Dock Warehousing & Bottling Center, Inc.

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dock Warehousing & Bottling Center, Inc. and Joseph R. Powell, Jr. and Local One, Wine, Liquor & Distillery Workers Union , AFL-CIO, Party in Interest. Case 29-CA-825 February 6, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 30, 1967, Trial Examiner William F. Scharnikow issued his Decision in the above-enti- tled proceeding, finding that 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 and his erratum of November 27, 1967. Thereafter, the party in interest filed exceptions to the Trial Ex- aminer's Decision. 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 the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 and hereby or- ders that the Respondent, Dock Warehousing & Bottling Center, Inc., Brooklyn, New York, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The com- plaint alleges, but the answer of the Respondent, Dock Warehousing & Bottling Center, Inc.,' denies, that the Respondent, as an employer, committed unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(1) and (2) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act), by permitting a supervisor (Joseph Greene) to act as shop steward for the collective- bargaining representative of its employees, Local One, Wine, Liquor & Distillery Workers Union, AFL-CIO, herein called the Union.2 Pursuant to notice, a heanng was held at Brooklyn, New York, on June 19, 1967, before me. The General Counsel, the Respondent, and the Union appeared by counsel and Joseph R. Powell, Jr., the Charging Party, appeared on his own behalf. All were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence upon the issues in the case.3 Since the hearing, briefs have been received from the General Counsel and from counsel for the Respond- ent and the Union, and have been duly considered. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent, Dock Warehousing & Bottling Center, Inc., is a New York corporation , with its prin- cipal office and place of business in Brooklyn , New York, where it is engaged in bottling alcoholic beverages for wholesalers. During the past year, the Respondent per- formed such bottling services of a value exceeding $50,000 for firms which were themselves engaged "in in- terstate commerce under the direct standards of the Board," i.e., a direct inflow or outflow of more than $50,000.4 Upon the foregoing findings , I conclude that the Respondent is, and has been, an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to entertain junsdiction in the present case. I The correct name of the Respondent was supplied by unopposed amendment of the complaint at the opening of the hearing. 2 The original charge in the present case was filed by Joseph R. Powell, Jr, on December 20, 1966, was served upon the Respondent the same day, and alleged that the Respondent committed an unfair labor practice within the meaning of Sec 8(a)(1) and (3) of the Act by discharging Powell on October 14, 1966. Thereafter, on March 15, 1967, Powell filed an amended charge (and the Respondent was served therewith), adding an al- legation that the Respondent had also violated Sec. 8(a)(2) of the Act. Only the latter allegation of violation of Sec. 8(a)(2) was set forth in the complaint which the General Counsel issued and caused to be served on the Respondent and the Union (as party in interest) on March 20, 1967 3 During the hearing, Powell contended that he had been discnnunatori- ly discharged by Joseph Greene, acting as a supervisor of the Respondent, and made a detailed proffer of his own testimony to support his conten- tion Upon objections by the General Counsel, the Respondent, and the Union, I rejected this proffer not only because Powell's discharge was not set forth in the complaint as an unfair labor practice despite the charge to this effect filed by Powell (see the preceding footnote) but also because it appeared that the details of the testimony proffered by Powell, even if ac- cepted and credited, would not support his accusation that he had been ac- tually discharged by Greene or anyone else acting on behalf of the Respondent. 4 This finding is made in accordance with the substance of a factual stipulation between the General Counsel and Respondent's counsel dur- ing the hearing. At the same time, however, counsel for the Respondent objected to the General Counsel's motion to amend the complaint by sub- stituting this jurisdictional ground for the originally pleaded jurisdictional grounds that the Respondent annually "performed bottling services valued in excess of $50,000. on goods shipped to it by various enter- prises located in States other than New York State and [that] such goods were thereafter returned to said enterprises located outside New York State." Respondent's counsel contended that such an amendment of a pleading of jurisdictional base during trial was improper I overruled the Respondent's objection and granted the General Counsel's motion to amend 169 NLRB No. 100 DOCK WAREHOUSING & BOTTLING CENTER 709 II. THE LABOR ORGANIZATION INVOLVED Local One, Wine, Liquor & Distillery Workers Union, AFL-CIO (herein called the Union), is a labor organiza- tion within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue The Union, since at least February 1, 1965, has been continuously recognized as the exclusive bargaining representative of the Respondent's inside employees under a contract or contracts between the Union and the Respondent.5 The complaint alleges and, in the absence of denial by the Respondent in its answer, I accordingly