Loggins Meat Co.

LOGGINS MEAT CO. 291 Robert D. Loggins, Ronny M. Loggias and Randy Par- ker d/b/a Loggins Meat Co. and Meatcutters Local No. 540. Case 16-CA-6423 September 26, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 20, 1972, Administrative Law Judge I Harry H. Kuskin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Robert D. Loggins, Ronny M. Loggins and Randy Parker d/b/a Loggins Meat Co., Tyler, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. t The title of "Taal Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KuSKIN, Trial Examiner: This case was heard at Tyler, Texas, on April 11 and 12, 1972. A complaint issued herein on February 29, 1972, based on a charge filed on January 24, 1972, by Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local Union 540, herein called the Union. It alleges that Robert D. Loggins, Ronny M. Loggins, and Randy Parker d/b/a Loggins Meat Co., herein called Respondent, violated Sec- tion 8(a)(1) of the Act by interrogating its employees con- cerning their union membership, activities, and desires, and those of their fellow employees; and by threatening its em- ployees with discharge, loss of employment, or other repris- als for engaging in union activity or other concerted activities; and also violated Section 8(a)(3) and (1) of the Act by discharging, and failing and refusing to reinstate, employee Bennie K. McKeever because of his union con- nected activities or because of his concerted activities for purposes of collective bargaining or other mutual aid or protection. In its answer and amended answer, Respondent denies that it has violated the Act in any respect alleged herein. Upon the entire record, including my observation of the witnesses and their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and of Respondent, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The complaint alleges, and Respondent admits, that Respondent consists of three partners, namely, Robert D. Loggins, Ronny M. Loggins, and Randy Parker, doing busi- ness under the trade :ame and style of Loggins Meat Co.; that it engaged in the processing of meats at its facility in Tyler, Texas; that, during the preceding year, which is rep- resentative of all times material herein, it received goods and material valued in excess of $50,000 directly from out- side Texas; and that, during the same period, it sold and distributed from this facility directly to customers outside Texas meats processed by it valued in excess of $50,000. I find upon the foregoing, as Respondent also admits, that Respondent is engaged in commerce within the meaning of the Act. 11 THE LABOR ORGANIZATION INVOLVED Respondent further admits, and I find, that Amalga- mated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local Union 540, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Some Background Facts 1. The plant setup Respondent's meat processing operations at its Tyler, Texas, facility consist of the following five production de- partments: steak,' boning, cutlets, ground beef, and frozen foods .2 At all times material herein, there were 8 to 10 employees in the steak department, 3 in the cutlets depart- ment, 4 to 5 in the ground beef department, and 4 in the frozen foods department. Of these five departments, only the boning department had an employee denominated a supervisor by Respondent; each of the others had a lead- man. Shine Vega, also referred to in the record as Angel Vega and Joe Vega, was that supervisor;3 and two of the leadmen, the others not being named in the record, were John Thompson in the ground beef department and Bennie I Fresh cut steaks are prepared in this department 2 Frozen cut steaks are prepared in this department 3Randy Parker, one of the partners of Respondent, referred to herinaf- ter also as Parker, testified that "Shine Vega is the foreman or supervisor, whichever you prefer to call him in the boning room 199 NLRB No. 38 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD K. McKeever, the alleged discrimmatee herein, in the steak department. Above the foreman and leadmen were Bob Mitchum, the production foreman, and Charlie Clarkston, the plant superintendent.4 In addition, Parker, whom I have just mentioned, took an active role in the production phase of the enterprise during such times as he was in the plant .5 Respondent admits in its answer that Mitchum is a super- visor within the meaning of Section 2(11) of the Act. It would appear, and I find, that Clarkston, his superior, is likewise a supervisor within the Act's meaning. It is Respondent's position that McKeever was at all times mate- rial herein a statutory supervisor, and it was therefore privi- leged to discharge him, as it did, because of his union activity. Production at the plant proceeds along the following lines : Mitchum comes to work at 6 a.m., opens the plant, and takes care of the presamtation inspection to see that everything is sanitary and ready for work. He then puts out the towels and aprons for the employees. The employees in the ground beef department are the first to arrive, since their department begins work at 6:30 a.m. By that time, Mitchum has gotten hold of the meat to be processed as hamburgers and placed it in a ready position for them. He also does the same thereafter for the steak department. The employees in the latter department report to work at 7 a.m. Those in the boning department report at 7:30 a.m. Other employees arrive as late as 8 a.m. under this staggered schedule. After Mitchum has attended to the above, he repairs to the pro- duction office, which is partly glassed in so that he can see into the plant when he stands up. There, he makes out the production schedules, based on orders which came in from customers the day before, but arrived too late for processing that day. On Tuesdays and Fridays, Mitchum also includes in the group of orders to be filled those sent in by Respondent's salesmen by bus, and picked up by him at the bus station. By 7:30 or 7:45 a.m., Mitchum usually has the orders made up and brings them to the appropriate depart- ment for processing. In the interim, those employees who reported for work at 7 a.m. spend their time either finishing up what they were working on the day before, or filling some advance orders, or "making a little stock." Mitchum repeats the practice of making out production orders and bringing them to the appropriate department at least once an hour. In this way, he takes care of orders which come into the plant in time to be processed and delivered the following day. Thus, orders are taken up to 3 p.m. for delivery in It appears that Clarkston has had some experience cutting steaks while in Respondent's employ, but Mitchum has not. 5 Parker testified that he did "quite a bit" of traveling for Respondent, that some of his trips took an entire day, and that when he was at the