Superior Meat Co.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 893 (N.L.R.B. 1978)

Superior Meat Company and Donald Kuechenleister.
Case 32-CA- 175 (formerli 20 (A- 12606)
August 25. 1978
DECISION AND) ORl)ER
BY Mit MBi RS Pi Nt I.I( Mt RK'I', \\i I RI I Sl) I
On May 16. 1978. Administrati\ e Lawin JudgCi MIau-
rice M. Miller issued the attached D)ecision in in thi
proceeding. Thereafter, counsel for Gieneratl ( on sel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(h) of the
National I abor Relations Act. as amendned, the \iN-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-nmembetr 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.' a;nd
conclusions of the Administrative l aw JudLe and to
adopt his recommended Order.
OR)DER
Pursuant to Section 10(c) of the National I ahbor
Relations Act, as amended. the National l.abor Re-
lations Board adopts as its Order the recoi11nmended
Order of the Administrative L as Judge and hcebh\
orders that the complaint be. and it herebh is. dis-
missed in its entirets.
C ounsel for (enclal ( ,un'cl lh,1ex c. ted Io s CIt[I a I h cdlll.[i ht. hI1d,1'
made hs the Adnunitraise l., Judge II is the tioald' cl.ilhlstcd pohit\
lot to serrulc all AdnmI iralltTa 1 .I1a Judigc', Ie-lUl ilon Wl Itcpei h i
credibilisl unless the clear preponderr .nce of .i l f , he rcic.tii c\lidcnl .
convinces us thal tihe resolutions ire ilncollel 'alOld [)rl II jl/ P-,/1,, l'
In-.. 91 NlRB 544 (1950t. enfd 188 l.'2d .302 ( i. \. 1 19'11 Vc, h1e.c
carefulls exanilned the recor d lnd filied hnlo,1 f.lo rc.crstl gt hls UIldtgi,
DE( ISION
SIAI MIN I t() IttH (ASI
MALURIC[ M Mi ii R Administrati e Law Judge. Upon Ia
charge filed March 17. 1977. and dul) served, the General
Counsel of the National Labor Relations Board caused a
complaint and notice of hearing dated April 29th to be
issued and served upon Superior Meat Comnparin designat-
ed as Respondent within this decision, Therein, Respon-
dent was charged with the commission of unfair labor
practices within the meaning of Section 8(a)(l) and (3) of
the National Labor Relations Act, as amended. 61 Stat.
136, 73 Stat. 519, 88 Stat. 395. Respondent's answer. duls
SUPERIOR MEAT COMPANY
filed, conceded certain factual allegations uwithin General
Counsel's complaint, but denied the commission of an\
unfair labor practice.
Pursuant to notice, a hearing with respect to this matter
was held on August 16, 1977. in Stockton, California. be-
fore me. 1 he ieneral C(ounsel and Respondent were repre-
seIntcd ih counsel. Each partN u as afforded a full opportu-
nit tIo be heard, to examine and cross-examine witnesses.
andi to introduce ei dence ', ith respect to pertinent nlal-
tet. Since the hearin£\ close. General C(ounsel's represen-
tatses in lI Respondent's counsel hae filed briefs, these
briefs hase been duls considered.
[ pon the entire testimonial record, documentars evi-
dence recei ed. and ins obsers ation of the witnesses, I
make the folloing:
Fi\i)IN(;S oi FA( I
I Jt RISI)I( ItION
Respondent raises no question herein with respect to
General Counsel's jurisdictional claims. Upon his
complaint's relevant factual declarations -specificall'
those set forth in detail within the second paragraph
thereof which are conceded to be correct, and upon
shich I rels. I find that Respondent herein was, through-
out the period with which this case is concerned, and re-
mains, an emploNer within the meaning of Section 2(2) of
the Act. engaged in commerce and business operations
w-hich affect commerce, within the meaning of Section 2(6)
and 17) of the statute. Further. with due regard for pres-
entl, applicahble jurisdictional standards, I find assertion of
the Board's jurisdiction in this case warranted and neces-
sar\ to effectuate statutors objectives.
