Evans Orchard Supply Co.

EVANS ORCHARD SUPPLY COMPANY Evans Orchard Supply Company and Maintenance Men, Production Employees , Operators, Miscel- laneous Employees, Firemen and Oilers, Local No. 1, AFL-CIO. Case 17-CA-29491 June 29, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 24, 1967, Trial Examiner Herzel H. E. Plain issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 and briefs, and the', entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Evans Orchard Supply Company, Kansas City, Missouri, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified: 1. Add the following as paragraph 1(c), renum- bering the present paragraph 1(c) as: paragraph 1(d): "(c) Discouraging membership in the Union by discharging known union adherents or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condi- tion of their employment." ' This case was consolidated for hearing before the Trial Examiner with Case 17-RC-5108. After issuance of the Trial Examiner's Decision, and by order of the Board, dated May 25, 1967, the cases were severed, with Case 17-RC-5108 being remanded to the Regional Director for disposi- tion 2 The Trial Examiner's findings and conclusions are based, in part, upon credibility determinations, to which the Respondent has accepted. 243 After a careful review of the record, we conclude that the Trial Ex- aminer's credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing those findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A. 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERZEL H. E. PLAINE , Trial Examiner : This is a con- solidated proceeding on a complaint of unfair labor prac- tices against the Respondent , and on unresolved chal- lenges of the eligibility and ballots of three of Respond- ent's employees in a representation election. Case 17-CA-2949, issued September 8, 1966, on a charge filed June 15, 1966, by the Union (the Charging Party), alleges that in June and July 1966 , Respondent coercively interrogated employees about union activities and about testimony given a Board agent , and discharged an employee in June for his adherence to the Union. The Respondent entered a general denial , adding that it discharged the employee for legal cause , and interrogated employees only to enable it to verify the union claim of representing a majority of the employees and to reply to the union request for collective bargaining. In Case 17-RC-5108, of the ballots counted so far in the representation election of June 29 , 1966, the vote stands at 2 for the Union and 4 against it. Three addi- tional ballots that could determine the result of the elec- tion have not yet been counted because of challenges by the Respondent. One of the challenged ballots was cast by the discharged employee and two were cast by em- ployees alleged by Respondent to be supervisors . The is- sues of the eligibility of the three men to vote have been referred for resolution to the Trial Examiner by the Re- gional Director, pursuant to his order of September 8, 1966. The two cases were consolidated for hearing by the same order and heard on November 14, 1966 , in Kansas City, Missouri. Counsel for the General Counsel and for the Respondent have filed briefs. Upon the entire record of the case and from my obser- vation of the witnesses , I make the following:) FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT, AND THE LABOR ORGANIZATION INVOLVED The Respondent is a corporation with its principal place of business in Kansas City, Missouri, where it is en- gaged in the manufacture, purchase, and sale of equip- ment and supplies for orchards, farms, and golf courses. Annually, in the conduct of its business, the Respond- ent buys materials and products valued in excess of ' I have corrected certain inadvertent errors in transcription which ap- pear in the transcript for the record. The motion, which accompanied General Counsel's brief, to receive "in evidence" the Respondent's two motions for dismissal, the first made at the end of the General Counsel's case and second at the end of the entire case, is denied. The documents are simply two procedural motions made at trial, reduced to written form. Obviously they are not evidence. They are preserved as "motions" among the records of the consolidated case and, of course , have been dealt with , the first by denial at the hearing, and the second, as promised by this Decision on the merits. National Labor Relations Board's Rules and Regulations , Series 8, as amended, Section 102.26. 166 NLRB No. 64 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 that are brought into Missouri from points out- side the State, and sells goods valued in excess of $50,000 that it ships from Missouri to customers outside the State. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES AND EMPLOYEE VOTING AND ELIGIBILITY A. Background and Issues The Respondent is engaged in the manufacture, purchase, and sale of equipment and supplies used in and about orchards, farms, and golf courses, such as irrigation equipment, insecticides, and the like. In June 1966, Respondent had nine employees, apart from corporate of- ficers and office employees, at its place of business in Kansas City, three of whom were engaged in production and six of whom were variously engaged in the "stockroom" activities of packaging, shipping, receiving, trucking, and some over-the-counter selling of the products made or bought by the Respondent. Early that month the Union began organizing the em- ployees, obtaining signed authorization cards. On June 10, the Union sent the Respondent a letter stating it represented a majority of the production and maintenance employees, offering a card check, and requesting recogni- tion and collective bargaining. Upon receiving the letter, Saturday, June 11, Respondent President and Manager Sterling Evans immediately questioned