Dad's Foods, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1974

212 N.L.R.B. 500 (N.L.R.B. 1974)

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