facility, he spent about an hour a day in the plant proper. This latter testimony would seem to imply that Parker spent considerably less than an hour a day in the steak department. However, I find more credible the testimony of Aaron Dalton, a butcher in the steak department who took McKeever 's job after McKeever was discharged He testified that Parker would come in the de- partment "many number" of times a day and that the longest of such visits lasted 10 to 15 minutes. Parker testified further that ( 1) Robert D. Loggms, one of the other partners, did not supervise production, and did not spend any time "to speak of"in the plant, i.e., he might walk through the plant twice one week, three times another week, and not at all for 2 weeks at a time; and (2) Ronny M. Loggins, the remaining partner, spent about 95 percent of his working time "on the road." Houston, Texas, the following morning, with delivery start- ing at 7 a.m. Respondent also takes orders and delivers in Dallas, Freeport, and Texarkana, making deliveries 4 days a week to the latter two cities. According to Mitchum, he spends about 4 hours a day making up the orders described above, delivering them, and talking to the various people, who are the heads of the respective operations, about the production lists; he also spends about 30 to 40 minutes talking to the leadman in the frozen cut steak room, and about 1 to 1- 1/2 hours consulting with Randy Parker in the main office of the facility, and in going to pick up orders. In contrast to Mitchum's hours which are from 6 a.m. to 4 p.m., Clarkston's hours are from 8 or 9 o'clock in the morning to about 6 or 7 o'clock in the evening. He takes care of any problems that Respondent may have with the Federal inspector; keeps abreast of changes in regulations on packaging and labeling, and makes adjustments as re- quired; checks to see whether equipment needs changing or modifying; keeps Randy Parker posted as to the need for the "raw product," and when it should arrive;6 and sees to it that the shipping department functions smoothly and ef- fectively. According to Parker,7 except for the fact that the employees in the ground beef department are usually super- vised by Mitchum, with Clarkston also doing so at times, and the further fact that the employees in the frozen cut steak room are supervised by Mitchum, no time is spent by either Mitchum or Clarkston in personally supervising pro- duction employees. Thus, as will appear hereinafter, Re- spondent contends that in the steak department this supervisory function was performed by McKeever at all times material herein, whereas the General Counsel con- tends that he was no more than a leadman and did not meet the statutory test of a supervisor. It would appear that Respondent regards the boning and steak departments as the crucial areas of its operation. As already found, each of these departments has about the same number of employees and their complements are larger than those in the other departments. With respect to the boning department, Parker testified that the boners sep- arate the "sub-primal cuts" from the bone, that the work is very exacting in that the boner has to be careful not to score the meat too deeply, and has to make sure that he cuts the meat in the proper place;8 and that this calls for a lot of supervision. And as to the steak department, he testified that 30 percent of the gross sales comes from this depart- ment; that the butchers therein portion the steaks into fil- lets; that when the order calls for a 5-ounce fillet it is important that the steakcutter "hit those portions" within a quarter of an ounce, because if a 5-ounce fillet sells at 60 cents, each ounce overweight represents a loss of 12 cents and each half ounce a loss of 6 cents to Respondent; that, if the order calls for steak by weight and it is cut by the butcher so as to weigh too much, Respondent makes the customer unhappy because his unit cost is too high; and 6 Parker deals with Respondent's suppliers of the "raw product." 7 Clarkston did not testify in this proceeding 8 Parker pointed out how important moneywise it was that the cut be a correct one, as follows- "But if they cut that hind quarter, we'll say, if they don't put the right break on it ... we leave meat on a bottom butt which sells for 55 cents, versus a round, which sells for 80 cents." LOGGINS MEAT CO. 293 that, for these reasons, this department also needs "real close supervision."9 Respondent takes the position that Vega, denominated by it as a foreman of the boning department, had superviso- ry status under the Act. However, his claimed supervisory status was not litigated in this proceeding, and I therefore find it unnecessary to, and do not, make any finding as to Vega in this regard. The supervisory issue with respect to McKeever, who was, in effect, denominated by Respondent as a leadman of the steak department until 2 days before his discharge, when he was told that he was a supervisor, will turn upon his own duties and functions in the steak depart- ment and his authority and role vis-a-vis the other employees therein, notwithstanding Respondent's efforts, during the hearing to cast Vega and McKeever into the same supervi- sory mold. 2. The organizational activity Organizational activity at the plant was initiated by Ben- nie McKeever, the discriminatee herein, about the first week in January 1972.10 At that time, he and his brother, Joe, an employee of Respondent, attended a meeting of the Amal- gamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, being held in connection with an or- ganizing effort among the employees at the K Mart store and the Allied Foods store in the area. While there, Bennie McKeever spoke to Fred Tilson, the business agent of the Union and its representative at the instant hearing, and solicited his help in organizing Respondent's employees. Tilson agreed to help, and thereupon told the McKeevers how to proceed, and furnished Bennie McKeever with un- ion authorization cards. Beginning around January 7, Ben- nie McKeever passed out cards to employees at the facility during break periods and during the 30-minute lunch peri- od, doing so on the parking lot, on the shipping dock, and in front of the office door. He succeeded in signing up about 28 or 30 employees. Within the next 2 weeks, there occurred the conduct alleged herein to be violative of Section 8(a)(1), and the discharge of Bennie McKeever, which is alleged to have contravened Section 8(a)(3) and (1) of the Act. I shall treat with these matters in detail hereinafter. B. The Allegations of Section 8(a)(1) 1. The interrogation The complaint alleges that Mitchum and Parker interro- gated employees as to their union membership, activities, and desires, and those of their fellow employees. With respect to Mitchum, the record reveals two epi- sodes. The first one occurred on January 14. On that day, according to McKeever, Mitchum approached him at his work block where he was cutting meat and asked him what "those things" were that he was handing out. When he 9 Parker pointed out that Respondent has done its best to hire experienced butchers, but the fact that a butcher is experienced does not mean that he is an experienced steakcutter and, if that proves to be the case , he needs a lot of training and a lot of practice . The record fails to establish, however, that, during relevant times herein, any of the butchers in the steak depart- ment was not an experienced steakcutter. 