Dad's Foods, Inc.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dad's Foods, Inc. and 44th Street Union, Petitioner. Case 21-RC-13466 July 22, 1974 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING. KENNEDY, AND PENELLO On December 5, 1973, the Regional Director for Region 21 issued a Decision and Order in the above- entitled proceeding in which he dismissed the petition on the ground that Jerry Gott, who filed the petition in behalf of the Petitioner, is a-supervisor within the meaning of the Act. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, as amended, the Petitioner filed a request for review of the Regional Director's decision on the ground that in reaching the above determination, he made findings of fact which are clearly erroneous. By telegraphic order dated February 4, 1974, the request for review was granted. The Board has considered the entire record in this case with respect to the issues under review, and makes the following findings: In concluding that Gott is a supervisor, the Region- al Director relied primarily on his findings that Gott had been given authority by the plant manager, Rich- ard Ray, to discharge employees under certain cir- cumstances, and, in Ray's absence from the plant, is in charge and responsible for plant operation and production. The Petitioner asserts in its request for review that the record evidence fails to establish that Gott is a supervisor as defined in the Act. We find merit in the Petitioner's contention. At its Vernon, California, facility, the Employer is engaged in the cooking, seasoning, and packaging of choice meat products for nationwide wholesale distri- bution to restaurant suppliers and to Arby's, a chain of fast-food restaurants. The plant complement is comprised of Gott, the most experienced employee, and five other production workers (two meatcutters and three laborers). Ray, the Employer's president and 30-percent owner, serves as the plant manager. He is also in charge of labor relations, reserving to himself the responsibility for resolving employee grievances, scheduling vacations, and adjusting work schedules. He spends part of his time on the produc- tion floor. Ray's office is located near the production area and is equipped with a window through which Ray may observe production operations. Ray testified that he has interest in, and performs services for, several other enterprises, including, in addition to those discussed below, a restaurant, a ho- tel-restaurant supply company, a telephone company, and two orchards. Ray stated that he is president, one-half owner, and a director of Best Western Foods, Inc., located about a block away from the Employer's plant. Best Western uses trimmings and commercial grade meat to produce a sausage-type product which is ultimately sold, uncooked to Arby's restaurants. Despite his involvement in the above-mentioned firms, Ray testified that he spends 40 hours a week at Dad's and 10 hours a week at Best Western.' Gott opens the plant each morning approximately 30 to 45 minutes prior to Ray's arrival. During this time, Gott works with the other employees perform- ing the routine tasks necessary to prepare the plant for the day's production.' When Ray arrives he gives the employees instructions as to what he wants accom- plished that day. During the remainder of his 8-hour day, Gott works alongside the other employees on the production line. By virtue of his experience, he can- and does-perform all production functions. Gott testified that Ray leaves the Employer's plant each morning for about 30 to 45 minutes during which time he visits Best Western. This is consistent with other record evidence which indicates that Ray is normally not away from the plant for extended periods of time. In addition, Ray testified that he has never been ab- sent for an entire day since operations began at Dad's Foods in October 1973. During Ray's brief absences from the plant, Gott is placed in charge of operations. On these occasions, Ray gives him specific instructions as to what to do, and Ray testified that Gott was given the limited au- thority, on such occasions, to discharge employees for intoxication on the job and involvement in a fight. Ray never informed the employees of this authority vested in Gott, and the latter has never exercised it. Gott is expected to consult with Ray concering other matters, such as problems which may arise on the production line. Two employees have been discharged, both by Ray alone . Moreover, Gott is never involved in interview- 1 The record also indicates that Ray has a 5-percent interest in, and is the secretary- treasurer and a director of, American Food Processors , Inc , a new meat processing operation which was scheduled to begin doing business in December 1973, about a month after the hearing herein According to Ray, American is owned primarily by persons and corporations who own and manage a large number of Arby 's franchises and consequently it will produce a meat product similar to that manufactured by Best Western for exclusive use by those restaurants American's plant is to be located in a partitioned area of the premises leased by the Employer herein and will employ two or three employees who will be under the supervision of Ray. 2 The work includes filling the cooking tanks with water , setting up the vacuum puller and trimmer , and washing down the processing tables Simi- larly, at the end of each day , Gott assists the other employees in the cleanup routine and makes sure it is done properly prior to Ray's inspection 212 NLRB No. 67 DAD'S FOODS, INC. 501 ing or hiring employees and has never disciplined an employee. He cannot grant time off and -does not maintain time records. He is paid hourly, receiving $1.10 an hour more than the other employees. Like other employees, Gott is not entitled to any vacation or health benefits. On occasion, Ray has called upon Gott to instruct new employees as to their functions because of his familiarity with all phases of the opera- tions. On this record, we are less than persuaded that Gott has genuine or meaningful authority to -discharge or discipline employees. At the very most, it is only a very restricted, and sporadic kind of authority, limited to certain specific predetermined kinds of miscon- duct. We do not believe that "authority" so narrowly confined both in time and scope, if it can be said to exist at all, is sufficient to establish supervisory status. We also note that any directions given by him to other employees are of a routine nature or pursuant to in- structions of the plant manager. We therefore find that Gott is not a supervisor as defined in the Act.' Accordingly, we find that a question exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act .4 We find that the following employees of the Em- ployer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:5 All production and maintenance employees employed by the Employer at its plant at 3111 44th Street, Vernon, California, excluding all of- fice clerical employees, professional employees, guards and supervisors as defined in the Act. [Direction of Election and Excelsior fn. 6 omitted from publication.] MEMBER KENNEDY, dissenting: 3 See Greyhound Airport Services, Inc, 109 NLRB 291 (1971), Willis Shaw Frozen Food Express, Inc., 173 NLRB 487 (1968). 