Jesse Jones Sausage Co.

370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the exclusive representative of all employees in the appropriate bargaining unit described below with 'respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agree- ment any understanding reached. The bargaining unit is: All production and maintenance employees at our Wilmington , Massa- chusetts, plant, including truckdrivers and mechanics , but excluding office clerical personnel and supervisors as defined in the Act. MICHAEL BENEVENTO AND JOHN BENEVENTO, D/B/A M . BENEVENTO SAND & GRAVEL CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Jesse Jones Sausage Company and Jones Abattoir Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 11-CA-1515. May 2, 1961 DECISION AND ORDER On October 6, 1960, Trial Examiner Lee J. Best issued his Inter- mediate Report in this proceeding, finding that the Respondent had engaged 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. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel' [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, and the ex- ceptions and brief, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner with the following additions? In amplification of the Trial Examiner's concluding findings, we note that Plant Superintendent Lindner was not questioned concern- ing Annie G. Rogers' testimony that she was told by him-at the time of her layoff in late October 1958-that she would be recalled when work picked up, and that similar statements by Lindner and Business 1 The Respondent's request for oral argument is denied inasmuch as the positions of the parties are adequately set forth in the record and brief. 9 We adopt pro forma the Trial Examiner's finding that Leadman Melvin Davis Is not a supervisor within the meaning of the Act , inasmuch as no exceptions have been filed to it. 131 NLRB No. 46. JESSE JONES SAUSAGE CO. AND JONES ABATTOIR CO. 371 Manager Jones in December 1958 to the other seven employees laid off then were corroborated by testimony of employee Carl Johns. We find no merit in Respondent's contention in its brief that these eight laid-off employees could have had no reasonable expectation of reemployment because the record shows that no employment was available. Clearly 5-none of whom attempted to vote in the election of the total group of 16 laid off in late 1958-were rehired in the spring of 1959, and 7 new employees were hired in the summer of 1959. We note that Respondent does not contend that any of the eight laid- off employees here involved was an unsatisfactory employee or un- qualified for the available work, nor did it undertake to prove that their seniority put them at the bottom of the layoff list. Obviously 11 of the group of 16 were ignored in favor of hiring 7 new employees without adequate explanation on this record. Nor does this record show that the five who were rehired had more seniority, "and/or more capability" as Respondent contends, than the others laid off. We note also that at least three of this group of eight whose votes the Re- spondent challenged-Avery, Muldrow, and Tomlinson-had previ- ously been laid off and recalled by Respondent. See Chester Cable Corp., 123 NLRB 615, 616. In the circumstances it is clear that the Respondent, who alone has the records to shed light upon employ- ment expectancy as of any particular time, has failed to show in this case that these eight employees lacked such expectancy at the time in question, while the credible testimony establishes that they did have such expectancy because they were told they would be rehired when business picked up, as it ordinarily did each spring. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Jesse Jones Sausage Company and Jones Abattoir Company, Garner, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, as the cer- tified exclusive bargaining representative of all production and main- tenance employees in the appropriate unit hereinafter set forth. (b) Interfering in any manner with the efforts of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, to bargain collectively on behalf of the employees in the said ap- propriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain collectively with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described herein, with respect to wages, rates of pay, hours of em- ployment, or other terms or conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees of the Garner Operations, including the head chopper, head grinder, smokehouseman, garage employees, and the employees who work in the plant and drive trucks, and excluding office clerical em- ployees, driver-salesmen, professional employees, guards, and super- visors as defined in the Act. (b) Post at its plant in Garner, North Carolina, copies of the notice -attached to the Intermediate Report marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after having been duly signed by an, author- ized representative of the Respondent, be posted by the Respondent immediately upon the receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Eleventh Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. a This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner at Raleigh, North Carolina, on June 7 and 8, 1960, pursuant to an order of the National Labor Relations Board, as follows: ORDER REMANDING PROCEEDING TO REGIONAL DIRECTOR FOR HEARING On October 16, 1959, Trial Examiner James A. Shaw issued a Judgement on the Pleadings and Recommendations in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it take certain affirmative action to remedy such unfair labor prac- tices. On the same day the case was transferred to the Board. In the Judgement on the Pleadings the Trial Examiner granted the General Counsel's motion for such findings and remedy, and denied the Respondent's request for a hearing at which to produce testimony relating to the issues raised by its answer to the com- plaint herein. On November 2, 1959, the Respondent filed exceptions to the Trial Examiner's Judgement on the Pleadings. The Board has duly considered the General Counsel's motion, the Respond- ent's "Objections to Motion," the complaint and answer herein, and the entire JESSE JONES SAUSAGE CO. AND JONES