Major, Senior Circuit Judge, and Cummings and Stevens, Circuit Judges.
This case is here on application of the National Labor Relations Board (Board), pursuant to Section 10(e) of the National Labor Relations Act as amended, 29 U.S.C.A. Sec. 151 et seq. (the Act), for enforcement of its order against respondent, Brake Parts Company (the company or employer), issued August 28, 1969. The Board's decision and order are reported at 178 NLRB No. 43. Respondent requests that enforcement be denied.
The company, with a plant in McHenry, Illinois, is engaged in the manufacture of automotive replacement parts and is the wholly owned subsidiary of Echlin Manufacturing Company, a Connecticut corporation. At the time involved in this controversy, the company had about 160 employees who worked on shifts 1, 2 and 3. Most of the dispute revolves around the latter, the night shift, on which some 18 or 20 persons were employed.
United Automobile Workers of America, AFL-CIO (the union) filed a petition for a representation election on May 8, 1968, in which the company acquiesced. Thereupon, the parties entered into a stipulation for certification upon consent election which was approved by the regional director on May 24, 1968. The order of approval provided that the following persons were entitled to vote, "All production and maintenance employees at the Employer's McHenry Illinois Plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act." On June 20, 1968, a charge was filed with the Board by the union, on which the Board's complaint issued July 31, 1968. It charged the company with violating the Act in some twenty instances.
The Board-supervised election was conducted on June 21, 1968, with the result that a majority of the employees rejected the union. Of the unchallenged ballots, 100 votes were cast against the union and 60 for it. The union filed timely objection to conduct affecting the results of the election, alleging many of the unfair labor practices which had been alleged in the original complaint. Hearing on such objections was consolidated with that in the instant unfair labor practice case. The trial examiner refused to set aside the election, which refusal was approved by the Board.
The Board on brief states the contested issues:
"1. Whether substantial evidence on the record as a whole supports the Board's finding that the Company interfered with, coerced and restrained its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.
"2. Whether substantial evidence on the record as a whole supports the Board's finding that the Company discriminatorily discharged employee Willis Butcher, in violation of Section 8(a)(3) and (1) of the Act.
"3. Whether substantial evidence on the record as a whole supports the Board's finding that the Company discriminatorily rejected Sharon Hosch's application for employment because the Union had filed charges on her behalf, in violation of Section 8(a)(1), (3) and (4) of the Act."
The Board's issue No. 1 as to whether the company "interfered with, coerced and restrained its employees" is dependent almost entirely upon the subsidiary issue as to whether Harold Wardell, an employee on the night shift, was a supervisor within the meaning of Section 2(11) of the Act, whether the company was responsible for his statements and conduct, and whether Caruk, the company's personnel manager, interrogated employee Erickson, in violation of Section 8(a)(1) of the Act. The trial examiner decided these issues adversely to the company, and the Board approved.
As to the Board's issue No. 2, the trial examiner found that the company did not discriminatorily discharge employee Butcher. The Board by a 2 to 1 decision rejected the finding of the examiner and found to the contrary.
With respect to the Board's issue No. 3, both the trial examiner and the Board concluded that the company violated Section 8(a)(1), (3), and (4) of the Act by not re -employing Sharon Hosch.
As a prelude to our discussion of the issues for decision, we think it is of some relevancy to describe briefly the precautionary measures which the company employed to assure compliance with the law by all authorized to speak for management and to give recognition to the rights of the employees.
Regular periodic meetings were held which were attended by all of the company's supervisors. During the union campaign a series of special meetings were held with the supervisors. At those meetings the supervisors were informed of the companys' position with regard to the union and what their behaviour should be during the campaign. The company's labor attorney attended the meetings and pointed out what actions could be legally taken as well as those which were prohibited during the campaign. Additionally, a brochure containing 10 to 12 pages of instructions regarding lawful and unlawful actions during the union campaign was issued to each of the supervisors at a special meeting. The contents of the brochure were discussed with and explained to the supervisors.