II 11 i I (BIR (IR(;ANI TION IN'OI I :D
Butchers Union I ocal No. 127. which will be designated
as Butchers U nion or lIocal No. 127 within this decision, is
a labor organization swithin the meaning of Section 2(s5) of
the statute. which admits certain of Respondent's emplos-
ees to memlbership.
III [ Ni AIR I ABOR PRA(TICES ('CHAR(iI`)
A. Is.ucs
Substantivels, General (Counsel's complaint, herein.
presents two questions. His representatives contend: First.
that Respondent violated Section 8(a)(3) and (I) of the
statute b', discharging Donald Kuechenmeister, designated
as Kuechenmineister or complainant within this decision, be-
cause of his membership in, or activities on behalf of.
Butchers Union, or because he had engaged in various
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection: second. that Re-
spondent's management representatives separately violated
8()( I of the statute by questioning employees with regard
to their union membership. sympathies. and activities, by
threatening employees with discharge should they become
237 NLRB No. 128
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union supporters, and by telling employees it would be fu-
tile for them to support a labor organization. With respect
to these contentions, Respondent proffers general denials:
the firm's counsel contend, specifically, that Kuechenmeis-
ter was terminated for failing to work up to his capacity
and for taking numerous, excessively long, work breaks.
B. Facts
I. Background
a. Respondent's business
Throughout the period with which this case is con-
cerned, Respondent partnership was engaged in boning
and distributing meat, wholesale, with a Modesto, Califor-
nia, place of business. The partnership, with Carlo Nari
and Rodney Bolcao financially "equal" partners, had been
formed in September 1976: business operations had been
initiated on September 15th within that year, specifically.
Initially Nari and Bolcao had planned incorporation, with
Nari slated for the corporate presidency and Bolcao func-
tioning as the firm's vice president, secretary, and treasur-
er. When this case was heard, the firm's planned incorpora-
tion had not yet been effectuated, however.
Between September 15, 1976, and January 7, 1977, and
thereafter, Respondent's business operations were con-
ducted within some relatively small premises subleased
from a firm designated La Italia Meat Products: that
firm-together with Western Veal Company, likewise a La
Italia sublessee-shared divided space within the same fa-
cility. Respondent's sublease covered a single "boning"
room with four work tables, plus office space; certain com-
mon facilities-specifically, a designated lunchroom or
coffee "break" room and a central bathroom-were shared
routinely by Respondent's, La Italia's, and Western Veal's
personnel.
b. Atwater Meat Company
While maintaining his Superior Meat Company partner-
ship, Bolcao concurrently functions as Atwater Meat
Company's general manager; that firm operates a slaugh-
terhouse within a different community, located some 35
miles from Respondent's Modesto facility, wherein "whole
beef" carcasses are processed and sold. Bolcao, who holds
no financial "interest" with respect to Atwater Meat's busi-
ness, had-so the record shows--planned Respondent's
formation and had requested Nari to join him, when Re-
spondent partnership was formed.
Respondent regularly purchases some Atwater Meat
products; such products have, frequently, been delivered in
Atwater Meat vehicles, driven by that firm's workers.
Throughout the period with which this case is con-
cerned, General Manager Bolcao was, and remains, exclu-
sively responsible for Atwater Meat's labor relations. Until
December 31, 1976, that firm was privy to a collective-
bargaining contract with Butcher's Union Local 126: when
this case was heard, during August 1977. that Butcher's
Union local still represented Atwater Meat's workers.
While a witness, Bolcao testified that, because of his
preoccupation with Atwater Meat responsibilities, he has
functioned--with respect to Respondent partnership's
management particularly-solely as a financial investor,
taking no part in the firm's diurnal managerial decisions.
The partner conceded, however, that he visits his firm's
Modesto facility twice weekly; that he generally walks
through the firm's boning room during these visits, speak-
ing with the workers present: and that he converses daily
with Respondent's general manager, Carlo Nari, by tele-
phone, with regard to their firm's business operations, in-
cluding personnel matters.
c. Respondent's daily work schedule
Within 2 weeks following Respondent's September 1976
commencement of business operations, the firm had hired
only three production workers. By November, however,
Respondent's crew complement compassed six or eight
workers;: most of these were working regularly within the
firm's single "boning" room.
