Evans Orchard Supply Co.

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 243 (N.L.R.B. 1967)

EVANS ORCHARD SUPPLY COMPANY
Evans Orchard Supply Company and Maintenance
Men, Production Employees , Operators , Miscel-
laneous Employees , Firemen and Oilers, Local No.
1, AFL-CIO. Case 17-CA-29491
June 29, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 24, 1967, Trial Examiner Herzel H. E.
Plain issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision together with a supporting brief.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the', entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Evans Orchard Supply Company, Kansas City,
Missouri, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified:
1. Add the following as paragraph 1(c), renum-
bering the present paragraph 1(c) as: paragraph
1(d):
"(c) Discouraging membership in the Union by
discharging known union adherents or by dis-
criminating in any other manner in regard to their
hire or tenure of employment or any term or condi-
tion of their employment."
' This case was consolidated for hearing before the Trial Examiner with
Case 17-RC-5108. After issuance of the Trial Examiner's Decision, and
by order of the Board, dated May 25, 1967, the cases were severed, with
Case 17-RC-5108 being remanded to the Regional Director for disposi-
tion
2 The Trial Examiner 's findings and conclusions are based , in part,
upon credibility determinations , to which the Respondent has accepted.
243
After a careful review of the record, we conclude that the Trial Ex-
aminer's credibility findings are not contrary to the clear preponderance
of all the relevant evidence . Accordingly, we find no basis for disturbing
those findings . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd
188 F.2d 362 (C A. 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERZEL H. E. PLAINE , Trial Examiner : This is a con-
solidated proceeding on a complaint of unfair labor prac-
tices against the Respondent , and on unresolved chal-
lenges of the eligibility and ballots of three of Respond-
ent's employees in a representation election.
Case 17-CA-2949, issued September 8, 1966, on a
charge filed June 15, 1966, by the Union (the Charging
Party), alleges that in June and July 1966 , Respondent
coercively interrogated employees about union activities
and about testimony given a Board agent , and discharged
an employee in June for his adherence to the Union. The
Respondent entered a general denial , adding that it
discharged the employee for legal cause , and interrogated
employees only to enable it to verify the union claim of
representing a majority of the employees and to reply to
the union request for collective bargaining.
In Case 17-RC-5108, of the ballots counted so far in
the representation election of June 29 , 1966, the vote
stands at 2 for the Union and 4 against it. Three addi-
tional ballots that could determine the result of the elec-
tion have not yet been counted because of challenges by
the Respondent . One of the challenged ballots was cast
by the discharged employee and two were cast by em-
ployees alleged by Respondent to be supervisors . The is-
sues of the eligibility of the three men to vote have been
referred for resolution to the Trial Examiner by the Re-
gional Director, pursuant to his order of September 8,
1966.
The two cases were consolidated for hearing by the
same order and heard on November 14, 1966 , in Kansas
City, Missouri . Counsel for the General Counsel and for
the Respondent have filed briefs.
Upon the entire record of the case and from my obser-
vation of the witnesses , I make the following:)
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT, AND THE LABOR
ORGANIZATION INVOLVED
The Respondent is a corporation with its principal
place of business in Kansas City, Missouri, where it is en-
gaged in the manufacture, purchase, and sale of equip-
ment and supplies for orchards, farms, and golf courses.
Annually, in the conduct of its business, the Respond-
ent buys materials and products valued in excess of
' I have corrected certain inadvertent errors in transcription which ap-
pear in the transcript for the record.
The motion, which accompanied General Counsel's brief, to receive "in
evidence" the Respondent 's two motions for dismissal , the first made at
the end of the General Counsel 's case and second at the end of the entire
case, is denied . The documents are simply two procedural motions made
at trial, reduced to written form. Obviously they are not evidence. They
are preserved as "motions" among the records of the consolidated case
and, of course , have been dealt with , the first by denial at the hearing, and
the second , as promised by this Decision on the merits. National Labor
Relations Board ' s Rules and Regulations , Series 8, as amended , Section
102.26.
166 NLRB No. 64
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$50,000 that are brought into Missouri from points out-
side the State, and sells goods valued in excess of $50,000
that it ships from Missouri to customers outside the State.
The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES AND EMPLOYEE
VOTING AND ELIGIBILITY
A. Background and Issues
The Respondent is engaged in the manufacture,
purchase, and sale of equipment and supplies used in and
about orchards, farms, and golf courses, such as irrigation
equipment, insecticides, and the like. In June 1966,
Respondent had nine employees, apart from corporate of-
ficers and office employees, at its place of business in
Kansas City, three of whom were engaged in production
and six of whom were variously engaged in the
"stockroom" activities of packaging, shipping, receiving,
trucking, and some over-the-counter selling of the
products made or bought by the Respondent.
Early that month the Union began organizing the em-
ployees, obtaining signed authorization cards. On June
10, the Union sent the Respondent a letter stating it
represented a majority of the production and maintenance
employees, offering a card check, and requesting recogni-
tion and collective bargaining. Upon receiving the letter,
Saturday, June 11, Respondent President and Manager
Sterling Evans immediately questioned a number of em-
ployees, individually, as to what they knew about the em-
ployees organizing, or the Union, or the union letter, and
whether they had signed union authorization cards.