a number of em- ployees, individually, as to what they knew about the em- ployees organizing, or the Union, or the union letter, and whether they had signed union authorization cards. Among those interrogated were employees Charles Koetting, who was discharged 3 days later on June 14, and John Lohe and Kenneth Bell, whom President Evans claimed he regarded as his department heads and super- visors of production and stockroom, respectively, but who apparently did not share his view of their status. All three men told President Evans they had signed union cards, although employee Koetting initially denied it. On Monday, June 13, President Evans replied to the Union that Respondent was uninformed as to the Union's representative status and that the Union should petition the Board for an election. The Union had filed such a petition on June 10 (copy received by Respondent June 14) and thereafter the Respondent and the Union entered into an agreement for consent election, under which a Board election was held June 29, 1966. The tally of bal- lots showed approximately 9 eligible voters, of whom 2 voted for and 4 voted against the Union. The remaining 3 ballots of employees Koetting, Lohe, and Bell were challenged by the Respondent on the grounds that Koetting was no longer an employee and that Lohe and Bell were supervisors, and that all three were ineligible to vote. If the 3 ballots may be counted they may determine the outcome of the election, since the pending tentative rejection of the Union is by a margin of 2 votes. Meantime, on June 15, the Union had filed with the Board a charge of unfair labor practices allegedly com- mitted by the Respondent in unlawfully discharging em- ployee Koetting on June 14 and interrogating its em- ployees covering their union activities, and a complaint thereon was issued September 8. The complaint also al- leged interference by the Respondent with the Board's in- vestigation in July 1966, by interrogation of employees concerning their statements to the Board. Since the status of Koetting in the voting of June 29 de- pends upon the outcome of the unfair labor practice hear- ing, and because a hearing was deemed necessary in the representation proceeding to determine the supervisory and voting status of Lohe and Bell, the two proceedings were consolidated for hearing by order of September 8, under which the representation proceeding will thereafter be severed and transferred back to the Regional Director for further action. Four issues are raised: (1) Whether, as Respondent contends and General Counsel disputes, employees Lohe and Bell were super- visors within the meaning of the Act and ineligible to par- ticipate in the representation election. - (2) Whether employee Koetting was discriminatorily discharged for his union adherence in violation of Section 8(a)(3) and (1) of the Act and remained eligible to vote in the representation election that followed his discharge, as the General Counsel contends; or was discharged for lawful cause, essentially his alleged poor work, and was no longer an eligible employee, as the Respondent claims. (3) Whether Respondent engaged in coercive inter- rogation of its employees concerning their union activities about the time of the union organizing campaign in viola- tion of Section 8(a)(1), as the General Counsel alleges; or whether the questioning of employees was within per- missible bounds of inquiry for the purpose of evaluating the union claim, of representative status, as the Respond- ent argues. (4) Whether in July 1966, following the election and during the Board investigation of the charge of unfair labor practices, Respondent President Evans unlawfully interfered with the Board's process by interrogating em- ployee Bell concerning his statements to the Board, as the General Counsel contends; or whether the discussion between Evans and Bell was routine reporting of an event without coercive effect, as the Respondent argues. B. Discharge of employee Koetting 1. Facts Employee Charles Koetting was hired by Respondent President and Manager Sterling Evans in March 1966. Koetting's job was shipping and receiving, which in- cluded driving a truck, working in the stockroom, and some over-the-counter sales work, according to the testimony of Koetting and Evans. On June 9, 1966, employee Koetting became aware of the union organizing when he and several other em- ployees met with Union Representative Anderson and signed union authorization cards. The Union made a de- mand on Respondent for recognition and bargaining in a letter dated June 10 (Exh. R-1), received by President Evans, June 11, 1966. Evans called employee Koetting to the office about 9:30 a.m. that day and asked Koetting if he had signed a union card. Koetting said no. Evans then asked if Koetting knew anything about the Union, and Koetting again said no. According to Koetting, Pre- sident Evans appeared angry and talked loudly. About 45 minutes later President Evans came back into the plant where employee Koetting was working, and Koetting told him that he had signed a card for the Union, to which Evans made no comment. Evans agreed he had asked Koetting "a question or two" about the Union, and did EVANS ORCHARD SUPPLY COMPANY 245 not dispute Koetting's description of the two encounters on June 1l. Three days later on Tuesday, June 14, Sales Manager Roy Steen came for employee Koetting and took him to President Evans' office. According to employee Koetting, President Evans said he would not be needing Koetting any more and handed him a paycheck, which paid him for the day, according to Steen, and for the brief intervening time since payday, the previous Friday, when Koetting had received his regular weekly pay. According to employee Koetting's testimony, he was given no reason for the discharge and President Evans did not testify to the