Mook Weiss Meat Packing Co.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL bargain collectively, upon request, with the Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment , and, if an understanding is reached , embody such understanding in a signed agreement. AMERICAN OIL COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building , 314 North Broadway, St. Louis, Missouri 63102, Tele- phone 622-4156. Morris Weiss d/b/a Mook Weiss Meat Packing Company and Terry Weiss d/b/a Crown Meat Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 515 Morris Weiss d/b/a Mook Weiss Meat Packing Company and Terry Weiss d/b/a Crown Meat Company and James C. Prewitt. Cases 26-CA-2151, 26-RC- 420, wid 26-C-4-224.5. August 18, 1966 DECISION AND ORDER On April 20, 1966, Trial Examiner Arthur E. Reyman issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondents had not engaged in certain other -unfair labor practices alleged in the consoli- dated complaint and recommended dismissal of such allegations. In addition, the Trial Examiner sustained the challenge to the ballot of Seymour Levinson, overruled the challenges to the ballots of Quinton Spruille, Freddie McFerren, and John Cole, Jr., and recommended that the latter ballots be opened and counted. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 160 NLRB No. 43. MOOK WEISS MEAT PACKING COMPANY 547 rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions, briefs, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner to the extent con- sistent herewith. 1. Supervisory status of Seymour Levinson After Morris Weiss assumed complete control of Mook Weiss Pack- ing Company and Crown Meat Company, he placed, on June 1, 1964, Seymour Levinson, his brother-in-law and former partner, on the payroll as shipping clerk for Mook Weiss Packing Company. Levin- son's workday begins around 5 :30 in the morning. Upon arriving at the plant he checks to see which orders from the previous day are to be filled, oversees their makeup, and then places them on delivery trucks. Throughout the day he follows the same procedure in filling new orders as they arrive. It should be noted that, insofar as the delivery is concerned, Levinson ordinarily does not assign drivers to routes, although he has, on infrequent occasions, changed their daily routes to expedite an order. During a large part of the remainder of the day, Levinson performs the same work as the other employees. He is under the supervision of Morris Weiss, Terry Weiss, and the head butcher. The Trial Examiner found that Levinson does not have the author- ity to hire, fire,l discipline, change work schedules,2 or recommend promotions or transfers; and that he does not attend management meetings or participate in any way in the making of company policy as to personnel matters. The Trial Examiner's findings further reflect that the duties performed by Levinson are routine and clerical when he is not working with the other employees and that the' persons 1 The General Counsel argues that because the Trial Examiner failed to refer in his Decision to the testimony of Henry Pickens that he, Pickens , was discharged by Levinson, the Trial Examiner did not consider such testimony , and the Board should consider it now. We disagree with the General Counsel's premise. At the beginning of his discussion the Trial Examiner stated that he had reached his conclusion upon all the credited testi- mony Thus , contrary to the General Counsel's contention , we assume that the Trial Examiner considered Pickens' testimony and rejected it. However, even if we were to assume the contrary , the isolated instance cited by the General Counsel falls to establish that Levinson possessed any general authority to discipline , especially in view of his testi- mony that he was merely acting on instructions from John W. Smith who, at that time, was next to Morris Weiss in authority. Thus, we are satisfied that the totality of evidence does not reflect that Levinson had the power to fire. ' Several employees testified that Levinson granted them time off The evidence set forth in the Trial Examiner's Decision indicates that permission for time off was granted in- frequently and in unusual circumstances, and usually depended on the volume of business and the final decision of Terry Weiss. The fact that Levinson might have granted time off spasmodically does not by itself indicate supervisory status Lexington Chair Company, 150 NLRB 1328, 1337 (1965) We agree with the Respondents that in view of the context of the first sentence of the second paragraph on page 5502, the Trial Examiner inadver- tently substituted the word "the" for "no" before the words "absolute authority " 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working with him need' no special instructions in regard to their duties. Notwithstanding such findings, the Trial Examiner concluded that because of his family relationship to the Weisses, the absence of Terry Weiss during the time orders are filled and daily business is transacted, and the fact that the other employees considered him a supervisor, Levinson is a supervisor within the meaning of Section 2 (11) of the Act and the challenge to his ballot should be sustained. We do not agree. As Levinson does not possess any indicia of supervisory authority as defined in Section 2(11) of the Act, we find that he is not a supervisor. The Trial Examiner's conclusion to the contrary relies 3 on an inference that during the absence of Terry Weiss, Levinson was acting supervisor. We find that the Trial Exam- iner's inference is unwarranted. In this regard, the evidence shows, and the Trial Examiner found, that all the employees alleged to be supervised by Levinson perform standardized tasks with which they are thoroughly familiar and which require little detailed supervision. It is clear that during the relevant period, Levinson was merely a conduit for relaying instructions to experienced employees perform- ing routine work, and, under such circumstances, the mere absence of a supervisor would not be sufficient to clothe him with supervisory functions.' Based on a full consideration of the functions and duties of Levinson, we conclude that he does not responsibly direct his fellow employees within the statutory definition of supervisor. We shall, therefore, overrule the challenge to his ballot and direct that his bal- lot be opened and counted.6 The Trial Examiner found certain conduct engaged in by Levin- son to be violative of Section 8(a) (1) because of his alleged super- visory status. However, as we have found Levinson is not a super- visor, a fortiori, his conduct did not violate Section 8(a) (1) of the Act. For this reason, we also do not adopt those portions of the Trial Examiner's Section 8 (a) (3) findings which rely on the activities of Levinson. 3 The two other grounds mentioned by the Trial Examiner in support of his conclusions are without merit While, as found by the Trial Examiner, the employees who worked in Levinson's division testified that they considered him to be their supervisor , such Judg- ment on their part is unwarranted for the reason discussed herein . As for his relation to the Weiss family, we fail to see how this is indicative of supervisory status since a non- supervisor cannot acquire supervisory status by reason of his relationship to the em- ployer. Moreover, in light of International Metal Products, 107 NLRB 65 , 67, erroneously relied on by the Trial Examiner, there is no indication in the record that Levin,un enjoyed a special status with the Respondents because of his relationship which would warrant his exclusion from the unit on the grounds of family relationship * Dow Jones ,& Company, 142 NLRB 421, 427 (1963). 5 It is also evident that Levinson ' s clerical duties are insufficient to clothe him with the status of a confidential or managerial employee. 6In view of our finding that Levinson is not a supervisor, we find it unnecessary to con- sider Respondents' contention that the challenge to Levinson's ballot should be rejected by virtue of an agreement of the parties to include Levinson in the voting unit MOOK WEISS MEAT PACKING COMPANY 549 2. The discriminatory discharges The Trial Examiner found, and we agree, that Respondents dis- charged employees Quinton Spruille, John Cole, Jr., Freddie McFer- ren, and James C. Prewitt in order to discourage union membership and activity, in violation of Section 8(a) (3) and (1) of the Act. Respondents contend that the General Counsel has not proved Respondents' knowledge of the union activity of these employees. Unquestionably, knowledge by the Respondents of the dischargees' union activity is a prerequisite to a finding that the discharges were made for that reason, and the General Counsel has the burden of proving this knowledge beyond mere suspicion or surmise. Here, an examination of the events surrounding the discharges and the rea- sons asserted therefor provide substantial evidence of Respondents' knowledge of the dischargees' union status. The Union's organizational effort began under the leadership of Spruille in November 1964. At that time a number of employees including Spruille, McFerren, and Cole met in a cafe operated by Spruille and signed authorization cards designating the Union as their collective-bargaining representative. During the month of June 1965, the campaign began to pick up speed. Two meetings were held during the first week of June-one at the home of Evelyn Smith and the other at the home of Freddie McFerren. On June 9, Terry Weiss questioned Spruille about union activity at the plant. On the follow- ing day a representation petition was filed with the Board's Regional Office. During the second week of June, a union meeting was held in Cole's home. On June 16, Spruille was discharged. During a discus- sion concerning the discharge of Spruille with James C. Prewitt the next day, Terry Weiss told Prewitt that he knew "that he [Spruille] was the head of the Union and everything." On the same day Respondent posted a.notice stating that thereafter a wage garnish- ment would subject the recipient to discharge. On June 24, Freddie McFerren was discharged. By June 30, Cole had been discharged.' On July 17, Terry Weiss informed James Longino, that if he voted for the Union and the Union won, he would be fired." On July 20, the'day before the-election, Terry Weiss informed the employees in a prepared speech that a union would cause them "nothing but trouble and worry." That night at a party thrown by Terry Weiss at the Club 7 As noted by- ,the Trial Examiner , the exact date of Cole's termination is lmpo,sible to determine since Respondents took no official action to indicate the date of termination However, since the eligibility list, prepared for the July 21 election and based on the payroll as of June 30, did not include the name of Cole, we shall consider, as did the Respondents, that Cole was no longer considered to be employed by Respondents as of June 30, 1965 8 Weiss repeated this threat to Longino at the Club Paradise the night before the election 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paradise, Weiss informed Evelyn Smith that he knew who was in the Union and who had signed authorization cards and singled out Spruille and Cole for criticism. That same evening, Weiss, while inter- rogating Prewitt, indicated to him that one of the employees had informed Weiss of Prewitt's union activities.9 Following the close of hearing on October 28, both Prewitt, and Smith who had testified against the Respondent- were told not to engage in any conversations. Finally, on November 4, Prewitt was discharged. Here, as set forth above, three of the employees, Spruille, McFer- •ren, and Cole, had been active in the Union's organizing activity while the fourth had testified- against the Respondents. There is no doubt that Respondents were aware of the union activities of these employ- ees. Not only. do, we have sufficient circumstantial evidence such as unlawful interrogations to support this point,,we also have the state- ment of Terry Weiss to Evelyn Smith that he knew who belonged to the Union • and who had signed cards. Accordingly, we -hold this defense of the Respondents to be without merit. In addition to the above defense,. Respondents also contend that each of the above employees was discharged for cause and not because of his union activity. As discussed hereinafter, we find these alleged reasons asserted by the Respondents in defense of each discharge to be a subterfuge and without merit. (a) Quinton Spruille: Respondents contend that Spruille was dis- charged because he threatened Terry Weiss with a gun. The Trial Examiner rejected Weiss' version of the events of June 16 and found that Spruille was discharged because of his union activity. We agree. Respondents now argue that the Trial Examiner should have credited Terry Weiss and discredited Spruille with respect to the circum- stances surrounding the discharge. After a careful review of the evi- dence, we conclude that the Trial Examiner's credibility findings are not contrary to a clear preponderance of all relevant evidence.