Central Buying Service

National Labor Relations Board - Board Decisions

Mar 31, 1976

223 N.L.R.B. 542 (N.L.R.B. 1976)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald Walker and Arthur Nunez , Co-Partners d/b/a
Central Buying Service a/k/a Percals Meats &
Poultry and Chauffeurs, Teamsters & Helpers Lo-
cal No. 186, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Greg Freese . Cases 31-
CA-5257, 31-CA-5455, and 31-CA-5369
March 31, 1976
DECISION AND ORDER
By MEMBERS FANNING , JENKINS . AND WALTHER
On December 5, 1975, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs, and the General Counsel filed a brief in oppo-
sition to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
1 The Respondent and the General Counsel have 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 resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Drv Wall Products, Inc.. 91 NLRB 544 (1950 ). enfd . 188 F.2d 362 (C.A. 3.
1951). We have carefully examined the record and find no basis for revers-
ing his findings.
1 In affirming the Administrative Law Judge 's conclusion that the
Respondent 's discharge of employee Greg Freese violated Sec. 8(a)(3). we
rely, in addition to those factors specifically cited by the Administrative
Law Judge. on the circumstances surrounding Greg Freese's inability to
vote in the May 8 . 1975. election as providing further support for the 8(aX3)
finding. As noted by the Administrative Law Judge. the Respondent's
coowner Donald Walker interrogated Greg Freese . and the Respondent was
well aware , prior to the election, that he supported the Union . In fact. Greg
Freese was one of only three employees who admitted to Walker that they
had signed authorization cards for the Union . Thereafter on the day of the
election , when he was given an out-of-town run for the day, Greg Freese
protested that this work assignment would cause him to miss the election.
Walker informed him that he would be back by 5:30 p. m. and would he able
to vote . The polls were open from 5:30 to 6 p.m. However . Greg Freese was
unable to return from his out -of-town run until 6 : 30 p.m .. and thus his work
assignment did prevent him from voting in the election . A week later. Greg
Freese told Walker that it did not matter that he missed the election because
"it turned out all right, anyhow."
Therefore , both before and after the election . Greg Freese openly demon-
strated to the Respondent his unwavering support of the Union. This dis-
play of prounion sentiment in face of the Respondent s clear antiunion
position . coupled with the other factors specifically relied on by the Admin-
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Donald Walker and Art-
hur Nunez, Co-Partners d/b/a Central Buying Ser-
vice a/k/a Percals Meats & Poultry, Santa Barbara,
California, their agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
istrative Law Judge fully support the conclusion that Greg Freese was dis-
charged in violation of Sec. 8(a)(3) of the Act.
Additionally. Member Fanning would find that the remarks of the
Respondent 's coowner, Arthur Nunez, made after the election of May 8
violated Sec. 8(a)(l). Nunez told employees that with the Union having won
the election . " ... I guess you guys will be out working a picket line for
about a dollar an hour ...... Contrary to the Administrative Law Judge.
Member Fanning does not find the remarks to be ambiguous. Rather, he
would find that Nunez conveyed to employees that the Respondent would
refuse to bargain and that employees would be forced to strike in support of
their demands.
DECISION
STATEMENT OF THE CASE
RUSSELL. L. STEVENS, Administrative Law Judge: This
matter was heard at Santa Barbara, California, on Septem-
ber 22-24, 1975.' The complaint in Case 31-CA-5257, is-
sued June 19, was based upon a charge filed May 2 by
Chauffeurs, Teamsters & Helpers Local No. 186, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter called
the Union. The charge in Case 31-CA-5369 was filed June
10 by Greg Freese (Greg), an individual. Order consolidat-
ing the two aforesaid cases, and consolidated amended
complaint, was issued July 22 by the Regional Director of
Region 31, National Labor Relations Board (Board). The
original charge in Case 31-CA-5455 was filed August 18
by the Union. On August 25 the Acting Regional Director
of Region 31 issued an order consolidating the above-de-
scribed three cases and a second consolidated amended
complaint 2 which alleges that Donald Walker and Arthur
Nunez, Co-Partners d/b/a Central Buying Service a/k/a
Percals Meat & Poultry, hereinafter called the Respondent,
violated Section 8(a)(l), (3), and (5) of the National Labor
Relations Act, hereinafter referred to as the Act.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross -examine
witnesses , and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of General
Counsel and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
1 All dates hereinafter are within 1975 unless stated to be otherwise.
2 Certain errors in the record are hereby noted and corrected.
223 NLRB No. 77
CENTRAL BUYING SERVICE 543
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is now , and at all times material herein has
been a partnership with its office and principal place of
business located in Santa Barbara, California , where it is
engaged in wholesale and retail sale of meats , poultry, and
other products . Respondent , in the course and conduct of
its business operations , annually purchases and receives
goods valued in excess of $50 ,000 from suppliers located
within California , who in turn purchase such goods sub-
stantially in the same form directly from suppliers located
outside the State of California . I find that Respondent is,
and at all times material herein has been , an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
His pay was $2.25 per hour.
Respondent had approximately four other employees
who cut meat and chickens and performed various other
tasks in Santa Barbara, and the two owners (Walker and
Nunez) also worked at the store. Walker managed the op-
eration and Nunez primarily was concerned with office
work and sales promotion.
Lukens was the principal union activist at the store. He
began his union activity in March 1975 by talking with
"some other truckdrivers who delivered for Percals." Luk-
ens talked with a union representative in March and re-
ceived authorization cards for distribution. He distributed
the cards, in secret, to all employees except Vernon Barnett
(Barnett). He collected the cards March 25, again in secret,
and delivered them that day to the Teamsters representa-
tive.
A consent election was held May 8, and the Union won
by a vote of four to two. The Union was certified by the
Board, and the first bargaining session between the parties
was held July 29. A contract has not been concluded.
Chauffeurs, Teamsters & Helpers Local No. 186, affiliat-
ed with International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America , is, and at
all times material herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Background
At the time material herein , Respondent owned and op-
erated a facility devoted to the wholesale and retail poul-
try, meat , and produce business. Sales were made over the
counter at Respondent 's Santa Barbara store , to customers
in Los Angeles , and to customers in cities near Santa Barb-
ara. Deliveries outside Santa Barbara, principally on a
wholesale basis, were made in Respondent 's trucks.
The Santa Barbara store has a fairly large area for over-
the-counter sales, mostly retail , open to the public and fre-
quented throughout the day by customers. The back area
of the premises is used to store and cut meat, cheese, and
chickens, primarily for wholesale transactions . Orders for
delivery to delicatessen accounts are prepared in the back
area. Such preparation primarily includes the cutting of
meat and chickens. Trucks are loaded from the back area
for orders to be delivered outside Santa Barbara.
One of Respondent's employees was Clark Lukens (Luk-
ens), who was employed at Respondent 's store from March
1974 until his discharge March 26, 1975. Lukens serviced
delicatessen accounts in cities near Santa Barbara, and his
duties included calling on the accounts, writing orders, fill-
ing or assisting in filling those orders, and delivering or
assisting in their delivery to the customers. He was paid $4
per hour and worked on a 40-hour per week basis.
Greg Freese (Greg) was employeed by Respondent from
November 1974 until his discharge June 6, 1975. His duties
were to make deliveries in Santa Barbara and to neighbor-
ing cities , and he also delivered orders to Los Angeles once
each week. When he was not driving, he prepared orders to
be loaded into trucks, sometimes cleaned the cooler at the
end of the day, and on occasion cut up chickens and meat.
A. Alleged Refusal To Bargain
Paragraph 8 of the complaint 3 alleges that Respondent
refused to bargain in that, commencing on or about May
22, Respondent unilaterally instituted work changes by
transferring a portion of its business operation to Central
Coast Distributors located in Santa Maria, California.
General Counsel's evidence in support of this allegation
is quite limited. Dan Freese 4 (Dan), who was employed by
Walker in October 1974, drives trucks for Respondent and
also cuts up chickens and prepares orders for delivery. He
started work at $2.25 per hour. Dan testified that Respon-
dent "had" one truck and five vans on the day of the union
election (May 8) and by May 31 "had" a total of five, or
one van less than on May 8. He said that prior to the
reduction of one van, "generally" a van was parked at the
plant and not in use except on Thursdays and Fridays,
when it often was used for a single run. Dan testified:
I first learned of Central Coast Distributing when
myself and Jeff Pryor were called into work on Wed-
nesday night. Our big truck had come back from L.A.
and we were talking to Vern Barnett, and Vern was
telling us that Art Nunez wasn't worrying about the
union coming in, that he had everything in control. If
the union came in, they would either drive their own
vans or they would have Central Coast come in and
take over all their accounts and do all the big account
delivering, and the union couldn't touch Central Coast
because they were all family.
