Borin Packing Co., Inc.

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borin Packing Co., Inc. and Amalgamated Meatcutters and Butcher Workmen, Local 540, AFL-CIO. Case 16-CA-5068 January 9, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 28, 1973, Administrative Law Judge Harold X. Summers issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent violated Section 8(a)(3) and (1) of the Act by discharging C. W. Grant and William Pinson because of their sympathy with and activities on behalf of the Charging Party, herein called Local 540. We find merit in Respondent's exception to this finding. Respondent operates a meat packing and process- ing plant in Dallas, Texas. where it employs approximately 17 nonsupervisory individuals. Local 540 engaged in an organizing campaign at this plant in 1971, but failed to obtain majority support in an election conducted in June 1971. The two employees allegedly discriminatonly discharged, C. W. Grant and William Pinson, were hired in April and September 1971, respectively. Grant voted in the 1971 election. According to his testimony, he "favored" Local 540 at the time, but did not engaged in any active campaigning. Grant's basic job was to grind sausage. In addition, about once a week he was required to clean out the cooking machine. Pinson was one of Respondent's three boners, that is, he cut beef off bones. Because of dissatisfaction with the work of the boners, Respondent undertook an experiment in the fall of 1972 to determine the efficiency of its boners as compared with that of boners employed by its competitors. Resentful of the experiment, Pinson expressed to other employees the need for a union. In December 1972, Grant and Pinson contacted Allen 1 Dean was Grant's supervisor also Lewis, business representative of Local 540, with a view towards organizing Respondent's employees. On January 29, 1973, Lewis and Fred Tilson, another business agent of Local 540, met and spoke with several employees, including Grant, during their midday lunch period in front of a grocery near the plant. The meeting lasted about 10 minutes. At the end of the meeting, Lewis gave a number of union authorization cards to Grant. On the following day, Grant passed out the cards to employees in the plant lunchroom during nonworking time. Discharge of Grant On February 2, 1973, Grant became involved in a conversation with C. W. Persion, a truckdriver, who mentioned how quickly he was able to accomplish his job. Grant criticized Persion for his job perform- ance. He said that Persion should have waited until the delivery dock was clear so that Persion could back his truck right up to the dock rather than, without waiting for this, carrying merchandise to the dock by hand, which, according to Grant, was not a truckdriver's work. Grant accused Persion of making Charlie Johnson, another truckdriver, look bad as the result of this conduct. Persion became irritated because he felt that this was none of Grant's business and he said so. Shortly the conversation between the two became heated and profane. Plant Superinten- dent Young overheard the conversation. Later that day Young discharged Grant, telling the latter that he was interfering with the help and telling them what to do, something which Young would take care of himself. Discharge of Pinson On January 19, 1973, Pinson cut his thumb while at work. Respondent referred him to the company doctor who dressed the wound, told him to return to have it checked on January 25. and sent him back to work. On January 25, Pinson felt ill. He told his leadman of his feeling. The leadman said that if Pinson was sick he ought to see a doctor. Pinson said he planned to do so. He then left to see the company doctor. The doctor said that the wound had healed enough for Pinson to go back to work. However, Pinson went home and went to bed. Sometime that afternoon, Superintendent Young learned that Pin- son had not returned to work although there was work to be done. He had the office secretary call the office of the company doctor and learned that Pinson had left that office shortly after noon. On the following day, Pinson called the plant and spoke to Supervisor Otis Dean,' telling Dean that he was ill 208 NLRB No. 45 BORIN PACKING CO. and was going to see his doctor . He did visit his own doctor and at about 5 p.m. went to the plant where he picked up his check and handed the office secretary a note from his doctor saying that he was ill and would be absent from work for a while. He remained away from work all of the following week, but reported his condition almost daily by telephone to Respondent. On February 5, Pinson reported back for work, having been released by his doctor. Young told him that he was no longer needed-that if he could not come to work when his services were necessary he was not needed as an employee any longer.2 Discussion The Administrative Law Judge found that the assigned reasons for the discharges of Grant and Pinson were implausible . He further found that because of the small number of plant employees involved "supervision must have been informed or must otherwise have learned of the renewed union activity and of Grant's and Pinson's part therein within a reasonably short order." Accordingly, he concluded that Respondent discharged Grant and Pinson for discriminatory reasons. We disagree with the conclusion of the Administra- tive Law Judge. Even assuming, arguendo, that the "st iall plant rule" would justify an inference that Respondent knew of the union activities of Grant and Pinson, there is no evidence direct or circum- stantial to establish that it was because of these activities that Grant and Pinson were discharged. The General Counsel has the burden of establishing the elements which go to prove the discriminatory nature of a discharge.3 One of these elements is antiunion motivation.4 Mere suspicion will not do.5 In the present case , evidence is lacking to show unlawful motivation on the part of Respondent. Not only is there no finding of any other unfair labor practices committed by Respondent, there is no evidence of union animus. Whatever evidence that exists on Respondent's attitude seems to indicate the contrary. Respondent's uncontradicted testimony is that during the 1971 organizational effort, Respon- dent did not even attempt to persuade its employees to vote agains . Local 540. In the absence of a showing of antiunion motivation, an employer may discharge an employee for a good reason, a bad reason, or for no reason at all. Whether other persons would consider the reasons assigned for a discharge to be justified or fair is not the test of legality under Section 8(a)(3).t As we have concluded that the General Counsel has not established by a preponderance of the evidence that Respondent discharged employees 281 Grant and Pinson because of their union activities, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, concurring: I concur in the result. 