Among those interrogated were employees Charles
Koetting, who was discharged 3 days later on June 14,
and John Lohe and Kenneth Bell, whom President Evans
claimed he regarded as his department heads and super-
visors of production and stockroom, respectively, but
who apparently did not share his view of their status. All
three men told President Evans they had signed union
cards, although employee Koetting initially denied it.
On Monday, June 13, President Evans replied to the
Union that Respondent was uninformed as to the Union's
representative status and that the Union should petition
the Board for an election. The Union had filed such a
petition on June 10 (copy received by Respondent June
14) and thereafter the Respondent and the Union entered
into an agreement for consent election, under which a
Board election was held June 29, 1966. The tally of bal-
lots showed approximately 9 eligible voters, of whom 2
voted for and 4 voted against the Union. The remaining
3 ballots of employees Koetting, Lohe, and Bell were
challenged by the Respondent on the grounds that
Koetting was no longer an employee and that Lohe and
Bell were supervisors, and that all three were ineligible to
vote. If the 3 ballots may be counted they may determine
the outcome of the election, since the pending tentative
rejection of the Union is by a margin of 2 votes.
Meantime, on June 15, the Union had filed with the
Board a charge of unfair labor practices allegedly com-
mitted by the Respondent in unlawfully discharging em-
ployee Koetting on June 14 and interrogating its em-
ployees covering their union activities, and a complaint
thereon was issued September 8. The complaint also al-
leged interference by the Respondent with the Board's in-
vestigation in July 1966, by interrogation of employees
concerning their statements to the Board.
Since the status of Koetting in the voting of June 29 de-
pends upon the outcome of the unfair labor practice hear-
ing, and because a hearing was deemed necessary in the
representation proceeding to determine the supervisory
and voting status of Lohe and Bell, the two proceedings
were consolidated for hearing by order of September 8,
under which the representation proceeding will thereafter
be severed and transferred back to the Regional Director
for further action.
Four issues are raised:
(1) Whether, as Respondent contends and General
Counsel disputes, employees Lohe and Bell were super-
visors within the meaning of the Act and ineligible to par-
ticipate in the representation election. -
(2) Whether employee Koetting was discriminatorily
discharged for his union adherence in violation of Section
8(a)(3) and (1) of the Act and remained eligible to vote in
the representation election that followed his discharge, as
the General Counsel contends; or was discharged for
lawful cause, essentially his alleged poor work, and was
no longer an eligible employee, as the Respondent claims.
(3) Whether Respondent engaged in coercive inter-
rogation of its employees concerning their union activities
about the time of the union organizing campaign in viola-
tion of Section 8(a)(1), as the General Counsel alleges; or
whether the questioning of employees was within per-
missible bounds of inquiry for the purpose of evaluating
the union claim, of representative status, as the Respond-
ent argues.
(4) Whether in July 1966, following the election and
during the Board investigation of the charge of unfair
labor practices, Respondent President Evans unlawfully
interfered with the Board's process by interrogating em-
ployee Bell concerning his statements to the Board, as the
General Counsel contends; or whether the discussion
between Evans and Bell was routine reporting of an event
without coercive effect, as the Respondent argues.
B. Discharge of employee Koetting
1. Facts
Employee Charles Koetting was hired by Respondent
President and Manager Sterling Evans in March 1966.
Koetting's job was shipping and receiving, which in-
cluded driving a truck, working in the stockroom, and
some over-the-counter sales work, according to the
testimony of Koetting and Evans.
On June 9, 1966, employee Koetting became aware of
the union organizing when he and several other em-
ployees met with Union Representative Anderson and
signed union authorization cards. The Union made a de-
mand on Respondent for recognition and bargaining in a
letter dated June 10 (Exh. R-1), received by President
Evans, June 11, 1966. Evans called employee Koetting
to the office about 9:30 a.m. that day and asked Koetting
if he had signed a union card. Koetting said no. Evans
then asked if Koetting knew anything about the Union,
and Koetting again said no. According to Koetting, Pre-
sident Evans appeared angry and talked loudly. About 45
minutes later President Evans came back into the plant
where employee Koetting was working, and Koetting told
him that he had signed a card for the Union, to which
Evans made no comment. Evans agreed he had asked
Koetting "a question or two" about the Union, and did
EVANS ORCHARD SUPPLY COMPANY 245
not dispute Koetting's description of the two encounters
on June 1l.
Three days later on Tuesday, June 14, Sales Manager
Roy Steen came for employee Koetting and took him to
President Evans' office. According to employee
Koetting, President Evans said he would not be needing
Koetting any more and handed him a paycheck, which
paid him for the day, according to Steen, and for the brief
intervening time since payday, the previous Friday, when
Koetting had received his regular weekly pay.