contrary. Sales Manager Steen, who was present at the dismissal, testified that President Evans told Koetting he didn't fit in because of the work; he wasn't doing a satisfactory job. Steen, according to Pre- sident Evans, is the sales manager and his alternate in charge of the entire setup when Evans is away. Steen also looks after the trucks and insurance and is partially in charge of assigning truckdrivers to make rounds, accord- ing to Evans. According to Sales Manager Steen, the decision to discharge employee Koetting was made on Tuesday, June 14, the day it was consummated, "on account of this vehi- cle deal and his work was not satisfactory there." The vehicle deal was Koetting's alleged slowness in filing with the Missouri Department of Revenue a notice of in- surance coverage or financial ability to respond to damages in connection with a motor vehicle accident. The accident had occurred in April while employee Koetting was driving one of Respondent's trucks on Respondent's business and both the truck and the other vehicle were damaged. The police report (Resp. Exh. 2) indicated that the Respondent's truck, driven by em- ployee Koetting, was covered by liability insurance, whereas the driver of the other vehicle had none. Nevertheless, under Missouri law, either the Respondent or its employee-driver or both were obliged to file a report providing evidence of liability insurance (or, alternative- ly, security to satisfy any judgment that might arise from the accident, or a release from liability) under penalty of suspension of the privilege of operating motor vehicles operated by either (Resp. Exh. 3). Employee Koetting testified he filed a report with the State of Missouri about 2 weeks after the accident, but was notified thereafter by the State that the report was wrong, and that he filed a second report, which he filled out this time in the office with Sales Manager Roy Steen's help. Sales Manager Steen agreed that he helped employee Koetting fill out the financial responsibility report on Tuesday, June 7. However, he claimed in his direct testimony that he had been reminding Koetting for a con- siderable period of time to complete the report, as a result of which he further claimed that he told Koetting after the report was completed, "I should fire you over this but we will wait and see what President Evans says when he gets back." It turned out, on further probing of Steen, that the first and only written notice that came to Respondent was Exhibit R-3, dated June 3, which arrived on Saturday, June 4, in a period when President Evans was on vaca- tion, so that the reminders to Koetting by Steen, assuming they occurred, were limited to the brief period of the Saturday and Monday, June 4 and 6. I am inclined to be- lieve Koetting's version of what Steen said on June 7, namely, "Let's get it [the report] taken care of before he [Evans] gets back," without any mention of firing. I do not believe Steen's version of the events in this period because of Steen's attempt to exaggerate the time and the employee's responsibility for what Steen admittedly knew was the Employer's responsibility to furnish proof of carrying liability insurance for its trucks and his own (Steen's) personal responsibility in the Company as the man in charge of trucks and insurance.2 Concerning the alleged unsatisfactory work, Sales Manager Steen said employee Koetting could not be de- pended upon because he waited 60 days to file a report the law requires in 10 or 15 days. Steen testified he re- ported the incident to President Evans on Tuesday, June 14, the day Koetting was fired, but just prior to his being fired, because Evans did not get back to the office until Friday, June 10, and he, Steen, left Thursday, June 9, and did not return to the office until Monday, June 13. He learned about the union demand for recognition, he said, the same Monday from his brother Charles Steen, also an employee of Respondent. However, he said, he did not discuss the Union or its demand with President Evans until Tuesday, June 14, but after employee Koetting was fired. As to employee Koetting's actual work performance, except one occasion when Koetting brought Sales Manager Steen a wrong item from the stockroom, Steen had not observed Koetting's work or mistakes or given him warnings- "Mr. Bell could answer that," said Steen. President Evans testified he fired employee Koetting "because he couldn't do the job, sir, he made mistakes." The alleged mistakes were bringing down wrong materi- als when sent upstairs to fetch materials, being sent out "to pick up stuff and he wasn't able to find where he was going and he just couldn't do the job." The final straw, said President Evans, was learning on June 14 that his trucks would be taken off the Missouri highways because of employee Koetting's failure to file the report with the State. On closer examination of these reasons it was clear that President Evans was not talking basically from first-hand knowledge of employee Koetting's work or mistakes but rather, "The times I would know about when Mr. Bell re- ported to me he was unsatisfactory. Mr. Bell was looking after that and I don't look after those departments." He said he took Kenneth Bell's recommendation to fire Koetting plus Steen's recommendation to discharge him because of the delay in filling out the insurance report. However, Kenneth Bell testified directly contrary to President Evans. Bell said that employee Koetting worked in the stockroom the same time as he, Bell, did. "He did his job, made some mistakes but I make mistakes too when I first started. I'd say he was a pretty good worker and he typed orders fairly well," testified Bell. He did not criticize or warn Koetting about his work nor did he know of anyone who did. On the one occasion that President Evans talked with Bell about Koetting's work, Evans