ABATTOIR CO. 373 record in the case, and finds that litigable issues are presented which should be resolved after a hearing before a trial examiner. Therefore, IT IS HEREBY ORDERED that the Judgement on the Pleadings and Recommen- dations be, and it hereby is, vacated; and IT IS FURTHER ORDERED that a hearing be held before a duly designated trial examiner for the purpose of taking testimony with respect to the issues pre- sented by the pleadings, including the Respondent's exceptions to the Report on. Challenges and Objections which were overruled in the representation proceed- ing, with the result that certain of the challenged ballots were counted and the Union was certified as the exclusive bargaining representative in the unit found appropriate by the Board; and IT IS FURTHER ORDERED that the present proceeding be, and it hereby is, re- manded to the Regional Director for the 11th Region for the purpose of arrang- ing such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof; and IT IS FURTHER ORDERED that, upon conclusion of the hearing, the Trial Ex- aminer shall prepare and serve upon the parties an Intermediate Report contain- ing findings of fact, conclusions of law and recommendations based upon the evidence received pursuant to the provisions of this Order, and that, following service of such Intermediate Report upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. Dated, Washington, D.C , April 19, 1960. By direction of the Board: OGDEN W. FIELDS, Executive Secretary. The complaint filed by the General Counsel of the National Labor Relations Board, herein separately designated as General, Counsel and the Board, alleges in substance that Jesse Jones Sausage Company and Jones Abattoir Company, jointly called the Respondent, did, on July 13, 1959, and at all times thereafter, in violation of Section 8 (a)( 1 ) and (5) of the Act, refuse to bargain in good faith with Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union or Charging Party, as the duly certified representative of employees in the unit found appropriate by the Board, as follows: THE APPROPRIATE UNIT All production and maintenance employees of the Respondent at the Garner Operations, including the head chopper, head grinder, smokehouseman, garage employees, and the employees who work in the plant and drive trucks, but ex- cluding office clerical employees, driver -salesmen, professional employees, guards, and supervisors as defined in the Act. The Respondent in due course filed an answer to the complaint admitting in substance the factual allegations thereof, but denied all allegations of unfair labor practices. As an affirmative defense the Respondent alleges in substance that it is not required by law to bargain with the Union because the Acting Regional Di- rector of the Eleventh Region made an ex parte investigation without allowing the Respondent to be heard with respect to issues raised in its exceptions and objections, and filed his report on challenges and objections, which was adopted by the Board, recommending (1) that the challenges to ballots of eight employees who were not on the eligibility list because laid off between October 23 and December 5, 1958, be overruled and their votes counted because they had a " reasonable expectancy of reemployment in the reasonably near future"; (2) that the challenges to the ballots of W. A. Smith and Melvin Davis be sustained because investigation showed that they were supervisors as defined in the Act; and (3) that the challenge to ballot of Ruffin Yancey be sustained because investigation showed that his duties included guard duties. Thereupon, the Acting Regional Director on May 29, 1959 , issued a revised tally of ballots and certified that as a result of counting the challenged ballots and adding them to the original tally of ballots executed on January 6, 1959, plus one other ballot theretofore considered void, the petitioning Union had received a ma- jority of 42 to 36 of the valid votes counted in the final tally; whereas, the original tally had shown 34 votes for and 35 votes against the participating labor organi- zation. In due course the Respondent excepted to the counting of the challenged ballots; and on June 4. 1959, the Acting Regional Director on behalf of the Board issued a certification of representative certifying that the Union had been designated and selected by a majority of employees in the appropriate unit as their representative for the purposes of collective bargaining pursuant to Section 9(a) of the Act, as amended. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing before the Trial Examiner, all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses, to introduce evidence pertinent to the issues involved, to argue orally upon the record, and to file written briefs and proposed findings of fact and conclusions of law. Oral argument made upon the record and written briefs filed by counsel for the General Counsel and the Respondent have been given due consideration. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT Jesse Jones Sausage Company and Jones Abattoir Company is an integrated corpo- ration organized and existing under the laws of the State of North Carolina, main- taining its principal office and place of business at Garner, North Carolina, herein called the Garner Operations, where it is engaged in the slaughtering of cattle and hogs and the processing of meat products. Respondent annually purchases outside said State cattle and hogs valued in excess of $500,000, which are shipped in inter- state commerce to the Garner Operations. I find, therefore, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Overall management of the Garner plant is vested in Plant Manager H. H. Bradley, and the overall supervision of operations therein is vested in Plant Super- intendent F. H. Lindner. Individual operating departments function under the direction of leadmen or working foremen directly responsible or accountable to the plant superintendent , such as (1) the abattoir under the direction of W. A. Smith; (2) the sausage kitchen under the direction of Melvin Davis as "head chopper"; (3)the frank packing room under the direction of Hoover Hargis; and (4) the bologna