- They are hereby. affirmed. (b) John ,Cole, Jr.: On May 20, 1965,. Cole was admitted to the hospital and underwent surgery on the following day. He remained hospitalized until June 5. Upon, release that. day, he was instructed by, his physician not to work for it 30-day period. Cole appeared at the plant and, attempted to vote at the July 21 election, but his bal- lot was challenged by the Board agent on the ground that his name was not on the eligibility list submitted by the `Respondents based on the payroll of June 30. At the hearing Respondents, while assert- ing that Cole had quit his employment with the Respondents by his 9 Weiss also indicated to employees Prewitt and Smith that the Union might cause the plant to close down and, if it did, he would kill "somebody " 10 Standal d Dry Wall Products, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) MOOK WEISS MEAT PACKING COMPANY 551 prolonged absence and by failing to advise the Respondents of his -intention to return, admitted that Cole was at no time given notice `that he was fired or that the Respondents considered that he had quit. These contentions by the Respondents lack support in the record. The evidence establishes that Cole kept the Respondents informed concerning his condition and his intent to return to work and that Respondents through such communications recognized Cole's con- tinuing sick leave status. Thus, on June 7, Cole telephoned Respond- ents' office to request the completion of certain records pertaining to insurance coverage and was told by Mrs. Morris Weiss to return to work when he got better. On June 25, Morris Weiss called Cole and repeated this message. On the following day Terry Weiss called Cole to see if he would pick up some meat for the Respondents on the next day; however, Cole informed Terry Weiss that he could not work at that time because of a blood clot in his arm. Despite these communications, on or before June 30, -Cole's name was stricken from the payroll. In view 'of the fact that Respondents had indicated to Cole only a few days before his discharge that he could resume -%j-ork .when he was feeling better, we find that Cole's illness was suddenly seized upon by the Respondents as an excuse for his discharge. Accordingly, we conclude that, in striking Cole's name from the pay- roll on June 30, Respondents discharged Cole because of his union activity in violation of Section 8(a) (3) of the Act. Respondents argue that since Cole was able to do light work after July 5, and did not notify the Respondents that he could return to work, no violation should be found. However, having discriminator- ily terminated Cole's employment status on June 30, in violation of the Act, it was incumbent upon the Respondent to offer him rein- statement.11 This the Respondents did not do. Thereafter, we further find that Respondents by failing to offer Cole reinstatement to his former position from the time of discriminatory discharge on June 30 until his death on February 4, 1966, had not remedied their unlaw- ful activity.12 (c) Freddie McFerren and James C. Prewitt: Respondents con- tend that both McFerren and Prewitt were discharged, not because of their union activity, but because they violated the Respondents' rule against wage garnishment. On June 17, Respondents posted a notice u Acro Corporation, 149 NLRB 1283 , 1311-18 (1964) 12 Once it is demonstrated that the employee was illegally discharged . facts alleged as to the employee' s activity after the discharge are not grounds for reversal of that finding but go only to the mitigation of the amount of backpay and the employer's duty to offer reinstatement Accordingly , we find it unnecessary at this stage of the proceeding to deter- mine whether Cole 's physical condition was such as to render him unemployable and whether his failure to mitigate his losses by not filing for unemployment coin pen ','I tion or attempting to secure other employment , amounted to a forfeiture , in whole or in part, of his right to backpay for the period of misconduct That issue can be determined more appropriately in the compliance stage of this proceeding 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stating that thereafter any employee whose wages were garnished would be discharged. The reason given for the rule was that prior to this date a number of employees had had garnishments placed against their wages for debts previously reduced to judgment. On the same day that the notice was posted a garnishment was levied against the wages of McFerren, but no action was taken against him at that time. But on June 24, when his wages were garnished a second time, McFerren was discharged. On November 4, Prewitt, who only 8 days earlier had testified against the Respondents, was also discharged because his wages had been garnished.13 Another employee, Eddie Randolph, had his wages garnished after the posting of the rule, but was not discharged. This disparity in treatment clearly supports a finding of discrimination. Respond- ents attempt to distinguish the two situations on the basis that Ran- dolph was retained because he had served the Respondents for 15 years and was the father of a large family. This attempted distinc- tion would appear to constitute an admission by the Respondents that they had no firm and inflexible policy of discharging an employee who was the subject of a garnishment, but that other fac- tors were also considered in deciding on discharge. Since Respond- ents did not explain what other factor they considered in discharg- ing McFerren and Prewitt, we find the Respondents' distinction to be without merit. On the basis of the above, we find that Respondents utilized their garnishment rule as a pretext for the discriminatory discharges of McFerren and Prewitt.14 Therefore, we find, in agreement with the Trial Examiner, that Respondents discharged McFerren in violation of Section 8(a) (3) and (1) and that they discharged Prewitt in vio- lation of Section 8(a) (4), (3), and (1) of the Act.15 11 Prewitt contends that the garnishment was illegal and issued in error since it was for a debt incurred before he had been put under the "wage earner ' s plan" pursuant to the provisions of the Federal Bankruptcy Act On November 9, following Prewitt's discharge, Respondents amended its garnishment rule to provide • "If a garnishment is issued in error, then it will be up to the employee to advise the Company and show that such garnish- ment was issued in error " As noted by the Trial Examiner , the record is barren of evidence that Prewitt was offered an opportunity to show that the garnishment was issued in error 14 In rejecting as pretext the reason asserted by the Respondents for the discharges of McFerren and Prewitt , beeause of the context in which the discharges occurred, we are not holding that the Respondents cannot discharge an employee under a garnishment rule validly promulgated and enforced What we are saying is that the mere existence of a rule which in the abstract would be a valid ground for discharge is no defense-unless the rule is adopted for a nondiscriminatory purpose and the discharge is predicated solely on this ground and not by a desire to discourage union activity . Here, the timing of the promulga- tion of the rule , during the union campaign and accompanied by other illegal activities, indicates that this rule was intended to provide a pretext for the discharges that followed and for stifling the Union 's organizing campaign in violation of Section 8 ( a) (1) of the Act. 1i While the Trial Examiner found that Respondents had discharged Prewitt in violation of the Act, he inadvertently failed to provide a remedy for such conduct We shall therefore order that Respondents make whole James C. Prewitt for any losses he incurred as a result of Respondents' unfair labor practice in the same manner as that provided em- ployees Spruille and McFerren , as set forth in our Order herein MOOK WEISS MEAT PACKING COMPANY 553 As we have found that Quinton Spruille , Freddie McFerren, and John Cole, Jr., were discriminatorily discharged in violation of the Act, we shall overrule the challenges to their ballots and direct that their ballots be opened and counted. 3. The Section 8 (a) (1) violations The evidence summarized herein establishes , and we find, that Respondents violated Section 8 (a) (1) of the Act by threats , interro- gations, creating the impression of surveillance , and the promulga- tion,of 'a garnishment rule. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Morris Weiss d/b/a Mook Weiss Meat Packing Company and Terry Weiss d/b/a Crown Meat Company, their agents, successors, and assigns,- shall : 1. Cease and desist from : (a) Interrogating employees-concerning their union activities or sympathies or the union activities or sympathies of fellow employees. (b) Threatening their employees with bodily injury, plant closure, job loss, and other economic reprisals for assisting or selecting Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 515 , as their representative. (c) Creating the impression of surveillance of the union activi- ties of their employees. (d) Discriminatorily promulgating or enforcing - a garnishment rule. (e) Discouraging membership in or activity on behalf of the above-named Union or any other labor organization by discrimina- torily discharging employees or in any other manner discriminating against them in regard to hire, tenure , or terms or conditions, of employment. (f) In any other manner interfering with, restraining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act : ( a) Offer Quinton Spruille, Freddie McFerren, and James C. Prewitt full reinstatement to their former or 'substantially equivalent positions, without prejudice to their seniority and other- rights and privileges, and make them whole for any loss of earnings or other benefits they may have suffered by reason of the Respondents' dis- crimination against them . Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and shall 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD include interest at the rate of 6 percent per annum, as set forth in Isis Plumbing d Heating Co., 138 NLRB 716. ' (b) Make whole to the estate of John Cole, Jr., deceased, by pay- ment, together with 6 percent interest per annum thereon, for any loss of pay suffered by him as a result of the discrimination against him. (c) Notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full rein- statement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 amount of the backpay due under the terms of this Order. (e) Post at its plant in Memphis, Tennessee, copies of the attached notice marked "Appendix." 16 Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by the Respondents' representatives, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that Case 26-RC-2420 be, and it hereby is, remanded to the Regional Director for Region 26 for. the purpose of opening and counting the challenged ballots of Seymour Levinson, Quinton Spruille, Freddie McFerren, and John Cole, Jr. Accord- ingly, it is hereby directed that the Regional Director shall, pur- suant to the Board's Rules and Regulations, Series 8, as amended, within 10 days of the date of this direction, open and count,the bal- lots of the above-named employees, and thereafter prepare and cause to be served on the parties a revised tally of ballots. There- upon, the Regional Director is' directed to issue the appropriate certification. 10 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." MOOK WEISS MEAT PACKING COMPANY APPENDIX NOTICE TO ALL EMPLOYEES 555 Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 515, or any other labor organization, by discriminatorily discharging employees or in any other manner discriminating against them in regard to hire, tenure, or terms or conditions of employment. - WE WILL NOT interrogate you concerning your union activity or sympathy or that of your fellow employees. WE WILL NOT inflict any physical or economic reprisals upon you if you select said Union as the collective-bargaining representative. WE WILL NOT engage in surveillance of your union or con- certed activities. - WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL rescind our garnishment rule promulgated June 17, 1965. WE WILL offer Quinton Spruille, Freddie McFerren, and James C. Prewitt full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority .,.or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of the dis- crimination against him. WE WILL reimburse the estate of'John Cole, Jr.,' deceased, for any loss of earnings he may have suffered by reason of the dis- crimination against him. All our employees have the right to join or assist Amalgamated Meat Cutters and Butcher Workmen•of North America; AFL-CIO, 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 515, or any other union, to engage in other concerted activi- ties for mutual aid or protection, or to refrain from any or all such union or concerted activities. MORRIS WEISS D/I3/A MOOD WEISS MEAT PACKING COMPANY AND TERRY "'_EISS D/B/A CROWN MEAT COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify Quinton Spruille, Freddie McFerren, and James C. Prewitt, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military` Training, and Service' Act, as amended, after discharge from the Armed Forces. ' This notice, must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this notice or com- pliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38108, Telephone 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 515, hereinafter sometimes called Local 515 or the Union, on July 20, 1965,1 filed a charge and on September 2, an amended charge against the Respond- ent, Morris Weiss, d/b/a Mock Weiss Meat Packing Company and Terry Weiss, d/b/a Crown Meat Company, hereinafter sometimes called the Company or the Respondent, the basis of the charge and amended charge being that the Respondent as an employer "has engaged in and is engaging in unfair labor practices" within the meaning of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, 29 U.S C. Sec. 151,- et seq., herein called the Act. Thereafter, on Septem- ber 10, the General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for Region 26, pursuant to Section 10(b) of the Act and the Board's Rules and Regulations, Series 8, as amended, Section 102.15, issued a complaint and notice of hearing, the complaint alleging that the Respondent "did engage in, 'and is engaging in, unfair labor practices affecting commerce . within the meaning of Section 8(a) (1) and (3) of the Act.. Case 26-CA-2154. The Respondent filed timely answer to the complaint, effectively denying that it had en- gaged