said to Bell he thought Koetting was doing a pretty good job, Bell testified. This occurred about a month be- fore the Union came in, said Bell.3 2 The fact that employee Koetting was found guilty of careless driving, while operating the Respondent 's truck on its business , would not alter but rather underscore the Respondent's ultimate liability to provide the assurances 9 President Evans acknowledged he was testifying contrary to Bell's testimony. Evans also conceded that he had no knowledge of any financial loss in Koetting's handling of materials or shipments 308-926 0-70-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Koetting and President Evans both agreed in their testimony that from the very start of his employ- ment Koetting had been turned over to Bell, who was Koetting's "immediate boss" in charge of the stockroom; and Koetting testified that Bell would tell him to bring things down from the second floor, and that he made some mistakes at the start in getting acquainted with the chemicals and the large number of insecticides and sprays kept in the stockroom. In connection with the truck in- cident of April 1966, Koetting and Evans both agreed that Koetting had been "grounded" by Evans and taken off driving the truck for several weeks, as a disciplinary measure, but had been restored to driving by Evans in May 1966, with the admonition to drive carefully. This was the only warning he had received about his work from anyone, Koetting testified. Concerning employee Koetting's delay in filing the re- port with the State of Missouri, President Evans con- ceded that when he learned of the delay from Sales Manager Steen on June 14 he was also informed by Steen that the report had been filed, that Respondent was cleared, and that the trucks could run. 2. Conclusion re 8(a)(3) and (1) I think it is evident that- the reasons given by the Respondent for discharging employee Koetting are ficti- tious. First, Respondent was obviously making a mountain out of a molehill in claiming that the Company's right to operate its trucks was in jeopardy , at any time, because of driver Koetting's slowness in filing a report on the Com- pany's liability insurance , a report that management could easily have filed without him and was obliged to file if he did not. More significantly , at the time of discharge, the claim of jeopardy was untrue , since by that time the em- ployer was satisfied that the report had been properly filed and there was no danger to his continued operation of trucks because of it Second, it is clear that neither President Evans nor Sales Manager Steen had any substantial direct knowledge of employee Koetting ' s work performance, that their principal knowledge of Koetting's performance came from Kenneth Bell , that President Evans was not telling the truth when he testified that Bell complained about Koetting 's work and recommended his discharge, but on the contrary that Koetting's work was , as Bell testified , generally satisfactory.4 In the circumstances of this case , Respondent's resort to fiction to explain the discharge of employee Koetting, creates the inference that Koetting was discharged to eliminate a known adherent to the Union and to discourage support of the Union by other employees. By interrogation of Koetting and other employees discussed infra, President Evans knew that employee Koetting had 4 There was nothing in the record or in Bell 's demeanor that would tend to impeach Bell's testimony which , as already noted, directly contradicted Evans Moreover, as an employee still in Respondent's employ, Bell risked disfavor by his testimony adverse to Respondent , a factor strengthening Bell's credibility, Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961), enfd as modified 308 F 2d 89 (C A 5, 1962); Wirtz v B.A C Steel Products, Inc , 312 F.2d 14,16(C A 4, 1963) On the other hand , President Evans had restored employee Koetting to truck duty sometime before the discharge , after "grounding " him for his accident, which restoration would in itself indicate that there were no material com- plaints about Koetting 's performance from Bell or anyone else, further contradicting Evans and substantiating Bell President Evans' exaggera- signed with the Union and knew generally where most of the employees stood on the union issue; and at the same time, as also appears infra, made clear to some of them in the course of interrogation that he did not want a union in the plant, that he did not want the employees to organize, and that employees who had previously tried to form a union were no longer with the Company. The abrupt discharge of employee Koetting without prior warning, for alleged reasons that do not stand under scrutiny, im- mediately following the union demand for recognition and the described interrogation by Respondent, leads to the conclusion that Respondent's real motive in discharging employee Koetting was to discourage and defeat the unionization of the plant, N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965), in violation of Section 8(a)(3) and (1) of the Act.s As a result, Koetting is entitled to an order restoring his job with backpay. Additionally, since he did not lose his status as an employee eligible to vote in the representa- tion election of June 29, 1966, the ballot he cast should be counted. I shall so recommend. C. Interrogation of Employees 1. Regarding union organization Upon receipt of the union demand for recognition and bargaining (Exh. R-1) on June 11, 1966, President Evans immediately questioned employees Koetting, Lohe, Bell, and Schoonover, separately, in his office. By his own ad- mission, Evans acknowledged that he asked each what he knew about the Union and the demand and whether the employees had signed authorization cards. Employee John Lohe testified that President Evans called him to his