According to employee Koetting's testimony, he was
given no reason for the discharge and President Evans did
not testify to the contrary. Sales Manager Steen, who was
present at the dismissal, testified that President Evans
told Koetting he didn't fit in because of the work; he
wasn't doing a satisfactory job. Steen, according to Pre-
sident Evans, is the sales manager and his alternate in
charge of the entire setup when Evans is away. Steen also
looks after the trucks and insurance and is partially in
charge of assigning truckdrivers to make rounds, accord-
ing to Evans.
According to Sales Manager Steen, the decision to
discharge employee Koetting was made on Tuesday, June
14, the day it was consummated, "on account of this vehi-
cle deal and his work was not satisfactory there." The
vehicle deal was Koetting' s alleged slowness in filing with
the Missouri Department of Revenue a notice of in-
surance coverage or financial ability to respond to
damages in connection with a motor vehicle accident.
The accident had occurred in April while employee
Koetting was driving one of Respondent's trucks on
Respondent' s business and both the truck and the other
vehicle were damaged. The police report (Resp. Exh. 2)
indicated that the Respondent's truck, driven by em-
ployee Koetting, was covered by liability insurance,
whereas the driver of the other vehicle had none.
Nevertheless, under Missouri law, either the Respondent
or its employee-driver or both were obliged to file a report
providing evidence of liability insurance (or, alternative-
ly, security to satisfy any judgment that might arise from
the accident, or a release from liability) under penalty of
suspension of the privilege of operating motor vehicles
operated by either (Resp. Exh. 3).
Employee Koetting testified he filed a report with the
State of Missouri about 2 weeks after the accident, but
was notified thereafter by the State that the report was
wrong, and that he filed a second report, which he filled
out this time in the office with Sales Manager Roy Steen's
help.
Sales Manager Steen agreed that he helped employee
Koetting fill out the financial responsibility report on
Tuesday, June 7. However, he claimed in his direct
testimony that he had been reminding Koetting for a con-
siderable period of time to complete the report, as a result
of which he further claimed that he told Koetting after the
report was completed, "I should fire you over this but we
will wait and see what President Evans says when he gets
back." It turned out, on further probing of Steen, that the
first and only written notice that came to Respondent was
Exhibit R-3, dated June 3, which arrived on Saturday,
June 4, in a period when President Evans was on vaca-
tion, so that the reminders to Koetting by Steen, assuming
they occurred, were limited to the brief period of the
Saturday and Monday, June 4 and 6. I am inclined to be-
lieve Koetting's version of what Steen said on June 7,
namely, "Let's get it [the report] taken care of before he
[Evans] gets back," without any mention of firing. I do
not believe Steen's version of the events in this period
because of Steen's attempt to exaggerate the time and the
employee's responsibility for what Steen admittedly
knew was the Employer's responsibility to furnish proof
of carrying liability insurance for its trucks and his own
(Steen's) personal responsibility in the Company as the
man in charge of trucks and insurance.2
Concerning the alleged unsatisfactory work, Sales
Manager Steen said employee Koetting could not be de-
pended upon because he waited 60 days to file a report
the law requires in 10 or 15 days. Steen testified he re-
ported the incident to President Evans on Tuesday, June
14, the day Koetting was fired, but just prior to his being
fired, because Evans did not get back to the office until
Friday, June 10, and he, Steen, left Thursday, June 9,
and did not return to the office until Monday, June 13. He
learned about the union demand for recognition, he said,
the same Monday from his brother Charles Steen, also an
employee of Respondent. However, he said, he did not
discuss the Union or its demand with President Evans
until Tuesday, June 14, but after employee Koetting was
fired.
As to employee Koetting's actual work performance,
except one occasion when Koetting brought Sales
Manager Steen a wrong item from the stockroom, Steen
had not observed Koetting's work or mistakes or given
him warnings- "Mr. Bell could answer that," said Steen.
President Evans testified he fired employee Koetting
"because he couldn't do the job, sir, he made mistakes."
The alleged mistakes were bringing down wrong materi-
als when sent upstairs to fetch materials, being sent out
"to pick up stuff and he wasn't able to find where he was
going and he just couldn't do the job." The final straw,
said President Evans, was learning on June 14 that his
trucks would be taken off the Missouri highways because
of employee Koetting's failure to file the report with the
State.
On closer examination of these reasons it was clear that
President Evans was not talking basically from first-hand
knowledge of employee Koetting's work or mistakes but
rather, "The times I would know about when Mr. Bell re-
ported to me he was unsatisfactory. Mr. Bell was looking
after that and I don't look after those departments." He
said he took Kenneth Bell's recommendation to fire
Koetting plus Steen's recommendation to discharge him
because of the delay in filling out the insurance report.
However, Kenneth Bell testified directly contrary to
President Evans. Bell said that employee Koetting
worked in the stockroom the same time as he, Bell, did.