Dan said he first saw Central Coast trucks on
Respondent's premises May 22, when "they" were picking
up orders for Respondent's accounts in nearby cities. Dan
stated that, after May 22, his work hours and those of an-
other employee, Bill Dugan, were somewhat changed 5 in
3 Here, and in all later references to the complaint , meaning the second
consolidated amended complaint.
4 Greg Freese's brother.
Dan also said as of May 8 there were six employees who drove and by
May 31 there were four.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they had less driving to do. Dan said he formerly spent
60 or 65 percent of his time driving and after May 22 that
percentage was reduced to 45 or 50 percent. Dan testified
"We had less work to do . . . not less work , we just got
done quicker." He said "There was no reduction in the
total hours , just when we put them in," and he also said he
suffered no loss of earnings.
On cross-examination Dan stated that Vernon Barnett
told him the van was leased to Central Coast Distributors.
He also stated that the van was returned to Respondent in
September.
Jeff Pryor (Pryor) testified that he talked with Barnett
the Tuesday after the election, and:
THE WITNESS: Vernon just explained to us how Art
and Don, Don Walker and Art Nunez, would beat the
union or to get around the union . And the two ways I
have heard about from Vernon Barnett was one, that
they would switch their-their ownings or whatever.
to Central Coast Distributors. And when they did this,
any of the processes of the union could not be brought
against Central Coast since they had been moved from
Percal's to Central Coast .6
Nunez testified: About 2 or 3 years ago he started mak-
ing deliveries to a customer called Downtown Liquors. lo-
cated in Santa Maria. Thereafter , the deliveries sometimes
were made by Respondent's employees . The single account
not being very profitable, Nunez procured other customers
in Santa Maria . In the meantime , Downtown Liquors de-
veloped a route for delivering sandwiches in the Santa Ma-
ria area. About a year and a half ago (mid-1974), Nunez
suggested to Downtown Liquors that they take over
Respondent's deliveries to Santa Maria , since Downtown
Liquors had stores both in Santa Barbara and Santa Maria,
and produce easily could be picked up at Respondent's
Santa Barbara store . Bard Miller , associated with Down-
town Liquors (later called Cooperage ), agreed and went
into a partnership with two others (not involved herein)
under the name Central Coast Distributors. After about 6
weeks the orders began to dwindle , since Central Coast
Distributors started dealing with a Los Angeles wholesaler
rather than with Respondent . Nunez then started going to
Santa Maria himself in order to revive the business there.
In January or February, he grew tired of the trips' and
hired Bill Medlin (Medlin) to do those jobs . Medlin quit in
April and about the same time, George Miller (Miller) told
Nunez that the Central Coast partnership, of which Miller
was a partner, had broken up. After Medlin quit and some-
time in late April or early May, Nunez offered to Miller the
same arrangement relative to the Santa Maria deliveries
that he earlier had with Central Coast. Miller accepted the
offer . Nunez said the employees of Respondent were glad
to see the Santa Maria routes released . Those employees
now made other runs , no one was laid off on this account,
and employees lost no hours of work or income because of
the change . Nunez said Miller picked up his first order
' Barnett denied this statement and testified that he had never heard
Walker or Nunez make such a statement.
' From 80 to 145 miles each way.
from Respondent on May 22, about 5 weeks after he first
talked with Miller. Central Coast (Miller) leased one of
Respondent's vans for 3 months 8 and at the end of that
time purchased their own truck. Nunez testified he has
never had any interest of any kind in, or relationship with,
Downtown Liquors, Cooperage or Central Coast Distribu-
tors, or any of the principals thereof, beyond the buy-sale
relationship he testified about.
Analysis
Dan testified on direct examination that Respondent
"had" a truck and five vans on May 8 and "had" one van
less on May 31. On cross-examination he said Barnett told
him a van was leased to Central Coast Distributors, and he
testified the van was returned to Respondent in September.
He acknowledged that he lost no hours or pay because of
Central Coast Distributors.
Dan's only claimed information about Respondent's ar-
rangement with Central Coast came from Barnett , who al-
legedly told Dan that Nunez would use Central Coast to
break unionization efforts . This testimony is hearsay and is
given no weight and, in any event , Barnett was no more
than a nonsupervisory leadman , if even that, as discussed
below.
General Counsel's only other testimony on this subject
came from Pryor, who did not even quote Nunez through
Barnett . Allegedly , Barnett merely volunteered his opinion
that Nunez would use Central Coast to defeat union ef-
forts.
Nunez explained Respondent 's relationship with Central
Coast in much detail . That testimony is credited , and from
it and testimony by General Counsel 's witnesses it is ap-
parent that: (a) the arrangement and events leading up to it
long antedated union efforts at Respondent 's store; (b) the
Santa Maria run constituted but a small, intermittent part
of Respondent's business ; (c) employees knew almost
nothing about the arrangement, made runs to Santa Maria
on an intermittent and infrequent basis, and certainly did
not consider the run to be a preferred working condition;
(d) no employee lost anything by the arrangement with
Central Coast and, in fact , according to Dan , dropping the
run resulted in drivers finishing their work earlier than be-
fore, but did not affect their hours worked for pay or their
pay.
The facts of this case thus bring it within the principles
discussed in Rochester Telephone Corporation, 190 NLRB
161, 164 (1971 ) wherein the Board stated (footnotes omit-
ted):
In a series of cases the Board has had occasion to
apply the principles enunciated in its own decisions
and in the Supreme Court's Fibreboard decision. In
this regard, the Board has repeatedly stated that its
condemnation of unilateral subcontracting with re-
spect to unit work was not calculated to lay down
hard and fast rules for mechanical application regard-
less of the factual situation involved.
In Westinghouse, supra, 1576, the Board, holding
8 The months were not named at hearing but apparently they were in late
summer.
CENTRAL BUYING SERVICE 545
that an employer did not violate Section 8(a)(5) and
(1) by failing to notify and consult with the Union
before subcontracting work, said:
Thus, it is wrong to assume that, in the absence of
an existing contractual waiver, it is a per se unfair
labor practice in all situations for an employer to let
out unit work without consulting the unit bargain-
ing representative. As the Supreme Court has indi-
cated in a broader context, even where a subject of
mandatory bargaining is involved, there may be
"circumstances which the Board could or should ac-
cept as excusing or justifying unilateral action."
Consistent with this view, the Board has identified sev-
eral recurrent factors which it believes limit the Fibre-
board obligation; thus, the doctrine has been confined
to cases in which some "significant detriment" has oc-
curred, resulting in some "real change" in the terms
and conditions of employment of the bargaining unit
employees .9
It is found that Respondent's business arrangement with
Central Coast did not constitute a change in working con-
ditions that had to be bargained with the Union and that
General Counsel failed to sustain its burden of proof rela-
tive to this allegation.
B. Discharge of Lukens
Paragraphs 9 and 10 of the complaint allege that, on or
about March 26, Respondent discharged Lukens because
of his union or other protected activity.
Lukens testified as follows: On January 8 or 9, he had a
discussion with Nunez concerning low wages, lack of em-
ployee insurance, general working conditions, and lack of
job security. Nunez' did not seem willing to make conces-
sions , and Lukens threatened to seek "outside representa-
tion." 10 Nunez said, if the Union came in, he would fire all
employees. Lukens said he gave Nunez time to do some-
thing about the matter and, no action being forthcoming,
Lukens sought union assistance in March, received author-
ization cards, and distributed the cards in secret on March
24 and 25. He collected the signed cards in secret early
Tuesday afternoon, on March 25. On the day he was termi-
nated, March 26, between 11 a.m. and 12:30 p.m., Pryor
asked for his card back 11 "because he felt he was receiving
a lot of pressure, and he was worried about his job." A
little later that day (March 26) at about 2 p.m., Greg told
Lukens "Don Walker was about to call him in to discuss
who was passing out the cards." 12 Greg then told Lukens
that he was going to tell Walker that Lukens was the one
passing out the cards, because "Jeff Pryor had already
been interrogated and had already admitted that I [Note:
Lukens] was the one to pass out the cards, and he [Note:
Greg] said it would be foolish for him at that point to deny
it."