Respondent's production crew members normally
worked a regularly scheduled 8-1/2-hour shift, commenc-
ing at 7 o'clock daily and running until 3:30 p.m., with a
30-minute 11:30 to 12---lunch hour. Two regularly sched-
uled "break" periods were permitted: the first, mid-morn-
ing, work break ran 15 minutes, from 8:45 to 9 o'clock,
while the second, mid-afternoon, ran 10 minutes, between
2 and 2:10 o'clock daily.
Further. Respondent's workers were permitted various
nonscheduled "bathroom" breaks, when required. Some
workers customarily took two or three such work breaks
daily, while others so the record shows-may have taken
several more.
2. Donald Kuechenmeister
a. Employment history'
Sometime during 1975, Donald Kuechenmeister, com-
plainant herein, commenced work with Atwater Meat
Company: prior thereto, he had been working for a differ-
ent, though likewise unionized, firm. He had been notified
with regard to possible Atwater Meat work opportunities
by a Butchers Union Local 126 business representative: he
had so advised Atwater Meat's general manager, Bolcao,
when he visited the firm; and he had, finally, taken a posi-
tion with Atwater Meat pursuant to Bolcao's solicitation.
Kuechenmeister's work history, within the trade, had
commenced some 8 years previously. His first employment,
beginning in 1968, had been with a St. Paul, Minnesota,
firm. Within less than a year. he had resigned, taking a
second position with a West Coast State of Washington
enterprise. Later he had resigned his second position, to
resume work with his first midwestern employer. Subse-
quently, however, he had resigned for a second time. Be-
tween some time in 1969 and his Atwater Meat Company
hire date, Kuechenmeister had procured and resigned work
with five other firms, voluntarily; the circumstances which
had, presumably persuaded him to resign these positions
have not been detailed. however, for the present record.
894
SUPERIOR MEAT COMPANY
In December 1975, complainant resigned his Atwater
Meat Company position. However. General Manager Bol-
cao rehired him I month later: thereafter, he worked as
Atwater Meat's sole meat "boner" for some 5 months. until
June 1976, when he was laid off, since the firm's beef
"boning" work had declined and was being discontinued.
b. Respondenr hires Kuecheninieister
When Kuechenmeister was notified, with regard to his
prospective June 1976 Atwater Meat layoff, General Man-
ager Bolcao mentioned his plans to start a Modesto meat
"boning" business. Concededly. Atwater Meat's general
manager notified complainant that, should his Modesto
business plans materialize, he [Bolcao] would commUnicatce
his personnel needs. And, shortly before Respondent's lo-
desto facility became activiated, Atwater Meat's manage-
ment representative did refer Kuechenmeister to Carlo
Nari, his partner and Respondent's general manager
Shortly thereafter, concededly. Nari hired Kuechenmeister
directly. Complainant was Respondent's third hired work-
er. Nari's son. Robin, together with George Kline. current-
ly a Butchers Union member, had preceded him.
3. The Union's campaign for representative status
a. Fir.st contactrs
Sometime during October's first or second week, a
Butcher's Local No. 127 representative visited Respon-
dent's premises: Nari was requested to sign that Union's
master labor contract. Respondent's general manager de-
murred. He declared that Superior Meat Company had just
commenced business: and stated that he was not "reads to
sign the master contract" since he wished to determine how
Respondent's business would develop. Local 127's repre-
sentative, Gary Sommers, declared that he would return.
Some 2 weeks later he revisited Respondent's plant. Nari
was asked whether he had decided to sign the designated
local's master contract. Respondent's managerial partner
declared that he had not yet reached a decision. WVith re-
gard to their conversation's conclusion, Nari testified.
without challenge or contradiction. that:
[H]e [Local No. 127's business representative] said.