office on June 11 and asked what he knew about the union letter, and Lohe replied he did not know too much about it. Evans said, according to Lohe, "He just didn't want a union in there and he didn't want us to be organizing." Further, Lohe testified, President Evans mentioned a previous attempt to organize that failed. Evans asked Lohe if he had signed a union card, and Lohe said yes. President Evans then said he wanted to talk to the other boys and told Lohe to send in em- ployee Ray Schoonover, which Lohe did.6 President Evans did not dispute any of Lohe's testimony on this subject. Employee Kenneth Bell had two conversations with President Evans about the Union on June 11. The first was in the morning, after Evans had received the union letter, when Bell was called to the office and asked what he knew about the men trying to form a union. Bell replied he did not know much about it, whereupon Evans commented, according to Bell, that they had tried to form a union once before (prior to Bell's employment) and it had not worked out, and that none of the employees were tion of the significance of the accident report by Koetting, supra, add to the unreliability of Evans' testimony s See also, N L.R B v pant, Thomas W, Robert E Dant, et al., dlbla Dant & Russell, Ltd, 207 F 2d 165, 167 (C A 9, 1953), N L R B v Griggs Equipment, Inc., 307 F 2d 275, 278 (C A 5, 1962), N.L R.B v Georgia Rug Mill, supra, 308 F 2d 89, 91 (C A 5, 1962) The violation would be established even if the discharge was only partly motivated by the impermissible antiunion cause , N L.R B v Park Edge Sheridan Meats, Inc, 341 F.2d 275, 278 (C A 2, 1965), N.L R B. v Iron City Lock and Door Co, 352 F.2d 437,438 (C A 6, 1965) 8 Schoonover did not testify, although Evans admitted he talked with Schoonover about the Union EVANS ORCHARD SUPPLY COMPANY 247 there within a year's time after they had formed a union. Later that same day, Bell was again called to President Evans' office and asked if he had signed for the Union, to which Bell replied he had. President Evans did not dispute any of Bell's testimony on this subject. In Evans' conversations with employee Koetting also on June 11, as discussed under heading B, supra, Koetting at first denied that he had signed a union card but in the second conversation admitted that he had signed. 2. Regarding Board investigation Considerably later, following the representation elec- tion of June 29, in the course of the Board investigation of the charge against Respondent, employee Bell was in- terviewed by, and gave a statement to, a Board agent on the night of July 27, 1966. On the following morning, ac- cording to Bell (and President Evans agreed that Bell's testimony was substantially correct), Evans approached Bell o,n the shipping dock and said, "I heard you were out last night doing a little testifying." Bell agreed that was so, whereupon President Evans wanted to know what was said. Bell replied, "Not much of anything, they wanted to know if I was a supervisor." Evans said, "Well, did you tell them you were a supervisor," and Bell answered, "Not in so many words." Evans then said, "Well, you are a supervisor," and Bell replied to Evans, "Yes, I am," and testified that was all that was said. 3. Conclusions re 8(a)(1) If the interrogation of the employees on June 11 was for the sole purpose of evaluating and responding to the union claim of majority status and demand for recogni- tion, as Respondent now urges, this was not told to the employees nor were other precautions observed in the questioning to avoid or minimize its otherwise coercive effect. Thus, the employees were pulled off the job to the office of the president and confronted by him with the de- mand for information about the Union and card signing without statement of purpose or assurance against retalia- tion. Indeed, the statements by President Evans that ac- companied the questioning, particularly of employees Lohe and Bell, were clearly hostile to union organization and contained the threat of reprisal rather than reas- surance. Employee Koetting's initial concealment of his support of the Union provides an indication that he was answering under pressure. In these circumstances, the in- terrogation of June 11 was coercive and violated Section 8(a)(1) of the Act. N.L.R.B. v. Cameo, Inc., 340 F.2d 803, 804-807 (C.A. 5, 1965), cert. denied 382 U.S. 926; N.L.R.B. v. Syracuse Color Press, Inc., 209 F 2d 596, 598-599 (C A. 2, 1954), cert. denied 347 U.S. 966; Cannon Electric Co., 151 NLRB 1465, 1470 (1965). The additional interrogation of employee Bell by Pres- ident Evans in July 1966, as to the content of a statement Bell had supplied to the Board investigator, accompanied by the suggestion of what Bell should have said and should in the future tell the Board respecting his alleged status as supervisor, went beyond any routine or allowa- ble inquiry by employer of employee and constituted an interference with Board process in violation of Section 8(a)(1) of the Act. Compare 8(a)(1) holdings in, Jackson Tile Mfg. Co., 122 NLRB 764, 766 (1958), enfd. 272 F.2d 181 (C.A. 5, 1959), where respondent instructed an employee on how to answer a Board field investigator's questions; Jackson Chair Co., Inc., 110 NLRB 651, 659 (1954), rebuke of employee for truthful statement to Board investigator; and Grand-Central Chrysler, Inc., 155 NLRB 185, 188 (1965), where employer instructed supervisor to withhold certain evidence from Board agent; and see Surprenant Mfg. Co. v. N.L.R.B., 341 F.2d 756, 762-763 (C.A. 6, 1965), on the narrowness of the privilege of inquiry in preparation for trial. D. Nonsupervisory Status of Employees Lohe and Bell 1. Employee Lohe According to President Evans, the production depart- ment constituted three employees in June 1966, John Lohe, Frank Mellon, and Ray Schoonover (Exh. GC-2). Employee