At the end of the workday on March 26,13 Nunez called
Lukens into his office and "'I am forced to let you go.' He
said at the time that business was slow and since I was the
highest paid employee, it made the best sense economically
to let me go first." Nothing was said about the Union;
there was no advance notification that he would be termi-
nated; nothing was said to cause Lukens to believe he later
would be reinstated. However, Nunez told Lukens when he
was terminated that Lukens would be able to collect unem-
ployment insurance, and Nunez gave Lukens a letter of
recommendation to take with him.
On July 3, Lukens visited the unemployment office to
pick up his check 14 and was told his benefits had been
stopped because he did not accept Respondent's job offer.
Lukens replied that he knew nothing about an offer and he
called Nunez that afternoon.15 Nunez said they had an
opening the previous month but were unable to get in
touch with Lukens. The job was filled in the meantime.
Nunez called Lukens July 9 and said he then had an open-
ing. Lukens visited Nunez and was told the opening was
Greg's old job. Since the job involved cutting meat and
chickens, and some labor, Lukens declined the offer, al-
though the pay was the same as he previously received-$4
per hour,16
Lukens had his telephone removed in June, and he start-
ed receiving his mail at a post office box, with a discontin-
uance of home delivery, while still employed by Respon-
dent. He did not notify Respondent of either event; hence
for a period of time, including June, it was not possible to
reach Lukens by telephone or by a letter addressed to his
home.
Dan testified: He received an authorization card from
Lukens "around the 22nd of March." He said he filled out
the card at that time, signed it and returned it to Lukens.
About 20 minutes later, Walker asked Dan if he had seen
any of the cards Lukens was passing out and Dan replied
"no." 17
Greg testified: He first knew about union activity on the
Monday before Lukens was terminated (i.e., March 24),
when Lukens called Greg, Dan, and Clem Morey into the
delicatessen cooler. Greg signed the card Lukens gave him
and returned it to Lukens. About 4:30 p.m. on March 26,
Walker asked Greg if Lukens had talked with him about
the Union and Greg replied yes. After further talk about
the Union, Greg told Walker that he had signed a union
card. After that discussion, Walker asked Greg, Dan, and
9 See also Telepsen Petro-Chem Constructors, 190 NLRB 433 (1971).
10 Lukens testified differently on cross-examination when he said "There
were promises made in the January meeting about concessions ...... And
again , " He definitely said he would make some changes."
"Lukens said that, when he first gave the card to Pryor for possible
signature , Pryor was reluctant to take it and said something about a possible
$500 fine because he already belonged to another union . Later that day. he
said, Pryor returned the signed card and said the earlier comment about
another union "no longer really had any relevancy."
12 There was no explanation as to how Greg knew what Walker was about
to do.
13 Lukens' hours, according to his testimony, "uniformly" were 8 a.m. to
4:30 p.m.
14 In his unemployment application, Lukens stated that he had been laid
off by Respondent. Ann Paquin, the bookkeeper, stated that when she wrote
a letter to Lukens (discussed below) after he was terminated, she considered
him a layoff rather than a discharge.
15 On July 3, Lukens was told at the unemployment office that Nunez had
been trying to get in touch with him relative to a job offer.
16 Greg received $2.50 per hour while on the job.
17 A few minutes later, Dan testified that Walker asked him on March 26
"if I knew who had passed out the union cards."
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"others" to come into his office where he talked about
Respondent 's insurance policies on its employees.
Pryor testified: He first learned about the Union in late
March , when Dan Freese talked with him and gave him a
card . Pryor went into the bathroom , signed the card and
returned it to Lukens. Pryor later asked Lukens not to turn
the card in to the Union because he thought there may be
a conflict with an earlier union membership at a different
location . Lukens said he would hold the card and not turn
it in . Later that day or the following day, Pryor asked that
Lukens return his card because he had talked with Walker
and he feared for his job . Pryor stated "I told him that
Clark Lukens had been passing them out, but I had no
other knowledge of any people signing cards ." This state-
ment and the discussion with Walker were between 10 a.m.
and I p . m., prior to Lukens' discharge on that same day.
Ann Paquin (Paquin) testified that she tried to reach
Lukens by telephone on June 8 or 9, but the telephone had
been disconnected . She then wrote a letter to Lukens, on
Nunez' direction. (Resp. Exh. 4.) The post office box ad-
dress to which the letter was sent was given to Paquin by
the unemployment office. On July 3, Lukens called
Respondent 's office and talked with Nunez.
Walker testified that the first time he knew anything
about union activity at the store was on April 3, about I I
a.m., when he received a telephone call from a Board rep-
resentative who told him the Union had filed an election
petition based upon card signatures . Walker said he re-
ceived a letter 18 from the union attorney the day after the
telephone call. His first response was to find out who
signed the cards 19 and he first questioned Clem Morey
(Morey). Morey said he had signed a card and Walker
asked him who else had signed . Morey said he did not
know and he volunteered the information that he received
the card from Lukens , who had secreted the cards in differ-
ent places around the store . Walker then questioned Dan
about 2 p .m., and thereafter on the same day about 4:30
p.m., he talked with Greg . He questioned Pryor the follow-
ing day, April 4, about 1 or 2 p.m., and Pryor said he
signed a card but asked Lukens to hold it because of a
possible problem with another union . Walker also ques-
tioned Bill Dugan (Dugan) and Barnett on April 4 about 5
p.m. and 7 a.m., respectively?
Nunez testified: The day before he received an audit
report from the Wages and Hours Division of the Depart-
ment of Labor,21 Lukens informed him that Respondent
had lost the Sunburst account ,22 which Nunez considered
the largest account Respondent had. The loss involved five
stores , and about 20 percent of Respondent's total busi-
ness , or about $20,000 per month 23 The audit report result-
IB Resp . Exh. 7.
19 Walker said this was his first experience in labor matters.
20 Walker said he polled all employees except Nelson Moore, whom "I
had no need to ask ," and Dave Nunez , the son of Arthur Nunez , one of the
owners.
21 The date was not established but apparently it was during the last half
of March.
22 The account was lost in two stages-February and March . Lukens ac-
knowledged that the Sunburst account was lost about the time he was termi-
nated and that the account was one of Respondent 's largest.
23 The bookkeeper ( Paquin ) testified that amount was 54.000 per month.
The discrepancy was not resolved , but it is not considered as an impeach-
ed in a backpay obligation of about $8,000. Nunez said he
had to economize and selected Lukens because: (a) Lukens
had told him of at least five substantial job offers he had
received, with better pay, hours, and working conditions,24
Nunez thought Lukens would have no difficulty in prompt-
ly finding other employment; (b) Lukens' wife worked as a
teaching specialist and earned $10 per hour;25 (c) Lukens
was the highest paid of all Respondent's employees; (d)
Morey, who had extensive store experience and who previ-
ously had been in the grocery business, was working for
Respondent and was available as a replacement for Luk-
ens.
Nunez said he explained to Lukens why he had to let
him go, and he said that, since Lukens was "one of the best
men I had," he told Lukens he would let him know if an
opening occurred later . Lukens asked for a letter of recom-
mendation and Nunez then gave him one. Nunez said he
knew nothing about Lukens' union activity when he termi-
nated him. When he terminated Greg on June 6, Nunez
thought of replacing him with Lukens and the following
day started trying to get in touch with Lukens. Lukens
called Nunez on the telephone July 3 and Nunez told him
about trying to get in touch for about a month concerning
a job. In the meantime, Nunez had hired Felix Houf. Nu-
nez said he would see what he could do and on July 9 he
called Lukens about a job. Lukens came to the store July
14 and refused the job, in part because he would have to
spend some time cutting chickens.
Nunez acknowledged talking with Lukens in January
but said the subject was Lukens' work performance and his
then recent raise in pay. Nunez denied that anything was
discussed concerning unions, grievances, employee bene-
fits, or working conditions. Nunez said he first learned of
union activity at the store when Walker told him about a
telephone call from a Board representative in Los Angeles
and a later telephone conversation with the representative
that day. Two or three days later, Walker showed him the
letter received from the union attorney (Resp. Exh. 7).
Analysis
The pivotal point in this. issue is the time when Respon-
dent learned that Lukens was involved in union activity.
Lukens and other witnesses testified that the union au-
thorization cards were distributed, signed, and returned to
Lukens in secrecy. There is no evidence or testimony that
Respondent had knowledge of that activity.