"Alright. I'll leave you alone." He says. "Just when-
ever you make up your mind. whatever you want to
do, call me and I'll come out." And that was the last
time I talked to Mr. Sommers ....
Local No. 127's business representative, so Nan de-
clared, had never claimed to represent a majority of Re-
spondent's workers, had never displaced any signed desig-
nation cards, had never requested Local No. 127's formal
recognition, per se, and had never requested a formal repre-
sentation vote for Respondent's workers.
h. Restotrdnt'c reacuion
Shortly after Business Representative Sommers' second
visit, Respondent partnership's general manager. Carlo
Nari, conferred with his firm's workers. b: then four in
number; the group compassed Nari's twso sons, plus
George Kline and Kuechenmeister, both known to Nan as
Butchers Union members. Respondent's general manae-
er so his testimony shows declared substantiall that he
was "not in anx positoin" fin:inciall to sign lIocal No.
127's proffered contract, that he wanted to see how Re-
spondent's business ,would develop: and. further that he
wanted to see what Local No. 126's prospective contract,
then being negotiated, would contain. Continuing. Nan de-
clared so I find that RCspondent's management was
"working on a health and welfare program" funded
through some insurance cornpans which would be initiat-
ed shortls.
Kuechtnmeister, Kline, and Robin Nanr, Carlo's son.
credibl; recalled, within their composite testimonial re-
citai.l that Nari likewise mentioned a possible profit-shar-
ing plan and commented pircsumalbls when responding to
some question that so long as Respondent's workers did
their work, the, would have no reason to feel concern re-
garding their job secuiity. According to Kuechenmeister,
Nari declared. itrer alia. that Bolcao would "ahsolutels"
not consider Reapondent's unionization. Complainant's
testimon., with particular reference to Nari's last-men-
tioned remark. however. stands without Kline's or an,
other corroboration: within ms view, it merits no credence.
At some point during their discussion, Nari asked Re-
spondent's workers, "'Vhat should we do about it [unioni-
zationl now-"' Kline replied so his credible. corroborated
testimotin, shot s that. I or the time being. let's leave
things lai as the! are'' ()n this note. their conference on-
cluded.
I hereafter, ometrime during Novtember's middle period,
Bolcao. while visiting Respondent's plant, requested Kuc-
chenmeister and Kline to loin him for a discussion. Kline's
relevant testimons with respect thereto which I credit. de-
spite Bolcao's denials reads as follows:
vWell, he said that thes weren't going union and . . .
he was talking about the insurance. trsing to get us
some health and welfare at the time. about profit shar-
ing, He also told me and Don that our work was satis-
factor? and our habits had been preformed to that
time . .
Q. In other words, formed prior to the time Wou
started working?
A. Right.
Q. Do you recall anything else during that discus-
sion that ,ras said b,, Rodney Bolcao?
A. Well. he said something to Don about, "If ,ou
,want to cause an, trouble for us, you'd just as well
quit now." And I can't remember ans more of his
statement.
Q. [)o sou remember in what context he made that
statement? Do Nou remember what was said before he
made that statement?
A. No,. I do not.
Q. You mentioned that Rodnes talked about health
and w elfatre ( Coald ou elahborate on that a hit'
A.. \ell. he said he eass g oing to contact Soiel in-
surance companies to find a polis that would bhe
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent to what the union policy was . .. equal to
our union health and welfare plans . . . I don't think
he meant equal in cost so much as equal as far as the
benefits that we should receive from it.
Q. All right. Did he say anything about the cost of
union health and welfare?
A. Well, he said our health and welfare and also
our retirement benefits . . . I believe that he said that
Atwater Meat cost him $90,000 that year, or would
cost him this next coming year $90,000. I do not know
which way it went . . . he says, just through the profit
sharing, why not let us [Respondent and the firm's
employees] reap a little of the profit, instead of the
union.
Q. Mr. Kline, before Mr. Bolcao made the state-
ment to Don that you've testified about already . . .
did Mr. Bolcao say anything to you?
