P.Q. Beef Processors, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD P.Q. Beef Processors, Inc. and Meatcutters, Pack- inghouse Workers & Food Handlers, District Union No. 657, AFL-CIO. Cases 12-CA-7107, 12-CA-7179, and 12-RM-277 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On February 3, 1977, Administrative Law Judge Irwin H. Socoloff issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a 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, find- ings,' conclusions, and recommendations2 of the Administrative Law Judge and to adopt his recom- mended Order. We agree with the Administrative Law Judge's conclusion that Durham was an independent con- tractor, and that he was therefore not discharged in violation of Section 8(a)(3) and (I) of the Act. In addition to the factors cited by the Administrative Law Judge in support of his conclusion, we also specifically rely on testimony of Respondent's president, Pernas, that he did not have "any kind of control" over the manner in which Durham per- formed his unloading duties. Such absence of control is highlighted by the reaction of Pernas to Durham's decision to procure a rail to assist in unloading extra heavy cuts of meat. According to Durham's uncon- tradicted testimony, Pernas initially suggested that Respondent and Durham share the cost of the rail. When Durham arranged to have the rail made and informed Pernas of the cost, however, Pernas told Durham he would lend him the money to get the rail, but that the loan would have to be repaid because the rail was of"no interest" to Respondent. Our dissenting colleague, in finding Durham to be an employee, asserts that Pernas told Durham how to pay his helper. The record shows, however, that Pernas did not tell Durham how to pay his helper, The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr), Wall Products. Ins., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 231 NLRB No. 179 but only that whatever the helper was paid would have to come out of Durham's own compensation. Finally, our colleague relies on Durham's receipt of a W-2 Federal tax withholding form allegedly covering wages earned while performing occasional truckdriv- ing duties in February 1976. The record clearly shows, however, that Durham ceased his occasional truck deliveries in mid-October 1975, and that, until his discharge in mid-February 1976, he performed only unloading work. His receipt of the W-2 form for 1975 driving assignments under such circumstances clearly does not warrant a finding that Durham was an employee at the time of his discharge in 1976. For the foregoing reasons, we adopt the Adminis- trative Law Judge's dismissal of the alleged 8(a)(3) violation with respect to Durham. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, P.Q. Beef Processors, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the challenges to the ballots of Oscar Maza, Virsie Durham, Antonio Labra, Gilberto Mulgado, Pedro Vera, Alberto Mulgado, and Raimondo Rodriguez, in Case 12- RM-277, be sustained and that Case 12-RM-277 be, and it hereby is, severed from these proceedings and remanded to the Regional Director for Region 12 for further proceedings. MEMBER JENKINS, dissenting in part: I disagree with my colleagues' adoption of the Administrative Law Judge's finding that Respondent did not violate Section 8(a)(3) of the Act in its discharge of Virsie Durham because he was an independent contractor and not an employee of Respondent. The few factors relied on by the Administrative Law Judge and my colleagues are clearly inadequate to make Durham an independent contractor.3 On the other hand, the facts of the record establish an employment relationship. His work of unloading beef as it arrived at the plant was an integral part of Respondent's day-to-day business operations. Respondent instructed Durham as to his arrival time and work periods, ordered him to secure 2 In his recommended Order, the Administrative Law Judge recom- mended that the challenges to the ballots in Case 12-RM-277 be overruled, whereas it is clear from his Decision that he intended to recommend that they be sustained. We shall correct this inadvertent error in our Order. :3 See Member Penello's concurring opinion in Standard Oil Comparny of Ohio, 230 NLRB 967 (1977). 1076 P.Q. BEEF PROCESSORS a helper when his work was not progressing fast enough, told him how to pay the helper, and provided him with a helper when Durham was unable to secure one. When Durham drove a truck, he was on Respondent's payroll and received a W-2 form for his services at the end of the year. During the strike, Durham signed a union card and joined in the picketing. When Durham called in after the strike to find out whether or not to work, Respondent informed him that his services were no longer needed. In my view, these facts indicate that Respondent exercised a high degree of control over Durham's operations in its behalf; 4 that such control, as well as the nature and conditions of his work, curtailed him in the economic latitude he would have otherwise had to engage in entrepreneurial activity; and, furthermore, that Durham's actions and attitude, toward Respondent, toward his work, and toward the strike were clearly those of an employee rather than an independent contractor. i R-M Framers. Inc., 207 NLRB 36 (1973). DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge: Upon charges filed February 5 and April 7, 1976, by Meatcutters, Packinghouse Workers & Food Handlers, District Union No. 657, AFL-CIO, herein called the Union, against P.Q. Beef Processors, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12, issued a complaint dated March 24, 1976, and an order consolidating cases and amendment to complaint dated May 18, 1976, alleging violations by Respondent of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent, by its answer, denied the commission of any unfair labor practices. On June 3, 1976, the Board issued its Order in Case 12- RM-277, directing a hearing with respect to the issues raised by the challenges to the ballots of seven individuals in that case. Thereafter, on June 4, 1976, the Regional Director consolidated that matter with Cases 12-CA-7107 and 12-CA-7179 for purposes of hearing and decision. Pursuant to notice, hearing was held before me in Coral Gables, Florida, on June 7, 8, and 9, 1976, at which the parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter, the General Counsel and Respondent filed briefs which have been duly considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following: i Unless otherwise indicated, all dates referred to herein are in 1976. While generally admitting the discharges. and contending that theq where motivated bh economic considerations. Respondent also asserts that FINDINGS OF FACT 1. JURISDICTION Respondent is a Florida corporation, engaged in the business of boning cow and beef meat for wholesale distribution. Prior to the issuance of the complaint in Case 12-CA-7107, Respondent had been in business for some 7 months during which time it shipped from its Miami, Florida, location, to points in the United States located outside the State of Florida, meat valued in excess of $50,000. During the same period of time, Respondent purchased meat valued in excess of $50,000 from points within and without the State of Florida. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. lI. LABOR ORGANIZATION Meatcutters, Packinghouse Workers & Food Handlers, District Union No. 657, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background Union organizing activity began at Respondent's plant on or about January 15, 1976.1 By February 2, the Union believed that a majority of Respondent's employees had signed cards authorizing the Union to represent them for purposes of collective bargaining. Accordingly, Union President Greenfield, after consultation with the principal employee organizers, Elroy Rodriguez and Felino lzqierdo, decided that, on February 4, 1976, it would demand recognition. Before the Union could effectuate its plan, in the early morning of February 4, Respondent's president, Antonio Pernas, laid off some 9 or 10 employees, including union card signers Oscar Maza, Antonio Labra, Gilberto Mulga- do, Pedro Vera, Alberto Mulgado, Elroy Rodriguez, Felino Izqierdo, Manuel Diaz, and Felix Velazquez, the alleged discriminatees in Case 12-CA-7107. 2 Thereafter, others of Respondent's employees decided to strike in protest of the discharges, and the strikers and the dischargees engaged in picketing. In an effort to settle the strike, Respondent, on or about February 9, offered reinstatement to the dis- charged employees and, on February 11, the dischargees and the strikers returned to work. Respondent and the Union then consented to a Board-conducted election which was held on March 5, 1976. On various dates between February 11 and March 2, Respondent discharged Oscar Maza, Virsie Durham, Antonio Labra, Gilberto Mulgado, Pedro Vera, Alberto Mulgado, and Raimundo Rodriguez. Those individuals cast challenged ballots at the March 5 election and resolution of the challenges turns upon the legality of the discharges. Following the election, Felino Izqierdo and Julio Romero were discharged. The nine individuals, all of Vera was discharged for cause; Diaz was offered reinstatement immediatel) following his discharge; and Rodriguez was not discharged at all. 1077 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom had signed union authorization cards, are the alleged discriminatees in Case 12-CA-7179. 3 In addition to the discharges, the complaint alleges, and Respondent denies, that it violated Section 8(a)(l) of the Act by engaging in threats and interrogations conducted by Pernas and Supervisor Jose A. Garcia, 4 and by imposing more onerous working conditions following the strike. B. The Discharges Supervisor Jose A. Garcia testified that, on the morning of February 3, "Mr. Pernas talked to me and told me he had problems with his employees, and did I know anything." Asked what problems Pernas was referring to, Garcia testified: "The Union problem it must have been." According to Garcia, in a conversation which took place later that same day, Pernas informed him that he was going to discharge employees Izqierdo, Diaz, and E. Rodriguez. That evening, Garcia spoke to Diaz and Rodriguez by telephone, and informed them that Pernas knew about the Union and intended to fire the three individuals. On February 4, Pernas effectuated the layoffs of 6 of Respondent's 10 butchers, 2 of 4 drivers, and 1 of 2 scalers. The six employees classified as helpers, as well as the single employee who worked as a packer, were