in or was engaging in the unfair labor Practices as alleged On October 6, the Board issued its Decision and Order in Case 26-RC-2420, in which it ordered "that a hearing be held on the issues raised by the challenge to the ballot of Seymour Levinson," and authorizing the Regional Director to consolidate the case with 26-CA-2154 in the event a complaint issued therein for the purpose of hearing, ruling, and decision by the Trial Examiner to be designated by the Chief Trial Examiner." The Board further ordered that the Trial Examiner designated for the purposes of conducting a hearing "shall prepare and cause to be served upon the parties a report containing resolutions of the 1 Unless hereinafter necessarily specifically noted, the dates mentioned are for the year 1965 MOOK WEISS MEAT PACKING COMPANY 557 credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the challenged ballot of Seymour Levinson." On October 11, the Regional Director entered an order consolidating cases and notice of hearing. A hearing was held before Trial Examiner Arthur Reyman at Memphis, Tennessee, on October 26, 27, and 28, the hearing being closed on October 28. On November 4, James C. Prewitt, an individual, filed a charge and on November 15 a first amended charge, against the Respondent, alleging that the Respondent "has engaged in and is engaging in unfair labor practices" within the meaning of Section 8(a)(1), (3), and (4) of the Act. On November 16, the the Regional Director issued a complaint against the Respondent alleging that the Respondent "did engage in, and is engaging in unfair labor practices affecting commerce" within the meaning of Section 8(a)(1), (3), and (4) of the Act. On the same day, counsel for the General Counsel made a motion to consolidate Cases 26-CA-2154, 26-RC-2420, and 26-CA-2245 and that the hearing be reopened for the purpose of taking testimony in case 26-CA-2245. Upon the Respondent's response to the motion of counsel for the General Counsel to consolidate the cases and reopen the hearing, I granted the motion, reopened the hearing, and took testimony on December 9. An answer to the complaint in Case 26-CA-2245, timely filed, effectively denies the commision of the unfair labor practices alleged. At the hearing each party was represented by counsel, afforded full opportunity to call and examine and cross-examine witnesses, to present evidence relevant to the issues, to argue orally to the record, to file proposed findings of fact and conclusions, or both, and to submit briefs. A brief was submitted on behalf of the Respondent. From my observation of the witnesses, and upon the entire record of this case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Morris Weiss, d/b/a Mock Weiss Meat Packing Company and Terry L. Weiss, d/b/a Crown Meat Packing Company is a sole proprietorship owned and operated by Morris Weiss with a common business location in Memphis, Tennessee, where it is engaged in the business of processing and the distribution of meat and related meat products. The owner and operator of this sole proprietorship, the Respondent herein, formulates and administers a common labor policy affecting all his em- ployees. During the 12-month period immediately preceding the issuance of the complaints in Cases 26-CA-2154 and 26-CA-2245, the Respondent, in the course and conduct of his business operations, received at his Memphis, Tennessee, plant products and materials valued in excess of $50,000 directly from points outside the State of Tennessee. The Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 515, is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In each of the two complaints wherein unfair labor practices on the part of the Respondent are alleged, the answers of the Respondent effectively deny contra- ventions of the Act. In Case 26-CA-2154, the complaint alleges, inter alia, that on or about July 17, 1965, Terry Lynn Weiss, at the Respondent's business location, interrogated an employee concerning the union sympathies and activities of another employee; and on or about July 20 at the same location, threatened an employee with discharge if the Respondent's employees assisted or selected a union as their representative for the purposes of collective bargaining; on or about July 20, at the Club Paradise in Memphis, Tennessee, (a) interrogated Respondent's em- ployees concerning their union sympathies and desires; (b) threatened to inflict bodily injury on Respondent's employees if they assisted or selected the Union as their representative for purposes of collective bargaining; (c) threatened Respondent's employees with plant closure and other economic reprisals if the 558 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD employees assisted or selected - the Union as their representative for purposes of collective bargaining ; and, (d ) created'' an impression of surveillance of an em- ployee's union activities by stating to the employee he knew that the employee was in the Union. This complaint as amended alleges further that the Respondent by its supervisor and agent, Seymour Levinson, (a) on or about June 16 at the Respondent's plant in Memphis, threatened an employee with plant closure if the employee joined, assisted, or selected the Union as a 'representative for purposes of collective bargaining; (b) 'on or about July 22, in his car, created an impres- sion of surveillance of the Respondent 's employees' union activities by stating to an employee that Respondent knew how each of the employees had voted in the union election held July 21; and (c) on a date between July 1 and 15, in his car engaged in the following acts and conducts- (1) interrogated an employee concerning his union membership, activities, and desires; and (2) threatened an employee with plant closure if its employees selected the Union as a representative for the purpose of collective bargaining. It further is alleged that the Respondent on or about July 22 reduced the working hours of certain of its employees because they joined or assisted the Union, or engaged in other union or concerted activities for the purpose of collective bargaining and other mutual aid or protection; and on or about June 17, and at all times since, promulgated and enforced a rule concerning garnishments because its employees joined or assisted the Union or engaged in other union or concerted activities for the purpose of collective bargaining or other mutual aid or protection; that the Respondent since on or about July 21 has harassed certain of its employees because of their activities on behalf of the Union by assigning them to older and less efficient working equipment; and that the Respondent on June 17 discharged employee John Cole, Jr., on June 24 discharged employee Freddy McFerren, and on June 16 discharged employee Quinton Spruille and thereafter failed and re- fused, and continues to fail and refuse, to reinstate these employees in their employment because they joined or assisted the Union, or engaged in other union or concerted activities for the purposes of collective bargaining or other mutual aid or protection. All of these acts are alleged to be unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The complaint in Case 26-CA-2245 alleges that Respondent, on or about November 4, discharged employee James C. Prewitt and thereafter failed and refused, and continues to fail and refuse, to reinstate him because he joined or assisted the Union, or engaged in other union or concerted activities for the pur- poses of collective bargaining or other mutual aid or protection; and for the fur- ther reason that this employee gave testimony in a formal proceeding under the Act. The discharge of Prewitt is alleged to constitute an unfair labor practice wtihin the meaning of Section 8(a) (1), (3), and (4) of the Act. In Case 26-RC-2420 the question of whether or not Seymour Levinson is or was a supervisor is an issue . The challenges to the ballots of John Cole, Jr., Freddie McFerren, and Quinton Spruille have been ordered held in abeyance pending determination of the status of each of them in Case 26-CA-2154.2 Union Organizing Activities The employees became interested in union organization in' November 1964. A number of them assembled at a cafe operated by Quinton Spruille, and em- ployees Evelyn Smith, Acel King, Freddie McFerren, Robert Schaffer, and John Cole, Jr., signed individual union - authorization cards designating Local 515 as 2 Within his report on challenged ballots (page 3), the Regional Director states that: Prior to the agreement of the parties to stipulate for certification upon consent elec- tion, the parties stipulated, in a hearing on this matter, that Seymour Levinson is a production employee of Crown Meat Company In his brief in these consolidated cases counsel for the Respondent states' At the representation hearing on July 1, 1965, the parties stipulated that Levinson was not a supervisor At the election on July 21, the Union challenged Levinson on the ground that lie was a part-owner of the business The Regional Director's in- vestigation of the challenge indicated that there was no substance to this allegation However, the Regional Director took it upon himself to raise the issue of possible supervisory status irrespective of the fact that the parties' pre-election stipulation was still in effect and recommended a hearing on this "issue " MOOK WEISS MEAT PACKING COMPANY 559 their representative for the purposes of collective bargaining . Subsequent meetings were held during the month of June . at the homes of Cole, Evelyn Smith, and McFerren, at which during some of these meetings Lacey Walker, Morris Walker, LeRoy Woods, and one or two other employees signed union authorization cards. At the meeting at the home of Evelyn Smith, Union Representative Powell was present. Subsequently, a group of employees met at Powell's office and handed him the signed cards which had been in the custody of Spruille. Present at the meeting in Powell's office were employees James Prewitt, Lacey Walker, John Cole, Freddie McFerren, Acel King, Evelyn Smith, LeRoy Woods, and James Longino. On June 10, a petition was filed with the Regional Director. His report on challenged ballots, dated August 24, 1965, stated in part: Based on a petition filed June 10, 1965, and pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for the Twenty-sixth Region on July 2, 1965, an election by secret ballot was conducted July 21, 1965, among certain employees [I. All production and maintenance employees including truck- drivers and the shipping clerk of Morris Weiss, d/b/a Mook Weiss Meat Packing Company and Terry L. Weiss, d/b/a Crown Meat Company exclud- ing office clerical employees, salesmen, watchmen, guards and super- visors as defined in the Act] of the Employer at Memphis, Tennessee. The results of the election as disclosed by the Tally of Ballots served upon the parties at the conclusion of the election were as follows: Approximate number of eligible voters--------------------------- 22 Void ballots------------------------------------------------- 0 Votes cast for Petitioner--------------------------------------- 7 Votes cast against participating labor organization----------------- 8 Ballot votes counted------------------------------------------ 15 Challenged ballots-------------------------------------------- 7 Ballot votes counted plus challenged ballots----------------------- Challenges are sufficient in number to affect the results of the election. 22 No objections to the conduct of the election or to the conduct affecting the results of the election were filed by either of the parties. Pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8. as amended, the undersigned has caused an investigation of the challenged ballots to be made during which all parties were afforded full opportunity to submit evidence bearing on the issues .. . Thereafter, on October 6, the Board issued its Decision and Order in Case 26-RC-2420. Supervisory Status of Seymour Levinson To expedite the resolution of other issues in the pending matters, it seems convenient to dispose of the question of whether Seymour Levinson was or is a supervisor within the meaning of Section 2(11) of the Act, and whether the ballot cast by him should be considered valid. Levinson was a partner with Morris Weiss in Crown Meat Company, located on North Main Street, Memphis, from the beginning of January until May 30, 1963. Morris Weiss during these times was the owner and operator of Mook Weiss Packing Company. At this time Crown Meat Company was moved to 1357 Kennedy Street, was dissolved, with Morris Weiss assuming the debts of Crown Meat, opening a plant on Kennedy Street where he continued and still continues in business as Mook Weiss Packing Company and Crown Meat Company. At the time Crown Meat Company was deemed to be insolvent and when Morris Weiss took over the operation of both companies on Kennedy Street, he afforded employment to Levinson, the husband of his sister with (it is said) an informal understanding that Levinson would have a "job for life." Mrs. Seymour (Peggy) Levinson, sister, is now and then employed by Morris Weiss. Upon assumption of his duties with Moak Weiss Packing Company and Crown Meat Company at the Kennedy Street plant, Levinson was put on the payroll on a salary basis and worked as shipping clerk. Terry Weiss was the ostensible head of the Crown Meat Company. It appears that his duties were more in connection with sales and promotion, rather than production. In substance , Levinson described his duties as being routine in nature . It appears from his testimony that ordinarily he arrives to open the plant between 5:30 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 6 a.m. and that a butcher, a boner, and a truckdriver report at the same time; that upon dressing for work he examines the order basket from customers previously taken by