A. Well he told me . . . he said that he couldn't
understand why Don wouldn't want to join the bene-
fits that he was offering instead of what the union was
offering, and that I myself [having] invested this much
into the union. that he could [realize] why I .. . want-
ed to be in the union itself.
Parenthetically, readers of this decision should note that
Kline, then a man of middle age. had been a longtime
(30-year) Butchers Union member; Bolcao was, so the rec-
ord shows, cognizant with regard to his current union
membership. When their conversation, set forth herein,
took place, Bolcao, so I find, was himself maintaining
union membership.
c. Discu.ssions with regard tro Re.pondeni 'l unionization
While a witness, Kline was queried further with respect
to whether he had spoken with any fellow workers regard-
ing the desirability of Butcher's Union representation. He
testified, credibly, that he had spoken with two designated
workers. Further, Kline recalled that Kuechenmeister and
he had discussed "when it would be best" to mount a cam-
paign for Union representation. In this connection, Kline
recalled that:
Well, we discussed it. Yes. And I said it would be best
to wait till after the first of the year, which would be
the first of '77 before we decided what was going to
happen . . . well, Atwater Meat Company's contract
came up the first of the year, and we figured if we was
going to be represented and they want to, say, lock us
out or not sign a contract, that we could put a picket
line up. And this way the other union members are
supposed to recognize the picket line and not cross it
to deliver meat to Superior Meat Company.
According to Kline. his views and speculation. noted, were
likewise discussed with both of Respondent's nonaligned
workers, with whom he spoke, sometime during the "last of
December, first of January," shortly before
Kuechenmeister's termination.
4. Kuechenmeister's work record
a. Purported abhie of work break privileges
Respondent contends, herein, that Kuechenmeister's
January 7, 1977, discharge challenged as violative of law,
within General Counsel's complaint herein--derived par-
tialls from the meat boner's poor work habits, persistently
displayed. More particularly,. Respondent claims that com-
plainant herein throughout his last 2 months in Respon-
dent's hire-regularly took more "unscheduled" work
breaks daily than his fellow workers. While a witness, Bol-
cao declared that Kuechenmeister's behavior, in this re-
spect, reflected a continuation of questionable work habits
revealed during complainant's prior Atwater Meat Compa-
ny service. Kuechenmeister substantially challenges the
correctness of Respondent's factual presentation; record
conflicts with respect thereto, therefore, must now be con-
sidered and resolved.
(1) Atwater Meat Company
While a witness, Bolcao recalled that during
Kuechenmeister's Atwater Meat service, he had frequently
observed Kuechenmeister taking "several" nonscheduled
breaks daily during which he could be found "outside"
smoking cigarettes. Arthur Garibay, Atwater Meat's plant
manager, confirmed Bolcao's testimony: he declared that
when moving through Atwater Meat's plant while dis-
charging his routine managerial responsibilities, he had fre-
quently seen Kuechenmeister taking four or five nonsche-
duled "smoking" work breaks daily, each such break
lasting "about" 10 minutes.
Bolcao and Garibay both claimed, while witnesses
herein, that they had verbally reprimanded complainant
for taking "too many" work breaks. They conceded, how-
ever. that he had not been formally disciplined, since At-
water Meat's current meat "boning" business was, then,
being "phased out" prior to that function's discontinuance;
both men testified that. mindful of this situation, they felt
complainant's formal discipline would not be warranted.
When queried, following the conclusion of Respondent's
defensive presentation. with regard to his purportedly "fol-
lowing a pattern in taking extra unscheduled breaks" dur-
ing his working day, Kuechenmeister proffered no denials.
particularly with reference to Bolcao's testimony or
Garibay's corroborative recital, concerned with his behav-
ior patterns during Atwater Meat Company service.
Bolcao's further testimony, which I credit in this connec-
tion, warrants a determination that- when Atwater Meat's
boning operations were finally discontinued-Kuechen-
meister was told, despite his supposedly questionable beha-
viour patterns, that when Respondent's planned Modesto
facility started doing business. he would be called. Consis-
tently with this commitment, Bolcao, as I find, referred
complainant to Carlo Nari thereafter. In that connection,
Bolcao testified that:
I had told Carlo . . . that I was going to send a gentle-
man by the name of Don Kuechenmeister in to see
him. And I expressed to Carlo that Mr. Kuechenmeis-
896
SUPERIOR MEAT COMPANY
ter had a lot of good boning ability, but he was a
difficult employee to he had difficult working habits.