2 The Administrative Law Judge refused to credit Young's testimony that he had determined to discharge Pinson on January 25 , when the latter failed to report hack for work after a visit to the company doctor. In part, the Administrative Law Judge relied on the fact that Pinson had been given no indication during the week of his absence that he had been discharged. However, Young's uncontradicted testimony is that he had never informed an employee by telephone that he had been discharged and that it was Respondent's policy that all discharges be handled on a "face to face basis " 3 N L R B v Winter Garden Citrus Products Cooperative, 260 F 2d 913 (CA 5, 1958) 4 N L R B v. 0 A Fuller Supermarkets. Inc, 374 F.2d 197 (C A. 5, 1967), Schwab Manufacturing Company v. N L R B, 297 F.2d 864 (C A. 5. 1962) a Schwob Manufacturing Company v. N.L.R.B, supra b NL.R.B v. TA McGahey, Sr, ei at, d/b/a Columbus Marble Works, 233 F 2d 406, 412-413 (CA 5, 1956) DECISION HAROLD X. SUMMERS, Administrative Law Judge : In this proceeding, the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board respectively) issued a complaint , later amended,' alleging that Borin Packing Co., Inc . (herein called Respondent), had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the National Labor Relations Act (the Act). The answer to the amended complaint, itself amended , admit- ted some of the allegations , denied others, and disclaimed knowledge of still another ; in effect, it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at Dallas, Texas, on May 3 and 4, 1973 ; all parties were afforded full opportunity to call and examine and to cross- examine witnesses, to argue orally, and thereafter to submit briefs. The complaint, as amended and as explicated at the hearing by the General Counsel , alleged that Respondent (a) through one George J. Johnson, interrogated employees on or about January 30, 1973, concerning their union membership, activities, and desires and concerning the union membership, activities, and desires of other of its employees, in violation of Section 8(a)(1) of the Act,2 and (b) on or about February 2 and February 5, 1973, respectively, discharged employees C. W. Grant and William Pinson, and thereafter failed and refused to i The complaint was issued on March 30, 1973, and amended at the opening of the hearing The unfair labor practice charge initiating the proceeding was filed on February 14. 1973 2 This allegation took the form of an amendment to the complaint inserted at the opening of the hearing , notice of which had been given Respondent I day earlier Respondent , pleading lack of time to prepare a (Continued) 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstate them , because they joined or assisted Amalgamat- ed Meatcutters and Butcher Workmen, Local 540, AFL-CIO (hereinafter called Local 540), or engaged in other union activities or concerted activities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 8(a)(3) and ( 1) of the Act. Respondent, in its answer as explicated at the hearing, denied the agency status of certain individuals for whose conduct the General Counsel sought to pin responsibility on Respondent, and it denied that Grant and Pinson were discharged for reasons connected with rights protected under the Acton the contrary , it contended, their employment was terminated for valid business reasons. Upon the entire record in the case , including evaluations of the witnesses based upon my observation of their demeanor, and upon the consideration of briefs filed, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, at all times material herein, has been a Texas corporation engaged in the meat products packing and processing business with its principal office and plant located in Dallas, Texas. During the 12 months preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, packed, processed, sold at wholesale, and distributed products at least $50,000 worth of which was shipped from this plant directly to States of the United States other than the State of Texas; and, during the same period of time, Respon- dent, in the course and conduct of its business operations, received gross revenue in excess of $500,000. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE UNION Local 540 is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of Events In June of 1971, the Regional Director of the Regional Office for Region 16 of the Board conducted a union- representation election among employees of Respondent, the name of Local 540 appearing on the ballot. A majority of the eligible voters having voted against union represent- ation, the Board so certified. One of the employees who voted in the 1971 election was C. W. Grant (one of the two alleged discriminatees herein), who had been hired several months earlier. Although, defense, disclaimed knowledge of the incident and moved for an adjournment of the hearing to enable it to investigate the new material The General Counsel was directed forthwith to notify Respondent's counsel of the employee witness or witnesses as well as Respondent's alleged agent involved and a short recess was given to afford counsel the opportunity to investigate the incident , to the extent indicated , Respondent's motion was granted, but in all other respects, it was denied 3 1 find Otis Dean to have been, at all pertinent times, a supervisor for according to his testimony at this hearing, he "favored" Local 540 at the time, he did not engage in any active campaigning. Grant's basic job for Respondent was the grinding of sausage in the so-called cook steak room, under the supervision of Otis Dean.3 In addition, about once a week, he would be called upon to clean out the cooking machine; on occasion, he would be assigned to Respondent's boning department assisting in packing or in "breaking beef"-i.e., sawing forequarters in two parts and lifting the pieces onto the boning table; and, at other times, he performed miscellaneous tasks throughout the plant as assigned. William Pinson (the other alleged discrimmatee herein) first worked for Respondent during 3 days in the spring of 1971, purely as a temporary "fill-in."4 Subsequently, in September of the same year, he called the plant to ascertain if there was any work