes with rights guaranteed under Section 7 of the Act and violates Section 8(a) (1) of the Act.¹

Respondent argues that the transgressing leadermen either were not supervisors within the meaning of Section 2(11) of the Act² or, at worst, were only "minor supervisory personnel". In either event, says the Company, it is not responsible for their conduct. This Court has held that the mere fact that an employee exercises some degree of administrative discretion does not make him a supervisor whose actions are attributable to management. Poultry Enterprises, Inc. v. N. L. R. B., 5 Cir.1954, 216 F.2d 798. Whether an employee shares in the power of management must be determined on the facts of each case.

There is ample testimony as to the duties and powers of the bay leadermen. Foreman Sanders admitted that the leadermen were more capable, more experienced, and higher paid than ordinary workers. Leadermen had authority to assign employees within each bay to the jobs for which the leadermen considered them best suited, and to direct employees to work on certain orders ahead of others. Sometimes the leadermen helped and instructed the regular employees. The leadermen gave the ordinary workers permission to take time off and to change their working hours, checked their work, and initialed timecards of employees who had forgotten to punch the clock. There were no intermediate supervisors between the plant foreman and the leadermen. In a list of employees made up by the Company and sent to the Board, each of the leadermen was described as a "Foreman". Leaderman Brownschidel, who had been supervisor of the night crew before becoming leaderman of bay four, testified that the change in position had not affected either his salary or his authority. On one occasion an employee was fired on Brownschidel's recommendation. Several employees testified that plant foreman Sanders had told them that leaderman Alsobrooks was their "foreman" or "boss". The trial examiner found that one employee had been hired solely on the recommendation of leaderman Lovett. Not least important, the Company chose the leadermen as its agents to keep tabs on union activity. We hold that the record supports the finding that the leadermen are supervisors, for whose conduct management must be held responsible. Cf. N. L. R. B. v. Arkansas-Louisiana Gas Company, 8 Cir.1964, 333 F.2d 790, 795-796; N. L. R. B. v. Southern Airways Company, 5 Cir.1961, 290 F.2d 519.

II.

A. Wilburn Brown played an active rule in organizing the Union. The Company discharged him June 11, 1962. Company officials said that he was insubordinate and lazy; besides, economic necessity required a reduction in force. There is no doubt that the record supports the Board's holding that Brown was not discharged because of insubordination or laziness. The explanation for Brown's discharge on which the Company chiefly relies is that Brown was simply one of several employees laid off for economic reasons.

President Schill testified that during May 1962 he attended a meeting of the Steel Service Center Institute where he learned that his Company's costs were higher than those prevailing...