find, that Joseph Greene has been, and is, the Union's shop steward and agent, and that as such shop steward, he has engaged in the negotiation of the Union's collec- tive-bargaining agreement with the Respondent, policed the Union's agreement with Respondent, and processed employee grievances. The issue presented in this case is whether Greene also is, and has been, a supervisor of the Respondent so that, in permitting him to act as the Union's shop steward, the Respondent has assisted the Union and interfered with its employees' representation under the Act, and has thereby committed unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. B. The Bottling Plant, Greene's Lengthy Employment, and his Relation to the Plant's Operation The bottling business now conducted by the Respond- ent was begun by earlier owners at least 26 years ago.6 In 1956, the Respondent purchased the business and took over operation of the original plant. In 1963, it moved to the present plant where it has employed from 30 to 35 people and operates three belt-production bottling lines, one more than it had in the original plant. At the time of the hearing and for several years before that, Frances Peterson was the Respondent's general manager, Jerry Gray was its plant superintendent, and John Neuman was its line foreman. Peterson had been hired in 1961 as superintendent and became manager in 1965. Gray was hired as plant superintendent in 1965 and John Neuman was one of the preceding owners of the business whom the Respondent had kept on in its employ as line foreman. According to the Respondent and the Union, these three men were the only supervisors in the plant for more than 6 months prior to the filing and ser- vice of the unfair labor practice charge in the present case on December 20, 1966, and Greene, although - a senior plant employee upon whom the Respondent and the former owners had at times relied heavily in conducting the operations of the plant, was by this time again only the plant mechanic, and thus a rank-and-file employee as well as the Union's steward in the plant. Greene has in fact worked at the bottling plant for about 20 years, first for the Respondent's predecessors and, since 1956, for the Respondent. During these 20 years, as the plant's mechanic, he has maintained, repaired, and (for each of the varying bottling operations) has adjusted or set up the costly filling, capping, corking, labeling, and other machines on the plant's belt-produc- tion lines. Greene did all this work in connection with the machines except for the last 2 years when the Respond- ent hired two mechanics to assist him. But Greene's job has not been limited to the mere care of the plant machinery. For the evidence shows that his employers, including the Respondent, obviously relied upon his ability and his long familiarity with the plant's operations and jobs, and have, for substantial periods of time, clearly entrusted to him the broad responsibility even of managing the entire plant and directing its person- nel. Thus, 16 years ago, he managed the plant's opera- tions for 6 months for John Neuman who was at that time "the sole owner" of the business as the New York Dock Company. And when the Respondent's present manager (Peterson) and superintendent (Gray) came to the plant in 1961 and 1965 without previous experience in the bot- tling industry, it was Greene, and not Line Foreman Neu- man, who trained them in the operation of the plant, "told them what to do," and thus in fact ran the plant.7 Finally, some indication of the comparative, continuing im- portance of Greene in the Respondent's operations is furnished by the fact that, although Greene is now paid an hourly wage of $3.22 and is included in the contractual employee unit which the Union represents, Line Foreman Neuman is also paid an hourly wage which, since it is only $3, is less than Greene's. Although the Respondent and the Union apparently concede that Greene had supervisory authority during the time he trained Manager Peterson and Superintendent Gray, Peterson testified that these training periods ended before June 20, 1966, by which time he and Gray had taken over their independent management of the plant. Moreover, Peterson further testified not only that he had never told Greene he was a supervisor or had any super- visory authority but also that a plant organizational chart originally prepared in 1961, was revised several times, was discussed by him with Greene on the last revision "2 months ago" and did not confer supervisory authority upon Greene. No such chart or revision was produced at 5 On being questioned by the General Counsel concerning the current wage rate of Joseph Greene at the hearing on June 19, 1967, Vice Pres- ident Francis Peterson of the Respondent testified that he was not cer- tain What Greene's wage rate was "under the new contract" which Respondent's counsel volunteered had gone into effect on "February 1." Having then been given a recess to confer with other counsel as to a possi- ble stipulation, the General Counsel announced a stipulation as to Greene's and several other persons' hourly wages and also proffered G.C Exh. 3 as the contract between the Union and the Respondent including the agreed wage schedule Counsel for the Union said he did not object to the offer of the exhibit. Counsel for the Respondent asked permission to "point out ... that there are other provisions in the contract . . which result in a situation where some worker gets higher than the minimum pay contained in that schedule ," but agreed to my suggestion that he point out to me in his brief "what he [thought ] is material in the contract." Respond- ent's counsel thereupon objected to the admission of G.C Exh. 3 solely on the ground of irrelevancy I overruled this objection and admitted the exhibit. My examination of the 15-page exhibit since the hearing, how- ever, has revealed that it expressly covered only the period from February 1, 1965, to January 31, 1967, inclusive, and that it was therefore the con- tract between the parties immediately preceding the current "new con- tract" referred to by Vice President Peterson in his testimony Hence my finding is in reliance both upon G.C. Exh 3 and Peterson's testimony that the Union has contractually been recognized and has represented the Respondent's employees continuously since February 1, 1965. 