salesmen on the previous day, the orders then'being checked by him, the boner, and the trucker to see which orders must be filled first; that he oversees the making up of these orders by checking them to see that they have been properly assembled, wrapped, marked, and put on a delivery truck for deliv- ery to customers. After that, as other orders come in, he distributes them to the proper person to see that they are filled and made ready for delivery. As an example of orders taken during the course of the day, after the morning orders are filled and dispatched, Levinson cited the duties of Richard Glass, boner and steak man. .Glass, a man with 17 years' experience as beef and butcher man with Wilson and Company and 3 years with Respondent, may, Levinson said; receive a notice through Levinson that an order has come in for 50 choice T-bone steaks. Levinson, having made the written order, hands it to Richard Glass and then: Well while he is . . . getting that particular order, or that order, that is a time element, that the customers says, I have got to have this in an hour. He goes ahead and does that particular order, but in the meantime the employees who are coming into the work area in the next 45 minutes start coming in, and they come over and they read the orders and they start filling their jobs that they perform every single day, just normal routine. They know everything there is in the plant. Ted Miller, the head butcher, has had from 15 to 20 years' experience. Levinson iterated that the ordinary handling of orders in the morning and during the course of the day is purely routine. The plant of the Respondent, as nearly as I can determine from the record, is divided into two separate parts. Moak Weiss Packing Company handles certain meat products not handled by Crown Meat Packing Company. However, there seems to be a clean line of distinction in the thinking of the employees as between the two. For example, Morris Weiss is plainly regarded as the man in charge of the Mock Weiss Packing Company side of the business as well as that of Crown, and he is assisted in the direct supervision of Crown by Glass, the head butcher, and Terry Weiss. The latter is frequently away from the plant on other business. The preponderence of credible testimony, as will be demonstrated below, and the evidence show that Levinson has no authority to hire or fire employees or effectively recommend in that respect; that he has never sought to exercise any such authority nor has it been given to him; that he has no authority to discipline employees or to change the work schedule of employees or change the route to which trucks are regularly assigned except as the exigencies of a day's work may require. He has nothing to do with recommendations for wage increases and occasionally, in particular emergency, makes deliveries by truck to customers of the Respondent. There is slight evidence in the record that he had recom- mended wage increases or promotion or transfers, but none that he attends management meetings or participates in any way in the making of company policy in regard to personnel questions. The operations in which he participates mostly are routine and repetitive and the persons working with him need no special instruction in regard to the duties to be performed by them. It clearly appears that the duties performed by Levinson are routine and clerical in nature, except for the fact that, as he said, he spent a large percentage of his time during the day doing the same work as other employees working on the Crown side of the plant, and at infrequent or perhaps occasional times changed the daily route of a driver. As noted, Levinson has not assigned drivers to routes; he customarily performs the same work as other employees on the "Crown Meat side" and regards himself as being under the supervision of Morris Weiss and Terry Weiss, as well as under the supervision of the head butcher. In his words: [I] cut steaks, grind meat, run patties, box up steaks, wrap steaks, load them on the trucks myself, go in the freezer and pick up merchandise when there is nobody available to get it, get up orders on my own, so that when the drivers come back there won't be no hesitancy in waiting for them to get up an order when I can get it up myself. ' MOOK WEISS MEAT.PACKING COMPANY 561 Well, let me put, it this way: When I get an order up, if . there is' ten items on an order and there are 20 orders up, it takes time,- of course, -to go and check up' ; each one of them and get them up. There could" be mer- . chandise in the freezer, there could -be meat that has to be ground, to fill that order. There might have to be steaks to be cut to fill that order. There might be pieces of beef on that order that we don't have at the present time that we have to go to get, which,I have done. I don't know what you would call a time element, because if we get an order for 20 items, it would take 3 hours sometimes. Each of the employee witnesses who have been employed in the same division of the Company as Levinson testified that he or she considered Levinson to be his or her supervisor. Mainly, their testimony concerns his right to grant time off, and to assign and direct work in the particular area where the employee works. Spruille testified that Terry Weiss and Seymour Levinson directed and super- vised or instructed him in his work. He said, too, that . sometimes Mr. Mook would come over, but not often." In effect he testified that the first thing he did when he arrived at work in the morning was to look at the orders to be filled and if he had any question concerning them, ask Levinson which order was to go first; that the ticket on which the salesman had entered the order required that: Well, the next thing we do, is route up the tickets, route my tickets and then have my truck loaded, most of the time, Mr. Levinson would call off whatever was on these orders. Maybe he would say 5 pounds of ground beef, 2 boxes 61 patties, and he would call each order. Most of the time, I have got some boxes. I will put each order into an individual box then, I will put it up on the truck. He said that occasionally Levinson would instruct, him concerning a change in his regular route. He continued: _ After I loaded my truck, usually, at that time of the morning it wouldn't be no secretary on the other side of Mr. Mook's side, and Mr. Levinson would, as a rule, figure my tickets. What I mean by figure the tickets, he would add up and get the total. After he would get the total, he would have three parts to the ticket. He would tear off the pink copy and give me a yellow and a white copy to take out. I would bring the white copy back to the Company and give the yellow copy to the customer. He said further that while delivering orders he occasionally called back to the office for instructions concerning whether he should call at some other place for a pickup and either Levinson or Terry would tell him where to go, if neces- sary. He then returned to the plant, collected his tickets, and took them over to the Mook Weiss side and check them with the secretary or either the bookkeeper. They had two ladies that worked over there. Mrs. Ann Bryun and Mrs. Mildred Davis. I would check in with one of them. I would check my tickets and my money in and then I would come back and go through the same procedure again filling orders. He might then make a second delivery following the same procedure, and at times would consult with Terry Weiss or Levinson concerning whether he should have his mid-day meal then or "to take some food down to another restaurant." In regard to Levinson granting time off, the occasions mentioned by him seemed to have been in rather unusual circumstances. Spruille runs a cafe; he testified to an occasion when "a fellow got killed in there on a Saturday night and I called Mr. Levinson up at home that Sunday and told him that I wanted to be off that Monday because I had to go to court." He testified concerning another occasion some time during the Spring of this year when he had to transact some business and at his request Levinson released him; and that another time, when he had made a previous request to be off on a Saturday on the occasion of the graduation of his daughter from college, that he was unable to gain release from work. On another occasion he said that his son was injured in a wreck, that he requested Levinson for time off to interview his son's lawyer and that he was refused on the grounds that he was needed at work. He said that he had 257-551-67-vol . 160 37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD probably asked Levinson at other times for time off but could not remember the times and the dates. Levinson testified that Spruille himself had never asked him for time off, although his wife had called in to report that Spruille would be absent on certain days, including the ones mentioned immediately above. In regard to the absences of Evelyn Smith, it appears that each time she was away she made previous arrangements with the knowledge and consent of Morris Weiss, these absences usually having to do with the care of her young daughter. Smith testi- fied that on several occasions when she wanted to take time off, Terry Weiss informed her that there was no work to do, or he would tell her to wait a minute while he consulted with Mr. Levinson as to whether or not work was available. Smith, who has worked on the "Crown Meat side" for approximately 2 years, ordinarily is engaged in the making of hamburger patties on the basis of the number of patties called for by order tickets. Occasionally, in the past, she has helped out but "I would say during the past two months I haven' t been going over there on Mr. Monk's side, unless Mr. Seymour tells me to go over there, that I was before then. I would help the boys, you know, get it up, and Mr. Seymour would also tell me if Mr. Terry, too, would tell me to go on Mr. Mook's side and probably get a can of meat or something like that, or bologna." On the basis of both the testimony of Smith and Levinson, it appears that her duties were routine in nature, did not vary from day to day, and that such instructions as were given her by Levinson about time off indicate he had the absolute authority to grant time off to her, but depended on the volume of orders to be filled and the final decision of Terry Weiss. In this connection, employee Prewitt testified that on some occasions, when Evelyn Smith called in to report that she would be absent, Levinson would tell him that he "better get ,on the patty machine." Prewitt was engaged in making ground beef, cutting up stew meat, and in doing that, he knew what to do by reason of knowing what was to be done to fill an order. "Well, I know I can do that so nobody has to tell me to do that." In summary, Smith was acquainted with and performed her duties without special instructions, as did Spruille and Prewitt. It is clear and uncontradicted on the record that the route truckdrivers made regular deliveries and seldom varied from their usual daily routine in the performance of their work. Levinson had some discretion in respect to the assignment of truckdrivers to various trucks or the several routes. I conclude and find that the record herein conclusively demonstrates that Sey- mour Levinson falls somewhat short of having regularly and customarily performed any of the functions which would denote him to be a supervisor, under general principles as exemplified in the following cases: Cook Chocolate Company, 137 NLRB 1517, 1519-21; Dove Manufacturing Company, 128 NLRB 778, 779; Ful- ton Bag & Cotton Mills, 89 NLRB 943, 947. Cf. Elliot-Williams Co., Inc., 143 NLRB 811; Bausch & Lomb, Incorporated, 140 NLRB 1400; Sinko Manufacturing and Tool Company, 149 NLRB 201; Interstate Smelting and Refining Co., 148 NLBR 219; Lyon, Incorporated, 145 NLRB 54. In so finding and concluding, I have not been bothered greatly by credibility questions, simply because the pattern of testimony generally falls into a situation not calling for the impeachment of any particular witness; there is no substan- tial contradiction, or uncontroverted material fact. This does not mean that I have accepted without qualification the testimony of each of the witnesses men- tioned herein. As stated in N.L.R.B. v. Universal Camera Corp., 179 F.2d 749, 754, there "is no reason for refusing to accept everything a witness says, be- cause you don't believe all of it; nothing is more common in all kinds of judicial proceedings to believe some and not all." The Regional Director, in his report on challenged ballots, stated: " Prior to the agreement of the parties to stipulate for certification upon consent election, the parties stipulated, in a hearing on this matter, that Seymour Levinson is a production employee of Crown Meat Company." Counsel for the Respondent in his brief states: "At the representation hearing on July 1, 1965, the parties stipulated that Levinson was not a supervisor." My finding in this respect I do not believe to be in conflict with the issue as differently stated by the Regional Director and counsel . I shall not recommend to the Board that the challenge to the ballot of Seymour Levinson be overruled. I shall recommend that his ballot not be counted. The close family relationship of Levinson to the Weisses; the absence of Terry Weiss during times of the filling of orders and general transactions of daily business; MOOK WEISS MEAT PACKING COMPANY 563 the regard paid to Levinson in his daily duties by other employees, lead me to find that he was at material times, a supervisor within the meaning of the Act. I concede the question to be close . But the family relationship makes him excludable since his community of interest would lie with management . International Metal Products Company, 107 NLRB 65, 67. The Case of John Cole, Jr. In Case 26-RC-2420, the ballot of John Cole, Jr., was