available, and Plant Superintendent Joe Young,s to whom he spoke, told him to report the next morning. He did, and thereafter became a full-time employee of Respondent. Pinson, throughout his employment, was one of Respon- dent's three boners, whose regular work involved the cutting of beef off bones. In addition, in varying degrees, they performed other work. For example, George John- son-whose supervisory status is an issue herein-spent much of his time in filling orders and in packing, and George Eddings would be called to perform a variety of non-boning duties. As for Pinson, he spent more of his time boning than did the other two, and his assignments to miscellaneous duties were less frequent than were theirs: occasionally, he would be asked to assist in the lifting of meat onto the boning table, a request with which he would comply-but grudgingly; 6 and there were occasions on which he cut filets for the filet department. On or about September 22, 1972, Sheldon Borin, president of Respondent, called the 18 to 20 employees of Respondent to the coffee-break- room. He did the speaking, and Josephine Lawrence, office secretary, took notes. Commenting that he desired to avoid any squabbles among the employees, Borin said that he wanted to make clear the organizational hierarchy in the plant. At the top, he said, were himself, Joe Young, and Otis Dean, Young's assistant-these individuals could, and were the only ones who could, discharge employees. In addition, he named the "lead persons" in the various departments: George Johnson in the boning department, Mary Willingham in the filet department, and Janie Smith in the cooking department. He announced that he was looking to these last named employees as the ones responsible for getting out the orders in their respective departments, basically because they were the most experienced there. They were authorized (he continued) to give work orders, but any Respondent within the meaning of the Act 4 He was not an employee of Respondent at the time of the June 1971 election , and he did not vote therein 5 On the basis of admissions in the answer and of related testimony, I find that Young, in all matters pertinent hereto, was a supervisor for and an agent of Respondent 6 Typically, he would protest that this was the job of packers and others, not that of boners BORIN PACKING CO. 283 noncompliance with such orders would have to be reported to either Young or Dean.7 At an indeterminate date, but subsequent to the meeting above-described, Respondent's boners each received a 20- cents-per-hour increase. Pinson and Eddings-with Pinson doing most of the talking-had told Johnson that they felt that a raise was forthcoming, and he said he would see what could be done. Then Johnson-speaking for himself as well as for the other two-broached the subject to Young. Meeting with no immediate success, he reported back to Pinson and Eddings. who then told him that they would be looking for other jobs. At this, Johnson said that he would make another attempt, and he did report this latest development to Young. A few minutes later, he was called to the office of Sheldon Borin, who asked him about the boners' complaints. When Johnson said that they wanted a raise, Bonn asked in what amount. Johnson suggested that 20 or 25 cents per hour was called for. Bonn asked him whether he believed that a 20-cent increase would be satisfactory and Johnson said, in effect, "Sure, that's better than what we're getting." Thereupon, Bonn said that a 20-cent raise would be given, and he called the three boners (including Johnson) into his office. In Young's presence, he told them about the raise, and, at the same meeting he spoke about production: for example, he said that the boners could no longer postpone till later "boning out their trimmings"; and, he said further, the practice of putting aside certain parts of the meat would have to stop since the delay subjected those parts to spoilage. He asked if everyone was satisfied and, no obj action being iaised, he concluded the meeting.8 Young credibly testified that, although the boners had been given a rase, management was not completely satisfied with their production. (Their operation, occurring at the beginning of the production process, was a key one; and the work called for the highest skill of any in the plant.) As a result of discussions between him and Bonn, it was decided that a "bone count" experiment would be introduced. The experiment took place in the fall of 1972, and it lasted for 2 or 3 weeks. During this penod, Pinson and Eddmgs9 were instructed not to throw away the bones from which they cut meat. The hones then were counted as a measure of the amount and type of work done by them, after which Young, using the piece rates paid by a r The findings in this paragraph follow generally the credited testimony of Bonn, as corroborated by others. Pinson testified that the meeting took place at an earlier date but he was not sure of the date Also, a number of witnesses, including Pinson and Grant, testified that. at this meeting, Bonn referred to Johnson and to Willingham as "supervisors", I regard such testimony merely as their interpretation of what was meant by Bonn s remarks 8 The findings in this paragraph are based on the credited parts of the testimony of Pinson, Johnson, Young, and Bonn (Eddings did not testify.) Pinson thought that the raise was given sometime in July of 1972, but, at another point in his testimony. he said it took place after the meeting which I have found to have occurred on September 22. Also, Pinson did not recall being called into Bonn's office with the other boners when the raise was given, I am satisfied that he was " Johnson was not involved in the experiment, during the period in question, he was engaged mainly in other types of work. 10 This finding is based on the credited testimony of Pinson, in the face of Johnson's denial that he had ever "discussed unions" with Pinson or with anyone else I am persuaded that Pinson's remark was in keeping with his character and that Johnson, who testified that, with respect to the subject of competitor to its boners, compared the results with the pay being given the two. At the time, Pinson made it clear to management that he believed the bone count program was unfair, because, he said, the use of the competitor's piece rates did not make allowances for the differences in processing between that firm and Respondent. In this respect, Young testified that, in fact, he was making allowances for the differences. When the experiment ended, Young came to the conclusion that