6 Kathleen Calabrese, one of the Respondent's employees testified that she had worked that long in the plant for the Respondent and its predeces- sors ' The quotation is from Greene's testimony. Peterson testified to the same effect. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing, however. In any case, the evidence upon which Greene's supervisory or nonsupervisory authority must be determined is the testimony given at the hearing by the witnesses as to what Greene actually did on the job with the knowledge and acquiescence of the Respondent's management. C. The Facts Pertinent to Greene 's Present Status as Shown by the Evidence The witnesses who testified at the hearing concerning Greene's present status in the plant , were ex-employees Powell and Manager Peterson (both of whom the General Counsel put on the stand) and Greene and Line Foreman Neuman. (who testified as witnesses for the Respondent and the Union). 8 In broad outlines, Powell 's testimony was that he was interviewed and put to work by Greene upon his being referred to the Respondent by the New York Employment Service on December 14, 1965, and that there were a number of instances during his employ- ment in which Greene gave him various orders or in which he heard Greene issue orders to other employees, override orders given by Line Foreman Neuman, and reprimand employees for habitual lateness. As the trans- cript of their testimony shows, the other witnesses (in- cluding Manager Peterson whom the General Counsel examined as an adverse witness under Sec . 43(b) of the Federal Rules) were intent upon denying that Greene possesses any semblance of supervisory authority. But, as their examination and testimony continued, they qualified some of the statements first made by them, and with these qualifications their testimony and that of Powell present what appears to me to be a credible, con- sistent, composite picuture of Greene 's functions and authority in the plant . Upon this basis, I make the follow- ing findings. 1. Hiring In addition to a valid 30-day union-security clause, the contracts between the Respondent and the Union since February 1, 1965, have provided that new employees be hired on a "temporary," 2-week "trial basis," and that, although the Respondent may reject job applicants referred by the Union, the Union shall have an initial 24- hour opportunity of nondiscriminatory referral, after which the Respondent may hire "from the open market." In practice, if the Union has no applicants to refer, it noti- fies the Respondent and the Respondent hires an em- ployee through the New York State Employment Ser- vice. In accordance with this practice, two job applicants were referred to the Respondent by the New York State Employment Service on December 14, 1965, and, after speaking with Greene, one of the applicants, Joseph Powell, was thereupon hired and thereafter worked for the Respondent until October 19, 1966. From June 20, 1966, until January 1967 (roughly the 6-month period preceding the filing of the charge in the instant case) only three new employees were hired by the Respondent, and since they were all referred by the Union, Greene merely checked their union books and sent them to Foreman Ne- uman. When Powell was sent to the Respondent's plant by the State Employment Service on December 14, 1965, he en- tered the Respondent's general business office and asked for Greene since Greene's name was on the referral card. Greene took Powell and Stevenson, the other applicant referred by the Employment Service, into a small plant office, which Greene, Superintendent Gray, and Foreman Neuman used and in -which the alcoholic tax stamps were kept. Superintendent Gray appeared briefly but only asked Greene whether he needed any help and, upon Greene's saying, "No," left Greene and the two job applicants. Greene thereupon asked the two men about their previous work, told them it was a union shop, ex- plained the terms and conditions of employment under the Union's contract, gave them job applications, union membership applications, and tax withholding authoriza- tion forms, told Stevenson to come back the next day, but took Powell out into the plant and "put him to work" stenciling cases.0 From Powell's testimony (which I credit), it appears, and I find, that after Greene began his interview of Powell and Stevenson, Greene did not leave Powell nor speak to anyone but Powell and Stevenson until after he "put [Powell] to work," and that during this same time, Powell did not speak to anyone other than Greene, nor did anyone other than Greene speak to Powell about his job application. Furthermore, although Greene testified he "probably" recommended to Manager Peterson or Su- perintendent Gray that Powell be "put to work" and such a recommendation was usually