packing room under the direction of David Jones. Other minor operations such as the grinder room, smokehouse, etc., are directed by leadmen exercising varied degrees of control and supervision. All are hourly paid employees except Melvin Davis, who is paid a weekly salary. H THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, existing in whole or in part for the purpose of representing employees in dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work. III. THE UNFAIR LABOR PRACTICES A. Historical background In Case No. 11-RC-1175 the Union filed a representation petition on September 18, 1958, with respect to which a hearing was conducted on November 3, 1958; and on December 16, 1958, the Board issued its Decision and Direction of Election (123 NLRB 1279). In the meantime the Respondent laid off 16 employees purportedly for lack of work, including Annie G. Rogers on October 23, 1958, Mary Lois Coffey on December 2, 1958, and Wilma L. Avery, Mary K. Brown, Almetta Z. Davis, Carl Johns, Janie Mae Muldrow, and Bessie Tomlinson on December 5, 1958. At the election on January 6, 1959, the ballots of the foregoing eight employees were challenged by the Board agent because their names did not appear on the eligibility list. The ballots of W. A. Smith and Melvin Davis were challenged by the Petitioner on the ground that they are supervisors within the meaning of Section 2(11) of the Act. The ballot of Ruffin Yancey was challenged on the ground that he is a guard within the meaning of the limitation contained in proviso (3) of Section 9(b) of the Act. B. The issues "The issues presented by the pleadings, including the Respondent's exceptions to the Report on Challenges and Objections, which were overruled in the representation proceeding (Case No. 11-RC-1175), with the result that certain of the challenged ballots were counted and the Union was certified as the exclusive bargaining repre- sentative in the unit found appropriate by the Board" pertain exclusively to action taken by the Acting Regional Director and the Board with respect to the foregoing challenged ballots, because it is admitted that Respondent is refusing to bargain with the certified Union. JESSE JONES SAUSAGE CO. AND JONES ABATTOIR CO. 375 1. Challenged ballots of eight laid-off employees The first and perhaps controlling issue is whether the challenged ballots of the eight laid-off employees named above should be counted for the reason that they had an expectancy of reemployment within the reasonably near future at the time of the election on January 6, 1959. Pertinent to this issue, the General Counsel offered testimony as follows: Annie G. Rogers was first employed by the Respondent in 1950, and worked until October 1954. She was, rehired on or about September 1, 1958. Approximately 7 weeks later she was laid off for lack of work on or about October 23, 1958, along with Willie Mae Virginia Hinton and Doris Wright, and was told by Plant Superintendent Lindner that they would be recalled when the work picked up. Prior to the layoff, Rogers signed a union card. Willie Mae Virginia Hinton was rehired on April 2, 1959, but Annie G. Rogers has never been recalled to work. At the election on January 6, 1959, her ballot was challenged. Mary Lois Coffey was first employed by the Respondent in September 1958, and worked in the sausage kitchen (packing and skinning rooms) under the direction of Melvin Davis, folding bags and packaging the sausage. She received instructions concerning the work from both Davis and Plant Superintendent Lindner. On or about December 2, 1958, Plant Superintendent Lindner notified her that she was being laid off for lack of work, but would be rehired when business picked up. Upon receipt of her layoff slip, Business Manager Earl T. Jones told her to come to a Christmas party for employees. At Christmas 1958 she received from Jones a gift package of sausage along with all other employees. Prior to the election of January 6, 1959, she signed -a union card, and at the election cast a challenged ballot. This employee has never been recalled to work. Wilma L. Avery was first employed by the Respondent in August 1949, quit on October 6, 1954, and was rehired on October 7, 1956. In November 1956 she was again laid off, but was rehired on April 10, 1957, and continued thereafter to work for Respondent until finally laid off on December 5, 1958, for lack of work. From her credible testimony it appears that on December 4, 1958, Leadman Hoover Hargis .came into the frank packing room and announced that four employees were to be laid off for lack of work. Next morning Business Manager Jones came in and requested that all,recipients of layoff slips come to his office. Upon arrival in the -office, Mr Jones expressed regret for laying them off,_invited them to attend the annual Christmas party to be given for employees, and told them that he would call them back to work as soon as business picked up about March or April. Thereafter, Avery attended the Christmas party, and also received the customary Christmas bonus paid to employees based upon length of employment with the Respondent. Prior to her layoff she signed a union card and attempted to vote in the election on January 6, 1959, but her ballot was challenged. Mary K. Brown was first employed by the Respondent in 1955, but went on ma- ternity leave about December 31, 1956. She returned to work with Respondent on 'September 10, 1957. Thereafter she worked in the sausage kitchen under the direc- tion of Melvin Davis until laid off for lack of work on or about December 5, 1958. According to her credible testimony, Business Manager Jones came into the bologna packing room on December 4, 1958, announced that he was laying off some of the latest hired employees to create more work for those retained, and invited those receiving layoff slips to come to his office. Upon arrival at the office on December 5, 1958, Mr. Jones expressed regret that it was necessary to lay them off for lack of work, and stated that he would call them back to work when business picked up, probably in March or April and would also notify them to attend the Christmas party for employees. Prior to the layoff she signed a union card and