4 The Intervenor, Local 274, Provision House Workers Union, affiliated with Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, contends that its contract covering the employees of Best Western Foods, Inc., should operate as a bar to an election in the instant case on the ground that there is a single employer relationship between Best Western and the Employer, and the latter's employees are accretions to its contract unit. The Intervenor's contentions are without merit Even assuming, without deciding, that a single employer relationship exists, the employees of the Employer do not constitute an accretion to the existing unit since the Em- ployer is engaged in an entirely different type of meat processing and there is no interchange among the employees of the two operations 5 The parties were in agreement as to the scope of the unit, which comprises the employees above-discussed who perform both production and mainte- nance functions. The Regional Director dismissed the petition on the grounds that Jerry Gott, who signed the petition here- in, is a supervisor. It is clear from the record that Gott is a supervisor, and under these circumstances the petition should be dismissed.? Accordingly, the majority's reversal of the Regional Director's decision is unwarranted. It is undisputed that Gott has the authority to fire employees for intoxication or fighting on the job. Ray (who owns 30 percent of the outstanding stock of the Employer and serves as its secretary-treasurer and plant manager) testified that he told Gott he had such authority. Gott also testified that Ray told him he had the authority to terminate an employee for fighting or excessive intoxication.' Ray is the largest stockholder of the Employer and he has other extensive business interests in which he takes an active managerial role. I reject the, notion that the Employer's plant can operate efficiently with- out supervision since it is clear that Ray spends time at his other food processing plant and that he is active in the management of another hotel-restaurant supply company, a restaurant, and a telephone company, as well as two orchards. The Regional Director found that: Gott opens the Employer's plant in the morning and that he and the other employees then ready the plant and equipment for production which is usually completed by the time Ray arrives one- half to one hour later. Gott spends approximately 7-1/2 hours of each day working with the other employees in preparing meat. He also spends some of his time checking in meat supplies and making sure that they are properly put in coolers. In addition, Gott instructs new employees and helps with the daily plant cleanup and inspects the plant to insure that it is cleaned properly. While Gott is hourly paid as are the other em- 7 Sec 9(c)(1)(A) of the Act limits the filing of certification or decertifica- tion petitions to "an employee or group of employees or any individual or labor organization acting in their behalf . " The foregoing statutory lan- guage has been interpreted by the Board to preclude employers, and implic- itly their agents, such as supervisors, from filing any representation petition under that section of the Act. Modern Hard Chrome Service Company, 124 NLRB 1235, 1236-37. The Board has long followed a policy of dismissing a petition if it appears that the authorization cards supporting that petition were obtained through the active participation of supervisory personnel See, e g., Southeastern Newspapers, Inc, 129 NLRB 311 (1960), The Wolfe Metal Products Corporation, 119 NLRB 659 (1957). 8 Gott testified as follows Q Did Mr Ray tell you that you had the authority to fire employees? A In extenuating circumstances Q Did he tell you what those extenuating circumstances were A Yes, he did Q What were they9 A He told me if a man came in, if he was excessively drunk or if there was discrepancy between two men and they got in a fight. 1 502 DECISIONS OF NATIONAL ployees, he receives $1.10 per hour more than they do; and he has been given authority by Ray to discharge employees under certain circum- stances. In Ray's absence from the plant, Gott is left in charge and is responsible for plant opera- tion and production. The Regional Director's findings are fully support- ed by the record.9 9 Ray testified Q When you are away from the premises of Dad 's Foods, who is in charge of production operations9 A (By Mr Ray) Mr Gott Q And at least while you were not there , would you say he acts in a supervisory capacity9 A Yes, I would LABOR RELATIONS BOARD Section 2(11) of the Act provides 12 definable means for determination of whether an employee is a supervisor. It is clear on the face of the record that Gott has the power to "discharge" and responsibly direct the employees of the plant. These duties are sufficient in themselves to establish supervisory sta- tus, because the Section 2(11) tests are to be read disjunctively, not cumulatively. N.L.R B. v. Edward G. Budd Manufacturing Company, 169 F.2d 571, 576 (C.A. 6, 1948) Furthermore, "the mere existence of power determines whether an individual is an employ- ee or a supervisor." Jas. H Matthews & Co. v. N. L. R. B., 354 F. 2d 432, 434 (C.A. 8, 1965).10 For the foregoing reasons, I would find that Gott is a supervisor within the meaning of Section 2(l 1) of the Act and would sustain the Regional Director's dismissal of the petition herein. 10See also Arizona Puhhc Service Co v N L R B, 453 F 2d 228, 230 (C A 9, (1971), Ohio Power Company v N L.R B, 176 F 2d 385, 388 (C A 6, 1949)