followed, if Greene did in fact make such a recommendation in Powell's case, it was made after Powell had actually begun work and was al- ready on the Respondent's payroll. The Respondent and the Union made several conten- tions during the hearing in connection with their denial that Greene presently has authority either to hire or effec- tively recommend the hire of employees. The first was presented in the testimony of Manager Peterson and Greene who attempted to make a distinction between "hiring" an employee and "putting him to work," as I find Greene did in the case of Powell. The other contentions advanced by the Respondent and the Union also relate to Greene's dealing with Powell's job application in December 1965. In effect, they contended during the hearing that Greene's role in interviewing Powell and "putting him to work" was that of a steward for the Union rather than a supervisor for the Respondent, and that, in any event, the Powell hire predated the 10(b) limitation period in the present case and cannot therefore be properly considered in determining whether Greene is presently a supervisor. The merit of these contentions must be judged in the light of the following representative excerpts taken from the testimony of Greene on cross-examination by the General Counsel,10 in which Greene explained and at- tempted to justify the manner in which he has customarily dealt both with job applicants who, like Powell, have been 8 The remaining witness, employee Kathleen Calabrese (who testified as a witness for the General Counsel) gave no testimony of importance on the question of Greene's status. 8 These findings concerning the substance of the interview are based upon both Powell's and Greene's testimony. Greene could not recall whether, as Powell testified, he actually "put [Powell] to work." I credit Powell on this point. 10 See tr. pp. 178-185. DOCK WAREHOUSING referred to the Respondent by the State Employment Ser- vice, and those who have been referred by the Union: Q. [By Mr. Steiner] Do you interview new em- ployees who are referred to the company from the union, do you interview them? A. New employees? Q. Yes. A. I only interview them as to a referral. Q. By referral are you referring to the union col- lective bargaining clause? A. By the union collective bargaining agreement that stipulates that employees coming in from outside the union must be accepted by the union, and I am the union representative in the shop. * Q. You speak to all new employees who are referred from outside non-union sources, correct? A. Right. Q. After having spoken to an employee, to a referred individual, a person who is referred from outside, do you ever have a discussion with either Mr. Gray or Mr. Peterson as to whether or not this man will suit the job or whether he should be hired or shouldn't be hired? A. No. Q. Never? A. No. Q. I show you General Counsel 's 5 for identifica- tion and ask you to -if you can tell me what that is generally. A. It's an affidavit. Q. Is that your signature on the last page? A. It is. Q. I refer you to paragraph 8 of this affidavit and ask you to read it. TRIAL EXAMINER : He's read it. Q. I ask you now, did you ever speak to Mr. Peterson or Mr. Gray concerning any employees, whether or not they should be hired? A. I recommend to put them to work. Q. Did you ever tell Mr. Peterson that Mr. Powell and a Mr. [Stevenson ] appeared to be -appeared to have the proper experience for a job and should be hired? A. Did I ever suggest to him that they look as though they had the experience? Q. Yes. A. I probably did. Q. Were they hired? A. They were put to work. Q. You make a distinction between being put to work and being hired? A. I certainly do. Q. What is the distinction? A. If they are put to work and I call the union, and after I refer them to the union and suppose the union doesn't accept them- Q. Have you ever- TRIAL EXAMINER : What about it, suppose the union doesn't accept them? You didn 't give any indi- cation what your own supposition would be. THE WITNESS : My only thing is to refer them. If I call the union after I have got their data , I call them up and say that I hired John Doe and Sam Jones, they have hired John Doe and Sam Jones here, in my & BOTTLING CENTER 711 opinion they are this, that and the other, they are ask- ing me whether they had been in a union before, tell them no, or if they have I tell them what union they said they were in , etcetera, and this and that. If the union says it's all right , it's all right, but if they say it is not all right, then I have to tell these fel- lows that they work today and tomorrow , go down to the union and be interviewed down there. Actually we are not supposed to interview them. TRIAL EXAMINER : Why would you suggest that they go down to the union? THE WITNESS : We're not supposed to, they are supposed to all come through the union hall, but in emergencies where there are only a couple of weeks supposed to be work, they give us the-they dispense with the rule and permit us as stewards to accept them to put them to work for this period of a week or two weeks without going to the union hall. TRIAL EXAMINER : Did you tell Powell or Steven- son that afternoon that they were being put to work? THE WITNESS: That is all I could tell them, Mr. Examiner. TRIAL EXAMINER : Did you tell them? THE WITNESS : I told them they would be put to work. TRIAL EXAMINER: Did you have any conversa- tion with Gray or Peterson after that? THE WITNESS : Oh, yes. TRIAL EXAMINER : About these men? THE WITNESS: Yes. TRIAL EXAMINER: When? THE WITNESS : Right