10 All dates hereinafter are in 1972. answered that they were union cards, Mitchum asked him if he had signed one. He replied that he was the first one to do so. At this, Mitchum asked for a card but he refused to give Mitchum one, with the explanation that Mitchum was not eligible to sign a union card as he was a supervisor. Mitchum's testimony was substantially in accord with the above, except that his account did not include any reference to an inquiry by him as to whether McKeever had signed a card, and he denied that McKeever indicated to him why he was not eligible. In all the circumstances above, and as McKeever impressed me as a more reliable witness than Mitchum, I credit McKeever's version and find that the content of this conversation was as testified to by him. The second episode also occurred in January and involved a conversation between former employee Eddie Roy Free- man and Mitchum. In the course thereof, according to the testimony of both of them, Mitchum asked Freeman if he had signed a union card and Freeman replied that this was a personal matter. With respect to Parker, the record shows that after ad- dressing a meeting of all the employees, which he convened at about 8 a.m. on January 17, the contents of which address will be discussed shortly, he summoned McKeever to his back office and held a conversation with him. The relevant credible testimony of McKeever, which was corroborated to a considerable degree by Parker, indicates, and I find, that the following then occurred: Parker told McKeever that he wanted to find out what the Union wanted and "who was behind all of this." McKeever replied that he had brought the authorization cards into the plant and had gotten them signed; that, if Parker was going to do anything to anybody, he should do it to him; and that the Union wanted a fair share of the profits. Parker then said that he "figured [Mc- Keever] was the one, and that the rest of the people would be all right if it wasn't for [McKeever] stirring them up." In addition, Parker accused McKeever of being against man- agement from the start of his employment, and reminded McKeever that he had offered McKeever a job as a supervi- sor, which McKeever had turned down." Parker also told McKeever that he was going to watch him as he had never been watched before, that he was going to demand perfec- tion from McKeever in his work,' and that he was "going to get [McKeever] out the door." In view of all the foregoing, and in light of my finding hereinafter that McKeever was not a supervisor within the Act's meaning, I conclude and find that, during the afore- said conversations with McKeever and Fielding, Respon- dent engaged in interrogation of its employees as to their union membership, activities, and desires, and those of their fellow employees, in violation of Section 8(a)(1) of the Act.13 11 According to McKeever, Parker offered him the job of plant superin- tendent about 8 months before his discharge, and he declined the offer. 12 Parker admitted saying that he would be watching McKeever "pretty close" and that he meant thereby that "if [McKeever] was the one that was causing [Respondent] trouble with the Union, well, we were just going to need to do something about it." He admitted further that there had been no problem about McKeever's production up to that time, that he had no knowledge that McKeever was organizing on company time, and that he was in the steak department "a couple or 3 times" later that day weighing boxes with steaks as they were processed. 13 See Little Rock Downiowner, Inc., 168 NLRB 107; and Davis Wholesale Co., Inc, 166 NLRB 999. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The threats The complaint alleges that on or about January 17, Par- ker orally threatened employees with loss of employment or other reprisals for engaging in union or concerted activity. The record shows, as I have just indicated, that Respondent convened the employees on the morning of January 17 and spoke to them. A composite of the testimony, which I find credible, of McKeever, of employees Dalton and Patricia Mosely, and of Parker establishes the following: Parker began his remarks by complimenting the employees on their work. He then said he had heard about the Union, that the business belonged to Robert Loggins (who was present at the meeting), that Robert Loggins had always run the busi- ness and will continue to do so, that if anyone wants to come in and talk about it, the door was always open, and that if anybody didn't like it, "there is the door." In all the circum- stances, including the heretofore discussed episode between Parker and McKeever which followed shortly after the speech, and in which, as I have found, Parker told Mc- Keever that he was going to watch McKeever as he had never watched McKeever before, and that he was "going to get [McKeever] out the door," I conclude, and find, that, in context, Parker's remark of "there is the door" impliedly threatened employees with discharge or other reprisals in violation of Section 8(a)(1) of the Act.14 C. The Allegation of Section 8(a)(3) and (1) in the Dis- charge of Bennie K McKeever As already noted, Respondent does not deny that it dis- charged McKeever because of his union activity. However, it claims that it did not contravene the Act thereby because McKeever was a supervisor within the Act's meaning. The sole issue relating to McKeever's discharge is therefore his status under the Act. Before dealing with what, Respondent claims, are McKeever's attributes of supervision, I shall discuss McKeever's employment history and how the steak department functions. McKeever was employed by Respondent during two separate periods, i.e., for a period of a year starting in Septem- ber 1968 and for about 16 months starting in September 1970. During the second period he was hired as a steakcutter at $3.75 an hour. Shortly thereafter, Parker came to Mc- Keever and told him that he needed someone to take the lead in the steak room and see to it that the orders were filled to the customer's satisfaction. Parker added that Mc- Keever was qualified to do so and that the pay in that job would be $4 an hour if McKeever would agree to take the job. McKeever accepted. About November 1970, his pay 