Before MAJOR, KERNER, and MINTON, Circuit Judges.
The petitioner, American Steel Foundries, seeks the review of an order of the National Labor Relations Board. The Board found that the petitioner had violated Sections 8(1) and (3) of the National Labor Relations Act*fn1 in the discharge of two supervisory personnel, Tamburo and Nansen, because of their activities in and about the organization and support of a chapter of the Foreman's Association of America, an unaffiliated union for supervisory personnel only. The usual order to cease and desist was entered by the Board, and the petitioner was order further to offer Tamburo and Nansen restoration to their former positions and to make them whole for the loss of any pay they suffered because of their discharge. The Board has asked enforcement of its order.
Two questions are presented. First, since Tamburo and Nansen are supervisory personnel, are they "employees" within the meaning of the Act and entitled to the protection of the Act? Secondly, if they are "employees" entitled to such protection, is there substantial evidence in the record to support the Board's findings that they were discharged because of their union membership and activities? We answer both questions in the affirmative.
Section 2 of the Act, (49 Stat. 449, 450, 29 U.S.C.A. 152) defines "employer" and "employee." The material parts of the Section provide as follows:
"When used in this Act - * * *
"(2) The term 'employer' includes any person acting in the interest of an employer, directly or indirectly * * *
"(3) The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer * * *."
At the time of the discharges, Tamburo was a foreman in the chipping department; Nansen was chief departmental clerk in the timekeeping department, immediately under the works auditor, McKnight. Neither was policy making personnel, nor had either any authority to hire or fire. They saw to it that orders from policy makers above them were carried out. They were both very low in the hierarchy of supervisory personnel.
The petitioner argues that since Tamburo and Nansen were supervisory personnel, they, in the terms of Section 2(2) of the statute, acted in the interest of the employer and were by the definition of the statute to be considered as in the employer status and could not be employees. This proves too much. Every person in the petitioner's employ acts in the interest of the employer. The act of the lowliest employee if done in the course of his employment may bind the employer. We think the statute meant that only the personnel that acted in the interest of the employer in matters envisaged by the Act would be considered to be in the employer status. Whenever a supervisory worker, whether high or low in the managerial hierarchy, acts in the interests of the employer, that is, carries out the employer's known policy toward the organizational activities of its workers, as for instance in opposition to unionization in general or in favor of a company union, such supervisory worker may take on the complexion of his employer. International Association of Machinists v. National Labor Relations Board, 311 U.S. 72, 80, 81, 61, S. Ct. 83, 85 L. Ed. 50; H. J. Heinz Co. v. National Labor Relations Board, 311 U.S. 514, 520, 61 S. Ct. 320, 85 L. Ed. 309; R. R. Donnelley Co. v. National Labor Relations Board, 7 Cir., 156 F.2d 416, 420. Such conduct of a supervisory worker does not mean that he has lost his status as an employee. It means only that the conquences of his acts may be visited upon his employer, and in that sense only does such worker occupy an employer status. The statute defining an "employee" is broad enough to cover every type of personnel, supervisory or otherwise. The statute does not limit the term. We know of no case, and none has been cited, where it has been held that supervisory personnel are not employees within the meaning of the Act and not entitled to all of the benefits therein conferred upon an employee.
In the very recent case of National Labor Relations Board v. Packard Motor Car Co., 157 F.2d 80, the Sixth Circuit held that foremen, higher in the hierarchy of supervisory personnel than the parties in the instant cause, were employees within the meaning of and entitled to the protection of the Act. Judge Allen, speaking for the court, reviewed the authorities and concluded (157 F.2d at page 85):
"* * * that the foreman, although he is part of the front line of management in his obligation to get out the work, to negotiate grievances and to perform the manifold responsibilities heretofore described more fully, in his relationship to his employer with reference to his own wages and conditions of labor is an employee, entitled to the benefits of section 157."
We accept the able opinion of Judge Allen and the Sixth Circuit and hold that Tamburo and Nansen, although foremen, were employees within the meaning of the Act and entitled to the protection thereof.
As to the second question: Is there substantial evidence that Tamburo and Nansen were fired because of their ...