"He did his job, made some mistakes but I make mistakes
too when I first started. I'd say he was a pretty good
worker and he typed orders fairly well," testified Bell. He
did not criticize or warn Koetting about his work nor did
he know of anyone who did. On the one occasion that
President Evans talked with Bell about Koetting's work,
Evans said to Bell he thought Koetting was doing a pretty
good job, Bell testified. This occurred about a month be-
fore the Union came in, said Bell.3
2 The fact that employee Koetting was found guilty of careless driving,
while operating the Respondent 's truck on its business , would not alter
but rather underscore the Respondent's ultimate liability to provide the
assurances
9 President Evans acknowledged he was testifying contrary to Bell's
testimony. Evans also conceded that he had no knowledge of any financial
loss in Koetting 's handling of materials or shipments
308-926 0-70-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Koetting and President Evans both agreed
in their testimony that from the very start of his employ-
ment Koetting had been turned over to Bell, who was
Koetting's "immediate boss" in charge of the stockroom;
and Koetting testified that Bell would tell him to bring
things down from the second floor, and that he made
some mistakes at the start in getting acquainted with the
chemicals and the large number of insecticides and sprays
kept in the stockroom. In connection with the truck in-
cident of April 1966, Koetting and Evans both agreed
that Koetting had been "grounded" by Evans and taken
off driving the truck for several weeks, as a disciplinary
measure, but had been restored to driving by Evans in
May 1966, with the admonition to drive carefully. This
was the only warning he had received about his work
from anyone, Koetting testified.
Concerning employee Koetting's delay in filing the re-
port with the State of Missouri, President Evans con-
ceded that when he learned of the delay from Sales
Manager Steen on June 14 he was also informed by Steen
that the report had been filed, that Respondent was
cleared, and that the trucks could run.
2. Conclusion re 8(a)(3) and (1)
I think it is evident that- the reasons given by the
Respondent for discharging employee Koetting are ficti-
tious.
First, Respondent was obviously making a mountain
out of a molehill in claiming that the Company's right to
operate its trucks was in jeopardy , at any time, because of
driver Koetting 's slowness in filing a report on the Com-
pany 's liability insurance , a report that management could
easily have filed without him and was obliged to file if he
did not. More significantly , at the time of discharge, the
claim of jeopardy was untrue , since by that time the em-
ployer was satisfied that the report had been properly
filed and there was no danger to his continued operation
of trucks because of it
Second, it is clear that neither President Evans nor
Sales Manager Steen had any substantial direct
knowledge of employee Koetting ' s work performance,
that their principal knowledge of Koetting 's performance
came from Kenneth Bell , that President Evans was not
telling the truth when he testified that Bell complained
about Koetting ' s work and recommended his discharge,
but on the contrary that Koetting's work was , as Bell
testified , generally satisfactory.4
In the circumstances of this case , Respondent's resort
to fiction to explain the discharge of employee Koetting,
creates the inference that Koetting was discharged to
eliminate a known adherent to the Union and to
discourage support of the Union by other employees. By
interrogation of Koetting and other employees discussed
infra, President Evans knew that employee Koetting had
4 There was nothing in the record or in Bell 's demeanor that would tend
to impeach Bell's testimony which , as already noted , directly contradicted
Evans Moreover, as an employee still in Respondent's employ, Bell
risked disfavor by his testimony adverse to Respondent , a factor
strengthening Bell's credibility , Georgia Rug Mill, 131 NLRB 1304,
1305, fn. 2 (1961), enfd as modified 308 F 2d 89 (C A 5, 1962); Wirtz v
B.A C Steel Products, Inc , 312 F.2d 14,16(C A 4, 1963) On the other
hand , President Evans had restored employee Koetting to truck duty
sometime before the discharge , after "grounding " him for his accident,
which restoration would in itself indicate that there were no material com-
plaints about Koetting 's performance from Bell or anyone else, further
contradicting Evans and substantiating Bell President Evans' exaggera-
signed with the Union and knew generally where most of
the employees stood on the union issue; and at the same
time, as also appears infra, made clear to some of them in
the course of interrogation that he did not want a union in
the plant, that he did not want the employees to organize,
and that employees who had previously tried to form a
union were no longer with the Company. The abrupt
discharge of employee Koetting without prior warning,
for alleged reasons that do not stand under scrutiny, im-
mediately following the union demand for recognition and
the described interrogation by Respondent, leads to the
conclusion that Respondent's real motive in discharging
employee Koetting was to discourage and defeat the
unionization of the plant, N.L.R.B. v. Melrose
Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965), in
violation of Section 8(a)(3) and (1) of the Act.s
As a result, Koetting is entitled to an order restoring his
job with backpay. Additionally, since he did not lose his
status as an employee eligible to vote in the representa-
tion election of June 29, 1966, the ballot he cast should be
counted. I shall so recommend.
C. Interrogation of Employees
1. Regarding union organization
Upon receipt of the union demand for recognition and
bargaining (Exh. R-1) on June 11, 1966, President Evans
immediately questioned employees Koetting, Lohe, Bell,
and Schoonover, separately, in his office. By his own ad-
mission, Evans acknowledged that he asked each what he
knew about the Union and the demand and whether the
employees had signed authorization cards.
Employee John Lohe testified that President Evans
called him to his office on June 11 and asked what he
knew about the union letter, and Lohe replied he did not
know too much about it. Evans said, according to Lohe,
"He just didn't want a union in there and he didn't want
us to be organizing." Further, Lohe testified, President
Evans mentioned a previous attempt to organize that
failed. Evans asked Lohe if he had signed a union card,
and Lohe said yes. President Evans then said he wanted
to talk to the other boys and told Lohe to send in em-
ployee Ray Schoonover, which Lohe did.6 President
Evans did not dispute any of Lohe's testimony on this
subject.