General Counsel contends that Respondent learned of
the activity from Greg and Pryor just prior to Lukens' dis-
charge. Walker and Nunez deny that contention and argue
that they did not learn of Lukens' union activity until after
he was discharged. Walker testified that he did not talk
with Greg, Pryor, and other employees about union activi-
ties until April 3 and 4, after Walker received a telephone
ment of either witness since the account was lost in two stages and the fact
remains, as Lukens acknowledged , that the account was one of
Respondent's largest . During his testimony on this point , Nunez was men-
tally computing the amount and obviously was having difficulty . He said he
was basing his computation upon gross sales figures.
24 This statement was corroborated by Lukens.
25 Lukens acknowledged that Nunez knew about his wife's work.
CENTRAL BUYING SERVICE 547
call from a Board representative and after he notified Nu-
nez about the call.
Lukens started working for Respondent in April 1974 in
the delicatessen section of Respondent's business. As that
section grew , Lukens ' responsibilities increased . He was, in
his words, sort of a "leadman" over employees who joined
the delicatessen section after he did, although he had no
such job title.
Lukens testified that he talked with Nunez in January
about grievances and working conditions, and Nunez testi-
fied that the January discussion was limited to Lukens'
work performance. Lukens' testimony related to the Janu-
ary conversation was similar to his other testimony, dis-
cussed herein, in that it was inconsistent and self-contra-
dictory. On direct examination Lukens said Nunez was
unwilling in January to make concessions, as a result of
which Lukens threatened to seek "outside representation."
Yet, on cross-examination Lukens testified that Nunez in
January promised to make concessions and "definitely said
he would make some changes." In view of such variation in
Lukens' testimony, and in further view of Lukens' position
of expanding responsibility, Nunez' version of the January
conversation is more logical than that of Lukens. There-
fore, Nunez is credited on this issue and it is found that the
January conversation of Nunez and Lukens was limited to
discussion of Lukens' work performance. Even if it is as-
sumed, arguendo, that Lukens' version is correct, the Janu-
ary conversation was remote in time from the events of
March and April, and there is no basis upon which to
reach a conclusion that the two events were related. It
hardly seems likely that Lukens would wait from January 8
or 9 until late March to seek union assistance if conditions
were as bad as he represented them to be. This argument
would reach only the issue of animus, if anything.
It is apparent from Lukens' testimony, corroborated by
that of other General Counsel witnesses, that Lukens went
to considerable effort to keep his union activity secret and
hidden from Respondent. General Counsel seeks to estab-
lish that such efforts failed, by the testimony of Greg and
Pryor. However, the testimony of General Counsel's wit-
nesses, considered as a whole, seems to point to a contrived
situation. For instance: (a) The testimony of Lukens, Dan,
Greg, and Pryor relative to distribution, signature, and re-
turn of cards is not consistent. (b) The testimony of Lukens
and Pryor about Pryor's reluctance to sign a card differed
significantly. (c) Dan testified that Walker asked him if he
had seen any of the cards Lukens was passing out and, a
few minutes later, testified that Walker later asked him if
he knew who passed out the cards. (d) Greg testified that
he told Walker about 4:30 p.m. on March 26 that Lukens
had given him a card which he signed, but Lukens said
Greg told him about 2 p.m. on March 26 that Walker
asked him in to discuss who was passing out the cards.
Greg said Pryor had already told Walker about Lukens
passing out the cards; however, there is no indication in the
testimony of either Greg or Pryor that Pryor so advised
Greg. (e) Greg testified that, from about 4:30 p.m. until
some time thereafter, Walker was with Greg, Dan, and
"others" talking about union matters and company insur-
ance policies, but Lukens said he was terminated at the end
of the workday on March 26 (i.e., 4:30 p.m.) by Nunez.
There is no indication in the record of any discussion be-
tween Walker and Nunez on March 26 relative to Lukens,
although both Walker and Nunez testified at length on
cross-examination. Further, both Walker and Nunez credi-
bly testified affirmatively that neither of them knew about
the Union, nor talked with each other about it, prior to
Walker receiving the telephone call from a Board represen-
tative on April 3. (f) There is no indication in the record
that Paquin, the bookkeeper who made out all checks, was
asked hurriedly to make one out on March 26 for Lukens.
Paquin's office then was not located at the store, it was at
her home, and considerable communication would be nec-
essary to terminate Lukens and prepare his check within a
short period of time, such as would be required if General
Counsel's version of events were to be adopted. There is no
hint of such a hurried arrangement. (g) The record shows
that all employees 26 were questioned by Walker about
their signing. of cards, except Lukens. No reason was ad-
vanced, and none is apparent, for Walker to ignore the
person who was at the core of the controversy when he was
trying to find out about the cards. The only logical expla-
nation is that Lukens was not available, and Walker con-
tends that he first learned of union activity after Lukens
had been terminated. The two are consistent.
Finally, there is the question of credibility of witnesses.
Walker was a very impressive, objective witness who re-
mained convincing throughout his testimony, both on di-
rect and cross-examination. His statements were logical
and consistent. The testimony of Lukens, who was glib and
articulate, and that of Dan, Greg, and Pryor was mutually
and, at times, self-contradictory, as discussed herein. Un-
der such circumstances, Walker is credited.
General Counsel relies upon the timing of Lukens' dis-
charge to show that his termination was because of union
activities. In a proper case, timing can be controlling. How-
ever, where other evidence overcomes any inference arising
from timing, as in this case, the matter of timing is no more
than another factor to be considered. It is clear here that
the timing of Lukens' discharge is not controlling.
It is ' found that the General Counsel did not meet his
burden of proof on this allegation.
The alleged offer of reinstatement is a separate issue,
consideration of which is not necessary in view of the
above finding that Lukens was not terminated because of
his union activity.
C. Discharge of Greg Freese
Paragraphs 9 and 10 of the complaint allege that, on or
about June 6, Respondent discharged Greg Freese because
of his union or other protected activity.
Greg testified that he was hired by Respondent in No-
vember 1974 and was fired June 6. Relative to his dis-
charge, he testified:
Q. What occurred on June 6?
A. I got back from a run in Ojai about 5:30, and I
went into the cheese room where Don Walker was
cutting some cheese, and I was going to sign my time
26 Except two whose positions already were well known.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card, and I looked for my time card and it wasn't
there. And I asked Donald if he knew where my time
card was, and he says yes, I think Arthur has got it. So
I went over to Arthur's office and Arthur was on his
way out of his office and I said, do you have my time
card, and he handed me my time card and my check.
At the time Bill Dugan was walking across and Art-
hur Nunez says, Bill, come in here with us. So we went
into the cheese room and Don Walker was still cutting
cheese and Arthur says, remember that beer you had a
couple of weeks ago. I said yes, he said do you know
what they could have done if they had caught you
with that beer? I said I know the law. He says well, I
am going to have to let you go for that, and I said well,
that's as good a reason as any. So he signed my check,
and as I was walking out, I said, why fire me for some-
thing that happened three weeks ago, and my
brother's car was parked out in front and Bill Dugan
came out and said it has been nice working with you
and we went home.
Greg further testified: He returned from a run to Los
Angeles May 14 about 4:30 or 5. Morey bought some beer
with money provided by Greg, who took a beer and of-
fered one to Barnett . Barnett took one for himself and took
one into the office for Nunez. Barnett and Greg stood near
the delicatessen case about 5 minutes, after which Greg
went into the cheese room to talk with Morey. Walker
came in , talked with Morey, and left.21 Greg finished his
beer and took another one. Dan then came off his run and
he and Greg went into the office where Nunez was sitting
with a beer on his desk. Greg had his beer in his hand.
Greg and Dan stayed a few minutes in the office, then
went back outside. Greg finished his second beer, after
which he and Dan returned to Nunez' office. As they left
the office, Dan gave Dugan a drink of his beer. Nunez said
nothing at the time about the beer drinking. When Greg
and Barnett were near the delicatessen case with their
beers, it was about 5 or 5:15 p.m., a couple of customers
were nearby, and Greg was concealing his beer. Greg was
not on the clock at the time . On one other occasion, prior
to May 14, about 5:30 or 6 p.m., when he returned from
Los Angeles, Dan, Nunez, Walker, and Barnett were in the
cheese room. Barnett had a beer and Greg took a drink of
it. The retail store was closed at the time.