14 See Charlena Lobianco, an individual, d/b/a Loby's Cafeteria, 187 NLRB No. 54. The General Counsel asserts in his brief that "another reprisal threatened by Parker at a later meeting was that if the employees joined the Union, their wages would be cut." Although this conduct was not alleged in the complaint to be violative of the Act, it was litigated herein. However, as the testimony of the witnesses of the General Counsel relating thereto was unclear as to exactly what was said by Parker, and as McKenney's testimony in this regard indicates that, when there was talk about the cut in wages, it was in the context of the Union's requesting him to sign a dues deduction authorization card, I conclude, and find, that the record fails to preponderate in favor of a finding that Respondent contravened the Act by Parker's comment about wages during the aforesaid meeting with the employees. was increased to $4.25 an hour, and the pay of the rest of the steak cutters was raised from $3.75 to $4 an hour. Mc- Keever made an unsuccessful request of Parker for a raise during the first week in January 1972. Shortly thereafter, McKeever commenced the organizational activity, here- tofore described, among Respondent's employees. On Janu- ary 17, also as heretofore described, McKeever was called to the back office by Parker where he was interrogated concerning the Union and his role therein, and was told in effect (1) that, but for him, there would be no union organi- zational activity in the plant; (2) that he would be watched at work as he had never been watched before; and (3) that Parker was "going to get [him] out the door." About 30 minutes thereafter, according to the undenied testimony of McKeever, Parker called him into a little shipping office and said, "All right. Now, I have found out that I don't have many rights in this matter. But, I do have a few, and I intend to use them to the fullest extent .... OK. Now, you are the supervisor out there, right?" At this point, McKeever inter- jected, "whatever you say." Whereupon, Parker continued with, "Now I don't want this man back here cutting any more steaks he is not a qualified Class A butcher. I want you to cut the steaks. I don't want him to cut anymore. You move him back there on the back table and let him skin tenders."15 Thereafter, on January 19, about an hour after McKeever had started work, Parker came to the steak de- partment and told McKeever that Loggins wanted to see him in Loggins' office. When McKeever arrived at the of- fice, Robert Loggins and Johnny Copeland, the bookkeeper and office manager, greeted him. Loggins then read from the following prepared statement to McKeever:16 Discharge of Mckeever Reason: He has violated the law, (National Labor Relations Act, by soliciting employees to join a union. Being a supervisor he binds the Company by his actions. His actions have destroyed the neutrality of the Company, by interfering with the rights of the employees. Employ- ees have the right to join or not to join a union without interference from the Company. For a supervisor to solicit employees to join he interferes with their rights which is a violation of the law. According to McKeever, Loggins also said, "Bennie, I have always run this business. This business belongs to me. No- body is going to tell me how to run it." And when he protested that he did not understand why he had been dis- charged, Loggms suggested that, if he wanted an explana- tion, he should get a lawyer to explain it. At this, he went 15 I note, in this connection, the credible testimony of McKeever ( 1) that he was not told, during management's prior conversations with him about his union activities, that he was a supervisor and should not be engaging in such activities; (2) that when he told Mitchum that he (Mitchum) was ineligible to get a union authorization card because of his supervisory status, Mitchum did not then say to him (McKeever) that he was a supervisor; and (3) that, at the time he was made a leadman in September 1970, Parker did not tell him that he was a supervisor nor did Parker tell him that he had authority to hire, fire, transfer, discipline, recall employees, or adjust grievances. 16 Loggins did not testify herein I received the statement in evidence as Resp. Exh. 2, pursuant to the agreement of the parties hereto that it was to serve in lieu of testimony by Loggins and that its contents were not disputed. LOGGINS MEAT CO. back to the plant to pick up his tools, with Loggins' permis- sion, and left. As to the, manner in which work proceeds in the steak department, the General Counsel adduced testimony by McKeever, by Dalton, by Lindell Eugene McKenney, a skin tender, as well as a steakcutter in that department, and Patricia Mosely, a meatwrapper in the same department. On the basis of a composite of their credited testimony, which was in substantial part mutually corroborative, I find the following: The complement, at all material times, consisted of between 8 and 10 employees." The butchers either work on making fillets or on cutting steaks. Parker makes the original assignments, determining who works at the fillet table and who works at steak cutting. During McKeever's tenure, there were two to four people working on fillets. They worked as a team, with one doing the cutting of the fillet, and the other one putting bacon around the steak, also placing them in trays, putting the order number on them, and then taking them to the wrapper. It would appear that the fillet cutting was done by a butcher, while the bacon wrapping etc. might or might not be performed by a butch- er. The remaining butchers did steak cutting, which ap- peared to be a more skilled operation. The amount of work to be done in the steak department would depend on the orders that came to the department from Mitchum. Thus, when McKeever would arrive for work in the morning, Mitchum would usually hand him a work list upon which were listed items to be produced by the steak department.18 At the same time, Mitchum would tell McKeever what meat was available for filling these orders. Thereafter, dur- ing the day, Mitchum would check with the office to see if salesmen or customers had telephoned in any orders. If so, he wrote up the order and brought it into the steak depart- ment or any other department to which it pertained. The number of orders received by Mitchum in a day varied between 35 and 50. In the case of the steak department, the order was directed to McKeever. Usually Mitchum handed the order to McKeever and would give McKeever any spe- cial instructions that he had.19 If McKeever was not there, Mitchum would lay the order on the table 20 At times, Mitch- um might hand the order to one of the butchers. After getting the order from Mitchum, McKeever would lay the order down on the saw, which was positioned behind him, so that "everybody could get to it and get their order num- bers and see whatever they needed to get off of it." If, for ex- ample, upon checking the list when it came in from Mitch- um, McKeever noticed that it carried an order for 20 boxes of fillets, McKeever might call out to the butchers at the fillet table, "you have an order for 20 boxes of fillets." The personnel involved would then approach where McKeever had laid down the work order, and take down the applicable 17 According to Parker, when McKeever was first hired for the steak de- partment, the complement consisted of three employees. 