attempted to vote at the election on January 6, 1959, but her ballot was challenged. At Christmas 1958 she received the customary bonus paid to employees based upon length of service. Almetta Z Davis was first employed by the Respondent in 1955, and was there- after laid off for the first time in November 1956. At Christmas 1956 she received the annual bonus paid to employees for continuous employment in excess of 6 months. She returned to work in the spring of 1957, but worked less than 6 months and did not receive a bonus at Christmas 1957. She was rehired by the Respondent on August 13, 1958, and was finally laid off for lack of work on December 5, 1958. This witness credibly testified that on December 4, 1958, Business Manager Jones came into the sausage kitchen and announced that he was going to lay off some of the employees latest hired. She did not report for work on December 5, 1958, by .reason of a dental appointment, but Melvin Davis came to her house on the following day, told her not to think hard of him because he had nothing to do with the layoff, and promised to call her back as soon as work picked up. Prior to this final layoff 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she signed a union card and tried to vote at the election on January 6, 1959, but her ballot was challenged . She attended the party for employees at Christmas 1958, but did not qualify for the annual bonus that year. Carl Johns (age 19 ) was first employed by the Respondent in August or September 1958, and was thereafter laid off on December 5, 1958, for lack of work . He worked in the sausage kitchen under the direction of Melvis Davis and Plant Superintendent Lindner. His duties consisted primarily of waiting on the chopper and washing pots, pans, and tubs . Prior to the layoff, he signed a union card and attempted to vote at the election on January 6, 1959, but his ballot was challenged . This employee credibly testified that both Plant Superintendent Lindner and Business Manager Jones came to the sausage kitchen on December 4, 1958, and announced that some of the employees were going to be laid off. Jones stated that business was slack, and that it was necessary to lay off some of the employees in order to provide full-time work for the older employees, and that those laid off might be put back to work in March or April. Jones also talked to him in his office , expressed regret that he was being laid off, and promised to rehire him as soon as business picked up about March or April. After being laid off he attended the Christimas party given for all employ- ees, but has never been recalled to work. Janie Mae Muldrow was first employed by the Respondent in October 1954. She was granted maternity leave in February 1956 by former Plant Superintendent Bag- well, and thereafter recalled to work in July 1956 . She was again granted maternity leave by Plant Superintendent Lindner in December 1957, and returned to work in May 1958. She first joined the Union in 1956. This witness credibly testified that in December 1958 both Plant Superintendent Lindner and Business Manager Jones came in and announced that two packers and two skinners would have to be laid off. After receiving a layoff slip on December 5, 1958, Mr. Jones talked to her, Bessie Tomlinson, Perline Tomlinson, Wilma Avery, and Gertrude Banks in his office, expressed regret that they were being laid off until business picked up, and said that they would be called back to work in April or May 1959. Prior to the layoff she signed a union card , and attempted to vote at the election on January 6, 1959, but her ballot was challenged. Bessie Tomlinson was first employed by the Respondent in October 1954. She was first laid off for lack of work in the latter part of 1956 , but was rehired approxi- mately 11/a years later in May 1958. This witness credibly testified that on December 4, 1958, Leadman. Hoover Hargis announced in the packing room that Business Manager Jones was laying off two skinners and two packers . The next day, December 5, 1958, layoff slips were received , and Jones personally expressed his regrets to those laid off, and promised to call them back to work about March or April when business picked up. He also promised to notify them when the Christmas party for all employ- ees would be held. She also received a bonus at Christmas time by reason of length of service. Prior to final layoff she signed a union card and thereafter attempted to vote in the election on January 6, 1959, but her ballot was challenged. Eugene Johns (employee ) credibly testified that he was at work in the sausage kitchen of Respondent on December 4 and 5 , 1958, and heard Business Manager Jones make a public statement to employees therein to the effect that work was getting slack, and that Respondent would have to lay off some of them , but when the work picked up they would be rehired. With respect to the eight challenged ballots, aforesaid , the Respondent offered testimony, as follows: Plant Manager H. H. Bradley testified in substance that 16 employees were per- manently terminated about December 1958 for lack of work and to cut down labor costs in the plant, consisting of 11 employees from the frank packing room, 2 from the bologna room , and 3 from the sausage kitchen (Almetta Davis, Carl Johns, and Jewel Willis ); that each year from Thanksgiving Day to the following spring is a neriod of declining business ; that of those laid off, Gertrude Banks, Willie Mae Virginia Hinton, Perline Tomlinson , and Bernice Upperman, were rehired to work in the frank packing room in April 1959 , and Jewel Willis was rehired to work in the sausage kitchen, and that in August 1959, 7 white girls were also hired to work in the frank packing room on a temporary basis to the end of the busy seacon , and in September Respondent transferred 3 of them to the fresh sausage kitchen on a permanent basis. The other four quit. This witness testified further that since the December 1958 layoff the Respondent has installed additional link- ing machines in the sausage kitchen where bologna, frankfurters , and luncheon meats are processed, and moved the fresh sausage operation into a separate room; that a vacuum packaeing