Respondent's boners were only about "50 percent efficient." Moreover, he further testified, Pinson's efficiency was somewhat less than that of Eddings, since Pinson devoted all of his time to boning during the period in question, while Eddings did some other work. . Despite his conclusions derived from the experiment, Young did not speak to either Pinson or Eddings about what he had learned, and he did not talk to them about their production. Pinson's dissatisfaction with the bone count experiment, among other things, led him to remark on the employees' need for a union to Johnson.10 In fact, Pinson testified, he had several discussions with "supervisors" about unions. Three of these conversations, he said, were with Johnson: in mid-December 1972, he told Johnson that he felt that Respondent's employees "needed protection" and that a union would be very helpful and beneficial to them, whereupon Johnson expressed agreement; and, "the same thing [happened] over again" in December and once again in January 1973.11 Also, early in January 1973, according to Pinson's testimony, he raised the subject with Mary Willingham: "depressed about something," she came to his work place to talk it over with him, and he told her "that is the reason" he felt that the employees of Respondent needed a union because it would be "helpful to" them in solving such problems-whereupon (according to Pinson) Willingham "kind of smiled and went on." 12 Sometime in December 1972, both Grant and Pinson were in telephonic contact with Allen Lewis, business representative of Local 540 and principal agent for that organization during the 1971 election campaign. The subject of each of these conversations, I find, was the same-the possibility of the revival of union interest among the employees of Respondent. And I find that-al- though the testimony thereon was far from clear 13-Grant union representation of Respondent's employees, he himself would be guided by the desires of the majority. found himself in an ambivalent position My appraisal of Johnson is that, in this proceeding. he felt he was in a position of conflict between management and the employees and that, as a consequence. he tempered his testimony accordingly. ii i credit this testimony, for reasons indicated in the last footnote i2 For what it is worth, I credit Pinson in this respect, despite Willingham's not completely responsive denial that she had ever had a discussion with Pinson about the union. is this finding is based upon the testimony of Grant (Lewis did not testify.) Grant was, at times, a rather confused and confusing witness, and I would not credit his uncorroborated testimony in the face of contradictory testimony. (But I do not regard as hearing on his credibility, either way, the fact that, in a pretrial affidavit given to a Board agent in the investigative stages of this case, he swore that he had "read the foregoing" whereas. instead, the Board agent had read the statement to him because Grant could not read At this hearing, he freely conceded his inability to read, and I cannot fault his having sworn to the fact that he had read the written statement when he could not read that very assertion. At best, this is a prior untrue statement as to an immaterial fact.) 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had a second conversation with Lewis in January 1973 on the same subject. On Friday, January 19, 1973, in the course of his work, Pinson cut his thumb. He showed the injury to George Johnson and went to the front office, where he asked Josephine Lawrence, in charge there, to bandage the finger; instead, she sent him to a company doctor. The doctor gave him an injection, cleaned the wound, applied a splint and six "butterfly" tapes to the thumb, and bandaged the whole; then, telling him to keep the dressing dry and to return on the 25th, she sent Pinson back to work. By the time he arrived back at the plant, however, he felt "groggy," a fact he conveyed to Johnson; and since, apparently, the unit was caught up on its work for the day, there was at least tacit between theirs that Pinson could go home. He punched out and did so. 14 Pinson's next workday was Monday, the 22nd, and he worked throughout that and the next 2 days. (At first, at least, he made up packing boxes only, in order to keep his bandage dry.) On Thursday, the 25th, just before lunch, he reminded Plant Superintendent Young that he had an appointment with the company doctor that afternoon, and he started to tell Young that, besides, he was feeling unwell. Young, apparently because he was quite busy, cut him short and walked away. Before he left for the appointment, Pinson told Johnson what he had tried to tell Young: that his head ached, he felt pains in his chest, and he had a fever. Johnson merely said, "If you're sick, you ought to go to a doctor," and Pinson said he planned to do so. Later, Pinson left the plant, at which point (I find) it was clearly understood both by him and by Johnson that he would be out for the rest of the day.15 Pinson went to the company doctor, who found that the cut had healed enough for Pinson to go back to work, and then he went home and went to bed. At some time during that afternoon, Young learned that Pinson had not returned to work, despite the fact that there was work to be done. Both Young and Johnson testified, at this hearing, that the former did not consult the latter as to Pinson's whereabouts, but, under the circumstances- -Johnson being the one to whom Respondent looked for the orderly running of the boning department, as I find hereinbelow-this strains my credulity; I am persuaded and I find that Young did ask Johnson about Pinson that afternoon and that Johnson told him that Pinson was out ii This finding is based, primarily, on Pinson's credited testimony Johnson was not sure that Pinson worked the rest of the day after he returned from the doctor 13 The findings in this paragraph accord with the credited portions of the testimony of Pinson, Young, and Johnson, whose versions, on this subject, were not in full agreement. For example, Pinson testified that he did tell Young about his aches and pains as well as about his appointment with the company doctor; Young denied this but conceded that Pinson may have said something about having to go back to the doctor; I believe that the explanation for the different versions lies in the fact that Young was too impatient to listen to the full explanation Pinson also testified that, when he gave the description of his ailments to Johnson, he was told that he could take the rest of the day off, whereas Johnson testified that he merely made the remark quoted above, as indicated, I credit Johnson on the point i6 Johnson testified that he had asked her to make the call. Bonn testified that it was made at his behest. 