Employee Kenneth Bell had two conversations with
President Evans about the Union on June 11. The first
was in the morning, after Evans had received the union
letter, when Bell was called to the office and asked what
he knew about the men trying to form a union. Bell
replied he did not know much about it, whereupon Evans
commented, according to Bell, that they had tried to form
a union once before (prior to Bell's employment) and it
had not worked out, and that none of the employees were
tion of the significance of the accident report by Koetting, supra, add to
the unreliability of Evans' testimony
s See also, N L.R B v pant, Thomas W, Robert E Dant, et al., dlbla
Dant & Russell, Ltd, 207 F 2d 165, 167 (C A 9, 1953), N L R B v
Griggs Equipment, Inc., 307 F 2d 275, 278 (C A 5, 1962), N.L R.B v
Georgia Rug Mill, supra, 308 F 2d 89, 91 (C A 5, 1962) The violation
would be established even if the discharge was only partly motivated by
the impermissible antiunion cause , N L.R B v Park Edge Sheridan
Meats, Inc, 341 F.2d 275, 278 (C A 2, 1965), N.L R B. v Iron City
Lock and Door Co, 352 F.2d 437,438 (C A 6, 1965)
8 Schoonover did not testify, although Evans admitted he talked with
Schoonover about the Union
EVANS ORCHARD SUPPLY COMPANY 247
there within a year's time after they had formed a union.
Later that same day, Bell was again called to President
Evans' office and asked if he had signed for the Union, to
which Bell replied he had. President Evans did not
dispute any of Bell's testimony on this subject.
In Evans' conversations with employee Koetting also
on June 11, as discussed under heading B, supra, Koetting
at first denied that he had signed a union card but in the
second conversation admitted that he had signed.
2. Regarding Board investigation
Considerably later, following the representation elec-
tion of June 29, in the course of the Board investigation
of the charge against Respondent, employee Bell was in-
terviewed by, and gave a statement to, a Board agent on
the night of July 27, 1966. On the following morning, ac-
cording to Bell (and President Evans agreed that Bell's
testimony was substantially correct), Evans approached
Bell o,n the shipping dock and said, "I heard you were out
last night doing a little testifying." Bell agreed that was so,
whereupon President Evans wanted to know what was
said. Bell replied, "Not much of anything, they wanted to
know if I was a supervisor." Evans said, "Well, did you
tell them you were a supervisor," and Bell answered,
"Not in so many words." Evans then said, "Well, you are
a supervisor," and Bell replied to Evans, "Yes, I am,"
and testified that was all that was said.
3. Conclusions re 8(a)(1)
If the interrogation of the employees on June 11 was
for the sole purpose of evaluating and responding to the
union claim of majority status and demand for recogni-
tion, as Respondent now urges, this was not told to the
employees nor were other precautions observed in the
questioning to avoid or minimize its otherwise coercive
effect. Thus, the employees were pulled off the job to the
office of the president and confronted by him with the de-
mand for information about the Union and card signing
without statement of purpose or assurance against retalia-
tion. Indeed, the statements by President Evans that ac-
companied the questioning, particularly of employees
Lohe and Bell, were clearly hostile to union organization
and contained the threat of reprisal rather than reas-
surance. Employee Koetting's initial concealment of his
support of the Union provides an indication that he was
answering under pressure. In these circumstances, the in-
terrogation of June 11 was coercive and violated Section
8(a)(1) of the Act. N.L.R.B. v. Cameo, Inc., 340 F.2d
803, 804-807 (C.A. 5, 1965), cert. denied 382 U.S. 926;
N.L.R.B. v. Syracuse Color Press, Inc., 209 F 2d 596,
598-599 (C A. 2, 1954), cert. denied 347 U.S. 966;
Cannon Electric Co., 151 NLRB 1465, 1470 (1965).
The additional interrogation of employee Bell by Pres-
ident Evans in July 1966, as to the content of a statement
Bell had supplied to the Board investigator, accompanied
by the suggestion of what Bell should have said and
should in the future tell the Board respecting his alleged
status as supervisor, went beyond any routine or allowa-
ble inquiry by employer of employee and constituted an
interference with Board process in violation of Section
8(a)(1) of the Act. Compare 8(a)(1) holdings in, Jackson
Tile Mfg. Co., 122 NLRB 764, 766 (1958), enfd. 272
F.2d 181 (C.A. 5, 1959), where respondent instructed an
employee on how to answer a Board field investigator's
questions; Jackson Chair Co., Inc., 110 NLRB 651, 659
(1954), rebuke of employee for truthful statement to
Board investigator; and Grand-Central Chrysler, Inc.,
155 NLRB 185, 188 (1965), where employer instructed
supervisor to withhold certain evidence from Board
agent; and see Surprenant Mfg. Co. v. N.L.R.B., 341
F.2d 756, 762-763 (C.A. 6, 1965), on the narrowness of
the privilege of inquiry in preparation for trial.