line has been installed in one of the packing rooms; and that overhead rails with automatic lifts have been put in the frank sausage kitchen JESSE JONES SAUSAGE CO. AND JONES ABATTOIR CO. 377 to replace the use of shovels in handling the meat products, thereby reducing man- power requirements . Presently operating separate kitchens for processing frank- furters and fresh sausage , the Respondent is now employing two employees less than in 1958. Total production of 6,936,818 pounds of meat products in the year 1958 declined to 6,782,252 pounds in 1959. Business Manager Earl T. Jones testified in substance that when 16 employees were laid off about December 1958 , he told them they were being terminated for lack of work ( did not use the word "layoff" ), and did not tell them that they could expect reemployment in March or April 1959 . He told them that Respondent had too many employees , that it was necessary to terminate some of them according to seniority, and that he would recommend them for jobs elsewhere , if they would have their new employer to call him up. 2. Supervisory status of Melvin Davis The second issue herein pertains to the challenged ballot of Melvin Davis, who voted in the election of 1956 in Case No. 11-RC-834, but was challenged by the Petitioner in Case No. 11-RC-1175 at the election of January 6 , 1959, on the ground that he is a supervisor within the meaning of Section 2(11) of the Act. This employee is "the head chopper" specifically included in the appropriate unit and referred to by the Board in its Direction of Election (footnote 3) issued on May 7, 1956, as follows: The head chopper, head grinder, and smokehouse man, who work under the sausage kitchen foreman, exercise no independent judgment in their routine direction of employees. Contrary to the Petitioner 's contention, we find that they are not supervisors as defined in the Act. Accordingly, we have included them in the unit. Plant Superintendent F. H. Lindner credibly testified in substance that he has been superintendent of operations at Respondent 's plant since November 1957, that Melvin Davis is the chopper man in the sausage kitchen and is designated as a leadman to expedite production in his department , that upon reporting to work early each morning, Davis obtains from the plant office a work chart or produc- tion sheet previously prepared by the production supervisor as a guide for produc- tion employees in the performance of their work, and posts it under a glass cover in the laboratory room for the use of all concerned-therefrom, Davis determines and requisitions from the grinder room the meat required for production of frank- furters, sausage, etc., washes down the chopping machinery , and makes other preparations for work-thereafter, he initiates and controls production operations throughout the day by operating the chopping machine and directing the work of other employees in handling , emulsifying, seasoning, mixing, stuffing , processing, and delivering to the smokehouse finished products of frankfurters , luncheon meats, bologna, and sausage . It is the responsibility of the head chopper (Davis) to ex- pedite production by instructing and directing the work of other employees in the sausage kitchen , and make reports to the plant superintendent , but has no authority to discipline, hire, or fire employees.' Melvin Davis credibly testified in substance that some people call him head chopper and some call him chopper foreman; that in the absence of a superintendent for a period of 5 months, prior to the arrival of Plant Superintendent Lindner in November 1957, he worked directly under the supervision of Plant Manager Bradley; that during that period he exercised authority in hiring employees after first obtaining the approval of Bradley , but after Lindner came in as plant super- intendent and organized the department they told him he was just an ordinary worker, and that everything would be done through the plant superintendent; and that he signed a statement for the Board agent at the election on January 6, 1959, ,.when his ballot was challenged, but did not mean to say that he had full authority as foreman over the sausage department , because he does not and never has had such authority except through Bradley during the time there was no plant super- intendent. Davis further testified that his duties in the sausage kitchen are pres- ently ,the same as they have always been-to chop , mix, and season all of the meat for wieners and bologna, to pan it up, and roll it to the cooler. Each morning he receives a production list from the office, and is required to figure out how much meat is needed for the sausage kitchen to maintain the required production. Eugene Johns is his assistant chopper, and takes over these duties when Davis is absent, while other employees engage in stuffing , hanging, and loading the wieners, 'The testimony of Lindner was fully corroborated by that of Plant Manager Bradley 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' similar to a production line operation under the supervision of Plant Superinten-' dent Lindner. Eugene Johns (employee) credibly testified in substance that in January 1959 he was a helper to the head chopper (Melvin Davis ), and performed his duties when- ever Davis was absent; that he would report for work about 5 a.m., get the produc- tion sheet from the office, and write out necessary information therefrom for other employees to follow; and that then he would clean up the chopping machine and get everything ready to begin production by 6 a.m. As other machine operators came in, he would tell them what to run first and how operations were to be con- ducted. When the women employees came in about 7 a.m., he would try to obtain replacements for any absentees, and throughout the day make necessary changes in their places of work, corrections on timecards when anyone wanted to, leave the job, and at the end of the day turn in to management a report card show- ing the amount of meat processed. On such occasions he was custodian of keys to the medicine chest and storage room; would deliver paychecks to other em- ployees; approve and turn in written requests for vacations; and sometimes