On May 2, 1968, Donald P. Miller, vice president of the company, read to three different groups of employees a statement which set forth the reasons for the company's opposition to the union and outlined in detail the legal rights of the company and its employees. This letter was prepared with the aid of a lawyer versed in labor law, and was read and discussed at a meeting of the supervisors before it was read to the employees. This letter was charged to constitute an unfair labor practice, but this charge was denied by the trial examiner, which denial was approved by the Board.
On June 7, 1968, the company sent to its employees a letter which again recited reasons why it thought the employees would be better off without a union. The union in its objections to the election also charged that this letter was an unfair labor practice. This charge was denied by the trial examiner, which denial was approved by the Board.
The company was charged with promising economic benefits to its employees as an inducement for them to reject the union. The only support for this charge was the testimony of Dorothy Hanson who testified as to a conversation with Frederic Mancheski, president of respondent's parent corporation, and Miller, its vice president. As the examiner points out, Miller refused to talk to her about the subject, explaining that his remarks might be construed to be an unfair labor practice. The examiner rejected the testimony of Hanson as insufficient, which finding was approved by the Board.
We now consider the issue as to whether Harold Wardell was a company supervisor and, if so, whether it was responsible for his conduct. The examiner found against the company on this issue, which finding was approved by the Board. Section 2(11) of the Act (29 U.S.C.A. Sec. 152(11)) provides:
"The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."
The Board states, "This section must be read in the disjunctive; possession of any one of the enumerated powers establishes supervisory status." The Board, however, like the trial examiner, failed to point out which of the enumerated powers was possessed by Wardell to establish his supervisory status.
We do not take issue with and, therefore, need not cite or discuss numerous cases called to our attention by the Board wherein it has been held that the Board has the primary function as a fact finder in making the determination under discussion and that its determination is to be accepted if it has "warrant in the record" and a reasonable basis in law.
Whether there is such warrant in the record is our problem. The trial examiner on another phase of the case stated in a footnote, "Although Wardell is a supervisor within the meaning of the Act, he was not generally treated as a part of management. He was paid on an hourly basis, unlike the foremen and other recognized supervisors, and did not attend the meetings of the supervisors." It can be added that he punched the clock when he came to work and when he departed, as did all other employees.
We take the findings on this issue as stated in the Board's brief. Employees in the rubber trim department considered Wardell, group leader and set-up man in the department, their immediate supervisor.*fn1 Although he worked in dungarees, was paid on an hourly basis, and punched a timeclock, his work differed significantly from the other employees in the rubber trim department. He had his own desk, assigned employees to machines other than those which they normally operated when the machines broke down or when the production schedule so required, and directed employees to fabricate certain automotive parts to meet the production schedule.
Wardell also exercised supervisory authority over the working hours of employees. Thus, on one occasion employee Hanson was given permission by Wardell to leave the plant upon reporting that she felt ill.*fn2 On another occasion, Hocin and two other employees were let off work early by Wardell on a particularly hot day.*fn3
Wardell was responsible for preparing production reports for the company and kept attendance records as well, although he was not specifically required to perform this latter task. He was also responsible for rating the employees' work to determine their qualifications for the company's production bonus. He filled out forms rating the employee's job performance in a number of areas as "normal," "above normal" or "below normal," and points added to the production record as a result were used in determining an employee's bonus. On two occasions, he showed employee Hocin the scores he had given her on the questionnaire and on another occasion he told employee Hanson not to expect a raise, because of her performance. His evaluations were turned over to Henderlong, supervisor of the company's rubber area, for final approval.
Henderlong testified that Wardell functioned as a group leader and set-up man in the rubber trim department. He testified that Wardell worked under his supervision and that Wardell did not have the authority to hire, fire, transfer employees from one department to another, suspend, lay off or recall, promote or demote, reward or ...