retained. Accord- ing to Pernas' uncontradicted testimony, he informed those employees that their layoffs were necessitated by economic conditions. Selection of employees for layoff was based on seniority, and the retained employee complement included individuals who had signed union authorization cards. Immediately following this event, Garcia told several employees that he, Garcia, was sorry, but the owner had found out about the union problem. Pernas, in explanation of Respondent's economic diffi- culties, testified that cow beef, boned and distributed by Respondent, is a relatively lower grade of meat. Toward the end of 1975, the price of such beef began to increase while the prices of higher grade choice meat started to decrease. This trend continued into 1976. Thus, on January 1, 1976, cow prices were 22 cents per pound lower than choice steer prices. By February 29, the differential was only 2 cents per pound and, by March 20, the price of choice meat was less than the price of cow beef. Since choice meat is a better quality product, the market for cow beef is dependent on its normally lower price. Thus, the disappearance of the price differential, in late 1975 and early 1976, had a devastating impact upon Respondent's business. By February, its theretofore profitable enterprise was operating at a loss. Accordingly, on February 2, 1976, Pernas decided to reduce the business operations, lay off employees, and so inform them on February 4, 1976, the end of the payroll period. Pernas' testimony in this regard was corroborated by the testimony of other witnesses; is supported by business records and other documentary :' Respondent asserts that Maza, Labra, Vera, Rodriquez, and the Mulgados were discharged for economic reasons; that Izqierdo and Romero were discharged for cause; and that Durham was not an employee but, rather an independent contractor at the time he ceased work at Respon- dent's plant. 'The uncontradicted testimony of Garcia, and various employee witnesses, shows that Garcia directed employees in their work, granted time off. effectively recommended pay increases for the employees working evidence; and has not been seriously challenged, either by the General Counsel or the Charging Party. Pernas denied that prior to February 4, he held conversations with Garcia pertaining to Respondent's economic situation, or employ- ee layoffs, or that, at that time, he knew of, or discussed with Garcia, the matter of the Union. Respondent's business suffered further reversals during the period of the strike, as many of its customers, apparently responding to appeals from the Union, refused to buy Respondent's product. In an effort to resolve the situation, Pernas recalled the laid-off employees, settled the strike, and agreed to an election. He testified that his actions in that regard were motivated by his concern for the survival of the business, although he had no business need for the laid-off butchers. The business did require the services of the striking helpers. Respondent's operating losses increased in the week following reinstatement, and it lacked work for the reinstated employees. According to Pernas, this condition gave rise to the subsequent layoffs, by seniority, between February 11 and March 30, 1976. At the time of the hearing, in early June, Respondent was still operating with the reduced employee complement. While it has not replaced any of the laid-off employees, Respondent did replace a helper, a packer, and a butcher when those employees left their jobs between February 27 and March 5.5 The replacements were former employees with a higher seniority standing than any of the laid-off employees who are the subject of the instant charges. According to Pernas, it is Respondent's policy to recall laid-off or former employees in order of seniority. With respect to the February 4 layoffs, Respondent, as noted, contends that Vera was discharged for cause; Diaz was offered reinstatement immediately following his discharge; and Rodriguez was not discharged. As to Vera, he testified that, following his hire of February 2, 1976, Pernas, on February 3, asked him if he had signed a union card. When Vera responded in the affirmative, Pernas told him that there was no longer any work for him. Pernas denied Vera's account, and testified that he laid off Vera because the latter "requested from me to be paid under table because he was collecting unemployment." As to Diaz, who owed money to Pernas, both Diaz and Pernas testified that, immediately following his layoff, Pernas offered, and Diaz declined, continued employment. Ac- cording to Diaz: "I started to leave then, but Mr. Pernas told me, 'Manuel, if you want you can remain and work.' I told him 'No, since he had fired me, I could not stay and work because my fellow workers had been fired as well,' and I didn't speak again to him." As to Rodriguez, Pernas testified that he had not included Rodriguez in his February 4 layoff plans, and did not tell under him, and possessed and exercised the power to discharge those employees. I find that, at all times material herein, Garcia was a supervisor within the meaning of Sec. 2(11) of the Act. 5 Neither the helper nor packer classifications had been effected by the layoffs. At the time that the butcher was replaced, on or after March 5, 1976, some four butchers, who are the subject of the instant charges, had been laid off. Subsequently, butcher lzqierdo was discharged on March 22, allegedly for cause. 