18 On infrequent occasions , Parker would do this. 19 Special instructions mught be given by Mitchum directly to those work- mg on an order for fillets. And in those instances where the customer's name appeared along side the order , that alone was enough to constitute special instructions to an experienced butcher. 20 Although Mitchum testified that he never laid the production list on the table but has always handed it to McKeever whether McKeever was in the department or the freezer at the time, I do not credit him in this respect in view of the more convincing contrary testimony herein. 295 order number and check the order for any special instruc- tions pertaining thereto. After the order for a specific item had been filled, the one filling it would scratch that item off the order which came from Mitchum. Under the established routine, if an order or orders re- quired more steaks than two butchers could cut on one table that day, then the steaks had priority and the butchers work- ing on fillets would leave that operation and would assist with the cutting of the steaks. And if as a result of this situation, the required number of fillets had not been cut toward the latter part of the day, all of them would help to fill the order relating to fillets. In addition to all the foregoing, McKeever testified credi- bly that he would spend 90 to 95 percent of his time cutting steaks in the department, and the remainder working on call orders, i.e., orders which are prepared and stored in freezers in anticipation of orders to be received. Thus, if an order could be filled from the precut meat in the freezers, he would, upon checking the list as it came from Mitchum, go to the freezers and fill the order and bring it to the shipping department. He acknowledged that he was in charge of production, in that if the production did not go out proper- ly, he was going to be the man who would have to answer therefor; and that, in keeping with that responsibility, he checked the boxes of orders occasionally to make sure that the correct number of steaks were in the boxes ; and also, when the whole order was filled for a customer and stacked out on the floor, he would look to see whether the order was filled in accordance with the customer's request. However, there is further credible testimony by him that orders being worked on by employees in the steak department were not checked by him as to the quality of the cut or anything of that nature, unless he was specifically requested to do so by Parker. I come now to the contention of Respondent that Mc- Keever had, in addition to the above, the following respon- sibilities vis-a-vis the employees in the steak department, which were attributes of supervision: ( 1) making assign- ments; (2) granting time off; (3) recommending raises; (4) recommending hire; (5) recommending against layoff; (6) recommending transfers; and (7) training of personnel. I shall deal with them seriatim. As to (1), as already noted, the employees did not need special instructions from McKeever, as a rule, since such instructions were written on the work order and were made available to the employees actually doing the cutting. Fur- ther, each employee kept track of his own work and Mc- Keever did not check the cuts made by other employees unless Parker asked him to do so. Also, according to the credible testimony of McKenney, the usual practice when help was needed by an employee was for the other employ- ees to help voluntarily when they finished their own work. In consequence, an employee would not have to be told what else to do when he finished a job. And according to Mosely, a wrapper, she did not work from the instructions written by the butcher cutting the meat on a flag accompa- nying each tray she wrapped. So far as appears, it was only when there was an order for a large amount of steaks or fillets, which could not be handled in time by those who regularly performed these tasks, that McKeever would de- cide how many butchers would work on fillet cutting and 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how many on steak cutting. This was not the normal situ- ation, and when Parker brought in a big order that had to be filled promptly, either Parker or he would make the decision. It is thus apparent, and I find, that McKeever's responsibilities as to making assignments of work were in- substantial. As to (2), McKeever testified that he had never granted employees in the department time off; that employees would take such matters up with either Mitchum, Clarkston, or Parker; that one or the other of them granted the time off, without checking the matter out with him, and that he might or might not be told of the action taken. He testified further that, if an employee would ask him for time off, he would tell him to check with either Mitchum, Clarkston, or Parker, and that, if it was all right with one of them, it was all right with him. In partial corroboration of McKeever, Mosely testified that, on one occasion, her son was sick and she wanted to get the day off, that she telephoned Clarkston from home in the morning,21 that Clarkston was not there so she spoke to Mitchum, and that Mitchum granted her request. She added that she never asked the leadmen in the steak department for time off and does not know of any occasion when they have granted time off. Further, accord- ing to McKenney, he has never seen McKeever give anyone time off. In addition, according to Dalton, while McKeever was the leadman in the steak department, he had an acci- dent in which he cut off some fingers and lost 5 weeks from work. When he returned to work, the front office knew that he would have to leave work once a week in order to see his doctor, but he would not ask McKeever for leave to do so, he would just tell McKeever that he was leaving for that purpose; and this occurred during 4 weeks. The countervail- ing testimony in behalf of Respondent was given by Mitch- um. However, he did not deny McKeever's testimony that employees go either to Clarkston, Parker, or him concerning granting time off; nor did he deny Mosely's testimony as to the one instance in which he granted her a day off. And while he did testify as to separate incidents in which em- ployees Joe McKeever, Captola Medlock, and Alice Jacobs