D. Nonsupervisory Status of Employees Lohe and Bell
1. Employee Lohe
According to President Evans, the production depart-
ment constituted three employees in June 1966, John
Lohe, Frank Mellon, and Ray Schoonover (Exh. GC-2).
Employee Lohe was and is essentially a farmer, ac-
cording to his testimony. He first worked for Evans on
the Evans' farm and came to work for Respondent in the
Kansas City plant in December 1965, helping to repair
water pumps, for which he had some training, he said. He
started working under Frank Mellon, who President
Evans described as shop foreman. When Mellon in-
dicated that he did not want the responsibility of supervis-
ing, Evans told Lobe he would make Lohe foreman "after
a period of orientation." That meant, testified Lohe, he
was to be sent to school by Respondent to learn welding,
drafting, and designing; but he did not receive the school-
ing, was not given any authority, even that of "acting"
foreman, and was no further than "training to be a
foreman" in June 1966, and thereafter till September 30,
1966, when he went back to the farm and never returned.7
Although President Evans testified that he told Lohe
he was taking Mellon's place as foreman in February
1966, Lohe testified that it was no more than "training"
for the responsibility with the schooling to come, and that
from that time he looked to Evans for everything. In this
period, said Lohe, Evans laid out the work to be done,
and Lohe continued to work strictly on repairing pumps
which fully occupied his time, and Mellon did the weldin
and "building up." In this connection, Mellon's rate o
pay was $1.90 per hour and Lobe's $1.75 per hour (Exh.
GC-2). Lohe testified he was neither given nor told he
had authority to hire or fire, nor did he attempt to exercise
any such authority.
President Evans agreed that he and Lohe went over the
work to be done in the morning, and conceded that while
Lohe could tell Mellon what jobs had to be done he did
not oversee his work Evans also conceded that Lohe did
not hire or fire anyone but claimed Lohe had the authority
to do so. There was no evidence of this, or that President
Evans had told Lohe he had such authority. In fact the
one case of dismissal of a man who was hired by Pres-
ident Evans as a "mechanic" was affected by Evans,
who observed the man personally and concluded he was
not a mechanic. Lohe testified that while he had agreed
with this opinion, he was not consulted before Evans had
done his own observing and that he made no recommen-
dation of discharge to Evans.
7 In this connection Lohe testified he did not know whether he was still
employed, by Respondent, and President Evans testified he presumed
Lohe had left his employment since he had not been back in 8 weeks.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Employee Bell
In June 1966, the "stockroom department" comprised
six employees, Kenneth Bell, Stanley Gentry, Chester
Ricks, Charles Steen, John Wetzel, and Charles Koetting,
according to President Evans. Employee Bell also in-
cluded employee Lyle Neill in the group. Evans testified
that employee Wetzel had left by mid-June, but his name
appears on the Employer's list of that date (Exh. GC-2).
Of the four or five employees of the department on June
29, Charles Steen was the highest paid at $1.90 per hour,
followed by Kenneth Bell and Lyle Neill at $1.80 per
hour (Exh. GC-2). (Bell's pay at the time of the hearing
was $1.85 per hour.) Bell as well as the others punched a
timeclock, and worked on a 40-hour week, with time-and-
half for overtime.
President Evans testified that on February 29, 1966, 4
months before the representation election, he had placed
employee Bell (then employed 2 years) in charge of the
"stockroom" succeeding a former employee, Fred Clute,
who had resigned to take another job elsewhere. As in-
dicated earlier, the stockroom "department" embraced
employees variously doing some or all of a number of
functions, including the receiving, maintenance, packag-
ing, shipping, and reordering of inventory, the loading,
unloading, and driving of trucks, and over-the-counter
selling from the stockroom
Employee Bell agreed that in February 1966, after
Fred Clute left, he succeeded to Clute's title of
"stockroom manager." His duties, he said (and President
Evans was in general accord), were and are to keep up the
stock, order stock but no big orders without discussion
with Evans, wait on the counter, devote part of his time
to shipping and receiving, and "see that the men stay
busy." He elaborated upon the latter as meaning that in
"slack time," when the truck orders were out, he would
see that those men who did not have enough work did the
routine jobs, that could not be done in "busy time," of
mixing materials and packaging materials in small
packages or drums, and that he worked with these men.
There were times, according to President Evans, when
extra men would be needed to help load or unload trucks
and boxcars, and the extras would be hired on a tempora-
ry basis and automatically dropped when the work was
done. Bell did not have to consult him or Sales Manager
Steen, said Evans, to take on such people. However, as
Bell testified, this process amounted to nothing more than
he, or sometimes employee Lyle Neill or Sales Manager
Roy Steen, going to the Helping Hand (an organization
like the Salvation Army) and picking up, without inter-
view, any available unskilled laborers to help with loading
and unloading. This was the only evidence of any hiring
or firing or authority to hire or fire by employee Bell. s
3 Conclusions
From the evidence recited, neither Lobe nor Bell was
a supervisor within the meaning of the Act, on June 29,
1966, the day of the representation election.