1078 P.Q. BEEF PROCESSORS Rodriguez that he was laid off. Rodriguez testified that he did not report for work on February 4, but remained outside the plant to picket with the strikers and discharg- ees, since, on the night of February 3, he had been told by Garcia that Pernas "had fired us." According to Garcia, he told Rodriguez that he was "going to be fired" by Pernas. Respondent also contends that the postelection layoffs of Izqierdo and Romero were for cause, and that Durham was an independent contractor when, at the conclusion of the strike, he ceased performing work for Respondent. Thus, Pernas testified that Izqierdo was terminated because, in the weeks preceding that event, he spent nluch of his time talking to fellow employees, and not working. Pernas' testimony in that regard was corroborated by employee Jose R. Garcia. Izqierdo admitted that he had been warned, by Supervisor Jose A. Garcia, that Pernas would fire Izqierdo if he were caught talking again. As to Romero, Pernas testified that he was discharged for ignoring instructions to refrain from smoking inside the plant. Romero acknowledged that Federal regulations prohibit smoking in the plant, and conceded that he: smoked there, from time to time, as did other employees. He also admitted smoking in the "dry room," where he knew smoking was a very hazardous activity. Romero had received prior warnings on this subject from Pernas. According to Romero, about I month before his discharge, Supervisor Garcia asked him how he was going to vote in the election. When Romero stated that he would vote for the Union, Garcia asked if Romero knew what he was doing and further stated that Pernas had threatened to close the plant if the Union won the election. Garcia acknowledged that he asked Romero how he was going to vote, and that he told Romero "that I thought that if the Union won out, the plant would be closed." Durham worked at Respondent's plant, unloading the trucks of beef suppliers. He was, at times, paid by the truckdrivers and, at other times, by Respondent, under a reimbursement arrangement with the supplier. When paid by Respondent, the amount was based on the number of pounds unloaded, and the check was not reduced by the usual employee payroll deductions. Durham hired his own assistant who was paid, by Durham, from the funds he received from the suppliers and Respondent. Durham also purchased his own unloading equipment. Unloaders, such as Durham, report for work when there are trucks to unload. and they begin their work, not through a hiring procedure, but on their own initiative. Pernas did issue directions to Durham, and other unloaders, with respect to the speed with which they were to perform their unloading tasks. In that connection, it was Pernas who first suggested to Durham that he retain a helper in order to speed the unloading process. At times, Perna:s loaned to Durham one of Respondent's own employees, when necessary to accomplish the unloading tasks in a timely manner. C. The 8(a)(1) Conduct It is undisputed that, following the strike, Respondent instituted certain changes in working conditions, as follows: (1) The 40-hour guaranteed workweek, previously granted to butchers, was eliminated; (2) the starting time was changed from 6:30 a.m. to 7 a.m., so that employees left the plant at a later hour; (3) the system of taking breaks was revised; and (4) the previously unrestricted right of employees to purchase meat was limited to Fridays only. The General Counsel contends that these revisions in conditions of employment were motivated by antiunion considerations and were in violation of the Act. Pernas testified that the first two changes were instituted for economic reasons. Thus, with its changed economic circumstances, Respondent could no longer guarantee a 40-hour week. The change in starting time was designed to avoid the payment of overtime charges to U.S.D.A. inspectors for work performed before 7 a.m., resulting in a savings of $45 per week. As to the other changes, the revision in the breaktime schedule, from breaks of 20 minutes, 20 minutes, and 10 minutes to 10 minutes, 30 minutes, and 10 minutes, did not reduce the total breaktime, and served to grant the employees a longer break at the lunch hour. The limitation on the right to buy meat to Fridays only was designed to eliminate the daily bottleneck in the packing department and confine that problem to I day per week. Other 8(a)(1) allegations include the claimed interroga- tion of Vera by Pernas, concerning whether or not Vera had signed a union card (discussed above); the threat by Garcia to Rodriguez and Diaz that those two individuals, and employee Izqierdo, would be discharged because of their union activity (discussed above); the interrogation by Garcia of Romero, concerning how that employee would vote, coupled with a threat to close the plant if the Union won the election; and alleged threats by Pernas to Izqierdo, while the latter was picketing, to get even with that employee, to kill him, as well as an attempted physical assault upon Izqierdo. This last allegation arose from an incident on the picket line when Pernas, after being informed by