challenged on the ground that his name was not on the eligibility list. The position of the Union is that he, Freddie McFerren, and Quinton Spruille had, at the time of the election, been dis- charged due to their union activities prior to the election and were entitled to vote. Oppositely, the employer's position in that case is that these individuals were properly discharged for cause and since they were not employed at the time of the election, they were not entitled to vote. Cole attended the union meetings above mentioned, appeared at the hearing in Case 26-RC-2420, and voted (under challenge) in the Board election conducted on July 21. Prior to that date, on May 20, he was admitted to hospital, and under. went surgery on the following day. He remained under hospital care until June 5. On his release on that day, he was instructed by his physician to do no work for a period of 30 days. On June 7, he called at his employer's office to request a com- pletion of certain records pertaining to insurance coverage. Morris Weiss telephoned Cole at his home on the afternoon of June 25, inquired from Cole how he was getting along, to which Cole replied that he was doing fine; Weiss told him that he was sorry that he was not in the office on June 5 and instructed Cole that the next time and, according to Cole, said "when I feel better to come around and see him after that we hung up." Further, according to Cole, he received a telephone call from Terry Weiss on the following morning; Terry, Weiss asked him about some fresh ham, suggested that a car be sent around to see if Cole could get some fresh ham to box for the Company, to which Cole replied that,he was not able to comply with the request "because I had a blood clot in my arm here." According to Cole, that was the last occasion he had to speak to any` part of company management or communicate with the Company until July 16 when he asked his wife to call at the company office with certain insurance papers "to have filled out ." On June 7, after Cole had called at the office of the Respondent, he was told by Mrs. Morris Weiss that when he got better to `come on back around ;" it appears that on June 25, Morris Weiss told him "when I feel better to come around and, see him." It was after that, on July 1, when Cole attended the representation hearing. It does not appear that he testified or in any way aligned himself with either party. When, later, on July 16, Cole's wife took some so-called insurance papers to the plant which were not filled out for various explainable reasons, Cole assumed this as ". . . the reason why I knowed [sic] I was automatically discharged or fired from the Company.,, There is no question that during these times above mentioned Cole was a sick man. Emphasis is placed by the Respondent on the fact that Cole testified first that he was no longer working for the Company because he was sick; that Cole replied, in answer to a question as to whether he had been discharged, that he was not dis- charged but later, during the course of his testimony, said that he had been fired. Then, on cross-examination, Cole again testified affirmatively that he was not work- ing at the time because he was sick. Morris Weiss testified to the effect that Cole had told him that he was not able to work, would not be able to return to work, that he had been told not to do light work 30 days after July 1, that Cole never indicated to Weiss his intention to return to work, that he ever was ready to work, or that he wanted to return to work. It is pointed out on behalf of the Respondent that Cole assumed that he learned that he was discharged on July 16 and asserted that he had not filed for unemployment compensation, and that he had not attempted to obtain other employ- ment and said that he was not going to try to get another job. It further is emphasized on behalf of Respondent that in view of the failure of Cole to offer to return to work, his failure to seek other employment, and his implied resolution not to seek another job, it is entirely possible that he voluntarily retired sometime after his hospital confinement in May. The Respondent contends, and I agree, that the record does not show exactly when Weiss considered Cole to have voluntarily terminated his employment . The exact date is unimportant because 564 DECISIONS OF' NATIONAL 'LABOR RELATIONS BOARD when the eligible list,of voters was prepared just prior to the July 21" election, the name of Cole was not included because at that time he was no longer considered to ,be an employee by the Company. - Morris Weiss, called as a witness by counsel for the General Counsel under Rule 43(b) of the Rules of Civil Procedure, equivocated in regard to whether or not he had considered Cole to be an employee of the Company during the period beginning in May. Notwithstanding other evidence given by him, and the testimony of Cole and others, Weiss testified, among other things, that Cole's prolonged absence caused him to think that Cole had himself terminated his employment; that after about 2 or 3 months when Cole had not reported to him or called or explained his absence, he assumed that Cole had quit; that he had never fired Cole; that "at that time he wasn't working then because I hadn't heard from him. He hasn't been fired. He hasn't been given a notice that he is fired. He has never contacted me . . ."; and that during the time Cole was in the hospital, he did not attempt to communicate with him although Terry Weiss did call him one day and 'wanted to know where some merchandise was, and what he had charged for it. I believe and find that Morris Weiss was well aware of the fact that Cole had expressed an interest in the Union, was in favor of the Union, and through his son Terry Weiss and Levinson was fully aware of the union interest of each of the employees after they had started their efforts to organize in November, particularly about the meetings among the employees held in June. The last day of hearing in these consolidated matters was held December 9, 1965. Subsequent thereto, proof was furnished to me of the death of John Cole, Jr., on February 4, 1966. The Case of Quinton Spruille Quinton Spruille described his duties as well as the duties of Levinson and other employees mostly employed on the Crown Meat side of the business. In respect of Levinson's duties, he testified: ... Well, now he tells everybody down there to do something, the whole 14 or 15 of them, if he wanted something, he would tell them to do it, even the fellows that just work on Mr. Mook's side, if he wanted something out of the freezer, or something over there, he would tell them what he wanted. He would tell everybody, you know, anybody there he wanted. He testified regarding the signing of union authorization cards, in January at his cafe, the Lincoln Grill, when Cole, McFerren, King, Evelyn Smith, and Robert Schaffer were present, stating that after the employees then present had signed cards, and other employees had at later times signed cards, he turned them over to Union Representative Powell during the latter part of May. His testimony con- firmed the fact that, at the meeting with Powell, employees Prewitt, Lacey Walker, John Cole, Freddie McFerren, Acel King, Evelyn Smith, Leroy Woods, and James Longino were present. He testified that before these employees decided to file the cards with Powell (in connection with the meeting in May at Evelyn Smith's house), at a later meeting in Powell's office Powell explained the function of "how the Union worked," and that subsequently the Union's petition for an election was filed. Spruille testified to several conversations he had, either with Terry Weiss or Seymour Levinson or both, the first of which he placed on June 9 at about 2:30 p.m. On that day, he said, Weiss questioned him about what he had heard about somebody trying to join the Union. He told Weiss he knew nothing about it. He said he again engaged in a conversation, this time with Seymour Levinson on June 16 at about 9:30 or 10 a.m. (on the day he was discharged) at this time telling Levinson that he explained to the latter that there was no actual head of the Union, that the employees had gotten together, had a meeting, and decided they wanted to form a union; that Levinson asked him why the employees would want a union and that after some further conversation Levinson told him that "we can't stand no union," that he replied that the employees were not trying to hurt the Company but that the Union probably would help the Company as well as the -employees. He said that at this time Levinson told him that another company was going out of business on account of the Union and further that "if we get a union in down here, we will have to go out of business . And if we get a Union . every small company around here is going to have to come up under the union ..... He said that at this time he told Levinson he had signed a card but would not name others of the employees who had done so. As to what exactly happened on June 16, the day Spruille was discharged, in summary, it is shown that on that morning Spruille filled orders as usual, assumed MOOK WEISS MEAT; PACKING ,COMPANY 565 he was to take his usual run but, was told by Terry Weiss through Seymour to go to West Memphis and thereafter call Seymour; that after conferring with, him he made deliveries to two other customers of the Company. Upon the second delivery, he telephoned Terry_Weiss and was instructed to pick up some cattle. He said that the cattle, except for one cow, weighed around 400 pounds but that one particular animal weighed 868 pounds; that he informed Terry Weiss that he could "make it with those four little cows if you give me some' help on the big one"; that after further conversation Terry Weiss sent Richard Glass to assist him in the handling of the big cow, and that after some difficulty in unloading this animal Spruille either fainted or collapsed on the job and was instructed by Terry Weiss to see a doctor. Spruille was carried to a doctor's office at about 12:30 or 1 p.m. where he stayed, he said, until after 4 o'clock, after being treated for heat prostration and exhaustion. He then, he said, called Seymour Levinson on the telephone and informed him that he was ready to return to the plant; that Levinson asked him to wait, and three or four minutes later Terry Weiss answered the telephone, asked "what was the matter with him," was further asked whether he would be able to report to work in the morning; he replied in the affirmative, and was told by Terry Weiss that he wanted Spruille to be there at around 3 or 4 o'clock on the follow- ing morning; that Weiss apparently changed his mind and told him to just come in at the usual time but to come down and get his car. Further, according to Spruille, he walked from the doctor's office, met his wife at her place of employment where they took a taxicab to the Weiss plant where they observed Terry Weiss' car parked. At that time, Spruille said he handed his wife the key to their automobile, he then went to the Crown Meat side of the plant, opened the door, and went in to get a prepared lunch which he had left earlier in the day on a shelf there. After entering the plant he said he went into the office and stood by the clock, where Terry Weiss was sitting with employees Earl Morris and Theodore Miller; that Terry Weiss came up to him, after Spruille had informed him that he had come back for his lunch, told him to get out of there, that he did not want anyone in there after closing time, and that he, Spruille, objected to the manner in which Weiss was "cussing me and going on like this." He said that Weiss then told Miller to hand him a pistol; that Weiss told him that he was going to call the police because "you are threatening my life"; that Weiss called the police department, and as Spruille was leaving through the same way he had entered the premises, Weiss called him by name and told him that he was going to kill him. Spruille said he left the place, walked back to where his car was, where his wife was waiting, while Weiss was jumping up and down and telling him he had better run because he had called the police. Then , according to Spruille, he started his car and had proceeded about a block when a police squad car stopped him, searched his car, questioned his wife and told him that it had been reported that he was carrying a pistol. The police officers searched him, his car, and the premises and found no pistol . There- upon, the police officers in the squad car called a lieutenant of police and , notwith- standing Spruille's protestations, jailed him on a charge of carrying a pistol. Sub- sequently, Spruille's case was called for trial , first on June 17 and then again on June 25 and, on the later date, the charge against Spruille was dismissed. Union Attorney Sabella, at the hearing herein, explained as clearly as I can understand what actually occurred: Mr. Trial Examiner, when he [Spruille ] was released on bond, they put an automatic State charge on him, so that you had both a State charge . That is the procedure here . A State charge placed on you , even before you appear before the magistrate the city judge, and they also have a city charge so that when the city charge was dismissed , the State charge was automatic. It appears that the dispute was unilaterally disposed of by the Company by a sepa- ration notice to Spruille dated June 22. Each of the two police officers involved in this episode was called as a witness by counsel for the General Counsel. The testimony of each one not only substan- tiated but supported the testimony of Spruille in connection with the episode just related. Officer Donald L. Valentine testified: We received a call to Mook Weiss Packing Company that a man was armed with a pistol. On route there the description came out on the automobile that this man was supposed to have been driving [sic]. Just as we turned off Kan- sas on Olive, this automobile turned off of Kennedy on Olive , at which time we got in pursuit of this car and stopped it within two blocks to where the 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD original thing was supposed to have happened . At this time my partner and I got out of the car and searched Spruille's car , at which time we found no pis- tol and we then, in turn, called the lieutenant. Officer Valentine testified that he searched the person of Spruille , did not search his wife but asked her if they could look in her pocketbook, to which she assented, that no pistol was found, that he and his partner called for their lieutenant, returned to the plant, apprehended Spruille, and after the arrival of the lieutenant talked to Terry Weiss and a lady who lived next door to the place who had a chance to observe the condition of Weiss, and his conclusion was that Weiss had been drinking-"As far as we could see he had been drinking heavily, but I wouldn't say he was intoxicated." No pistol was discovered. Police Officer James E. Ivy corroborated the testimony of Officer Valentine, except to say that from his observation of the actions of Terry Weiss, he could not say whether or not Weiss had been drinking at the time. Ella Mae Presley, the lady referred to as the one living next door to the plant, said her kitchen was adjacent to the lot where she overheard Terry Weiss and Spruille engaged in argument. The essence of her testimony is as follows: Well, I was standing there, and they came out, talking. I don't know what happened. I won't go back to the inside, because I don't know what happened on the inside. They came out talking, and I was standing there washing dishes, and, then, directly, Mr. Terry came running back and said "you drew a gun on me." And, I went to the next window and looked and I saw him [Spruille] putting something shiney back in his pocket on the right hand side . . . The colored man, what's his name? Spruille, whatever his name, and then, Mr. Terry ran back and said, "next time you pull a gun on me you better shoot," and he called the police. She went on to say that she talked to the police, did not talk to Weiss between the time she heard the argument and the time the police arrived; that "the gentleman with whom Mr. Terry Weiss was arguing put something in his pocket" that was "shiny" and that was about all she knew of this episode. Spruille testified on cross-examination that he owned a weapon which he described as a nickel-plated revolver, but denied ever having carried the gun or that Terry Weiss had ever seen it. Counsel for the Respondent argues that the evidence shows that Spruille and Weiss engaged in an exchange of verbal abuse and that Spruille pulled a gun from his clothing. I agree that the evidence shows that Spruille and Weiss engaged in an exchange of verbal abuse; I do not agree that the weight of the testimony shows that Spruille pulled a gun from his clothing and threatened Weiss with it. The testi- mony of Mrs. Presley, who overheard only a part of the argument and saw Spruille put something "shiney" in his pocket which may have looked like a pistol, is not conclusive. If the facts were as stated by the law officers called to the scene, and their examination of the situation at the time, I conclude that there was a verbal argument between Weiss and Spruille, but I cannot possibly find, on the facts before me, that Spruille threatened Weiss with a weapon. I should assume, after Spruille's illness on the afternoon of this occurrence, that he had a right to return to the premises to obtain his lunch and that Weiss adopted extreme measures to evict him from the premises in early evening. The fact that Spruille was -a leader in the union organization effort (which I think was well known' to TerryWeiss, as well as everyone else in the plant) makes the reason given for his discharge for "insubordination" on the unbelievable side. This is particularly apparent in view of what occurred at the meeting or party at the Paradise Cafe on the eve of the election, described below. The version given by Terry Weiss as to his altercation with Spruille in essential part is to the effect that after Spruille had started his morning deliveries, and after Terry had assisted Spruille in unloading some of the cows, he went in to check weights to be sure that he had gotten what he had paid for, came back through the hallway and found Spruille lying on the floor; that he questioned Spruille as to his difficulty, ran and got one of his truckdrivers and told him to take Spruille to see their Dr. Weiner at the compensation clinic. Terry Weiss said that about an hour or an hour and a half later he called the doctor's office and was told that the doctor had not yet had a chance to examine Spruille. Terry Weiss testified: So, it being Wednesday, we closed at a half a day, so, I just, you know, shut up, and we had the truckdrivers come back in and they checked out and I was there left alone with the inside man and the janitor who was finishing his work MOOK WEISS MEAT PACKING COMPANY 567 and the other beef boner and, so, I closed my doors about 3:30 or 4 o'clock, 4:30 or around there and I was on the very far end of the building at the Mook Weiss side and I was sitting in the back talking to Mr. Miller and Mr. Morris and the very direct office where I was in, is three offices back from the refrigerator door, or cooler door leading in to the sales office. Then, out of the secretary's office, and, then, my father's office, in the back, which is shared by the bookkeeper. We were in the very back of the office. Well, I hear the swinging door open. It is just a door with a glass pane in it that opens and I looked up like this, and I says, "Quinton, what are you doing here." And he said to me that he came to pick up his lunch, or eat his lunch, or get his lunch and I said, "Quinton, you know we are closed. You are not suppose to be here today." So, I got up out of my chair and I walked down the aisle, and we were standing right around by the timeclock. So, I opened the door to go out into the work area and Quinton walked out and he turned around and he says, "you no good white son-of-a-bitch." With that, I got mad, and I pushed him a little bit in front of me and I ushered him all the way through the Crown Meat side and I pushed him out through the office and I went out to my door out into the parking lot I was following him, behind him, and he turned around-I assume I was cussing at him and he was cussing back at me, and he turned around and pulled something that looked like a gun out of his pocket and I ran back towards the office and I slammed the door and I called the police. Continuing his testimony, Terry Weiss said that after Spruille had pulled the shiney looking object out of his pocket which looked to him like a gun, and after he had run back into the office, he: called the police and I was kind of nervous and upset and I called my father. And about 5 or 10 minutes later or a few minutes later, the police came, and I saw, I was standing out on the lot, you know, right beside my door, and I saw the police car coming back-up Olive Street towards the front entrance of our building. So, I walked around and I saw the two policemen. One was sitting in the back of the car with Quinton and the one came out to talk to me and he asked me what had happened and I told him. Terry Weiss explained that he misunderstood the date of the hearing on the charges against Spruille because he was told the city court case was adjourned. He said he did not appear before the grand jury because of a "mix-up in dates." The Case of Freddie McFerren Freddie McFerren, who started work for the Respondent in October 1963, was discharged from his employment on June 24, 1965. He, together with the other employees mentioned above, signed a union authorization card at Spruille 's cafe on about January 5, after attending meetings held at his home and the home of Evelyn Smith. Prior to the date of his discharge, a number of employees had garnishments placed against their wages for debts previously reduced to judgment . On June 17, the Respondent posted a notice providing that thereafter a garnishment would sub- ject the recipient to discharge . Prior garnishments had been levied against the wages of employees Ed Lee Randolph, James Spruille , Quinton Spruille, and Lacey Walker. On the morning of June 17, McFerren , having started work, was told by employee Acel King that he had been "garnisheed" and later, at around 9 a.m., was told by Mildred Davis, described as a company secretary, that he had been garnisheed "but I might have been saved by the bell, because the Company had just put up the sign." He read the notice (sign) about 10 a.m. According to him, neither Morris Weiss, Terry Weiss, nor Levinson said anything to him about a levy against his wages . He testified that shortly after he had signed a union authorization card Mrs. Ann Byrum, also described by him as a company secre- tary, told him immediately after Quinton Spruille was discharged, after asking him if he had heard the union talk that was going on, that "the boss was very shook up about it." On June 24, at the time he was checking in, he said he was informed by Mrs. Byrum that she had received a second garnishment against his wages and that later he was handed his separation slip by Bob Shelton , a company salesman. He said that he had no conversation relating to his discharge with Morris Weiss, Terry Weiss, or Levinson. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McFerren worked on the Mook Weiss side of the plant .3 The fact that McFerren's wages were attached on June 17 and 24 standing alone might by persuasive. However, in the circumstances of this case, I think the posting of the notice after the filing of the representation petition on June 10, pursuant to a stipulation for certification upon consent election, and the imminence of the elec- tion, together with the interrogation and other obvious display of company antag- onism to the Union, constitutes a reasonable ground upon which to base an infer- ence of acts of interference and coercion. The question may well be asked why it took the Respondent so long to promulgate such a rule, in the light of the history of garnishments prior to the union organization campaign. Further, as in the case of James C. Prewitt, discussed immediately below, where his discharge was osten- sibly because his wages were attached, but where it clearly appears that he was discharged for having given testimony under the Act, together with the hostility openly displayed against Evelyn Smith and Prewitt, the discharge of McFerren demonstrates discrimination by the Respondent against these union adherents. The Case of James C. Prewitt After the close of the hearing in Cases 26-CA-2154 and 26-RC-2420 on Octo- ber 28, I, on motion made by the General Counsel on November 16, reopened the hearing and by appropriate order consolidated the two prior hearings with Case 26-CA-2245. The latter case deals with the charge filed by Prewitt and the sub- sequent complaint in that case which, in short, alleges that Prewitt was discrimina- torily discharged because of his activities for and membership in the Union, and because he gave testimony under the Act .4 Prewitt had testified on October 27 that he had worked on the Crown Meat side of the Respondent as a truckdriver for approximately 5 years; that his duties included the filling of orders and making hamburger patties. He described the pro- cedures in connection with the filling of the orders and the activities of Seymour Levinson and the ostensible authority of the latter, and, among other detail, that Terry Weiss, during a discussion with Spruille concerning their argument and the claim of Terry Weiss that Quinton Spruille had pulled a gun on him, Terry Weiss had said that he knew "he was the head of the union and everything." He testified further to a speech made by Terry Weiss to the employees the day before the election, after which Terry instructed him to get into some decent clothes because he was giving a party that night; that Terry Weiss told the employees that the party was supposed to start at 6 o'clock and he wanted everybody to be there; that he probably had met with Union Representative Powell and King, McFerren, and Longino before arriving late at the party; that while at the party Terry Weiss called him aside and inquired "are you with me"; that he replied that he was with him and that Weiss then said "you are a damn liar . . . Acel King then told me (Terry Weiss] you done gone against me on their side"; that he replied that Acel could not have told him that because he had not talked to Acel, and suggested they go in and "get it straight with Acel right now." In regard to this party at the Club Paradise he testified further that Terry Weiss told him: He said, "I am going to tell this, James." He said, "If this union causes my dad to close this plant, they have to close which he says he will close if the union 3 Employee Eddie Randolph received a garnishment of wages after the posting of the rule, but was not discharged because, it was explained, he had served 15 years with the Company and was the father of a large family 4I permitted testimony to be given by Evelyn Smith, a witness at the prior hearing, to the effect that on the day after the close of that hearing she was admonished by Mrs. Morris (Dorothy) Weiss, to "just punch out and don't have no conversation whatsoever. Just hit the clock and leave," after she had punched the time-clock and bid Mrs. Byrum, an office employee, "good night." Smith testified further that Mrs Weiss then approached her and told her that she did not want her to say anything "from now on Just get on out. Just punch the clock and get on out." Smith said further that at a time when Morris' wife was in the office