after I took the application back or whatever, it's the W-2 forms, I went in and told them we had two young fellows out here and said they want to work, and I would call up the union and tell them about it, but in the meantime if they wished to, they could put them to work. TRIAL EXAMINER : Who could put them to work? THE WITNESS : Mr. Gray. TRIAL EXAMINER : All right. Q. Have you ever recommended any other em- ployee to be put to work in a similar manner as you are - as you recommended that Mr. Powell and another fellow be put to work? A. Yes. Q. Within the six months from June until January, 1967? A. ... June'66? Q. Right, to January, 1967. A. Had no occasion. Q. Had any employees at all been hired during that period? A. Yes. Q. Do you know how many? A. Three. Q. And where do they come from? A. The union. Q. Do you speak to these employees at all when they are referred from the union? A. No, only to get their- check their books. Q. Are you asked to assign them to an initial job? A. No, send them over to the foreman. TRIAL EXAMINER : Send them over to the foreman- THE WITNESS : Just look at their books and send them to the foreman. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER : Who is the foreman? THE WITNESS: Mr. Neuman , Mr. Gray. TRIAL EXAMINER : Do you send them over with any slip that you make out? THE WITNESS: No, I don't make any slips. TRIAL EXAMINER : Do you speak to Mr. Neuman? THE WITNESS : I just tell Mr. Neuman here's the new man that they asked for, here's the new man that the union sent. In the light of this testimony , and Manager's Peterson's testimony to the obvious fact that , upon being "put to work" a man goes on the Respondent's payroll , it is clear that upon being "put to work," whether by any of the Respondent's admitted supervisors or by Greene, a man is "hired." I therefore reject the Respondent 's and the Union's argument to the contrary. With respect to the Respondent 's and the Union's other contentions , it will be noticed that in his quoted testimony , Greene set forth his continuing understanding as to his proper function , authority , and justification in in- terviewing and dealing with both job applicants referred by the Union and outside job applicants such as Powell. It thus appears that he believes that the manner of his dealing with Powell in 1965 is still proper and permissible so far as the Respondent is concerned . Furthermore, so far as the record shows, the Respondent has not told him it disapproves nor has it therefore withdrawn its permis- sion for him to act in this manner. Contrary to the argu- ments of the Respondent and the Union , therefore, I find that , in spite of the fact that no outside applicants have been hired since December 1965, Greene still has the authority from the Respondent to interview and put out- side job applicants "to work" as he did Powell , and that this authority is authority to hire within the meaning of the definition of supervisory authority contained in Sec- tion 2( 11) of the Act. In any event , from Greene's testimony , it certainly appears that he has still the authority to make effective recommendations as to the hire of outside job applicants and this would also amount to supervisory authority within the meaning of Section 2(11). 2. Other supervisory authority As already noted , the Respondent employs from 30 to 35 people in the plant. Except for the work of the opera- tor of a labeling machine and of two mechanics who assist Greene, the work requires no particular skill no lengthy training and (as operations require, as well as to relieve monotony) employees are shifted between jobs such as porters, packers, and general helpers on the belt-produc- tion lines where, in the course of eight operations, they place bottles on the belt, tend them at machine points, transfer them between operations at dead spots in the belt, and eventually remove them from the belt for packing. Ex-employee Powell testified that on the day he began working for the Respondent , Greene first put him to work at stenciling cases and in about an hour came over and changed him to packing ; after Powell packed for about 5 months, Greene put him to work as a porter ; while work- ing as a porter , he was occasionally put to work on the production line by either Greene, Foreman Neuman, or Superintendent Gray; upon his complaining to a "union man" about conflicting orders from Foreman Neuman and Greene as to where he was to work , the "union man" supported Greene and Greene told Neuman he was not to take Powell from his work as a porter; in early August 1966, Greene transferred him from his work as a porter to the task of taking bottles to a cleaning machine at the beginning of the line operation; in the middle of October 1966, and a day after Foreman Neuman had put Powell to work opening cases, Greene removed him from this work and had him pack bottles; Greene, as well as Neu- man and Superintendent Gray, also switched other em- ployees from job to job and when Greene's and Neu- man's orders conflicted in the cases of several of the girl employees, Greene also told them (without comment from Neuman who was present), that he was their boss and no matter what Neuman said they were to stay on the line as he had told them ; and during "all the time" Powell worked at the plant, he heard Greene tell the other plant mechanics "what to do" and to set up the machines on the lines for the different filling jobs. The testimony of Manager Peterson, Foreman Neu- man, and Greene was generally to the effect that all su- pervisory authority in the plant is vested