Morey 28 testified that he bought the beer May 14 be-
tween 4:30 and 5 p.m., and that he saw Barnett and Greg,
but no one else, drink the beer. He said that was the only
time he saw beer consumed on the premises.
Pryor, who was hired by Respondent in late February
1975, testified that he never saw any beer drinking on
Respondent's premises.
Barnett testified: The beer incident 29 started about 4:30
to 5:30 p.m. Morey bought the beer and he and Greg each
took one. Barnett took his beer home and he did not drink
any of it on the premises. He did not take a beer to Nunez
27 Greg said Walker saw the beer Greg was drinking.
28 Hired by Respondent January 2. 1975.
29 Barnett said he could not remember the date . but it was on a Wednes.
day in May.
and he was not sure whether beer was consumed in the
retail part of the store.
Walker testified: He has never seen Greg Freese drink-
ing beer on Respondent's premises. He was told by Nunez
that there was a problem on that subject. Respondent nev-
er-has had a formal policy concerning the drinking of alco-
holic beverages on the premises, but Walker understands
there is to be no drinking. He is aware of two instances
when employees drank beer while working after hours in
back rooms.
Nunez testified: He saw Greg Freese drinking beer in
the retail area of the store about 5:05 p.m. on May 28. Two
customers were in the store at that time. He did not see
Barnett with a beer that day. He said nothing to Freese at
the time and he returned shortly thereafter to his office. No
one gave him a beer that day and there was no beer on his
desk that day. Nunez was apprehensive about taking any
action against Greg because of the "union activity" and the
then recently filed Lukens' charge, and he called his attor-
ney for advice. Later, on June 5, he talked with his attorney
in Los Angeles about the incident. Nunez fired Greg the
following day, giving as a reason the drinking of beer on
the premises. On one prior occasion, while employees were
working on a large order after hours, Nunez sent someone
out to buy beer for all of them. There is no policy about
beer drinking on the premises, but Nunez assumes such
would not be done.
Dan testified that, when he returned from a run May 14
between 5:30 and 6 p.m., his brother Greg said he had
saved him a beer. Dan and Greg went into Nunez' office
for Dan to check in and Greg was holding and drinking a
can of beer. After Dan checked in, he and his brother went
into the cheese room and Greg gave Dan a beer. The two
of them then returned to Nunez' office and Dan talked
with Nunez. After 5 or 10 minutes, they walked out of the
building and met Bill Dugan, who took a drink of Dan's
beer. At no time did Nunez say anything about the beer
drinking.
Lukens testified:
Q. What was the employer's policy regarding beer
drinking on the premises?
A. Okay. Well, we all worked really long hours at
one time back in 74; we worked 60 or 70; it wasn't
uncommon for us to work 60 or 70 hours a week. And
the fellows that worked in the back, Mark Ruez and
Dave Nunez in particular, would bring beer to work
with them, a six-pack or two, because they would be
there the entire day. They would store their beer in the
coolers and then just drink it throughout the day as
they work.
Q. How do you happen to know this?
A. I would see them all the time. I would see the
beer stored in there and I would see them drinking
back there.30
'0 This testimony is not believable, since it is contrary to all other testimo-
ny on the subject of beer drinking on the premises. including the testimony
of General Counsel's other witnesses. Lukens' statements have no support in
the record and are not credited.
CENTRAL BUYING SERVICE . 549
Analysis
As of May 14, when the beer drinking incident oc-
curred,31 Respondent was well aware of the union activity
of Greg Freese. Walker had questioned Greg and knew
Greg signed a union card. Nunez had been informed of
Greg's union activity by Walker and others.
Also, by May 14 Respondent, had exhibited definite
union animus , as shown by the testimony summarized in
paragraphs C and E herein.
The reason given by Nunez for firing Greg is a patent
sham. All witnesses, both those for General Counsel and
those for Respondent, agree that beer occasionally has
been consumed on the premises by employees after hours.
Walker and Nunez acknowledged that there was no formal
policy against drinking beer on the premises. It is clear,
and found, that Nunez had seen employees other than
Greg drinking beer on the premises but had taken no ac-
tion against them.
Respondent argues that this incident is different from
others in that (a) the beer was consumed May 14 during
work hours and (b) Greg Freese was a minor, thereby sub-
jecting Respondent to possible criminal action.
So far as (a) is concerned, the evidence is not conclusive
that beer was consumed during work hours or that it was
consumed in the retail area. It seems likely, however, that
the incident was after hours since Greg did not clock out
May 14 until 5:25 p.m. Further, in view of Barnett's testi-
mony, it seems likely that the beer at least was consumed
where it could be seen from the retail area, if it was not
within that area . So far as (b) is concerned, Nunez did not
indicate in his testimony that he was concerned in an earli-
er beer drinking incident about anyone's age.
Based upon the foregoing, it is found that the beer drink-
ing incident herein considered was much like others in the
past when Respondent did not show concern.
It is equally clear , and found, that Nunez did not fire
Greg June 6 because of the latter's beer drinking May 14.32
However, if the reason for the firing was not related to
union activity, there is no cause of action under the Act.33
Respondent made an effort to show that Greg had re-
ceived reprimands about being a slow worker and about
making an error picking up spoiled goods, but that effort is
without weight. Clearly, Greg was not fired for being a
poor worker or for making mistakes . Nunez told him the
reason was his drinking beer on the premises. Further, the
allegedly slow work and mistakes occurred some time ago,
apparently were forgotten, and certainly were not consid-
31 Nunez said he believed the date was May 28. In view of the testimony
of witnesses other than Nunez, who said he was not sure , it is found that the
incident occurred May 14. Respondent attempted to show through time-
cards that the date had to be May 28 , but the fact that Greg punched out at
4:10 on May 28 and at 5 :25 on May 14 does not establish the time of the
incident. No witness fixed the time with certainty and, based upon the
testimony , it could have been any time between 4:30 and 5:30, and possibly
several minutes on either side of those times . In any event , the time of the
incident is not the controlling issue.
32 Respondent 's explanation of the delay in firing Greg was not convinc-
ing and is not credited.
3 N.L.R.B. v. T. A. McGahey, Sr., T. A. McGahey, Jr., et at. d/b/a Co-
lumbus Marble Works, a Partnership 223 F.2d 406, 413 (1956 ). enfg. (in part)
Ill NLRB 1162 (1955).
ered serious at any time. Clearly, their use now as an ex-
cuse to fire Greg is no more than a pretext.
The only remaining question, therefore, is the reason for
Nunez' resorting to a sham to fire Greg. No substantial
reason suggests itself, or was advanced, other than the fact
that Greg supported the successful union efforts at
Respondent's store and Nunez wanted to get -rid of him
because of his support of the Union.
This is not a situation wherein discharge was effected in
the absence of any real basis for concluding that the reason
was support of the Union. In such a case, the principles of
N.L.R.B. v. McGahey, supra, would apply. Here, Respon-
dent advanced an obviously sham reason for the discharge;
Respondent was antiunion at the time and had said so only
a week earlier; union activity was current and bargaining
was imminent; Respondent was well aware of Greg's sup-
port of the Union. Under such circumstances, it would not
be logical for Respondent to resort to pretext for any rea-
son other than that advanced by General Counsel.
Respondent did not prove its defense and it is found that
this allegation of the complaint is proved.
D. Alleged Threat by Nunez on January 8
Paragraph I1(a) of the complaint alleges that, on or
about January 8, Nunez threatened to discharge employees
if they sought union representation.
Testimony and conclusions relative to this allegation are
discussed in B above. The allegation is not proved.
E. Alleged Threats by Walker on March 25 and 26
Paragraph 11(b) of the complaint alleges that, on or
about March 25 and 26, Walker threatened to discharge
employees if the Union succeeded in organizing
Respondent's plant.
Pryor testified that, on March 26, Walker talked with
him:
THE WITNESS: Yes. He came out and explained to me
that due to the problems that should a union contract
come in that 90 percent of the people who were work-
ing there probably would be fired, and that myself and
Dan Freese would be kept.
Greg testified that, on March 26, Walker said: "if the
union came in, he would have to get rid of some guys
because he couldn't afford to pay them all the same wage,
that high wage...: .
Dan testified that, on or about March 26, he talked with
Walker:
. .. Then he went on to tell me that if the union came
in myself and Jeff Pryor were the only ones that were
doing work comparable to be paid union wages; also
that Percal's would give us a job and the union
couldn't give us a job. And he went on to explain all
the people we would be hurting if we went ahead and
tried to bring the union in.