and she had bid Mrs. Byrum good night : So, Mr. Mook came on out behind me So, I stopped, and he said, "didn't I tell you not to speak no more. Didn't I tell you just to hit the clock and leave " I said, "Well' I've got a right to speak to anyone that speaks me You heard what I said." I said, "well, I am still going to speak." So, he pushed me so I asked him not to push me no more, and , then, he looked at me MOOK WEISS MEAT PACKING COMPANY 569 go [sic] through." He says, "So help me God I will kill somebody." He didn't say who . He didn't say who or nothing. He just said , "So help me God I will kill somebody." Among other matters referred to by Prewitt concerning his version of the session of October 27, he said that on the morning after the election Levinson asked him whether he knew the result of the election , to which he replied that he had not and told Levinson that he and Leroy Woods , another employee , had stayed around but that everyone was leaving so they left, too, and that among other things Levin- son told him was "we have ways of finding out" how the ballots had been marked. Prewitt testified further that on a day or two after he had testified on October 27 he called Morris Weiss' office to get a key for the truck he was driving, said "Good Morning" and that Weiss turned to him , told him he did not want him speaking- all he wanted him to do was to work. On the morning of his discharge , November 4, Prewitt related: I went to work as usual November the 4th. That morning I filled the orders that I usually do, and, then, I taken my run out as I usually do. I came back in around, I would say around 11:30 , something like that and Mr. Weiss, Mr. Morris Weiss, he told me to check in. Told me to get Mrs. Byron to check me in, which she did, and after I checked in, he said , "punch out." I punched out. He said, "you are fired." He said "you got a garnishment," and I had on my coveralls that I usually wear . He asked me did these belong to me or who. I told him I had my own clothes back there I usually wear . He told me to go back there and change . He followed me back there and stood over me until I changed clothes, and, then, he followed me to the front door and told me to get out and stay out, he didn't didn't want me in his place of [business ] on his premises any more . . . I come on out, and come on up to 81 Madison Building. Mr. Fink, Attorney Fink , he is the one that put me under the wage earners plan, which I am under." Prewitt further related that Attorney Robert Fink called the Mutual Collection Company, collectors for John Gaston Hospital, in connection with a bill which Prewitt owed them and on which apparently the wage attachment was based. According to Prewitt, after Attorney Fink called Morris Weiss and told him to release Prewitt's check , Prewitt said he heard Fink tell Weiss to take out $11.25 for the Government "for being under the wage earner and give me the rest of my money, because he said Mr. Robert had told him that the garnishment was issued in error." Prewitt was then called back to the company office, and, in the presence of Union Representative Powell, received his paycheck , less the amount to be subtracted under the so-called wage earner 's plan.5 Prewitt seems to have taken advantage of the wage earner 's plan some time in the early part of the month of January or February 1965. Prewitt, together with other employees, who had taken advantage of this plan , understood that a certain amount of wages being currently earned were paid by the employer into the general fund of the court having jurisdiction , until his obligation was satisfied by such installment payments. The original 1964 garnishment against Prewitt , before he took advantage of the provision of the wage earner plan, was based on garnishment issued on Novem- ber 3 , 1965, and the garnishment was for the prior debt that still existed on March 17, 1965. In connection with the discharge of Prewitt because of the last garnishment claimed to have been levied against him , Terry Weiss testified: My father said that he had received a garnishment on James Prewitt and he decided to let him go. I checked with my attorney , Mr. Stanley Fink, who handled that garnishment to find out if it was a legal garnishment , because once before we had received one on Mr . Prewitt which wasn't legal. He stated to me that it was a legal, valid garnishment, because it was a debt incurred after he had been put under the wage earner plan, which is illegal to charge anything after you have been put in this wage earner plan , so I called Mr. Fink and he told me it was a legal garnishment, that not to touch any of the money, because the Federal court had the first levy on a man's salary so I did 5It appears the "wage earner's plan" referred to throughout the testimony in this case by the several witnesses who testified on the "plan " refers to 11 U.S C.A., ch. 13, sec. 101- 10'30, Certain Provisions under the Federal Bankruptcy Act. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that. I signed on the back of the garnishment "In wage earner plan" and I mailed it in. I also called the collection company, Mutual Collection Company, and I talked with the gentleman there, and he told me that it was a legal garnishment, because it was a debt incurred after he had been put in the wage earner plan before. Terry Weiss testified further, in connection with the garnishment issued on March 17, 1965, that it came in on March 17, he called the attorney and the attor- ney told him it was an illegal garnishment issued through error and at that time "we didn't have any rule enforcing garnishments and we wrote on the back of the garnishment in wage earner plan" and they dismissed it. On or about November 9, according to the testimony of Terry Weiss, after he had consulted with his attorney concerning the original June statement, notice, or sign concerning the discharge of any employee whose wages were attached after judgment, the rule was amended to read to the effect that "Anyone whatsoever receiving a garnishment will be discharged immediately unless that person can prove to the Company that the garnishment was issued in error." The notice actu- ally posted on November 9, according to an exhibit in evidence (General Counsel's Exhibit 13), read: If a garnishment is issued in error then it will be up to the employee to advise the Company and show that such garnishment was issued in error. That notice was posted November 9; the garnishment against Prewitt was either issued or served on November 3 or 4. The record is barren of evidence that Prewitt was given a chance to show that the attachment against his wages was issued in error. Prewitt, before his activities for and on behalf of the Union became apparent to the Respondent, was a satisfactory employee insofar as the facts are reflected by the record herein. I find discrimination in the discharge of James C. Prewitt in that he was subse- quently discharged by reason of having given testimony under the Act. The Alleged Reduction of Working Hours of Certain Employees Because of Their Union Activities The fact seems to be well established, concerning the operations of the Respond- ent, that employees within the claimed unit reported at more or less regular hours during each working day and, further, that after all orders had been filled and work completed, they left at different hours in early afternoon or late afternoon. In other words, their duties and work ended when orders ran out and all orders were filled. For example , beginning with the week ending June 5 and ending with the week of August 21, the total business measured in pounds varied from a high of 60,345 to a low of 51,920 pounds. The high of 69,368 [sic] was for the week ending June 5 and the low of 51,920 pounds was for the week ending July 24. The figure for the last week' ending August 21 was 52,742 pounds. Evelyn Smith said she had lost 8 hours a day, Acel King said his overtime had been reduced by approximately 5 hours per week, and James Prewitt claimed a drastic reduction from 15 to 20 hours per week to 5 to 7 hours per week. Accord- ing to the testimony of Prewitt, two employees, David Spencer and Ernie Vescovo, were, during the time of the hearing in October, receiving work which he claimed belonged to him. It appears to me, from the testimony of the witnesses and from the statistical figures furnished at the hearing, that reducion in hours as claimed may presumptively be considered the result of reduced business. This presumption has not, been overcome by the preponderance of evidence. I do not believe the General Counsel has carried the burden of proof in respect of these particular allega- tions of violations of Section 8(a)(1) of the Act. The Speech of Terry Weiss on the Day Preceding the Election Terry Weiss was host at a party for Respondent's employees at the Paradise Club on the day before the election. On the facts having to do with this occasion, he denied telling Evelyn 'Smith there (as she had testified) that he knew who was in the Union and who had signed cards; he denied saying anything to Smith about Quinton Spruille or John Cole or that he had told James Longino that if MOOK WEISS MEAT PACKING COMPANY 571 the Union came in Longino would not work there any more or would t,e fired. Referring to the speech made by Terry Weiss on the day preceding the election he testified that he did not say to the employees "vote the Union out and no one will be fired." He identified as the speech read by him to the employees the follow- ing, held "folded up in my hand and I referred back to it, when I stated-I would memorize the first few words and state them and continue on until I finished the speech": All of you folks know that we are having this Union election tomorrow at 3 o'clock. From what I see and hear, we don't have a thing to worry about but, since this election is so important to all of us, I wanted to set a few things straight and give you all the chance to ask any questions you may have. 1. First off, let me say there is no truth in the rumor that anyone will be fired if the Union loses. If I wasn't satisfied with you folks, you wouldn't be here now. I wouldn't wait for any election. I just hope you people see that this rumor is just a trick to scare you people into voting for the Union. But this is a trick that I don't think you'll fall for. 2. I also want to say something about union cards. I don't care if every person here has signed one. As far as this election is concerned they don't mean a thing. Tomorrow you will be handed an official ballot which you can mark any way you please. When you get in to voting booth you are in abso- lute privacy and you make your decision in that booth. Whether you have signed a card doesn't make a particle of difference. 3. One final thing-we have a very little operation here. You people know me and I know you. This is the last place in the world that a Union would work out. If we had several hundred employees it would be different. But I think that we will all be better off without a union. I don't believe a union would be anything but trouble and worry for all of us. Well, I've said enough. Tomorrow, I think you people will give the Union what it deserves, a good beating. What I would like to see is everyone of you voting "No." That way we'll keep going with a clean slate. Now, if anybody has any questions, let's have them. If I can't answer them Mr. DeHart can. Terry Weiss said that at the party at the Club Paradise on the eve of the elec- tion he made a number of statements to individuals. He denied that he had ever told Prewitt that he knew Spruille was the head of the Union or that he had made any such statements in the presence of Spruille; that in the presence of Prewitt discussed Cole's being present at the representation hearing; that he had heard anyone ever discussing Cole being at the earlier hearing herein at a time when Prewitt was present; that he had asked Prewitt whether he was for him or whether Prewitt had told him Acel King had told him that Prewitt was for the Union, or that he had told Prewitt that if the Union caused his father to close the plant he was going to kill somebody or that he had ever assigned less desirable equipment, trucks or any other equipment, to. any employee because that employee has supported the Union-in short Terry Weiss denied any of the statements attrib- uted to him at the Paradise Club party. In connection with the speech of Terry Weiss and the party of, the following evening at the Paradise Club, counsel for the Respondent argues that it is inter- esting to note that Weiss, in fact, delivered the speech on that certain occasion but did not make the only statement witnesses who, as he says "remembered" what he had said;-that the General Counsel's witnesses were more interested in the outcome of the litigation than in presenting whatever facts were within their knowl- edge and that they lied to achieve the desired result. In my view, on the whole preponderance of the evidence herein, the witnesses who testified remembered the very important thing that dwelled in their memory. In my view, moreover, I was impressed by the fact that the important fact stated by Weiss in his speech was the dwelling in their minds of the promise made by him, as shown by his reported speech to them that the Respondent's would be the last place in the world that a union could work in and if it had several. hundred employees it would be different but he (Weiss) thought that "we will all be better off without a union. I don't believe a union would be anything but trouble and worry for all of us." In the whole aura of circumstances, it seems to me that the employees could assume nothing more than that such a statement meant that a vote against the Company or 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Union would be adverse to the interests of everybody connected