in Peterson, Su- perintendent Gray, and Neuman; and that Greene has no authority (nor has he recently had authority) to hire, to make recommendations with respect to these matters, to assign work, to give orders, or to direct work. Despite the sweeping purport of this testimony and its implicit denial of the particular elements of supervisory authority which Powell testified were actually exercised by Greene, none of these three witnesses directed his testimony to the il- lustrative specific instances referred to by Powell. For example, Neuman 's pertinent testimony was simply a denial that Greene, as the plant mechanic was involved in production in any way, or that he switched people from job to job. But he weakened this denial by refusing to say that Greene "never" switched employees because, as he put it, it "could have been [on] occasions I wasn't around or Jerry Gray wasn't around." Furthermore, Neuman's attention was not directed to -nor did he therefor de- ny- Powell's testimony concerning Greene's overriding his orders to employees on job assignments . Finally, when Peterson and Greene were pressed as to what Greene actually did in certain situations, their testimony was inconsistent with their broad assertions that Greene is merely a nonsupervisory employee. Indeed, their testimony indicates quite clearly that Greene does exer- cise substantial supervisory authority. The details of this testimony, of course, can be un- derstood and fairly evaluated only in the light of the Respondent 's general position as it was presented by Peterson and Greene at the hearing. The central theme stressed by them is that, so far as the Respondent is con- cerned, Greene is only "the plant mechanic" and the Union's steward. According to their testimony, whatever Greene does in the plant that affects the employees in their work is only incidentally connected either with his own manual work as a mechanic in maintaining, repairing, and setting up the machinery and "see [ing] that it runs smooth," or with his proper performance of certain func- tions as the Union's steward. Still according to these two men's testimony, Greene is not concerned with "produc- tion" nor, therefor, with the work of the production em- ployees; nor does he shift employees from job to job "for production purposes." Even with respect to his two assistant mechanics, Greene (according to the broadly expressed substance of both his and Peterson's testimony) issues no orders but simply points out to them what machines the superintendent has told him should be repaired or set up, with the result that all three of them DOCK WAREHOUSING & BOTTLING CENTER 713 (including Greene) pitch in and, cooperating without specific assignment or instructions from Greene, perform the necessary work. Despite this general position, both Peterson and Greene testified that, at least in the absence of the ad- mitted supervisors, Greene has not only "put" job appli- cants "to work" (and has thus "hired" them, as I have found), but has assigned them to their initial work, includ- ing places on the production line. And although, accord- ing to the evidence, Greene has not exercised this power since June 20, 1966, because there has been no occasion to do so, it does not appear from Peterson's or Greene's testimony that the Respondent has withdrawn such authority. Equally significant discrepancies between Peterson's and Greene's general denials, on the one hand, that Greene has any supervisory authority and their detailed testimony as to what Greene actually does, appear in con- nection with his relationship to employees during the nor- mal course of their work. Thus, from both Peterson's and Greene's testimony, it appears that Greene trains em- ployees in the operation of the machines on the produc- tion line and thereafter not only continues to "observe" them, but, if their performance seems to endanger them- selves or the machines, he takes immediate steps to eliminate the danger. Either he corrects the operator and "stays with him for a day or a half day," or he has the operator taken off the machine. This he does by ordering the employee to do other work or by recommending that he be removed from the machine, depending upon whether the foreman or superintendent is present at the time. Needless to say, when Greene makes such a recom- mendation, it is usually followed. According to both Peterson and Greene, in training, observing, correcting, and removing these employees from machine operations, Greene is concerned, not with the work of these employees "for production purposes," but with the safe operation of the machines so that neither the machines nor the operators are injured. They ap- parently feel that, because of this, Greene should not be regarded as a "supervisor" of the Respondent within the meaning of the Act. Here again, through these two wit- nesses, the Respondent and the Union attempt to make a distinction which seems to me to be irrelevant in a determination of whether or not Greene is acting as a su- pervisor. For it seems clear to me (and I find) that in per- forming his various functions and duties with respect to the machine operators, Greene has the responsibility and the power, which he exercises in the interest of the Respondent as employer, of directing the work of these employees and of transferring them, or effectively recom- mending their transfer, to other jobs, even through his concern may not be the "production" of these employees but rather their safety and the protection of the Respond- ent's machinery from abuse and breakdown. With respect