Borin Packing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1974

208 N.L.R.B. 280 (N.L.R.B. 1974)

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.]