with the Company, including each one of those who had theretofore, and with the knowl- edge of the Company, expressed their favor for union representation. Insofar as the party at the Club Paradise is concerned, I think it was ill-advised on the part of the employer, the Respondent herein, to undertake to arrange such a party. The record clearly shows a total of 15 persons attended the party at which 12 fifths of liquor and 2 cases of beer were consumed in 31/2 hours. According to the testimony of Evelyn Smith, at the time she left the party, at least two people were so drunk at that time ". . one was laying up against the wall and trying to make it to the hall." There is testimony in the record that Terry Weiss was so inebriated he was lying across a chair and still talking. Counsel for the Respond- ent asserts that each of the General Counsel's witnesses in this area testified with great detail and clarity, each adding at least one flagrant violation of the Act. As I heard the case, and listened to the witnesses describe this convivial gather- ing, I came to the conclusion that the party had been called by Terry Weiss on behalf of the Respondent, that the employees who attended were there under order or because they were curious, and that the facts as elicited from the testimony of several of the witnesses who were there are indicative of an intent on the part of the Respondent, through Terry Weiss, to influence the vote or votes of those employees eligible to vote in the election to be conducted on July 21. I have concluded that the credibility to be accorded to the testimony of Terry Weiss and Seymour Levinson is to be questioned in no small part . Nor am I satis- fied that Spruille was a completely honest witness . Weighing the one against the other, I am disposed to accept any conflict of testimony, as between these three, in favor of Spruille. Evelyn Smith was, I believe, honest and forthright in her recollection of the events related by her . As to the other witnesses who appeared and testified, I have tried to fit the credible parts of their testimony into the pattern of the case. As to Spruille, I find his discharge to be discriminatory because of his known union adherence, arid the reason for his discharge based on pretext . The history of garnish- ment of wages of employees , and the rule and amended rule published , and as applied to McFerren, was so blatant a move to rid him or others who had supported the Union, not to deserve further discussion , except this;-it was no unusual matter, before the union activities of employees were known , to see the Respondent honor- ing wage attachments without expressed complaint to the employee involved. The case of Cole, now deceased , presents a more difficult problem. He became a union adherent in November 1964, but was physically unable to work after May 1965, apparently until sometime before his death in 1966 . He presented himself to vote at the election , indicating an intention to return to his job when physically able to do so. The election was conducted pursuant to a stipulation for certification upon consent election ; on that day his ballot was challenged (as were those of McFerren and Spruille ) on the ground that his name was not on the eligibility list. Does the fact that Cole impliedly indicated his intention to return to work by presenting him- self at the poll on July 21 overcome the position of the Respondent that he had vol- untarily retired or had himself terminated his employment prior to the July 21 elec- tion? I think it does, in the absence of any notice by the employer to Cole that he was no longer an employee of the Company until his vote was challenged on the day of the election. Miami Rivet Company, 147 NLRB 470, 475, 483. Credibility of Witnesses Pursuant to the Decision and Order of the Board dated October 6, 1965 , to resolve questions of credibility I have indicated above that I consider Evelyn Smith to have related the facts according to her best recollection . I find no reason to question the testimony of the police officers, Ivy and Valentine, nor do I find reason to comment adversely as to the testimony of Morris Weiss. As to the sharp conflict in the testimony of Terry Weiss, Quinton Spruille, Sey- mour Levinson, and James Prewitt , I discredit Terry Weiss and Levinson on essen- tial points. The pattern of testimony of each of them , I believe to be consistent with my findings herein , and this is intended to mean that the preponderance of believable proof, within the congeries of the case, goes against the testimony of Terry Weiss and Levinson. MOOK WEISS MEAT PACKING COMPANY 573 Robert Schaffer, a credible witness, said that he had worked for the Respondent for a period of approximately 4 years; that he left the Company because he failed to appear for work; that he voted in the election and that prior thereto he had a con- versation with Seymour Levinson about 2 weeks before the election during a time when Levinson was driving him home one evening in a truck. He said that Levinson asked him if he knew anything about the election coming up, that he answered "yes," that Levinson asked him if he had signed a card and he told him that he had. He went on to relate that Levinson asked him or questioned him concerning the pay- ment of union dues and remarked . . the way we have been treated and all, you know, about the meat and stuff, and said if the Union come in we would have to close the doors up." On cross-examination he testified that he had signed a union authorization card but did not vote in the election-that he had been discharged approximately 2 weeks before that time. James Longino, whose testimony I credit, said he began work for the Company about June 20, 1965, and left its employ during the last week in July because he did not have a chauffeur's license. He testified that he had a conversation with Terry Weiss on the day before the election, at the Club Paradise, at which time Weiss told him that if you voted "and the Union come in that they would not close the place, but I wouldn't work there any more." He said further that 3 or 4 days before the election Weiss ". . . told me the same thing he told me at the Paradise, if I voted and the Union come in that I would be fired and I wouldn't be able to work there any more." 6 Concluding Findings A. Case 26-RC-2420 1. As decided by the Board in its Decision and Order of October 6, 1965, the Employer's exceptions to the Regional Director 's Report raise no material issues of fact or law which would warrant reversal of the Regional Director's findings and recommendations. 2. On the preponderance of the evidence , Seymour Levinson is, and at all times material herein was, a supervisor or agent within the meaning of Section 2(11) and (13) of the Act. The challenge to his ballot therefore should be sustained. 3. Quinton Spruille, alleged to have been discharged for insubordination, I find to have been discharged because of his membership in and activities for and on behalf of the Union, and thereafter asserted by the Employer not be eligible to vote in the July 21 election. The challenge to his ballot should be overruled. 4. Freddie McFerren's discharge I find to be based on pretext, as set forth above. The challenge to his ballot should be overruled, on a finding that he had been dis- criminatorily discharged prior to the date of the election, was an employee of the Employer, and therefore was entitled to vote. 5. John Cole, Jr., deceased, was absent from his usual employment on the day of the election by reason of illness, restricted from return to work by his physician, voted against challenge, and was an employee of the Employer on July 21 , neither having resigned his employment nor having been discharged therefrom . The chal- lenge to his ballot should be overruled. In summary, therefore, I find the challenge to the ballot of Seymour Levinson should be sustained, and that the challenges to the ballots cast by Quinton Spruille, Freddie McFerren, and John Cole, Jr., should be overruled. B. Case 26-CA-2154 1. Quinton Spruille and Freddie McFerren were terminated from their employ- ment on or about June 16 and June 24, respectively, and John Cole, Jr., was termi- nated from his employment on or about June 17, because they and each of them had e Cole had been caught at one time, in 1902, in attempting to steal a quantity of meat from book Weiss Packing Company. Spruille, it seems was charged as an accomplice Cole served 2 years on a penal farm, and apparently Spruille was given a shorter term. Terry Weiss was sentenced at one time on a rape charge . I remarked upon but generally dis- regard these facts in my resolution of credibility questions. 574 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD joined or assisted the Union , or engaged in other union or concerted activities for the purposes of collective bargaining or other mutual aid or protection , in violation of Section 8(a)(1) and (3) of the Act. 2. By interrogation and other acts of interference and coercion, all set forth above, the Respondent has violated the rights of its employees set forth in Section 7 of the Act. C. Case 26-CA-2245 1. The Respondent, on or about November 4, 1965, discharged employee James C. Prewitt and thereafter has failed and refused to reinstate him because he joined or assisted the Union and engaged in other union or concerted activities for the pur- poses of collective bargaining or other mutual aid or protection and for the further reason that the said Prewitt testified in a formal proceeding (Case 26-CA-2154) of the Act, all constituting unfair labor practices under Section 8(a)(3), (4), and (1) of the Act. It therefore follows that I shall recommend the affirmance of the findings and recommendations of the Regional Director in Case 26-RC-2420. I shall further recommend that all of the allegations of the complaints in Cases 26-CA-2154 and 22-CA-2245 be found proven, except that the Respondent reduced the working hours of certain of its employees in retaliation for their union activities. In the two last numbered cases, I find that the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. Upon the foregoing findings of fact, I make the following: CONCLUSIONS OF LAW 1. Morris Weiss d/b/a Mook Weiss Meat Packing Company and Terry Weiss d/b/a Crown Meat Company, Respondent, is an employer and engaged in com- merce and activities affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, Local 515, is a labor organization within the meaning of Section 2(5) of the Act. 3. James C. Prewitt, an individual, is, and has been at all times material herein, an employee of the Respondent. 4. By discriminating against employees, as found herein , to discourage member- ship in and activities on behalf of the above-named labor organization, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By discharging James C. Prewitt, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a)(4) and (1) of the Act. 6. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 8. At all material times, and specifically on July 2, 1965, the payroll eligibility date, and September [July] 21, 1965, the date of the election, John Cole, Jr., was an employee in the unit there involved , on sick leave status and eligible to vote. On these same dates Quinton Spruille and Freddie McFerren were employees of the Company and were entitled to vote in the election. On the same dates Seymour Lev- inson was a supervisor within the meaning of Section 2(11) of the Act and as a supervisor was not entitled to vote in the election . The ballots cast by Cole, Spruille, and McFerren should be opened and counted and the ballot cast by Levinson should be marked as void. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that the Respondent offer reinstatement to Quinton Spruille and Freddie McFerren to their former or substantially equivalent positions , without MAY ALUMINUM, INC. 575 prejudice to their seniority or other rights sand privileges , and make them whole for any loss of earnings or other benefits they may have suffered by reason of the Respondent's discrimination against them. I shall also recommend that the estate of John Cole, Jr., deceased, shall be paid for any loss of earnings or other benefits from the time of his ability to return to light work in June until his death in February 1966. Backpay in each case shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, and shall include interest in the amount and man- ner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.! May Aluminum, Inc. and Aluminum Workers International Union, AFL-CIO. Case 23-CA-2013. August 23, 1966 DECISION AND ORDER On May 13, 1966, Trial Examiner Rosanna A. Blake issued her Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 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 Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations. -[The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION AND ORDER STATEMENT OF THE CASE Upon charges filed on April 2 and 9, May 14, and June 22, 1965, by Aluminum Workers International Union, AFL-CIO, Local 201, the General Counsel, acting through the Regional Director for Region 23 issued a complaint on May 20, 1965, and an amendment to the complaint on June 23 , 1965, in which it was alleged that May Aluminum, Inc., had engaged in conduct which violated Section 8 (a) (1), (3), and (5) of the Act. In its answer and at the hearing, Respondent admitted certain allegations of the complaint , such as the commerce allegations, but denied having committed any unfair labor practice. Pursuant to due notice, a hearing was held in Wharton, Texas, on July 6, 7, 8, 9, 13, and 14, 1965, before Trial Examiner Rosanna A. Blake. All parties were repre- sented, were given full opportunity to present evidence, to examine and to cross- examine witnesses, to argue orally, and to file briefs.' The parties waived oral 160 NLRB No. 48.