to Greene's relations with other workers in the plant, Peterson and Greene, like Neuman, for the most part were content to deny generally that Greene switched them around from job to job. Like Neuman, they did not address themselves to Powell's testimony, nor therefore deny his testimony, that Greene made specific job assignments to Powell and other employees and overruled Neuman in making these assignments. But Peterson did testify that if a machine broke down, Greene would send the employees on that line to another line. Both Peterson and Greene also testified that Greene would speak to Superintendent Gray about a speed up on a line or about getting another employee as an additional worker on a line crew on a particular operation and that his recommendations were usually followed. And Greene admitted that, if Superintendent Gray or Foreman Neu- man were not there, he would "direct production," although he qualified this admission by saying that, as far as he could recall, this "probably happened once in 6 or 7 years." All in all, Peterson's and Greene's broad denials that Greene had general authority over the employees with respect to switching them from job to job are not convincing and I credit Powell's testimony on these points. Nor does the testimony of either Peterson or Greene furnish support for the Respondent's and the Union's denial that Greene has any supervisory authority over his two assistant mechanics. Indeed, this testimony requires just the opposite conclusion. For one thing, Peterson's testimony shows that Greene has the authority to make effective recommendations as to whether either or both of the assistant mechanics should work overtime. For, ac- cording to Peterson, the Respondent not only relies upon Greene's advice as to whether particular breakdowns are serious enough to warrant overtime work in order to make the repairs so that the machines can be used the next day with a minimum loss of production time, but it also relies upon his advice as to whether he needs the overtime help of one or both assistant mechanics." Moreover, although apparently intended to give the op- posite impression, Peterson's and Greene's testimony convinces me that Greene actually does give orders, makes assignments, and generally and responsibly directs the work of the two assistant mechanics during their regu- lar working hours and their overtime. As to this subject, Greene testified merely that, without anyone telling him, it is his responsibility to tell the two assistant mechanics "what equipment is to be prepared"; i.e., by setting up the machines. But, in an apparent attempt to avoid admission that Greene supervises the two mechanics in their work, Peterson testified that, although Greene is first informed when a machine is' out of order, he reports it to Superin- tendent Gray, and if Greene is busy and cannot handle the repair himself, Gray then assigns the work to the two assistant mechanics and directs their work. When he was asked whether Greene actually-has the authority to assign work to the assistant mechanics, Peterson answered that Greene and the mechanics "cooperate" without Greene's giving any "direct order," but that he (Peterson) really did not know whether Greene had ever made assignments to the mechanics. One other aspect of Greene's position in the plant requires consideration. Employee Powell testified that Greene reprimanded employees for habitual tardiness. Manager Peterson testified that Superintendent Gray has reprimanded, employees, as a group and individually, for tardiness and for not punching their timecards or having someone else punch the cards for them, and that "at times" Gray has had Greene with him as the shop steward. Peterson further testified, as did Greene, that in cases of habitual lateness, Peterson would also ask "Greene did not testify concerning his role in determining overtime for his two assistant mechanics. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greene as the Union's steward to speak to the em- ployees. According to Greene, these were situations in which the Respondent complained to him about an em- ployee not only for tardiness but for any violation "of the collective bargaining agreement"; he would then nor- mally speak to the employees alone; in cases of habitual tardiness, he would tell the employee, "Look, a good union man doesn't do these things ... if you want to keep your status as a good union man, show up on time. They tell me that you have been late so many times, and our cards indicate that. Look at your card. Get on the ball, don't do it." This testimony by Greene shows, in my opinion, that by speaking to the employees alone at the request of the Respondent's superintendent or general manager, Greene did reprimand them even though he neither imposed any penalty nor explicitly threatened ac- tion on the part of the Respondent. If this activity by Greene were limited to reprimands for tardiness in a con- text in which Greene had otherwise exercised no super- visory power on behalf of the Respondent, I would find that the reprimands were not incompatbile with Greene's position as the Union's steward, and in any event not significant in themselves. But Greene's activity was not so limited-it apparently extended to matters other than habitual tardiness and it took place in a setting in which the employees had reason to believe that Greene was ac- tually speaking for the Respondent. Accordingly, I con- clude that, in the present setting, Greene in reprimanding employees at the Respondent's request has acted as the Respondent's agent and