17 Young testified that he first learned of Pinson's illness on Monday. January 29th I have already found that he was aware that Pinson went home sick on the 25th i now find that, on the 26th. he was told of Pinson's because he had fallen ill. At any rate, upon instructions from Johnson or Borin, Mrs. Lawrence called the office of the company doctor that afternoon 16 and found that Pinson had left that office between 12:20 and 12:25 p.m. Next day (Friday, January 26), Pinson still suffered from a headache, chest pains, and an elevated temperature. Early that morning, he called the plant and spoke to Otis Dean. He described his symptoms and said he was going to see a doctor that day. He did visit his own doctor and afterwards-at about 5 p.m.- he went to the plant, where (a) he picked up his paycheck and (b) he gave Mrs. Lawrence a note from his doctor saying that he needed bedrest and would be absent from work for a while.17 Pinson was still ailing on Saturday and Sunday and throughout the next week, and he did not go in to work. During this week, he saw his doctor on Monday, on Wednesday-on which occasion his illness was diagnosed as influenza-and on Friday, February 2-at which time he was released to return to work on Monday, February 5. Also during this week, he-or, on one occasion, someone on his behalf-communicated by telephone with Respon- dent almost daily, with information as to his physical condition. Among those to whom he spoke were Alfred Stevens, salesman, who was the first to arrive at the office daily, Josephine Lawrence, and Joe Young himself. In none of these contacts was any complaint made to him about his continued absence, and he was given no indication, of which, more infra, that he had already been discharged. Meanwhile, on January 29, Allen Lewis and Fred Tilson, another business agent of Local 540, met and spoke with a number of employees of Respondent during their midday lunch period in front of the Do-Rite Grocery Store near the plant.is The General Counsel characterizes this incident as a union meeting of Respondent's employees, brought about by prearrangement between C. W. Grant and Lewis; Respondent regards it as a chance gathering. I find that the truth lies somewhere between. I am persuaded and I find that the union agents were there to talk to as many of Respondent's employees as they might encounter; that, whether or not 'prior arrangements had been made when Grant spoke to Lewis either in December or January (as testified to by Grant), Grant was aware that they would be at the Do-Rite on the date and at the hour in question; and that Grant passed the word to several employees. At morning call by Dean (who did not testify at this hearing) and of the receipt of the doctor's note by Lawrence (who also did not testify). is There was confusion, if not dispute, as to the date of this meeting between Local 540 representatives and employees of Respondent. Grant and Tilson unequivocally testified that it took place on the 29th Johnson, who testified about participating therein, gave no date Jeannie Newton, a packer, testified that she "first heard " of union activity at Respondent's plant on the occasion of a meeting which was held about 10 days after January 29 (i e. after Grant and Pinson had been discharged); she went to the store that day, she said, and she exchanged some words with William (Pinson). And Bonn. testifying, said that, after the weekend of February 3 and 4, "someone" mentioned to him that "those guys are down at the Do- Rite again " Since Pinson did not attend the meeting in question . I believe that Newton was speaking of a chance encounter with Pinson after his discharge, and, since there was but one union representative /employee meeting. I am convinced that Bonn could not have been told that "the guys are down at the Do-Rite again " I find that the meeting took place on January 29 BORIN PACKING CO. any rate, although other employees went to the Do-Rite that lunch period, the only employees who stopped and talked to Lewis and Tilson, beside Grant, were George Johnson and George Eddings. The "meeting" lasted no longer than 10 minutes. In effect, Lewis and Tilson were seeking to revive interest in representation by Local 540 among Respondent's employ- ees. Among other things, Lewis asked about Pinson and was told he was home sick. Toward the end, Lewis gave Grant a number of bargaining-authorization cards for himself and for Pinson, and he gave one to Johnson. (Asked to sign and mail in his card, Johnson said he would.) While the group was still there, Mary Willing- ham-whose supervisory status is an issue herein- -walked out of the store on her way to the plant; offered a union authorization card-as were others of Respondent's employees who passed by -she merely walked on.19 The next day, the 30th, Grant-having informed union agent Tilson that the George Johnson to whom he had spoken the day before was a "supervisor"-passed out authorization cards in the lunchroom on nonworking time. Arrong other things, he gave a female employee some cards to take to the ladies in the restroom; and, when she came out, she reported to him that she had given out two or three but that one of the girls had indicated she wanted no part of the action. On Tuesday, Wednesday, or Thursday (January 30 or 31, or February 1) Grant had a conversation with George Johnson at the boning table. In it, Johnson told Grant that "Shelley" (Bonn) had heard "about the union," and that the source of his information was Mary Willingham; and that Borin had asked Johnson "who had been talking to him around the plant." 20 Friday, February 2, 1973, was Grant's last day of employment with Respondent. During the noon break on that day, he became involved in a conversation with C. W. Persion, a truckdriver. In pertinent part, the conversation opened with Persion's mentioning how quickly he was able to accomplish his job. One thing led to another, until Grant said that, with respect to a particular delivery to which reference had been made, Persion should have waited until the delivery dock was clear so that he could back his truck right up to it rather than, without waiting for this, carrying the merchandise to the dock by hand. Toting the merchandise from truck to dock, Grant continued, was not truckdriver's work; in fact, he said, by using these methods, Persion was making Charlie Johnson (another employee of Respondent who worked part-time as a truckdriver and part-time packing meat) "look bad." Persion became irritated; 21 he felt this was none of Grant's business, and he said so. Shortly, the conversation became heated and profane. Among those in the lunchroom at the time was Plant Superintendent 19 The findings in this paragraph are based on the credited testimony of Grant and Johnson. Willingham. conceding that she occasionally patron- ized Do-Rite, testified that she never observed a meeting of union representatives and Respondent's employees there. 