And I told Carlo to use his own discretion on whether
or not he wanted to hire him.
While a witness. Nari corroborated Bolcao's testimony that
he had been advised to watch Kuechenmeister's work
habits, since he (Kuechenmeister) would "drift aw.aS from
his work area" frequently. Nevertheless, so the record
shows, Complainant was hired promptly.
(2) Superior Meat Compan\
The record herein- particularl s with reference to
Kuechenmeister's purportedly "excessive" beneficial en-
joyment of Respondent's regularly maintained "work
break" privileges reflects significant testimonial conflict.
With respect thereto, both Respondent's critical presenta-
tion and complainant's testimonial riposte deserve de-
tailed consideration.
(a) Respondent's presentation
Previously within this decision, Respondent's regular
shift hours, 30-minute lunch period. and scheduled mid-
morning and mid-afternoon "work break" periods haxe
been noted. Further, Respondent's meat boners were per-
mitted nonscheduled "bathroom" breaks: some of Respon-
dent's workers, I find, smoked cigarettes briefly while en-
joying such nonscheduled relief periods. In this
connection, Respondent partnership's general manager,
Carlo Nari, testified that sometime shortly after Respon-
dent's business began operations. he became "aware" that
several of the firm's workers were stretching their two regu-
larly scheduled breaks; that he mentioned his concern re-
garding the situation to Robin Nari, his son: that Robin
Nari thereupon told his fellow workers about his father's
critical comment: that most of Respondent's workers
thereafter returned from work break periods promptls: but
that Kuechenmeister, despite his conceded opportunities to
consult a watch which he wore, continued to "straggle in"
generally a minute or so late.
During November 1976, Respondent partnership's gen-
eral manager, so he testified, frequently "noticed" that
complainant herein, while continuing to stretch his regu-
larly scheduled work "break" periods. further took fre-
quent nonscheduled breaks. Though purportedlxy these
were permissible "bathroom" breaks, Nari claimed, while a
witness herein, that he had noticed Kuechenmeister took
them more frequently than his fellow workers. that he had
likewise noticed complainant's breaks lasted longer, and
that he had noticed Kuechenmeister smoking cigarettes
frequently during these nonscheduled break periods. Re-
spondent's counsel, within their jointly submitted brief.
have succinctly summarized Carlo Nari's testimony with
respect to complainant's purportedly questionable "work
break" behavior patterns. Their recapitulation supple-
mented, wherever I have found it less than complete, with
quotations from the record--reads as follows:
Nari noted. as corroborated by employees Ron Simp-
son and Robbie Nari, that Kuechenmeister took at
least a ten-minute break at 8:00) a.m.. followed hb the
regularlx scheduled break at 8:45 a.m.. followed bh
anothcer hrtCak lati ng at least ten minutes at 9:45 a.m..
anid a ten It) tents-minute unscheduled break at
11):30) a.m. Folloxwing the scheduled 11:30 12:30 lunch
hrteak. KUlcIhenmIelster s ais alaass the liast one to re-
turn to work. and then took at least a ten-minute un-
scheduled break at I:00 p.m., another unscheduled
break ["tw o or three times a week"] at 1 :45 p.m. [for
"five. six" minutes]. followed by the regular 2:00 p. m.
break, Mnd then another unscheduled ["ten minute'"
break at 2:45 p.m.
Substantiall,. Respondent's witnesses (Carlo Narl. Robin
Narin and Simipson testified that complainant took he-
tlween fise and seven nonscheduled work breaks dail,
While a uitness. Respondent's general manaigcr claimed
that having become cognizant of complainant's special be-
havior patterns. he had notified Kuechenmeister personally
"proba bl- Isomes here aroundl the end of November" that
he was taking too many breaks. and that he should "watch
it" thereafter.