supervisor and not simply as the Union's steward. D. Conclusions Upon my foregoing consideration of the evidence, I generally credit the testimony of ex-employee Powell and, both upon that testimony and the pertinent addi- tional details furnished in the testimony of Peterson, Neu- man, and Greene, I find that, with the knowledge and as- sent of the Respondent, Greene has hired or effectively recommended the hire of employees, has assigned work to employees and transferred them from job to job in the plant, has directed the assistant mechanics in their work, and has, at the request of the Respondent, reprimanded employees. I further find upon this same evidence that the Respondent has authorized Greene to Act in its in- terest in these respects and has not withdrawn any such authority, and that Greene's exercise of the authority is not merely routine but requires the use of independent judgment. I therefore conclude that Greene is, and has been at all material times, a supervisor of the Respondent within the meaning of Section 2(11) of the Act. Although Greene has been, and is, its supervisor, the Respondent has dealt with him as the Union's steward and the representative of the Respondent's employees in handling their grievances and in contract negotiations. Such a mingling of supervisory and employee-representa- tive functions has deprived the Respondent's employees of their right under the Act "to be represented in collec- tive-bargaining negotiations by individuals who have a single minded loyalty to their interests." 12 By permitting Greene, although its supervisor, to act as union steward and by dealing with him in this capacity , the Respondent has therefore interfered with this right of its employees and also with the Union 's proper administration of its representative function . I conclude , therefore , that the Respondent has thereby committed an unfair labor prac- tice within the meaning of Section 8(a)(1) and (2) of the Act.' 3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's business operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It has been found that, by permitting Joseph Greene, one of its supervisors, to act as union steward and by dealing with him in this capacity both in handling of the grievances of its employees and in the negotiation of its contracts with the Union, the Respondent has interfered with its employees' right to bargain collectively through, and be generally represented by, an independent bargain- ing representative of their own choosing, and has thereby committed unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. I will recommend that it cease and desist from these unfair labor practices and take certain affirmative action which I find will effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent, Dock Warehousing & Bottling Center, Inc., is an employer engaged in commerce within the meaning of the Act. 2. Local One, Wine, Liquor & Distillery Workers Union, AFL-CIO, is a labor organization within the meaning of the Act. 3. Since at least February 1, 1965, the Union has been the exclusive bargaining representative of an approrpriate bargaining unit of the Respondent's employees within the meaning of Section 9(a) and (b) of the Act, and has been continuously so recognized under a contract or contracts between it and the Respondent. 4. Joseph Greene is, and has been at all material times, a supervisor of the Respondent within the meaning of Section 2(11) of the Act. 5. By permitting Joseph Greene, although one of its supervisors, to act as union steward and by dealing with him in this capacity both in the handling of the grievances of its employees and in the negotiation of its contracts with the Union, the Respondent has interfered with its employees' right to bargain collectively through, and be generally represented by, an independent bargaining representative of their own choosing, and has thereby committed unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 12 Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174, 187. 13 /bid. DOCK WAREHOUSING & BOTTLING CENTER 715 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Respondent, Dock Warehous- ing & Bottling Center, Inc., a New York corporation, its agents, successors, and assigns, shall: 1. Cease and desist from dealing with, or otherwise recognizing, Robert Greene or any other person, as the steward or other agent of the Union in the course of con- tract negotiations or the handling of employee grievances, while said Greene or such other person (as the case may be) is also acting as a supervisor for the Respondent within the meaning of Section 2(11) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its plant in Brooklyn, New York, copies of the attached notice marked "Appendix."14 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.15 14, 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 by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." is 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 Re- spondent 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 q4 the National Labor Relations Act, as amended, we hereby notify our em- ployees that: When we bargain with your Union on a contract and when we consider your grievances, we will not recognize nor deal with Robert Greene or any other person as the Union's steward or your representa- tive, so long as Robert Greene or the other person is also acting as our supervisor. DOCK WAREHOUSING & BOTTLING CENTER, INC. (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, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-3535.