left the steak department early, assertedly with permission from McKeever, this was denied by McKeever. In this state of the record, and as Mitchum was not a forthright witness,22 and as I have found that McKeever was a credible wit- ness, I find that the record fails to establish by a preponder- ance of the evidence that McKeever had effective authority to grant time off to employees in the Steak Department. As to (3), McKeever testified that he had, on occasion, mentioned to management something about employees' getting raises. However, he added that management, in those instances, did not tell him when favorable action was taken, and it was usually the employee involved who told him about it. In this connection, McKenney testified credi- bly that when he received a raise in January 1972 during McKeever's incumbency, McKeever never told him that he had recommended him for a raise; instead, it was Parker who came to him and told him that "[he] will try to get [him] some more money." I note, in this connection, Parker's 21 Mosely also testified that she considered Clarkston to be her supervisor. 22 See reference hereinafter to Mitchum's claimed limited role in the steak department as well as other production departments , notwithstanding that he was the production foreman. testimony that there were instances when McKeever made a recommendation for a raise for an employee but the raise was not granted; and that, in general, raises depended not only upon the opinion of the supervisor as to the recom- mended employee but also on whether Respondent could afford the raise financially. It was Parker's further testimo- ny that, on McKeever's recommendations, he granted a raise to Anna Hunter and two raises to Dalton. With particular reference to the second raise of Dalton, according to Parker, McKeever told him that Dalton should get that raise so as to earn as much as employee Charles Fielding. However, it was Dalton's rebuttal testimony that he was hired at the rate of $3 an hour with the understanding that he was to get a raise to $3.50 an hour within 30 days, and further that he received his second raise to $4 an hour at the same time as Fielding received his raise to $4 an hour. And it was McKeever's testimony rebuttal that the raise for Hunter was not initiated by him, as Parker testified, but came about in the following manner: Parker commented to him that Hunter was really learning the job fast and that she was going to be a fast meatwrapper. He replied that she had reached that stage already, and added that he did not think that she was going to stay long as he had heard her and other employees say that she was planning to leave because she was working too hard for the money she was getting. Where- upon, Parker told him to tell Hunter that she would get a raise the following week, and he so informed Hunter. In all these circumstances, and as I find that the above testimony of McKeever and Dalton was more reliable than that of Parker, I credit them in all instances where their testimony conflicts with that of Parker. Accordingly, I find that the record fails to establish that McKeever had the authority effectively to recommend raises for employees in the steak department. As to (4), there was conflicting testimony by Parker and McKeever as to the part played by McKeever in the hirings of George Ellis, McKenney, Dalton, Fielding, Joe Ruther- ford, and Joe McKeever. However, in view of my findings heretofore that McKeever was a more reliable witness than Parker, and as McKeever's testimony relating to the above seemed to be more consistent with the logic and probabili- ties of the situation, I credit McKeever's version. Thus, according to McKeever, when Ellis was hired, he did not know him. His only involvement in the hiring was a conver- sation he had with Parker at the time Parker was conducting an employment interview with Ellis. Parker came to him in the steak department, told him that Ellis was applying for a job, and asked what he "had heard about [Ellis] down at Brookshires," the latter being a company which employed Ellis. He indicated what he had heard, and Parker said that he had heard the same thing. Parker then inquired about a certain personal habit of Ellis, and he pleaded ignorance. In the case of McKenney, as in the case of Ellis, it is Mc- Keever's testimony that he made no recommendation to Parker that McKenney be hired; that he did not know McKenney at the time he was hired; and that, just prior thereto, Parker had asked him for suggestions on how "to get the production out on the fillets," and he suggested that it would help if Respondent had an employee "who would do nothing but skin tenders to get the fillets built out of." Thereafter, McKenney was hired by Parker to skin tenders. LOGGINS MEAT CO. 297 In the case of Dalton, McKeever testified as follows: Parker inquired from him whether he knew of possible hires for the steak department. At this, he mentioned that Dalton, who had worked for Respondent before, was out on strike, and he agreed to tell Dalton that Respondent was going to hire a steakcutter. Later, he spoke to Dalton and suggested to Dalton, who was noncommittal, that he talk to Parker and apply. Following this, Parker came to him one day and said that Dalton was in the office talking about a job and that he (Parker) was thinking of hiring Dalton. Parker continued by asking whether he (Parker) could rely on Dalton to stay on as a meatcutter once the strike at Dalton's place of employment was over. He answered that Dalton was honest and, if Dalton said that he would stay, he would keep his word. In the case of Fielding, McKeever testified to the following: He had a conversation with Fielding in which he told Fielding, in response to Fielding's inquiry, that Re- spondent was hiring at that time. Thereafter, Parker came to him and asked whether he knew Fielding. He answered in the affirmative, adding that he had worked with Fielding "for several years at Safeway." To a further inquiry as to what kind of a person Fielding was, he replied, inter alia, that Fielding was a good man, owned his home, had a good job and was a finished meatcutter. However, he never rec- ommended that Fielding be hired. In regard to Rutherford, McKeever also testified that he made no recommendation that Rutherford be hired. In addition, according to Mc- Keever, he knew of Rutherford at the time and knew that Rutherford had worked for Safeway, but he did not know him personally. He did not recall whether Parker mentioned anything to him about laying off Rutherford 3 months after Rutherford was hired, remembering only that Parker told him, after Rutherford was laid off, that it was nice having Rutherford in the department to skin tenders, but that Re- spondent did not really need Rutherford's services. And, finally, in the case of his brother, Joe, McKeever testified to