20 This finding is based upon Grant's testimony . Johnson, in testifying, was not asked about and did not refer to this specific conversation. 21 He testified that this was not the first time Grant had tried to tell him how to do his job Moreover, his irritation was kindled by the fact that the meat which he carried ;rom truck to dock consisted of only five packages, each weighing 10 pounds, a load easily within his capacity to move. 285 Young, who overheard the conversation; angered but saying nothing, he arose and left the room. At about 4:25 p.m. that day, Grant was cleaning up to leave when he was approached by Young. Young took him to the office and there told him that he was through-he was interfering with the help and telling them what to do, something which he (Young) would take care of himself. Asked if this was the only reason, Young reminded Grant of the time he spent in the washroom. The termination of Pinson's employment took place on the next work day. On Monday, February 5, in accordance with the release signed by his doctor, Pinson reported back to work and changed to his work clothes. Finding22 that his timecard was not in the rack, he started toward the office and met Young. Young asked how he was feeling. Pinson replied that he felt much better but said he could not find his timecard. Young told him why: he explained that Pinson was no longer needed-if he could not come to work when his services were necessary he wasn't needed as an employee any longer. Pinson, in protest, attempted to show Young his doctor's appointment slips and release, which he had with him, but Young merely turned and walked away.23 On his way out of the plant, he went to Borin, to whom he tried to explain that he had had permission to be absent; but Borin merely threw up his hands and said that the matter was up to Joe Young. B. Discussion-Conclusions A part of the General Counsel's theory-he said that an adverse ruling would have a "vital effect" on his case-was his contention that George Johnson was a supervisor within the meaning of the Act. This record contains testimony on the basis of which I find that Johnson received orders from Young concerning the operation of the boning department and translated these orders into action-i.e., he assigned work tasks and criticized slow or sloppy work; he was the one to whom boning department employees' work-related questions were directed; when work was slack, he was the key figure in the determination-hopefully, an agreed-upon determi- nation-as to the person(s) who should be sent home or who should be permitted to go home ; on at least one occasion, he had recommended the hire of an employee who was in fact hired and who, the day after he complained of that person's absence, was in fact dis- charged; on at least one occasion , he filled in and initialed a timecard which an employee had failed to punch; and he was the one who-as found supra- spoke to management about a raise for the boners, an effort which met with success. On the other hand, I find, on the credited testimony, that 22 This finding accords with the testimony of Young, as corroborated in part by Grant (Grant also testified that he asked Young if there was any other reason, to which Young cryptically replied, "You know why." I do not credit Grant's testimony to the extent that it differs from Young's ) 23 So Pinson testified. Young denied that Pinson offered to show him any such documents I credit Pinson. If, indeed, Johnson was unaware of Pinson's efforts in this respect, I am persuaded that it was because he was in no mood to listen to explanations As he testified at the hearing. Johnson would not have been dissuaded from his decision (to discharge ) by the fact that Young had been out because of illness. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he spent almost all of his time on the same tasks as those which other employees in the department were occupied; and that, like them, he punched a timecard and was paid by the hour. I fir d also that the confidence reposed in him-and the comparatively small differential by which his pay-per-hour exceeded that of the other boners-was bottomed upon his longer experience with Respondent. In short, I find that the orders Johnson gave were more ministerial than discretionary in nature; that he was classified as leadman in the boning department and without doubt served as the channel of communication between management and boning department employees; but that, on balance, he was not a supervisor within the meaning of the Act.24 As for Mary Willingham, I find that, although she acted as leadlady in her department, she assumed, and possessed, even less authority than did George Johnson. I find that she was not a supervisor within the meaning of the Act. I have made findings as to what Young told Grant when he discharged him. Counsel for Respondent, in representa- tions made at the hearing and in Respondent's brief, elaborated, saying that Grant's employment was terminat- ed because he interfered with other employees, because he was habitually slow in his work, and because he had made inordinately frequent and lengthy visits to the restroom, a practice for which he had been "disciplined" a number of times. In support, Respondent introduced testimony at this hearing on the basis of which I find that, in Young's opinion, (1) Grant usually consumed 7 or 8 hours in cleaning the cooking unit, a job periodically assigned to him, whereas others took about 4 hours, and (2) Grant availed himself of the restroom facilities frequently and at length, both during and outside the employees' regular breaktimes; and that he (Young) had spoken to Dean, who ordinarily supervised Grant, about both these problems and had spoken to Grant himself about the restrooms problem two or three times in the 3 or 4 months preceding the discharge. But Young, who alone made the determination to discharge Grant, testified that his "interference" with other employees was the sole reason for his action. On "different occasions" in the past, he