Walker testified that he talked with Dan after April 3
and prior to the union election and Dan asked what would
happen if the Union got in. Walker stated:
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said , well, knowing the company 's finances as I
do, we cannot allow to have personnel working here
that we have now being able to turn out the product
economically enough to warrant those kinds of wages.
He says , what does that mean?
I said , well, there is only two in this plant that I can
see at this time of union caliber, that can put out
enough work in one day to make those kinds of wages.
Q. Did you tell him who those people were?
A. Yes, I did.
Q. Who were they?
A. Jeff Pryor and Dan Freese.
It is found herein , as described below , that Walker ille-
gally interrogated employees April 3 and 4 about their
union activities . Further, Respondent's union animus is
clear, as described herein . In view of such illegal action and
such animus , Walker's admitted remarks quoted above are
seen to be coercive . A similar situation was before the Ad-
ministrative Law Judge in Swift Produce, Inc., 203 NLRB
360 (1973), whose following language was approved by the
Board:34
So far as the record evidence discloses, Crutchfield did
not relate the layoffs , possible terminations , or modifi-
cation in the operation of the Company to any unrea-
sonable demands which the Union might impose upon
the Company . Lacking objective support suggesting
that these actions would result solely as a consequence
of economic necessity , Crutchfield's statements were
not reasonable predictions based on available facts
but threats of retaliation bearing the implication that
he would resort solely to his own initiative because of
his opposition to the Union , and to punish employees
for their resort to collective representation.
Paragraph 11(c) of the complaint alleges that, on or
about March 26 and April 16, Walker interrogated em-
ployees concerning their union activities . Walker acknowl-
edged that on April 3 and 4 he interrogated all employees
except Nelson Moore and Dave Nunez as to whether they
signed union cards.
The principles enunciated in Swift Produce, Inc., thus are
seen to be controlling in this instance . Clearly, Walker's
remarks were no more than coercive statements , not pre-
dictions based upon objective facts relative to the econom-
ic consequences of unionization. This allegation therefore
is found to be proved.
F. Alleged Granting of Benefits ( Work Breaks)
Paragraph 11(d) of the complaint alleges that, on or
about March 31, Respondent instituted coffee and lunch-
breaks in order to dissuade employees from seeking union
representation.
The institution of breaks is acknowledged by Respon-
dent . However , Respondent contends that institution of
breaks was occasioned solely by requirement of the U.S.
Department of Labor following an audit of Respondent's
overtime accounts by the Wages and Hours Division. No-
mSee also N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 ( 1969).
tice of audit is shown by letter to Respondent from the
Department of Labor dated January 2. 5 Uncontradicted
testimony shows the audit was conducted in February, as a
result of which Respondent was required to pay back over-
time to employees in the total sum of about $6,000. Paquin
testified that changes in timecard keeping, and institution
of morning and afternoon breaks and lunchbreaks, com-
menced in January pursuant to instructions of a Depart-
ment of Labor representative. Paquin said she passed the
instructions along to Walker and Nunez. Walker testified
that he received notice of the Department of Labor instruc-
tions from Paquin and that in early February he told em-
ployees about the new rules relating to keeping timecards
and to coffee and lunchbreaks.
Dan testified on direct examination that the new rules
relating to breaks were told to him by Barnett in early
April. However, he testified on cross-examination that the
changes relating to breaks were instituted 2 to 2-1/2 weeks
after he received his back overtime check "towards the end
of February." Greg testified that he was told by Barnett in
April about the change of rules relating to breaks. Pryor
testified that new break rules were instituted in April.
Analysis
Dan (on direct examination), Greg and Pryor testified
that the break rules were changed in April. That testimony
is not credited because the weight of the evidence clearly
points to a relationship between the new rules and the La-
bor Department investigation rather than a relationship
between the rules and union activity. Paquin credibly testi-
fied that she talked with a Department of Labor represen-
tative in December about an investigation of Respondent's
payment for overtime, and Respondent's Exhibit 3 is a let-
ter from that department stating that an audit would com-
mence January 9. Paquin credibly testified that the rules
were changed in January as a result of her conversations
with the Department of Labor, and her testimony is consis-
tent with the findings of the audit that Respondent's treat-
ment of hours had been loosely administered. Breaks and
working hours, as they are shown on timecards, were at the
core of the investigation and audit. It would be natural and
logical for Respondent to tighten its administrative proce-
dures as soon as it learned of its deficiencies. That knowl-
edge clearly was obtained in January or, at the latest, Feb-
ruary. Certainly it was not obtained in April, and it would
be illogical to conclude that Respondent would wait until
April to revise the procedures that had given rise to an
investigation and audit in January or February.
Further testimony shows that employees customarily
added lunchbreak time they occasionally lost to their time-
card at the end of the day, and employees acknowledged
that they had in fact taken breaks in the past, albeit on a
haphazard basis. There is nothing in the record to show
that employees were particularly concerned about breaks
or that they complained to Respondent about the matter.
On the record thus made it would be improper to infer,
upon the questionable testimony of the aforesaid three em-
ployees, that the new rules were instituted because of union
35 Resp . Exh. 3.
CENTRAL BUYING SERVICE 551
activity . The General Counsel did not sustain his burden of
proof relative to this allegation.
G. Alleged Request by Walker
Paragraph 11(e) of the complaint alleges that, on or
about April 16, Walker requested an employee to cam-
paign against the Union.
Dan testified:
It was on a Saturday , I don't remember the exact
date, but it was a Saturday about two weeks before the
union election, I went into the office to turn in a ticket
and Don Walker stopped me and asked me if I
knew-how I thought the union vote was going to go.
I told him I thought it was about 50/50 right there; I
wasn't sure how it was going to go . And then he asked
me to talk to the other guys and see what I could do.
Walker denied that he ever requested any employee to
work against the Union.
Dan was not a convincing witness because of his self-
contradictions and his uncertain recitation of dates and
facts as discussed herein. He testified that Walker asked
him on March 26 if he had signed a union card and that a
few minutes later Walker asked "who else had signed the
cards." Dan replied " . . . I didn ' t know who had signed
them at all." Dan's conversation with Walker, at which
Walker asked Dan to talk with the "other guys," allegedly
occurred about 2 weeks before the union election or about
April 24. By then Walker already had known about union
activities for 3 weeks and had discussed the Union with all
employees. It is highly unlikely that Walker would be igno-
rant of Dan's support of the Union by April 24. Not only
would it be futile to ask a union supporter to talk against
the Union, Walker by then knew that most of the employ-
ees equally supported the Union and would not heed an-
tiunion comments.
Finally, the statement attributed to Walker is highly am-
biguous.
In view of the foregoing , it is found that the General
Counsel did not sustain his burden of proof relative to this
allegation.
H. Alleged Actions by Barnett
Paragraphs 11(0,36 (g), and (h) allege that, on repeated
occasions between May I and May 8, Barnett illegally in-
terrogated employees; that, on May 5 and 14, Barnett told
an employee that Respondent would transfer its business
to avoid bargaining with the Union; and that, on May 5,
Barnett offered an employee a substantial wage increase to
influence the employee's vote.
There is considerable doubt that the substantive allega-
tions of the complaint were proved. For instance, there is
almost no evidence relative to (f); the testimony in support
of (g) is hearsay; the evidence relative to (h) probably
could not support the allegations. However, the substance
of such charges is not analyzed herein because such analy-
sis is not required. Before reaching those questions,
Barnett's status must be considered. He is alleged in para-
36 As amended at hearing.
graph 5 of the complaint to be "Supervisor, Wholesale
Meat Department ." However , as discussed below , Barnett
was not a supervisor-he was one of Respondent 's regular,
full-time employees. Not being a supervisor, his statements
to fellow employees are irrelevant; they cannot be used as
a basis for finding violations of the Act by Respondent.
General Counsel 's argument that Barnett is a supervisor
primarily was based upon statements 31 made by Lukens,
Dan and Greg, and Jeff Pryor.
Lukens testified that Barnett "supervised or directed the
activity of the people in back; he did their scheduling, told
them when to come to work, who to go home. He repri-
manded them if he felt they were too slow in their activi-
ties. He also had an authority, the option to go to either of
the bosses when either he wanted an employee repri-
manded or hired or fired." Lukens said Barnett hired an
employee named "Eddie," or caused his employment.