Lohe was and is essentially a farmer, ac- cording to his testimony. He first worked for Evans on the Evans' farm and came to work for Respondent in the Kansas City plant in December 1965, helping to repair water pumps, for which he had some training, he said. He started working under Frank Mellon, who President Evans described as shop foreman. When Mellon in- dicated that he did not want the responsibility of supervis- ing, Evans told Lobe he would make Lohe foreman "after a period of orientation." That meant, testified Lohe, he was to be sent to school by Respondent to learn welding, drafting, and designing; but he did not receive the school- ing, was not given any authority, even that of "acting" foreman, and was no further than "training to be a foreman" in June 1966, and thereafter till September 30, 1966, when he went back to the farm and never returned.7 Although President Evans testified that he told Lohe he was taking Mellon's place as foreman in February 1966, Lohe testified that it was no more than "training" for the responsibility with the schooling to come, and that from that time he looked to Evans for everything. In this period, said Lohe, Evans laid out the work to be done, and Lohe continued to work strictly on repairing pumps which fully occupied his time, and Mellon did the weldin and "building up." In this connection, Mellon's rate o pay was $1.90 per hour and Lobe's $1.75 per hour (Exh. GC-2). Lohe testified he was neither given nor told he had authority to hire or fire, nor did he attempt to exercise any such authority. President Evans agreed that he and Lohe went over the work to be done in the morning, and conceded that while Lohe could tell Mellon what jobs had to be done he did not oversee his work Evans also conceded that Lohe did not hire or fire anyone but claimed Lohe had the authority to do so. There was no evidence of this, or that President Evans had told Lohe he had such authority. In fact the one case of dismissal of a man who was hired by Pres- ident Evans as a "mechanic" was affected by Evans, who observed the man personally and concluded he was not a mechanic. Lohe testified that while he had agreed with this opinion, he was not consulted before Evans had done his own observing and that he made no recommen- dation of discharge to Evans. 7 In this connection Lohe testified he did not know whether he was still employed, by Respondent, and President Evans testified he presumed Lohe had left his employment since he had not been back in 8 weeks. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Employee Bell In June 1966, the "stockroom department" comprised six employees, Kenneth Bell, Stanley Gentry, Chester Ricks, Charles Steen, John Wetzel, and Charles Koetting, according to President Evans. Employee Bell also in- cluded employee Lyle Neill in the group. Evans testified that employee Wetzel had left by mid-June, but his name appears on the Employer's list of that date (Exh. GC-2). Of the four or five employees of the department on June 29, Charles Steen was the highest paid at $1.90 per hour, followed by Kenneth Bell and Lyle Neill at $1.80 per hour (Exh. GC-2). (Bell's pay at the time of the hearing was $1.85 per hour.) Bell as well as the others punched a timeclock, and worked on a 40-hour week, with time-and- half for overtime. President Evans testified that on February 29, 1966, 4 months before the representation election, he had placed employee Bell (then employed 2 years) in charge of the "stockroom" succeeding a former employee, Fred Clute, who had resigned to take another job elsewhere. As in- dicated earlier, the stockroom "department" embraced employees variously doing some or all of a number of functions, including the receiving, maintenance, packag- ing, shipping, and reordering of inventory, the loading, unloading, and driving of trucks, and over-the-counter selling from the stockroom Employee Bell agreed that in February 1966, after Fred Clute left, he succeeded to Clute's title of "stockroom manager." His duties, he said (and President Evans was in general accord), were and are to keep up the stock, order stock but no big orders without discussion with Evans, wait on the counter, devote part of his time to shipping and receiving, and "see that the men stay busy." He elaborated upon the latter as meaning that in "slack time," when the truck orders were out, he would see that those men who did not have enough work did the routine jobs, that could not be done in "busy time," of mixing materials and packaging materials in small packages or drums, and that he worked with these men. There were times, according to President Evans, when extra men would be needed to help load or unload trucks and boxcars, and the extras would be hired on a tempora- ry basis and automatically dropped when the work was done. Bell did not have to consult him or Sales Manager Steen, said Evans, to take on such people. However, as Bell testified, this process amounted to nothing more than he, or sometimes employee Lyle Neill or Sales Manager Roy Steen, going to the Helping Hand (an organization like the Salvation Army) and picking up, without inter- view, any available unskilled laborers to help with loading and unloading. This was the only evidence of any hiring or firing or authority to hire or fire by employee Bell. s 3 Conclusions From the evidence recited, neither Lobe nor Bell was a supervisor within the meaning of the Act, on June 29, 1966, the day of the representation election. In employee Lohe's case, it cannot even be said that he had achieved the status of a "leadman," the superior worker who exercises the control of a skilled worker over less capable employees but who does not enjoy super- visory status in that capacity without a showing that he also shares the power of management, N.L.R.B. v. Griggs Equipment, Inc., supra, 307 F.2d 