In employee Lohe's case, it cannot even be said that he
had achieved the status of a "leadman," the superior
worker who exercises the control of a skilled worker over
less capable employees but who does not enjoy super-
visory status in that capacity without a showing that he
also shares the power of management, N.L.R.B. v.
Griggs Equipment, Inc., supra, 307 F.2d 275, 279 (C.A.
5, 1962). The most that can be said was that employee
Lohe was starting to train as a leadman in the production
group but never got past the start. Lobe's skill was limited
to one phase of the production work upon which he con-
tinued to work, he did no supervising of the work of his
fellows, and he was paid less than one of them. The fact
that he assigned work to either or both of the other two
production workers after the assignments had been given
to him by President Evans would not denote the exercise
of supervisory power or discretion, but only the exercise
of routine authority, Precision Fabricators, Inc. v.
N.L.R.B., 204 F.2d 567, 568-569 (C.A. 2, 1953);
N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 886
(C.A. 1, 1953). The Respondent's claim that employee
Lobe had authority to hire and fire is refuted by the fact
that Lobe was never told he had the authority nor did he
ever attempt to exercise it or make recommendations for
hiring and firing, N.L.R.B. v. Whitin Machine Works,
supra, 204 F.2d at 886, 883.
In the case of employee Bell, the evidence appeared to
establish that in June 1966, he was a leadman in the
stockroom department, a superior worker with control
over several less capable workers (such as employee
Koetting), fitting the description in N.L.R.B. v. Griggs
Equipment, supra, 307 F.2d at 279. He had the title of
"stockroom manager," but actual duties and authority,
rather than a formal title and theoretical power, control in
determining whether he was a supervisor or not,
N.L.R.B. v. Southern Bleachery and Print Works, Inc.,
257 F.2d 235, 239 (C.A. 4, 1958).9
Bell's duties of keeping up the stock, seeing to the load-
ing and unloading of trucks, and selling certain articles
over the counter, were routine functions, delegated to
Bell by the Respondent's President and Manager Evans,
that Bell performed by his own efforts with the aid of
several other workers, two of whom were paid the same
or more money than he In nonroutine matters, such as
making large purchases of merchandise, Bell exercised no
judgment but looked to Evans.
Bell's function of seeing that his helpers kept busy in
slack time was akin to the function of the "room boss" or
leadman in Precision Fabricators, Inc. v. N.L.R.B.,
supra, 204 F.2d at 568-569, "to keep all hands busy" on
the work given him by the production manager, held to
confer a discretion that was purely routine. Similarly of a
routine, nonsupervisory nature was Bell's authority,
shared with and exercised by other of the employees, to
occasionally take on temporary manual laborers to assist
in loading and unloading trucks and boxcars. As was held
in International Union of United Brewery etc. Workers
v. N.L.R.B., 298 F.2d 297, 303-304 (C.A.D.C., 1961),
cert. denied 369 U.S. 843, such engagement of casual
manual helpers by an employee does not identify the em-
ployee with management or make him part of
management. 10
8 Bell said he had once recommended the hiring of a man who married
his cousin, but Evans had no recollection of it. There was also evidence
that Bell and Evans agreed that a new employee, who reported in drunk
one day , should be dismissed , and both of them told the man to leave
9 Even the occasional assumption of a position of command or responsi-
bility does not transform an otherwise rank-and-file worker into a super-
visor, N.L R.B v Quincy Steel Casting Co, 200 F 2d293,296 (C.A 1,
1953), N.L R.B. v Cousins Associates , 283 F.2d 242, 243-244 (C.A. 2,
1960)
10 In applying the tests of Section 2(11) of the Act, said the court,
because of the infinite possible variations in the enumerated responsibili-
ties , it is necessary to examine the nature of the supervisory position to
determine how completely the responsibilities make the holder a part of
management , "not simply a leadman or straw boss ." Id., at 303
EVANS ORCHARD SUPPLY COMPANY 249
In sum, the few functions of control or discretion
delegated to employee Bell as leadman were limited to
routine operations, the performance of which did not
identify him with or make him part of management.
It follows that both John Lohe and Kenneth Bell were
nonsupervisory employees of the Respondent eligible to
vote in the election of June 29, 1966. The ballots they
cast should be counted, and I will so recommend.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing the free flow
thereof.
IV. THE REMEDY
In Case 17-CA-2949, having found that the Respon-
dent has engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
Because Respondent discriminatorily discharged em-
ployee Charles Koetting, it will be recommended that the
Respondent offer him immediate and full reinstatement
to his former or a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges. It will be recommended that the Respondent
make him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him by pay-
ment of a sum of money equal to that which he normally
would have earned as wages from June 14, 1966, the date
of discharge, to the date of the Respondent's offer of rein-
statement, less net earnings, if any, during this period.
The backpay shall be computed on a quarterly basis as
prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up
Bottling Company, 344 U.S. 344 (1953), and shall in-
clude interest at 6 percent per annum as provided by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), approved in Philip Carey Manufacturing Com-
pany Miami Cabinet Division v. N.L.R.B., 331 F.2d 720
(C.A. 6, 1964), cert, denied 379 U.S. 888, and cases
cited.