excuse employees from work for short periods of time during the day, but usually con- sulted the plant superintendent concerning such matters. Allison Sanders (employee) credibly testified in substance that on or about Monday, March 18, 1957, he was interviewed and hired by Melvin Davis to work in the sausage kitchen at the plant of Respondent, but was not told what his wages would be until Wednesday after starting to work. Thereafter, Davis delivered paychecks to employees from a little office now called "the lab room," which was equipped with desks, chairs, telephone, and instruments for testing meats by the quality control man (Wade Lewter). This witness further testified that in 1957 Bradley was acting as plant superintendent, but that after Lindner came in as plant superintendent a meeting of employees was called at which Business Manager Jones introduced Lindner and announced that he was the superintendent in charge. Thereafter, Plant Superintendent Lindner occupied the telephone equipped desk in- "the lab room," and employees dealt with both him and Melvin Davis. 3. Supervisory status of W. A. Smith The third issue pertains to the challenged ballot of W. A. Smith. From his own credible and uncontradicted testimony it appears that this man was originally hired by the Respondent as an hourly paid employee in the abattoir under the supervision of Foreman E. N. Perry to butcher animals and to bone and cut meat prior to delivery to the grinder room. He voted as a member of the appropriate unit at an election held in 1956, pursuant to the Decision and Direction of Elec- tion issued on May 7, 1956, in Case No. 11-RC-834. He again attempted to vote at the election on January 6, 1959, but his ballot was challenged by the Peti- tioner on the ground that he was a supervisor as defined in Section 2(11) of the Act. In the meantime Foreman Perry retired in 1957 or 1958, whereupon, W. A. Smith assumed the functions of foreman in the abattoir in addition to his other duties. Thereafter, he continued to perform butchering, boning, and cutting work, along with other employees, but was also required, pursuant to instructions from the plant office and Plant Superintendent Lindner, to direct all work in the abat- toir, determine the number and select the animals to be slaughtered, allot and assign work to various employees, direct the activities of other employees by telling them what to do, keep a daily record of the work performed, and make a daily report to management. He was permitted to recommend the hiring of cer- tain people, to use his own judgment in granting time off for short periods of time during a workday, and to distribute paychecks, but was not authorized to- hire and fire employees without the approval of the plant superintendent. Plant Superintendent F H. Lindner credibly testified in substance that W. A. Smith was a leadman in the abattoir; that the leadman in each department of the plant carried on the work under his instructions; and that each of them received and interpreted the production work sheets prepared by the production supervisor in the plant office, and were each responsible for starting and earring on the work in his department. Plant Manager H. H. Bradley credibly testified in substance that W. A. Smith, performed the same functions in the abattoir that leadmen in other departments per- formed and worked along with, but had no authority to hire and fire employees; that Smith received and weighed the hogs being shipped to the plant, put them in, pens, and selected the animals to be slaughtered; and that he would come to work at 6 a.m., heat up the hog vats by turning on the steam, and initiate the slaughtering JESSE JONES-SAUSAGE CO.:AND JONES ABATTOIR co. : ` 379 activities. He personally participated in slaughtering and eviscerating hogs, work- ing at the cutting tables, and moving the meat into the grinder room from whence it was issued to the sausage kitchen. It was also his duty to post and interpret the pro- duction schedule received from the plant office, tell other employees what to do when they arrived at 7 ^a.m., report any absentees to Plant Superintendent Lindner, and expedite the work in the abattoir throughout each workday. 4. Employment status of Ruffin Yancey The fourth issue herein pertains to the challenged ballot of Ruffin Yancey. This employee voted in an election in 1956 (Case No. 11-RC-834), but was challenged by the Board agent at the election held on January 6, 1959, by reason of footnote 3 in the Board's Decision and Direction of Election issued on December 16, 1958, in Case No. 11-RC-1175, as follows: The parties stipulated that the employee who cleans for 4 of 5 hours each week day, beginning about 1 a.m., making "regular walks around to see whether there is any fire or anyone on the place, and ringing the clocks" should be in- cluded within the unit. The record shows that this employee is not armed, but lacks sufficient information upon which to determine whether he is a guard within the meaning of the Act. In the circumstances we shall allow him to vote subject to challenge, despite the agreement of the parties to include him in the unit. Ruffin Yancey credibly testified in substance that he is 70 years of age and em- ployed by the Respondent in its plant as a cleanup man; that 5 days a week (Mon- days through Fridays) from approximately 7 a.m. to 8 p.m. he cleans up the tables, the stable rooms, and sweeps the floors; that on Saturdays and Sundays he works at night to service the refrigeration systems on trucks of the Respondent in which meat products are stored, pens and feeds hogs and cattle brought to the plant during the night, and makes hourly rounds to punch the watchman clocks stationed at vari- ous locations in and around the plant. He does not have available or carry any gun or weapon, and, in the event of trouble beyond his control, will call the regular night watchman (Parrish), who lives in a house about 100 yards from the plant. Plant Manager H. H. Bradley credibly testified in substance that Ruffin Yancey was employed by the Respondent and carried on its payroll records as an all-round maintenance worker, performed mostly cleanup duties, and also helped in the pack- ing