the following: He had mentioned to Parker that his brother was dissatisfied with the job he held and was think- ing of quitting. About that time, he told his brother, just as he had told Dalton, that Respondent was looking for steak- cutters and, if he was interested, he should go to Respondent's facility and apply. Thereafter, his brother did apply and Parker came to him and asked whether he had any personal objections to the hiring of his brother and to his working in the steak department. He replied that he had no objection, as he and his brother did get along together. In addition to the foregoing, McKeever testified that he had told Parker, at times, that he needed additional help; that he had volunteered the names of several individuals who were interviewed by Parker but were not hired; and that Parker had, on several occasions, come into the steak de- partment and asked if any of the employees knew of any steakcutters who would be interested in employment with Respondent. Further, Parker admitted that he generally in- terviewed applicants before they were hired, and further that he had asked employees other than McKeever if they knew of anyone who would like to work for Respondent. In all these circumstances, I conclude, and find, that the record fails to preponderate in favor of a finding that McKeever effectively recommended the hire of employees. As to (5), Respondent appears to rely on the testimony of Parker that it delayed the layoff of Rutherford, discussed above, at the urging of McKeever. However, as McKeever had no recollection of being spoken to by management beforehand about laying off Rutherford, and as Parker's testimony in this regard was not convincing, I find that, here too, the record fails to preponderate in favor of a finding that McKeever effectively recommended a delay in laying off Rutherford. As to (6), the record testimony relates to the transfers, during McKeever's incumbency as leadman, of Vega, Wil- liam Stewart, and Alice Jacobs from the steak department. With respect to Vega, I find, as heretofore, that McKeever's testimony was more reliable than that of Parker. Thus, ac- cording to McKeever, it was Jack Cook, the predecessor of Plant Superintendent Clarkston, rather than he, who initiat- ed the action against Vega which resulted in the latter's transfer by Parker. McKeever gave the following details of the episode: It began when Vega reported to work one Saturday morning in a drunken state. Vega was so drunk that he could not cut meat properly and Cook noticed that he had "mess[ed] up" a bunch of knuckles while cutting them. Thereupon, Cook told Vega, whose car was on the parking lot, to go there and he down. When Parker came into the steak department and noticed Vega's absence, Par- ker inquired from him (McKeever) as to Vega's wherea- bouts, and he told Parker of the above developments. He also added that he thought that Vega had gone home. Whereupon, Parker said that this was not the first time that this had happened and that he was tired and sick of it. Thereafter, Parker transferred Vega out of the steak depart- ment to the boning department. In regard to Stewart, Mc- Keever admitted that he had asked Mitchum to get Stewart out of the department because of Stewart's odor problem, namely, "[Stewart] would wear these smocks and cut liver for several days at a time without changing them. So, it would just-well, it smelled real bad." It also appears from the credible testimony of McKeever that he put the matter on a personal basis, telling Mitchum that he "couldn't hard- ly stand it ... that something was going to have to be done with [Stewart] or him, that one of [them] was going to have to go." Thereafter, according to Mitchum, "[he] talked to Parker and decided to move [Stewart]." With respect to Jacobs, there was testimony only by Mitchum, to the follow- ing effect: McKeever came to him and complained that Jacobs, who was wrapping steaks, brought too many per- sonal problems to work with her, that employees in the steak department were tired of listening to her personal problems, and that he (McKeever) would like her to be moved out of the department, as a result, she was moved to a new steak room,23 opening up next door. It is apparent from the above, and I find, that the above testimony as to the episodes involving Vega and Stewart fail to establish that McKeever effectively recommended their transfers. And while the un- controverted testimony of Mitchum as to the episode in- volving Jacobs points to such authority by McKeever, in view of the fact that I have discredited Mitchum in other respects herein, and have found generally that he was not a forthright witness, I conclude, and find, that the record 23 `Fresh' frozen steaks were prepared in this room. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fails to preponderate in favor of a finding that McKeever effectively recommended the transfer of Jacobs. As to (7), the record shows that the training of personnel by McKeever was minimal . Those hired by Respondent as steakcutters already knew how to cut steaks. All that was required of McKeever was to show the new hires how Re- spondent "wanted [its] steaks cut for this customer or that customer." In this connection, he would go over orders to be handled by new hires with them and show them such things "as how much tail to leave on the T-bone [steak]." And in regard to newly hired meatwrappers, if they were inexperienced, they were usually shown how to wrap by the experienced wrappers in the department. It is thus apparent from all the foregoing that Respondent's claimed training of personnel by McKeever consisted only of imparting to new- ly hired skilled employees in his craft such information relating to customer requirements in filling orders as he or any other butcher of Respondent had gained through expe- rience on the job. Accordingly, I find that McKeever acted, in this regard, as no more than a conduit of work-related information from management to newly hired butcher craftsmen and not as a trainer of personnel. Accordingly, (1) as I have found immediately above that McKeever lacked any of the indicia of supervision which Parker and Mitchum attributed to him; (2) as I find that, in his day-to-day role in production in the steak department, McKeever spent about 90 percent of his time in cutting steaks at his worktable, and the rest of his time acting both as a conduit of work orders for the department, including special instructions relating thereto, from Mitchum to em- ployees in the department, and as an expediter and checker of production; (3) as I find that the operations in the depart- ment were so routinized that there was very little need for McKeever to exercise any independent judgment in direct- ing the work done there; (4) as the record shows, I find that Mitchum, Parker, and Clarkston were in and out of the department during the day, with Mitchum doing this on a very frequent basis, so that they could oversee its opera- tions;24 and (5) as McKeever, like the rank-and-file employ- ees, was hourly paid, and received insurance benefits which did not cover his dependents, whereas Respondent's super- visors were salaried and received the more comprehensive coverage, I conclude, and find, that McKeever neither had nor exercised any supervisory authority dung his tenure with Respondent, and that he was at all relevant times an employee under the Act 25 I am cognizant, in this connection, of the fact that Re- 24I regard as rather strange, and find incredible, Mitchum's testimony that, although, as production foreman, he is in charge of all production in the plant, he does not have authority over the steak department as far as production is concerned. 