Dan testified that Barnett was "the wholesale manager"
and directed him as well as everyone else in the wholesale
department in performance of their jobs. Dan said he saw
Barnett if he had a complaint or "wanted to get off"; Bar-
nett scheduled his hours and trained him in his work; Bar-
nett gave him a raise on one occasion ; Barnett obtained
the termination of Lukens and a man called "Cowboy." In
addition, Dan testified to hearsay statements concerning
Barnett 's alleged status as supervisor . On cross-examina-
tion Dan stated that he spends about half his time at the
plant and about half on the road; that Walker was at the
plant "most of the time" when Dan was there; that Walker
"works all over the whole plant" and at the retail counter;
that Walker gives him instructions at work; that Nunez
often is at the plant and instructs employees. Dan said his
"complaints" to Barnett consisted of occasionally asking
for a change on runs, to get time off. He said Barnett's
"discipline" of employees consisted of telling them to get
to work when they were loafing. He said Barnett 's "train-
ing" of him consisted of showing him the stops to be made
in Los Angeles.
Greg testified that he was interviewed for his job by
Walker, but Barnett told him he had the job. He said Bar-
nett scheduled his hours, gave him approval for time off,
received his reports about time off and heard his com-
plaints. His complaints consisted entirely of one occasion,
when Barnett insisted that Greg clean the cooler. He said
Barnett "supervised" all the employees in performance of
their duties. On cross-examination Greg stated that he
spent about 80 percent of his time on the road and 20
percent at the plant, and that when he was at the plant,
Walker was there most of the time. Walker issued instruc-
tions to him. He said that on one occasion Barnett told him
he had a raise, but Greg did not receive the raise.
Pryor testified that he was hired by Walker and was told
to report to Barnett. He said Barnett directed him in his
job, scheduled his hours, gave him time off, and directed
37 Many of which are conclusionary , as discussed herein . The conclusions
so closely follow the language of the Act that an inference arises that the
employees intentionally tailored their testimony to fit the occasion rather
than testifying in a spontaneous manner concerning Barnett's actual work.
Such testimony is replete with references to "supervises," "manages." "has
authority ." "disciplines." "directs" and the like . Such words so frequently
used simply are not the daily language of the usual employee. They appear
to be artificial under the circumstances and are suspect.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees in their jobs. Pryor said at least 30 percent
of his time was spent making delicatessen deliveries. Pryor
stated Walker "was the boss down there; you can't argue
with that."
Barnett testified that he has been employed by Respon-
dent for 22 months. He started as a truckdriver and since
January he has worked in the meat department. He said
Walker or Nunez gives him instructions in the evening rel-
ative to deliveries to be made the following day. He starts
making up the orders at 7 a.m. for delivery by the drivers.
Driver routes are assigned to drivers by "the boss." Barnett
said he cuts meat, chickens, and cheese. He testified that he
has never hired anyone but that he recommended two
friends to Nunez, who interviewed and hired them. He
does not remember any employee named "Eddie." He has
never fired an employee or recommended that an employ-
ee be fired. He remembers the employee referred to as
"Cowboy," but had nothing to do with his termination or
recommendation thereof. He had nothing to do with the
discharge of an employee named Petkus or of Clark Luk-
ens. Barnett said Walker sets schedules and hours and he
instructs Barnett , who acts upon those instructions. Barnett
cited instances wherein employees wanted time off, and he
first obtained permission from Walker before advising the
employees . Barnett said he considers himself a leadman-
he puts up orders and loads and unloads trucks. He re-
ceived about $1,123 back overtime pay as a result of the
Department of Labor audit. He does not act upon griev-
ances brought to him by employees-he refers them to
Walker for decision. On a "couple" of occasions, he has
told Walker or Nunez that an employee was doing a good
job, as a result of which Walker or Nunez would observe
the employee and determine whether a raise was warrant-
ed; Barnett has no authority to give or recommend raises.
Barnett "broke in" Dan Freese on the Los Angeles run,
and Dan later "broke in" his brother Greg on the same
run. Barnett said he socializes with the other employees
and is captain of their bowling team. He works on a salary
basis and limits his hours to 40 per week.
Walker testified that he is in charge of, and supervises,
all the inside work at the plant, both wholesale and retail.
He said Barnett is a leadman who "directs the traffic flow
of orders being delivered, orders coming through the back
door, and products being put away." Barnett "puts up"
most orders, meaning he cuts the meat and chickens for the
orders. Walker said he dispatches the drivers, but Barnett
assists him when Walker is busy elsewhere. Barnett's duty
then is "just to make sure the product is on the truck as it
is to go out." Walker said Barnett has no authority to inter-
view or hire, but, like any of the other employees, can rec-
ommend friends to apply for work. Barnett sent two of his
friends to see Walker and Nunez about a job; Walker hired
one and Nunez hired the other. An Eddie Chavez was
hired by Walker-Barnett had nothing to do with his hire.
Barnett has no authority in discharge of employees and has
never recommended that an employee be disciplined, but
he has told Walker about grievances. Barnett had nothing
to do with the termination of either the employee called
"Cowboy" or Victor Petkus. Barnett has no authority to
grant time off, but on two occasions 38 passed on to Walker
)a Walker testified to the details of the two occasions.
requests of employees for time off. The Company has a
policy of raises after 30 days' work if performance is satis-
factory, and employees are told of this policy;39 Barnett
has no role in such raises. Barnett never has settled a griev-
ance; he once passed on to Walker a grievance voiced by
Greg.40 Relative to the scheduling of runs to be made by
employees, Walker testified as follows:
Q. You testified, I believe, that you schedule the
employees?
A. Yes, I do.
Q. Could you describe for me how you would set
up the runs for the various employees?
A. Yes. I am first in in the morning always, and
before I go home at night, I look at the ticket informa-
tion to make sure that I have everything ordered that I
need ordered for my account.
In going through the tickets, I find out how many
have A.M. runs.
I then put them into the orders I want them run;
either turn that over to Vernon, telling him which runs
I want, or I go back and ship them out myself in the
order I want them run.
Analysis
Pryor, General Counsel's witness, summarized the man-
agerial arrangement at the plant as accurately as it can be
summarized when he testified Walker "was the boss down
there; you can't argue with that."
Walker's testimony relative to Barnett's position largely
is corroborated, or uncontradicted, by the testimony of
other witnesses and Walker is credited. He said he sched-
ules all deliveries and the work at the plant, using Barnett
as a sort of leadman. He said Barnett has no authority to
hire or fire, or effectively to recommend such actions; he
has no authority to discipline or to adjust grievances; he
has no authority to give raises or other benefits, including
time off. Walker is the first person on the job in the morn-
ing and the last to leave at night. Dan said Walker was at
the plant "most of the time" when Dan was there, and
Greg testified in the same manner.
Testimony of witnesses for both General Counsel and
Respondent, or uncontradicted testimony, shows that Bar-
nett regularly cuts meat and chickens,41 loads and unloads
trucks, 2 wears the same clothing as other employees, regu-
larly sits with other employees during breaks and at lunch,
is captain of the employees' bowling team, never has inter-
viewed, hired, or fired an employee, and never has disci-
plined an employee.43
"This statement was denied by Pryor, Dan. and Greg. However, it was
corroborated by Paquin and Barnett and: (a) Morey received a raise after 2
weeks' work: (b) Pryor received a raise after about 30 or 35 days: (c) Dan
received a raise on his second paycheck: (d) Greg asked for a raise before
his second paycheck but was turned down. He later was given a raise. Based
upon such company practice. Walker is credited.
40 Details were related by Walker.
41 Considered by Lukens to be a menial task and one he refused to he
ass°ined to.
Same as fn. 41 above.
41 It is noted, parenthetically. that Barnett's vote in the union election was
not challenged.
CENTRAL BUYING SERVICE
Thus, it is quite clear that Respondent established that
Barnett is not a supervisor, as that word is defined in the
Act.
The testimony elicited by General Counsel to show
Barnett 's status began with that of Lukens, who com-
menced his recitation by concluding that Barnett "super-
vised or directed the activity of the people in back." Alleg-
edly, Barnett also "had an authority, the option to go to
either of the bosses" as to obtain a reprimand, a hiring, or a
firing. Lukens' legal conclusion about supervisory status
need not be commented upon. Barnett's alleged "authori-
ty" and "option" are more nearly consistent with lack of
supervisorial status than the possession thereof. Lukens'
specifics consisted only of: (a) Barnett sometimes scolded
(reprimanded) employees if they worked too slow. (No def-
inite example was given.) (b) Barnett hired an employee
named "Eddie." So far as (a) is concerned, such action
does not establish Barnett as a supervisor and equally
could be engaged in by any employee. Relative to (b), there
is no support whatsoever for the allegation. Walker and
Barnett are credited when they say Barnett had nothing to
do with Eddie's hire.