room at times; that he would also work at night after the regular working crew went off duty, would go around the plant to punch the clocks at 10 different stations, see that the compressor was operating, perform cleanup work, stitch cartons on a stitcher for use in the packing room, and would help unload, pen, feed, and water hogs brought to the plant on trucks during the nighttime; that he never carried a pistol, and in the event of trouble would call someone about it, such as the police, the plant superintendent, or one of the janitors; and that the regular watchman (Parrish) carried a pistol and usually worked at night on weekends, and Ruffin Yancey usually worked in the daytime. Concluding Findings The Board has consistently held that the mere fact that laid-off employees have continued seniority rights does not entitle them to vote, but rather he test is whether there exists a reasonable expectancy of employment in the near future.2 The record as a whole indicates that the business of Respondent is somewhat seasonal in that production and sale of its products are substantially greater in quantity from April to Thanksgiving in November each year, and thereafter declines. For that reason Respondent has adopted a policy of reducing its working force during the fall season and rehiring necessary workers during its busy season. Contrary to contentions of Respondent, I am constrained to find from a preponderence of credible testimony herein that Plant Superintendent Lindner and Business Manager Jones told em- ployees when laid off about December 1958 that they might expect a recall to work when business picked up in the following March or April. Notwithstanding its con- tention that production has been steadily declining since 1956, the Respondent re- hired four of these laid-off employees in April 1959 to work in the packing room, one laid-off employee to work in the sausage kitchen, and in August 1959 hired f Harris Products Company, 100 NLRB 1036, 1039-1040 ; Avco Manufacturing Corpora- tion, Crosley Division, 107 NLRB 295; Higgins, Inc., 111 NLRB 797-799. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seven white girls as new applicants to work in the packing room to finish out the busy season ; but did not offer such employment to the eight Negroes whose ballots had been challenged in the January 1959 election , and who held seniority as ex- perienced employees in the packing department and sausage kitchen . The conten- tion of Respondent that white girls were preferably hired because toilet facilities for Negro women had become overcrowded is untenable . The fact that their challenged ballots had been opened and counted in favor of the Union , as shown by the revised tally of ballots issued on May 29, 1959, raises a strong presumption that the Re- spondent denied them further employment because of their affiliation with and sup- port of the Union . I find, therefore, that at the time of the election on January 6, 1959, Annie G. Rogers, Mary Lois Coffey, Wilma L. Avery, Mary K. Brown, Almetta Z. Davis, Carl Johns, Janie Mae Muldrow, and Bessie Tomlinson were employees temporarily laid off for lack of work, that there existed a reasonable expectancy of their reemployment in the near future by the Respondent, and for that reason were eligible to vote. It is, therefore, recommended that the eight challenged ballots of aforesaid employees be counted as cast in favor of the labor organization involved. Section 2 ( 11) of the Act provides, as follows: 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 recommend such action , if in connec- tion with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. With respect to Melvin Davis (head chopper ), I am convinced from a preponder- ance of the evidence and the entire record in the case that this employee is simply a leadman in the sausage kitchen of the Respondent , authorized to direct the work ,of other employees in the performance of their duties according to routine procedure prescribed by the plant superintendent and superior plant officials , but does not ex- ercise authority requiring the use of his own independent judgment in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, as- sign, reward , or discipline other employees, or to adjust their grievances , or effec- tively recommend such action , within the meaning of Section 2(11) of the Act. I find that he is not a supervisor within the meaning of the Act, and recommend that the challenge to his ballot be overruled and that his vote be counted to the same extent as other employees in the appropriate unit. Since this challenged ballot has not been opened it is not presently known whether it will be in favor of or against the Petitioner. With respect of W. A. Smith , it appears from all the evidence in the case that he responsibly directs all operations in the abattoir , including authoritative assign- ment of other employees and supervision of their work . Since the retirement of Foreman Perry in 1957 or 1958 , Smith has assumed the functions and authority of foreman and with acquiescence of the Respondent holds himself out to be such a supervisor. His exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment . Although Respondent seeks to classify Smith merely as a leadman , it is not denied that he is exercising the authority claimed by him; and the only limitation on his authority appears to be that he must consult with the plant superintendent before hiring or firing workers in the abattoir, which is more or less independent of other plant operations. I find, therefore, that W. A. Smith is a supervisor within the meaning of Section 2(11) of the Act, and recommend that the challenge to his ballot in the election of January 6, 1959, be sustained. Section 9(b) of the Act provides, inter alia, as follows: The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof : Provided That the Board shall not . . . (3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; . . . With respect to Ruffin Yancey, the parties in Case No. 11 -RC-1175 stipulated that he is not a guard within the meaning of the Act and should be included in the JESSE JONES SAUSAGE CO. AND JONES ABATTOIR CO. 381. voting unit. The Board, however, required