Because the Respondent by its conduct violated funda-
mental employee rights guaranteed by Section 7 of the
Act, and because there appears from the manner of the
commission of this conduct a disposition to commit other
unfair labor practices, it will be recommended that the
Respondent cease and desist from in any manner infring-
ing upon the rights guaranteed employees by Section 7 of
the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532,
536 (C.A. 4, 1941).
Concerning the pending representation proceeding,
Case 17-RC-5108, since it has been found that employee
Charles Koetting had not lost his status of employee at
the time of the representation election of June 29, 1966,
by reason of his discriminatory discharge, and that em-
ployees John Lohe and Kenneth Bell were nonsuperviso-
ry employees on the same date, and all three were eligible
to vote in the election, I shall recommend severance of
Case 17-RC-5108 from this consolidated proceeding and
that the Regional Director may proceed with the counting
of the three challenged ballots of employees Koetting,
Lohe, and Bell and with other action appropriate in his
judgment for the disposition of the case.
Upon the basis of the foregoing facts and upon the en-
tire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights under Section 7 of
the Act, and by discriminatorily discharging one of the
employees because of union activities, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
3. On June 29, 1966, John Lohe and Kenneth Bell
were nonsupervisory employees of Respondent, and
Charles Koetting had not lost his status of employee by
reason of his discriminatory discharge; and all three were
employees eligible to vote in the representation election,
held that day, and entitled to have their ballots counted.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions
of law, and upon the entire record in this proceeding, I
recommend that Evans Orchard Supply Company, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its em-
ployees in their union activities, or concerted activities
for the purpose of collective bargaining, by discharge or
other reprisal, or by coercive interrogation concerning
their union activities or sympathies or concerning their
statements to Board agents.
(b) Interfering with Board investigation and process
by questions or suggestions to employees regarding their
statements to, or testimony before, the Board.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist the Union, or any
other labor organization, to bargain collectively through
representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from en-
gaging in any or all such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) and recognized
in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to employee Charles Koetting immediate and
full reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole in the
manner set forth in the section of this Decision entitled
"The Remedy," for any loss of earnings he may have suf-
fered as a result of the discrimination against him.
(b) Preserve and, upon request, make available to the
Board and its agent, for examination and copying, all
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to ascostain the amount of backpay due
under the terms of this Recommended Order.
(c) Post in the Respondent's plant at Kansas City,
Missouri, copies of the attached notice marked "Appen-
dix."" Immediately upon receipt of the copies of said
notice, to be furnished by the Regional Director for Re-
gion 17 (Kansas City, Missouri), the Respondent shall
cause the copies to be signed by one of its authorized
representatives, to be posted, and to be maintained for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply,
therewith.' 2
1 FURTHER RECOMMEND that Case 17-RC-5108 be
severed from this consolidated proceeding, and that the
Regional Director for Region 17 may proceed with the
counting of the three challenged ballots of employees
Charles Koetting, John Lohe, and Kenneth Bell, and with
any other action appropriate in his judgment for the
disposition of the case.
" In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board's Order is enforced in a United States Court of Ap-
peals , the words "a Decree of the United States Court of Appeals Enforc-
ing an Order" shall be substituted for the words "a Decision and Order."
12 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage your activity or member-
ship in Maintenance Men, Production Employees,
Operators, Miscellaneous Employees, Firemen and
Oilers, Local No. 1, AFL-CIO (the Union), or any
other labor organization, by discriminating against
you if you choose to-engage in activity for, or to join,
the Union or any other union. Because the Board
found that we did so discriminate when we fired em-
ployee Charles Koetting,
WE WILL offer to Charles Koetting full reinstate-
ment to his old job, and WE WILL pay him for any
loss of earnings that he suffered because we fired
him. If he is presently in the Armed Forces of the
United States, we will notify him of his right to full
reinstatement upon application after discharge from
the Armed Forces.
WE WILL NOT discharge you, or engage in other
reprisal, because of your support of the Union.
WE WILL NOT interrogate you coercively respect-
ing your union activities or interest, or respecting
statements given by you to the National Labor Rela-
tions Board.
WE WILL NOT interfere with investigation or
process of the National Labor Relations Board by
questioning you on what you have said, or suggesting
to you what you should say in statements to, or
testimony before, the Board.
WE WILL respect the rights of our employees to
self-organization, or to form, join, or assist any labor
organization, or to bargain collectively concerning
terms or conditions of employment through
representatives of their own choosing, or to refrain
from any such activity; and WE WILL NOT interfere
with, restrain, or coerce any employee in the exercise
of these rights, except as these rights might be af-
fected by a contract validly made under the National
Labor Relations Act with a labor organization,
whereby membership in the labor organization is a
condition of employment after the 30th day following
the date of the contract or the beginning of the in-
dividual's employment, whichever is later.
Dated By
EVANS ORCHARD SUPPLY
COMPANY
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 E. 12th Street, Kansas City, Missouri
64106, Telephone FR-4-5282.