Dan's general conclusions about Barnett's status as
"wholesale manager" are contrary to the specific testimony
of Walker and Barnett relative to the latter's daily work,
and Dan is not credited. Dan related an example of
Barnett 's authority by saying Barnett gave him a raise.
However, that statement is wholly unsupported and is con-
trary to all the credited testimony concerning Barnett's au-
thority. Dan also claimed Barnett obtained the termination
of Lukens and "Cowboy," but that testimony not only is
without any support- it is, so far as Lukens is concerned,
in direct conflict with General Counsel's theory of the case.
Dan's recitations concerning Barnett's actions on com-
plaints, discipline, and training are vague, general, incon-
clusive, and simply not deserving of evidentiary weight.
Greg's single example of Barnett's handling of com-
plaints, discussed above, and his general conclusions about
Barnett's "supervision" are without weight in the face of
the specific, credited testimony in the record concerning
Barnett's status in Respondent's organization.
Pryor gave no specific examples in support of his conclu-
sions concerning Barnett and acknowledged that there was
no argument about the fact that Walker is the "boss" of the
plant.
Finally, the record shows no instance wherein Barnett
exercised independent judgment in any of his work with
the employees. Walker was at the plant all day, every day.
Nunez also was at the plant quite often. Walker and Nunez
were the "bosses," even in the eyes of the employees. Both
Walker and Nunez regularly instructed employees in their
work. The number of employees is small-six to eight. In
an operation as small and simple as that of Respondent's,
with several truckdrivers on the road much of the time if
not most of the time, it would be patently incongruous to
have three "bosses" for six or eight employees 45
44 This interesting observation by Lukens leaves no doubt about whom he
considered the real "bosses " at the plant to be.
45 Mark Farmer Company, Inc., 184 NLRB 785 (1970): Commercial Flee!
Wash. Inc.. 190 NLRB 326 (1971).
553
It is found that Barnett was not a supervisor at any time
relevant herein , that Respondent did not at any time hold
Barnett out to employees as a supervisor or person author-
ized to speak or act for Respondent , that Respondent at no
time relied upon Barnett to act in the place and stead of
Walker or Nunez, and that the allegations of paragraphs
11(f), (g), and (h) are not proved . Stewart & Stephenson
Services, Inc., 164 NLRB 741 (1967).
1. Alleged Threat by Nunez
Paragraph 11(i) of the complaint alleges that, on or
about May 8, Nunez threatened to force employees to
strike when the Union made its bargaining demands.
Lukens testified that, after he was discharged March 26,
he returned to Respondent's plant May 8 to act as a union
observer at the election. When Lukens arrived, Nunez
came over to him and said "what the hell do you think you
are doing here? What the hell do you think you were going
to get away with?" After the election, Nunez said "I hope
you guys are happy. Now, let's have a big cheer for the
union, rah rah rah. Now, instead of working here, making
a decent wage, you are going to be outside there carrying a
picket sign for a dollar a day."
Nunez acknowledged that he stated "well, now, that the
Union is in, I guess you guys will be out working a picket
line for about a dollar an hour ... .
Nunez' statement is ambiguous. It seems to be General
Counsel's position that Nunez was stating the inevitability
of a strike, implying that he would refuse to bargain with
the Union. However, that implication is not a proper one,
or a fair one, under the circumstances. Nunez' statement
was made immediately following the election and obvious-
ly was a reaction to a vote that displeased him. There was
no preliminary discussion, nor any reference, to bargaining
or to a relationship between Respondent and the Union;
the exchange was between the "boss" and his employees,
with whom he was piqued at the moment. The vote was
completed, and the Union won-any remark by Nunez at
that time could not affect the outcome of the election.
Even had a similar remark been made before the election,
it is doubtful that it could be considered coercive under the
circumstances, since it is not an anticipatory refusal to bar-
gain or threat of loss of employment. O'Neil Moving and
Storage, Inc., 209 NLRB 713 (1974). This allegation is not
proved.
J. Alleged Statement by Nunez
Paragraph 11(j) of the complaint alleges that, on or
about May 9, Nunez stated to an employee that Respon-
dent would not sign a contract with the Union.
Dan testified that on the day after the election he over-
heard Nunez and Frank Globish, a sausage maker who
sometimes made sausage for Nunez, talking. Dan stated:
THE WITNESS: They were talking and Frank asked-I
guess he heard about the union vote going to the
union, and he asked if the union was coming in, and
Art told him no, he will never sign a union contract.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nunez denied the statement attributed to him by Dan.
Globish, who is retired (age 69), was a very impressive
and credible witness. He testified that Nunez "never" said
anything to him about a union and that he did not remem-
ber Nunez ever stating that he would not sign a contract
with the Teamsters.
Nunez and Globish are credited.
This allegation was not proved.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, 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 and obstructing 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)(I) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent unlawfully dis-
charged Greg Freese. I will, therefore, recommend that Re-
spondent offer said individual his former job or, if that job
no longer exists , a substantially equivalent job, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings suffered by
reason of the discrimination against him, by payment to
him of sums of money equal to that which he normally
would have earned, absent the discrimination, less net
earnings during such period, with backpay computed on a
quarterly basis in the manner established in F. W. Wool-
worth Company, 90 NLRB 289 (1950), plus interest at the
rate of 6 percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). It will be further rec-
ommended that Respondent preserve and make available
to the Board, upon request, all payroll records, social se-
curity payment records, timecards, personnel records and
reports, and all other records necessary and useful to de-
termine the amounts of backpay due and the rights of rein-
statement under the terms of these recommendations.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Donald Walker and Arthur Nunez, Co-Partners
d/b/a Central Buying Service a/k/a Percals Meats & Poul-
try, is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters & Helpers Local No. 186, affi-
liated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By coercively threatening and interrogating employ-
ees concerning their union activities, Respondent inter-
fered with, restrained, and coerced said employees in the
exercise of their rights guaranteed them by Section 7 of the
Act, in violation of Section 8(a)(1) of the Act.
4. By discharging Greg Freese, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. Respondent did not, through alleged conduct, violate
Section 8(a)(I) of the Act as alleged in paragraphs 8 and
I1(a), (d), (e), (f), (g), (h), (i), and (j) of the complaint.
6. Respondent did not, through alleged conduct, violate
Section 8(a)(3) of the Act by discharging Clark Lukens as
alleged in paragraph 9 of the complaint.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER 46
Respondent, Donald Walker and Arthur Nunez, Co-
Partners d/b/a Central Buying Service a/k/a Percals
Meats & Poultry, Santa Barbara, California, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively threatening and interrogating employees
concerning union activity.
(b) Discharging or otherwise discriminating against any
employee in regard to hire or tenure of employment or any
term or condition of employment in order to discourage
union membership or activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Greg Freese immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and make him whole
for his loss of earnings in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in the
section of this Decision entitled "The Remedy."
(c) Post at their office in Santa Barbara, California, cop-
ies of the attached notice marked "Appendix." 47 Copies of
46 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 he
deemed waived for all purposes.
41 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"
CENTRAL BUYING SERVICE 555
said notice, on forms provided by the Regional Director
for Region 31, after being duly signed by said
Respondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that paragraphs 8 and I1(a),
(d), (e), (f), (g), (h), (i), and (j), and that portion of para-
graph 9 relating to Clark Lukens of the complaint, be dis-
missed in their entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a full opportunity
to give evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act
and has ordered us to post this notice. We intend to carry
out the Order of the Board, the judgment of any court and
to abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of their rights guaranteed to
them by Section 7 of the National Labor Relations
Act, in violation of Section 8(a)(1) of the Act, by inter-
rogating or threatening our employees relative to
union or other activity protected by the Act.
WE, WILL NOT discharge or otherwise discriminate
against any employee because he or she.has joined,
helped, or supported a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL offer Greg Freese full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his for-
mer rights and privileges, and make him whole for any
loss of earnings he may have suffered.
DONALD WALKER AND ARTHUR NUNEZ,
CO-PARTNERS d/b/a CENTRAL BUYING SERVICE
a/k/a PERCALS MEATS & POULTRY