that his ballot be challenged pending determination whether he is a guard within the meaning of the Act. In recommend- ing that the challenge be sustained, the Acting Regional Director found that Yancey has a pistol available in the office for the performance of his duties. Testimony before the Trial Examiner does not support such a finding. The Respondent em- ployed a regular night watchman named Parrish, who carried a pistol, and lived within 100 yards of the plant, subject to call at all times. On weekdays Yancey worked in and around the plant as a general cleanup or handyman, but during weekends, when the plant was not in operation, he would work at night to receive and care for cattle and hogs brought in by trucks. At such times he was also charged with surveillance of the cooling system and the plant premises in general, but was not in any sense a uniformed, armed, or deputized guard. Incidentally, he punched the watchman clock stations in the absence of the regular night watchman, and would call the latter to the premises in event of trouble. Evidence in the case does not support a finding that he was employed as a guard to enforce against em- ployees and other persons rules to protect property of his employer or to protect the safety of persons on the employer's premises. Inasmuch as this employee is en- gaged predominantly in work as a handyman and janitor with additional duties re- sembling only incidentally those of a watchman or guard, I find that he should be included in the appropriate unit as a maintenance worker.3 It is therefore, recom- mended that the challenge to ballot of Ruffin Yancey in the election of January 6, 1959, be overruled, and his vote counted as cast. Having found and recommended (1) that the challenges to ballots of eight laid-off employees (Annie G. Rogers, Mary Lois Coffey, Wilma L. Avery, Mary K. Brown, Almetta Z. Davis, Carl Johns, Janie Mae Muldrow, and Bessie Tomlinson) be over- ruled; (2) that the challenges to ballots of Melvin Davis and Ruffin Yancey be overruled; and (3) that the challenge to ballot of W. A. Smith be sustained, the real issue in this case remains whether Respondent's refusal to bargain with the Union is a violation of Section 8(a)(1) and (5) of the Act. Since the ballots of the afore- said 8 laid-off employees were counted by the Regional Director and reported in his revised tally of ballots on May 29, 1959, showing a majority of 6 valid votes (42 to 36) in favor of the participating labor organization, it is apparent that the result of the balloting would not be changed by counting the challenged ballots of Melvin Davis, Ruffin Yancey, and W. A. Smith. Based upon these findings and recommendations, I am, therefore, constrained to find that Respondent did on July 13, 1959, and at all times thereafter, refuse to bargain in good faith with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the duly elected representative of its employees in the appropriate unit, as certified by the Board on June 4, 1959. In so doing the Respondent has failed and refused to fulfill the obligation imposed upon an employer by Section 8(a)(5) of the Act to bargain with the representative of its employees, as explained and defined in Section 8(d) subject to the provisions contained in Section 9(a) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, has a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent, upon request, bargain col- lectively with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive bargaining representative of all production and main- tenance employees at its Garner Operations in the unit herein found to be appro- priate for the purposes of collective bargaining. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 8 See Radio Corporation of America (R C.A. Victor Division), 76 NLRB 826-828. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended. 2. "All production and maintenance employees of the Respondent at the Garner Operations, including the head chopper, head grinder, smokehouseman, garage em- ployees, and the employees who work in the plant and drive trucks, but excluding office clerical employees, driver-salesmen, professional employees, guards, and supervisors as defined in the Act" constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act, as amended. 3. At all times since certification by the Board on June 4, 1959, the Union has been and now is the duly selected, designated, and exclusive representative of all production and maintenance employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act, as amended. 4. By failing and refusing on and after July 13, 1959, to bargain in good faith with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, as the exclusive bargaining representative of employees in the aforesaid appro- priate unit, the Respondent has engaged in and is engaging in unfair labor practices violative of Section 8(a)(5) of the Act, and also derivatively in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the amended Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively in good faith with Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, as the ex- clusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment , and other conditions of em- ployment, and if an understanding is reached we will embody such understand- ing in a signed agreement . The bargaining unit is: All production and maintenance employees of the Respondent at the Garner Operations , including the head chopper, head grinder, smokehouse- man, garage employees , and the employees who work in the plant and drive trucks, but excluding office clerical employees , driver-salesmen, pro- fessional employees, guards, and supervisors as defined in the Act. WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection; or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become and remain , or to refrain from becoming or remaining members of the above-named Union , or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a)(3) of the National Labor Relations Act, as amended. JESSE JONES SAUSAGE COMPANY AND JONES ABATTOIR COMPANY, Employer. Dated------------------- By------- ------------------------------------ (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.