Jose R. Garcia that Izqierdo had told Garcia that he could not open the plant door, approached Izqierdo and asked why Izqierdo had so harassed Garcia. Izqierdo called Pernas a liar and a heated argument ensued. The men were ready to fight when they were separated by a picket. According to Izqierdo, Pernas swung at him. threatened to get even with him, and to kill him, once "this thing is over." Pernas described the incident as a personal one, and denied threatening to get even with Izqierdo. D. Conclusions Based on the credited testimony of Antonio Pernas, I conclude that the February 4 layoffs, as well as the subsequent layoffs, were amply justified by the rapidly declining economic condition of Respondent's business. Indeed, as noted, the General Counsel has not seriously challenged Respondent's defense in this regard but con- tends, nonetheless, that union considerations were the motivating factors for the layoffs. In support of that contention, the General Counsel points to the suspicious timing of the discharges, and to the statements of Supervisor Garcia, evidencing, in the General Counsel's view, Respondent's knowledge of employee union activity and its union animus. I disagree. While the timing of the initial layoffs, at a point when the Union had gathered sufficient strength to seek recognition, is, on its face, a suspicious circumstance, it has been adequately explained 1079 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Pernas' testimony and other economic data. Thus, by the end of January, Respondent's theretofore profitable enterprise was operating at a net loss, and the losses grew larger in the month of February. The underlying marketing factors responsible for this decline left Respondent with few alternatives in accommodating to the situation, and gave rise to Pernas' decision to reduce the size of the business enterprise with a consequent layoff of employees on a seniority basis. While Respondent is responsible for the statements of its supervisor, Garcia (and I have found violations of Section 8(a)( ), infra, based on those statements), I have also concluded that Garcia's comments were representative of his own apprehensions and speculations, and were not based on knowledge acquired from Pernas. Thus, accord- ing to Pernas' credited, uncontradicted testimony, he did not discuss with Garcia, prior to the February 4 layoffs, the matter of Respondent's financial difficulties. Pernas also denied discussing the Union with Garcia. While Garcia testified to two February 3 conversations with Pernas, the first concerning "problems with his employees," and the second concerning layoffs, Garcia did not testify that Pernas related the two matters. Indeed, Garcia merely speculated that the conversation dealing with employee problems pertained to the Union ("the Union problem it must have been"). Such speculation runs throughout Garcia's testimony. In addition, while I believe that Garcia was a truthful witness, he suffered from a decided lack of memory while on the witness stand. For these reasons, I have concluded that Garcia was not a reliable witness and, to the extent that his testimony conflicts with Pernas' account of events, I have credited Pernas who impressed me as a truthful, forthright witness. I have also credited Pernas' account of the February 3 conversation with Vera and find that Vera was discharged because of his request "to be paid under the table," and not because he affirmatively replied to a question by Pernas with regard to Vera's union sympathies. Based on demea- nor and other impressions of the two witnesses, I find that Pernas did not inquire into Vera's union activities or sympathies. As to the February 4 layoff of Diaz, in view of my findings herein, I need not decide whether Diaz was offered reinstatement following his discharge. Rodriguez, concededly, was not laid off by Pernas on February 4, but assumed that he had been discharged on February 3, following his conversation with Garcia. However, on February 3, Garcia neither discharged Rodriguez in his own right, nor in the name of Pernas. Rather, he told Rodriguez that he was "going to be fired" by Pernas, a statement which does not amount to an actual notification of discharge, or one from which an employee could reasonably conclude that the act of reporting for work on the next day would be futile. Accordingly, I find that, during the February 4 to I1 period, Rodriguez was a striker, and not a dischargee. Pernas' testimony that the postelection discharges of Romero and Izqierdo were for cause was both credible and supported by other evidence. Thus, Pernas' contention that lzqierdo, in the period preceding his termination, often ceased work while engaging in conversation with fellow employees was corroborated by the testimony of another employee. Izqieirdo acknowledged a previous warning on the matter. Romero, discharged for repeatedly smoking inside the plant, contrary to prior instructions and warnings, conceded that such smoking was prohibited by Federal regulations. Moreover, Romero admitted smoking in the "dry room," which he knew was a particularly dangerous act. On this state of the evidence, I find that Romero and I:zqierdo were discharged for cause. I also conclude that 'Durham was not an employee of Respon- dent within the meaning of the Act but, rather, an