275, 279 (C.A. 5, 1962). The most that can be said was that employee Lohe was starting to train as a leadman in the production group but never got past the start. Lobe's skill was limited to one phase of the production work upon which he con- tinued to work, he did no supervising of the work of his fellows, and he was paid less than one of them. The fact that he assigned work to either or both of the other two production workers after the assignments had been given to him by President Evans would not denote the exercise of supervisory power or discretion, but only the exercise of routine authority, Precision Fabricators, Inc. v. N.L.R.B., 204 F.2d 567, 568-569 (C.A. 2, 1953); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 886 (C.A. 1, 1953). The Respondent's claim that employee Lobe had authority to hire and fire is refuted by the fact that Lobe was never told he had the authority nor did he ever attempt to exercise it or make recommendations for hiring and firing, N.L.R.B. v. Whitin Machine Works, supra, 204 F.2d at 886, 883. In the case of employee Bell, the evidence appeared to establish that in June 1966, he was a leadman in the stockroom department, a superior worker with control over several less capable workers (such as employee Koetting), fitting the description in N.L.R.B. v. Griggs Equipment, supra, 307 F.2d at 279. He had the title of "stockroom manager," but actual duties and authority, rather than a formal title and theoretical power, control in determining whether he was a supervisor or not, N.L.R.B. v. Southern Bleachery and Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958).9 Bell's duties of keeping up the stock, seeing to the load- ing and unloading of trucks, and selling certain articles over the counter, were routine functions, delegated to Bell by the Respondent's President and Manager Evans, that Bell performed by his own efforts with the aid of several other workers, two of whom were paid the same or more money than he In nonroutine matters, such as making large purchases of merchandise, Bell exercised no judgment but looked to Evans. Bell's function of seeing that his helpers kept busy in slack time was akin to the function of the "room boss" or leadman in Precision Fabricators, Inc. v. N.L.R.B., supra, 204 F.2d at 568-569, "to keep all hands busy" on the work given him by the production manager, held to confer a discretion that was purely routine. Similarly of a routine, nonsupervisory nature was Bell's authority, shared with and exercised by other of the employees, to occasionally take on temporary manual laborers to assist in loading and unloading trucks and boxcars. As was held in International Union of United Brewery etc. Workers v. N.L.R.B., 298 F.2d 297, 303-304 (C.A.D.C., 1961), cert. denied 369 U.S. 843, such engagement of casual manual helpers by an employee does not identify the em- ployee with management or make him part of management. 10 8 Bell said he had once recommended the hiring of a man who married his cousin, but Evans had no recollection of it. There was also evidence that Bell and Evans agreed that a new employee, who reported in drunk one day, should be dismissed , and both of them told the man to leave 9 Even the occasional assumption of a position of command or responsi- bility does not transform an otherwise rank-and-file worker into a super- visor, N.L R.B v Quincy Steel Casting Co, 200 F 2d293,296 (C.A 1, 1953), N.L R.B. v Cousins Associates, 283 F.2d 242, 243-244 (C.A. 2, 1960) 10 In applying the tests of Section 2(11) of the Act, said the court, because of the infinite possible variations in the enumerated responsibili- ties, it is necessary to examine the nature of the supervisory position to determine how completely the responsibilities make the holder a part of management , "not simply a leadman or straw boss." Id., at 303 EVANS ORCHARD SUPPLY COMPANY 249 In sum, the few functions of control or discretion delegated to employee Bell as leadman were limited to routine operations, the performance of which did not identify him with or make him part of management. It follows that both John Lohe and Kenneth Bell were nonsupervisory employees of the Respondent eligible to vote in the election of June 29, 1966. The ballots they cast should be counted, and I will so recommend. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow thereof. IV. THE REMEDY In Case 17-CA-2949, having found that the Respon- dent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Because Respondent discriminatorily discharged em- ployee Charles Koetting, it will be recommended that the Respondent offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights or privileges. It will be recommended that the Respondent make him whole for any loss of earnings he may have suf- fered as a result of the discrimination against him by pay- ment of a sum of money equal to that which he normally would have earned as wages from June 14, 1966, the date of discharge, to the date of the Respondent's offer of rein- statement, less net earnings, if any, during this period. The backpay shall be computed on a quarterly basis as prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Company, 344 U.S. 344 (1953), and shall in- clude interest at 6 percent per annum as provided by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Manufacturing Com- pany Miami Cabinet Division v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert, denied 379 U.S. 888, and cases cited. Because the Respondent by its conduct violated funda- mental employee rights guaranteed by Section 7 of the Act, and because there appears from the manner of the commission of this conduct a disposition to commit other unfair labor practices, it will be recommended that the Respondent cease and desist from in any manner infring- ing upon the rights guaranteed employees