According to Nari. Kuechenmeister's pattern of hehav-
ior with respect to taking "extra" work breaks for "exces-
six'e" periods of time. nevertheless, showed no change.
lilaing noticed this. Respondent's general manager decid-
ed. so he testified, that he would purposefull "observe''
complainant's behaovior more closel y: this he did. during
December. for some 2 weeks While a witness. Nari report-
ed that his personal. direct observiltions had confirmed
Kuechenmeister's continued "extra" and "excessieve " break
period pattern
(hb) ('; ,ittal[ ( ollas/ 's pr'e.etlhlrioutl
With respect to work breaks hbeond Respondent's regu-
larls scheduled morning and post-meridian periods. Kue-
chenmeister testified that, on the average. he took three or
four nonscheduled "bathroom" breaks daily; that his non-
scheduled breaks were taken at random, rather than in
conformitx with a consistent dails pattern: and that such
breaks lasted. normallx, no more than 3 or 5 minutes. Kue-
chenmeister declared. further. that his work break pattern
had been consistentl, maintained throughout his period of
service in Respondent's hire.
When suhpenaed as General Counsel's A itness,
compla;inant's fellow worker. George Kline, testified that
their firm's two other meat boners, during a period of time
never defined for the record, normally took "one or two"
nonscheduled breaks possibly three- daily: that he
[Kline] took, on the average, three nonscheduled breaks
dail., with each axera;gini from 3 to 5 minutes: and that
Kuechenmeister. so far as he [Kline] could determine, nor-
malls smoked cigarettes during his nonscheduled break pe-
riods. Kline professed a lack of knowledge, merely, with
respect to whether complainant took more than three "ex-
tra" work breaks dail'. \When queried with respect to
whether Kuenchenmeister regularly took more "bath-
room" breaks than he [Kline] took. the meat boner conced-
ed that he could not with certaintl answer the question.
Kline conceded that he had heard both Robin Nari and
897
DI)ECISIONS O()F NATIONAL lABOR RELATIONS BOARD
Ray Lorenz, fellow workers, declare more than once that
within their view, complainant herein had been taking too
much "work break" leave.
(3) Discussion and conclusion
With matters in this posture., several testimonial con-
flicts, particularly with reference to Kuechenmeister's pur-
ported disposition toward "extra" nonscheduled break pe-
riods, coupled with purportedly "excessive" breaktiime
lapses, must certainly be resolved, or possibly reconciled.
My disposition withl respect to Respondent partnership's
particular contentions and (General C ounsel's proffered re-
joinder will be discussed subsequently within this decision.
h. Kutechenmeister 's production
Both Kuechenmeister and Kline have testified that the
former worker's production record was better during the
latter part of his 3-month service period in Respondent's
hire than his production record w\hen first hired, Further.
Kline testified that during l)ecember 1976. their last month
of joint service, his production and Kuechenmeister's had
been equal. more or less. While witnesses, Kline and Carlo
Nari both agreed that a meat boner's production can be
reliably measured only by those working alongside the par-
ticular worker at the same boning table. or, po,.vsih! other-
wise. by close personal observation. Kline's judgment with
regard to Kuechenmeister's production capacity so his
testimony shows derived from observations made while
he worked with Kuechenmeister, when they shared the
same boning table.
Nari, who claimed that Kuechenimeister. prior to his dis-
charge, had not been producing at the same level as Re-
spondent's other journeymen butchers. conceded that he
had reached this conclusion solely because he believed
complainant had been taking "excessive" nonscheduled
work break periods. Contrariwise. however. Kline testified
that he had taken into consideration Kuechenmeister's
work time, presumably lost because of his nonscheduled
breaktime practice, when reaching his [Kline's] conclusion
that their production records had, nevertheless, been "ap-
proximately" similar.
c. Kuechenmeister's trip to Stevens Meat Company
On December 9, Respondent partnership's general man-
ager dispatched complainant to Stevens Meat Company,
located in San Jose, California, with a truckload of meat.