independent contractor. Durham's wages, either directly, or through a reimbursement arrangement, were paid by suppliers, not by Respondent. Such payments were not reduced by payroll deductions. He hired his own helper, set the amount of that employee's remuneration, and pur- chased his own equipment. Like other unloaders, Durham was not formally hired, but simply reported when work was available, and received remuneration based on the number of pounds unloaded. Pernas concerned himself with the manner in wh:ich Durham performed his work only to the extent of deimanding that the unloading process be accomplished in a swift fashion. In these circumstances, I conclude that Durham was not an employee of Respon- dent, and that his separation from his work with Respon- dent cannot be the subject of an 8(a)(3) finding. See Quality Hay Company, 173 NLRB 1144 (1968). Based on the foregoing, I conclude that neither the February 4 discharges, nor the discharges occurring between February II and March 30, 1976, were in violation of Section 8(aX3) of the Act. Accordingly, I further conclude that the challenges to the ballots of Oscar Maza, Virsie Durham, Antonio Labra, Gilberto Mulgado, Pedro Vera, Alberto Mulgado, and Raimundo Rodriguez, in Case 12-RNM-277, should be sustained. I have also concluded that the changes in working conditions made following the strike were motivated by legitimate business concerns and were not in violation of the Act. Thus, the elimination of the 40-hour guaranteed workweek and the change in starting time from 6:30 a.m. to 7 a.m., have been satisfactorily explained by Pernas in terms of the economics of the situation which then prevailed. The minor change in the breaktime schedule did not affect the total employee breaktime, and operated to lengthen the amount of lunchtime available to the employees. Pernas also satisfactorily explained his reasons for limiting employee purchases of meat to Fridays only, in terms of limiting the resultant disruption to I day per week instead of 5. In view of my earlier findings, I conclude that Pernas did not interrogate Vera with respect to whether or not that employee had signed a union card. I further conclude that the altercation between Pernas and Izqierdo, on the picket line, related solely to Pernas' belief, and Izqierdo's denial, that Izqierdo had attempted to.prevent another employee from entering the plant. If Pernas made any threats at that time, it related solely to that heated argument, and not to the fact of employee organization, the Union, or the strike. I find that Respondent did violate Section 8(a)(1) of the Act by Supervisor Garcia's admitted threat to Rodriquez and Diaz that those individuals, as well as employee Izqierdo, would be discharged because of their union 1080 P.Q. BEEF PROCESSORS activity; by the conceded interrogation by Garcia of Romero, concerning how that employee would vote; and by Garcia's acknowledged threat to Romero that the plant would be closed if the Union won the election. While, in each instance, I believe that Garcia was expressing his own beliefs and fears, and was not speaking for Pernas, such threats and interrogations by a statutory supervisor are attributable to Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take affirmative action designed to effectu- ate the policies of the Act. CONCLUSIONS OF LAW I. P.Q. Beef Processors, Inc., is an employer engaged in commerce, and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. Meatcutters, Packinghouse Workers & Food Han- dlers, District Union No. 657, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not engaged in unfair labor practic- es within the meaning of Section 8(a)(3) of the Act. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The Respondent, P.Q. Beef Processors, Inc., Miami, Florida, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees with plant closure in reprisal for their union activities. (b) Threatening employees with discharge or other discipline in reprisal for their union activities. (c) Interrogating employees with respect to their union sympathies. (d) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for their mutual aid and protection, or to refrain from such activity. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Miami, Florida, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the challenges to the ballots of Oscar Maza, Virsie Durham, Antonio Labra, Gilberto Mulgado, Pedro Vera, Alberto Mulgado, and Raimondo Rodriguez, in Case 12-RM-277, be overruled, and that Case 12-RM-277 be remanded to the Regional Director for Region 12 for further proceedings. 6 In the event no exceptions are filed. as provided by Sec. 102.46 of the 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. 7 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with plant closure in reprisal for their union activities. WE WILL NOT threaten to discharge or otherwise discipline our employees in reprisal for their union activities. WE WILL NOT interrogate our employees with respect to their union sympathies. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. All our employees are free to become or remain members of Meatcutters, Packinghouse Workers & Food Handlers, District Union No. 657, AFL-CIO, or any other labor organization of their choosing. P.Q. BEEF PROCESSORS, INC. 1081