by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Concerning the pending representation proceeding, Case 17-RC-5108, since it has been found that employee Charles Koetting had not lost his status of employee at the time of the representation election of June 29, 1966, by reason of his discriminatory discharge, and that em- ployees John Lohe and Kenneth Bell were nonsuperviso- ry employees on the same date, and all three were eligible to vote in the election, I shall recommend severance of Case 17-RC-5108 from this consolidated proceeding and that the Regional Director may proceed with the counting of the three challenged ballots of employees Koetting, Lohe, and Bell and with other action appropriate in his judgment for the disposition of the case. Upon the basis of the foregoing facts and upon the en- tire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. By interfering with, restraining, and coercing em- ployees in the exercise of their rights under Section 7 of the Act, and by discriminatorily discharging one of the employees because of union activities, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. On June 29, 1966, John Lohe and Kenneth Bell were nonsupervisory employees of Respondent, and Charles Koetting had not lost his status of employee by reason of his discriminatory discharge; and all three were employees eligible to vote in the representation election, held that day, and entitled to have their ballots counted. RECOMMENDED ORDER Upon the basis of the foregoing facts and conclusions of law, and upon the entire record in this proceeding, I recommend that Evans Orchard Supply Company, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its em- ployees in their union activities, or concerted activities for the purpose of collective bargaining, by discharge or other reprisal, or by coercive interrogation concerning their union activities or sympathies or concerning their statements to Board agents. (b) Interfering with Board investigation and process by questions or suggestions to employees regarding their statements to, or testimony before, the Board. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from en- gaging in any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) and recognized in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to employee Charles Koetting immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings he may have suf- fered as a result of the discrimination against him. (b) Preserve and, upon request, make available to the Board and its agent, for examination and copying, all 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascostain the amount of backpay due under the terms of this Recommended Order. (c) Post in the Respondent's plant at Kansas City, Missouri, copies of the attached notice marked "Appen- dix."" Immediately upon receipt of the copies of said notice, to be furnished by the Regional Director for Re- gion 17 (Kansas City, Missouri), the Respondent shall cause the copies to be signed by one of its authorized representatives, to be posted, and to be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply, therewith.' 2 1 FURTHER RECOMMEND that Case 17-RC-5108 be severed from this consolidated proceeding, and that the Regional Director for Region 17 may proceed with the counting of the three challenged ballots of employees Charles Koetting, John Lohe, and Kenneth Bell, and with any other action appropriate in his judgment for the disposition of the case. " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced in a United States Court of Ap- peals, the words "a Decree of the United States Court of Appeals Enforc- ing an Order" shall be substituted for the words "a Decision and Order." 12 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage your activity or member- ship in Maintenance Men, Production Employees, Operators, Miscellaneous Employees, Firemen and Oilers, Local No. 1, AFL-CIO (the Union), or any other labor organization, by discriminating against you if you choose to-engage in activity for, or to join, the Union or any other union. Because the Board found that we did so discriminate when we fired em- ployee Charles Koetting, WE WILL offer to Charles Koetting full reinstate- ment to his old job, and WE WILL pay him for any loss of earnings that he suffered because we fired him. If he is presently in the Armed Forces of the United States, we will notify him of his right to full reinstatement upon application after discharge from the Armed Forces. WE WILL NOT discharge you, or engage in other reprisal, because of your support of the Union. WE WILL NOT interrogate you coercively respect- ing your union activities or interest, or respecting statements given by you to the National Labor Rela- tions Board. WE WILL NOT interfere with investigation or process of the National Labor Relations Board by questioning you on what you have said, or suggesting to you what you should say in statements to, or testimony before, the Board. WE WILL respect the rights of our employees to self-organization, or to form, join, or assist any labor organization, or to bargain collectively concerning terms or conditions of employment through representatives of their own choosing, or to refrain from any such activity; and WE WILL NOT interfere with, restrain, or coerce any employee in the exercise of these rights, except as these rights might be af- fected by a contract validly made under the National Labor Relations Act with a labor organization, whereby membership in the labor organization is a condition of employment after the 30th day following the date of the contract or the beginning of the in- dividual's employment, whichever is later. Dated By EVANS ORCHARD SUPPLY COMPANY (Employer) (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, 610 Federal Building, 601 E. 12th Street, Kansas City, Missouri 64106, Telephone FR-4-5282.