further testified, he had heard Grant tell one employee or another, "You're not supposed to do that" or "That's not your line of work." Finally, he testified, after he overheard the Grant-Persion argument at midday on February 2, he made up his mind to effectuate the discharge. As in Grant's case, Respondent's representations and arguments, found in the transcript of the hearing and in its brief, have elaborated upon the reasons for Pinson's discharge: Initially an intelligent and excellent employee, he became, for unknown reasons, sullen and uncoopera- tive; despite the fact that he was considered Respondent's "No. 1" man-over the leadman Johnson-in work calling for the highest skill in the plant, he had been found, as a result of the . bone counting experiment, to be less productive than the other boners; and he failed to return to 24 Among other things, I do not credit Pinson's testimony, denied by both Young and Johnson, that, when he was hired, Young introduced Johnson to him as his supervisor As in the case of the meeting in which Born explained the organizational setup to the employees I believe that Pinson was giving his interpretation of the facts rather than the facts work when needed after a visit to the doctor for the repair of a minor cut, an act which, in a "small plant" of 19 or 20 employees, could be very contagious. In support of these assigned reasons, Respondent presented evidence tending to show that Pinson complained about having to do work other than that of a boner, expressed dissatisfaction with the bone count experiment, and had been heard to say that he hoped he would be fired. But-here, as in the matter of Grant's discharge-I find that it was Young and Young alone who made the decision to discharge Pinson; and the sole reason for his action, Young testified, was the fact that Pinson was absent on the afternoon of January 25, when his services were needed; at that time, he said, he made his determination and put it into effect. In both cases, then, the reason given by Young rather than the others upon which Respondent's arguments are based are the ones which require examination here. Grant, an unskilled employee and one of Respondent's lowest paid, had been with Respondent for 21 months, working on routine tasks. And, despite the testimony as to his shortcomings, he was regarded by Young as a "fair" employee. Although, on "different occasions," Young had been aware of Grant's attempts to tell others what their jobs entailed, he merely "let [Grant] know" of his awareness without pointing to specific instances; as for Grant's argument with Persion on the day of the discharge, he made no mention of it whatsoever. And, incredibly, he implemented his discharge decision without prior notice to, or consultation with, Grant's immediate supervisor. I would not, if I could, substitute my business judgment for Young's, but it is my responsibility to determine whether the reason for Grant's discharge assigned by Young was in fact the real reason. On such a record, I do not believe that Young would have summarily discharged Grant solely because of the type of "interference" described. I am persuaded, particularly in the light of the timing of events, discussed below, that the assigned reason lacks plausibility,25 and was not the real reason. The assigned reason for Pinson's discharge is even more implausible. Young, if believed, decided to discharge his No. 1 boner because, purportedly, he was absent during an afternoon without notice or permission, even though-as I have found-Young learned during the same afternoon that Pinson had gone home sick; and he gave no thought to reconsidering his action even though Pinson's illness extended his absence throughout the next week, a circumstance as to which-I have found-Young was well aware. This, despite the fact that, in Pinson's contacts with the plant throughout his week of illness, he was given no indication, by Young or by anyone else, that there was any complaint about his absence, let alone that he was no longer an employee of Respondent; and despite the fact that, although Respondent was in urgent need of Pinson's services throughout the period of his illness, no move was made to find a replacement for him until after he had reported back to work. And, here again, we find that themselves 25 Nothing herein should be construed as meaning that an employee's unauthorized taking over of supervisory functions is an activity protected by the Act BORIN PACKING CO. Pinson's group leader, the one who replaced him during his absence, was given no inkling of Pinson's discharge until 11 days after the purported discharge took place. I am convinced, and I find, that Pinson was not discharged on January 25 26 and that, when he was discharged, he was not discharged for the reason assigned by Respondent. We have, then, a situation to which Respondent's employee Grant, from time to time during the fall of 1971, advised fellow employees as to whether or not certain duties fell within their job descriptions; employee Pinson, from time to time during the same period, expressed to management dissatisfaction with certain working condi- tions; in December 1971, both employees established contact with a labor organization (Local 540) which, 18 months earlier, had been unsuccessful in an attempt to organize Respondent's employees; on at least three occasions during December 1971 and January 1972, Pinson spoke to other employees about the need for the representation of Respondent's employees by a union; Grant was a prime employ:e participant in the one and only public meeting between representatives of Local 54027 and Respondent's employees held on January 29, 1972-Pinson being absent therefrom because of illness; Grant, and only Grant-Pinson was still out sick-passed out union authorization cards to fellow employees within the next several days; and, on February 2 and February 5, respectively, Grant and Pinson were discharged for reasons which lack plausibility. Certainly, as argued by the General Counsel and the Charging Party, the timing of these events is indicative of some connection between them. I have already found that management was aware of Grant's "advice" to fellow employees and of Pinson's expressions of dissatisfaction with working conditions. As for their explicit acts in connection with the renewed attempt to interest the employees in bringing in a union, as for the January 29 meeting between the union representa- tives and employees, and as for the subsequent card distributions by Grant, agents of Respondent deny awareness; more to the point, they deny awareness of any organizing attempt prior to February 6. after the discharges of both men. The General Counsel and Charging Party first seek to show timely company awareness through the knowledge gained by its "supervisors" George Johnson''-'x and Mary Willingham 29; and they would seek to persuade me, 26 I do not regard as probative of the issue the handwritten notation "Term 1/25/73" on Pinson's time card for the pay period ending that day 27 As earlier found, one of these. Lewis, had been principal agent for Local 540 in the (971 campaign. He was well known to those of Respondent's employees whose period of employment went back to that period 28 In the four conversations with Pinson-the one about the bone count experiment, and the three about the employees' need for a union taking place in December 1971 and January 1972, and through his attendance, with Grant, at the January 29 meeting with Local 540 representatives. 