25 See Precision Fabricators v. N L R B, 204 F.2d 567, 569 (C A 2), enfg. 101 NLRB 1537, where the court in referring to a leadman said- We will assume that he was the room "boss" or "leadman," but the discretion given him appears to be "routine" in the natural sense of that word. As Judge Magruder said in NL.R.B v. Quincy Steel Casting Co, I Cir, 200 F.2d 293, 296• "The legislative history of Sec. 2(11) tends to support the Board's view that certain employees with minor supervisory duties, such as straw bosses and leadmen, were not intended to be excluded from the coverage of the Act." See also Skaggs Transfer, Inc., 185 NLRB No. 91, Cosby-Hodges Milling Company, 170 NLRB 1137; UTD Corporation, 165 NLRB 346, Morris Weiss d/b/a Mook Weiss Meat Packing Company, 160 NLRB 546; John C Stalfort & Sons, Inc., 156 NLRB 84; and Security Guard Service, Inc., 154 NLRB 8. spondent informed McKeever that he was a supervisor 2 days before his discharge. However, as this change in title 'left unaltered McKeever's duties and functions, and as "the important thing is the possession and exercise of actual super- visory duties and authority and not the formal title," 26 It fol- lows therefrom that this attempt of Respondent to "beef up" McKeever's job through a title change, which occurred after the Union commenced its organizational ac- tivity and after it learned of McKeever's part therein, did not result in a genuine change in his status either in fact or in law.27 Accordingly, as I have found that McKeever was an em- ployee under the Act, and as Respondent admittedly dis- charged him for his union activities, I find that Respondent violated Section 8(a)(3) and (1) of the Act thereby. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees as to their union mem- bership, activity, and desires, and those of their fellow em- ployees, Respondent has violated Section 8 (a)(l) of the Act. 4. By discharging Bennie K . McKeever on January 19, 1972, because of his union activity, Respondent discrim- inated against the hire and tenure of its employees and has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that a broad order issue that it cease and desist therefrom, and that it affirmatively take such action as will dissipate the effects of its unfair labor practices. In the latter connection, having found that Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging Bennie K. McKeever, I shall also recommend that Respondent offer him immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered during the period of this discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest there- on to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plum- bing & Heating Co. Inc., 138 NLRB 716. . Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in the case, I hereby issue the following recommended:28 26 See N L.R B v. Southern Bleachery & Print Works, Inc, 257 F 2d 235, 239 (C A 4), cert. denied 359 U.S 911 27 See Ross Porta-Plant, Inc, 166 NLRB 494; also Ward-McCarty Hot Oil-Paraffin Service, 171 NLRB 731. 28 In the event no exceptions are filed as provided by Sec. 102.46 of the LOGGINS MEAT CO. ORDER Respondent, namely, Robert D. Loggins, Ronny M. Loggins and Randy Parker d/b/a Loggins Meat Co., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interferingwith, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act by interrogating them as to their union membership, activi- ties, and desires, and those of their fellow employees. (b) Discharging employees because of their union activi- ties. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effec- tuate the policies of the Act. (a) Offer to Bennie K. McKeever immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings he has suffered, in the manner set forth in the section hereof entitled "The Reme- dy." (b) Preserve and, upon request, make available to the Board, or its agent, for examination and copying, all payroll records, social security records, timecards, personnel rec- ords and reports, and all other records necessary or useful to determine or compute the amount of backpay due, as herein provided. (c) Notify Bennie K. McKeever, if presently serving in the Armed Forces of the United States, of his right to full rein- statement upon application, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act of 1948, after discharge from the Armed Forces. (d) Post at its facility in Tyler, Texas, copies of the at- tached notice marked "Appendix." 29 Copies of said notice on forms provided by the Regional Director for Region 16, after being signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecutive 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. (e) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply here- with 30 Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 29 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 30 In the event that this recommended Order is adopted by the Board after 299 exceptions have been filed, this provision shall be modified to read : "Notify said Regional Director, for Region 16, in writing, 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed un- der the Act by interrogating them as to their union membership, activities, and desires, and those of their fellow employees. WE WILL NOT discharge our employees because of their union activities. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer to Bennie K. McKeever immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of his discriminatory discharge. Dated ROBERT D. LooGINS, RONNY M. Lo- GINS AND RANDY PARKER, d/b/a LOG- GINS MEAT CO (Employer) By (Representative) (Title) Note: We will notify Bennie K. McKeever, if presently serving in the Armed Forces of the United States, of his right to full reinstatment upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. 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. Any question concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Federal Office Building, Room, 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Tele- phone 817-334-2921.