2'' In Pinson's telling her, in early January of 1973, of the need for a union, and through icr having observed the participants at the January 29 meeting i0 In the same conveisation, according to Grant's credited testimony, Johnson said that Borin had asked him "who had been talking to him around the plant" 'this, the General Counsel explained, was in fulfillment of the late amendment to the complaint--that, on or about January 30, 1973, Respondent, through Johnson. interrogated employees about their and other employees' union interests. It falls far short of fulfillment, bet.ause 287 apparently, that awareness by Sheldon Bonn himself is demonstrated by Johnson's telling Grant, between January 30 and February 1, that Willingham had informed Borin about the union. But I have found that Johnson and Willingham were not supervisors. Their knowledge, therefore, is not imputable to Respondent. Moreover, Grant's testimony that Johnson told him that Willingham had informed Borin about the union-the very recital betrays its hearsay nature-has no probative value as to Borm's knowledge 30 The General Counsel and Charging Party go on to argue that Respondent's awareness of union activity in general and of Grant's and Pinson's participation in particular can be found even if Johnson and Willingham are not held to be supervisors. Citing cases, they urge that, under the circumstances, including the size of the plant, awareness can be inferred 3i I find merit in this argument. The credible testimony here establishes that there were less than 20 employees in Respondent's plant; that all, including the president, the plant superintendent, and his assistant, knew everyone else by name; that employees were freely interchanged between departments; that supervisors, from the president down, spent varying amounts of time inside the plant, often working alongside the rank-and-file; that the plant personnel, including the superintendent and his assistant, took the same break times and shared lunchroom facilities; and that, in fact, they shared in the knowledge of special events affecting employees. In this context, I find that supervision must have been informed or must otherwise have learned of the renewed union activity and of Grant's and Pinson's part therein within reasonably short order.32 Persuaded by what I consider to be a fair preponderance of the evidence, I find and conclude that Respondent discharged Grant on February 2 and Pinson on February 5, because of their sympathies with and activities on behalf of Local 540; and that Respondent thereby discriminated in regard to tenure of employment to discourage member- ship in a labor organization and, consequently, interfered with, restrained, and coerced employees in the exercise of self-organizational rights guaranteed them by the Act. Upon the foregoing factual findings and conclusions, I come to the following: ( i) Johnson was not a supervisor and (2) Johnson's statement to Grant is not probative as to Borin's interrogating employees I shall recommend dismissal of this allegation. 31 They cite a number of Lases: On plant size. Fames, Inc, 202 NLRB No 52 (11 employees), Malone Knitting Co, 152 NLRB 643. (99 employees), affd. 358 F.2d 880, 883 (C A I. 1966). and Weise Plow Welding Co., Inc, 123 NLRB 616,618 (13 employees), cf. W. A Scheaffer Pen Co., 199 NLRB 242 (over 350 employees), and Springfield Garment Mfg Co, 152 NLRB 1043 (450 employees) On drawing inferences from circumstantial rather than direct evidence, Long Island Airport Limousine Service Corp, 191 NLRB 94, enfd. 468 F 2d 292 (C.A. 2. 1972), and Malone Knitting Co supra, Also, see Medo Photo Supply Corp., 43 NLRB 989. enfd 135 F 2d 279 (C A 2), affd 321 U S. 628 32 In this respect, two bits of testimony by Young and Borin are significant (making due allowances for their dating of the events). Young said he found out about union activity by hearing some of the employees talk about it, and Borin said he had been told by "someone" that a meeting at the Do-Rite was in progress 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 540 is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to tenure of employment by discharging C. W. Grant on February 2, 1973, and William Pinson on February 5, 1973, and thereafter failing and refusing to reinstate them , because of their sympathies with and activities on behalf of Local 540, thereby discouraging membership in a labor organization, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, Respondent interfered with, restrained , and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof. 5. The aforesaid acts are unfair labor practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except for the foregoing, Respondent has committed no unfair labor practices under the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. I shall recommend that Respondent offer C . W. Grant and William Pinson full and immediate reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make each of them whole for any loss of earnings suffered by him because Respondent's acts by the payment to him of a sum of money equal the amount he would have earned from the date of his discharge to the date of Respondent 's offer of reinstatement, less his net earnings during said period. Backpay shall be computed on a quarterly basis with interest at the rate of 6 percent per annum in the manner heretofore established by the Board. Since the unfair labor practices committed by Respon- dent are of a character striking at the roots of employees' rights safeguarded by the Act, I shall recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act. [Recommended Order omitted from publication.]