Respondent's San Jose customer then routinely required
his suppliers' meat deliveries to be completed by or before
10 o'clock; Nari considered it particularly important,
therefore, that Kuechenmeister's trip should be made on
schedule. The trip in question, between Modesto and San
Jose, California, normally took Respondent's delivery driv-
ers 2 hours, maximally; both Nari and Ron Simpson had
previously made the trip within that designated period.
To make certain that complainant would meet with no
delays, Respondent partnership's general manager gave
him a route map, together with verbal directions and Ste-
vens Meat's telephone number; Kuechenmeister was spe-
cificalls instructed not to spend more than 10 minutes
looking for Respondent's customer, but to call Stevens
Meat for directions, should he lose his way. Complainant
thereupon left Respondent's Modesto facility at 8 o'clock.
stopped at his home approximately I mile off his direct
route to pick up his wife, transported her to some unspec-
ified destination, and later telephoned Nari at 11:30 a.m.,
when he finally reached Stevens Meat's plant.
Before Kuechenmeister had reached Stevens Meat
sonce 1-1 2 hours late General Manager Nari had re-
ceived "six or seven" telephone calls from his clearly irate
customer, who eventually cancelled a substantial 5.000-
pound order previously placed and scheduled for delivery
the following day. Thereafter. so Nari's testimony, prof-
fered and received without challenge or contradiction,
shows. Stevens Meat refused to deal with Respondent part-
nership for 2 more weeks. At that time, so Nari testified.
Stevens Meat purchases represented some 20 to 25 percent
of Respondent's sales.
Following his retuin. Kuechenmeister was questioned by
Respondent's general manager concerning his late delivers.
( omplainant reported, merely, that he had become lost in
Los (atos, ( alifornia, a community situated some 10 free-
wav miles beyond the San Jose highway exit which he
[Kuechenmeister] should have taken. He proffered no justi-
fication. so the record shows. for his failure to call Respon-
dent's customer for directions following his less-than-suc-
cessful 10-minute search for Stevens Meat's location.
Further. I find, complainant neglected to tell Respondent's
general manager that he had deviated slightly from his di-
rect delivery route so that he could pick up his wife and
provide her with transportation.
While a witness, Kuechenmeister proffered to significantly
contradictory testimony with regard to this delayed delivery
contretemps. General Manager Nari. so his [Nari's] credi-
ble. undenied testimony shows, had been seriously "upset"
because of Kuechenmeister's performance: when queried.
herein, with regard to his reaction. Nari claimed that
complainant's behavior had put him [Kuechenmeister] on
"real shaky ground" so far as his continued tenure was
concerned.
d. Complainants medical hill
During May 1976, while still employed with Atwater
Meat Company. Kuechenmeister had incurred some medi-
cal bills, possibly totaling $20 or $30. which concededly
should have been paid, consistently with contractual
"health and welfare" benefit fund commitments which At-
water Meat and Butcher's Union Local No. 126 had previ-
ously negotiated. Eventually, however, complainant
learned that his submitted bills had not been paid, since
Atwater Meat had not reported his reinstated 1976 cover-
age following his January rehire and had not forwarded
required 1976 contributions for him to Local No. 126's
contractually mandated health and welfare benefit fund.
At some time subsequent to his discovery. during the
middle or latter part of December, complainant requested
his wife to telephone Local No. 126 with regard to this
situation. While at work that same day, Kuechenmeister
told Carlo Nari about his medical bill problem; he de-
898
SU PtERIOR MNlFAl (MM'P Y
clared his concern that Aiwater Meat's genecral mianaier.
Bolcao. would he so disturbed, when confrionted s iith a
Local No. 126 benefit fund claim for some SI}() in rTtroitc-
tive health and welfare contribution pa ments. that he
might direct his [Kuiechieneister's] termination bh Re-
spondent partnership. General Manager Nari and com-
plainant concurred, then, that the latter would be well cad-
vised to suggest Bolcao might rather conclude it would he
less costly merely to settle complainant's actual medical
bills. Kuechenmeister subsequently discovered. however.
that his wife had already notified Local No. 126 regardini
his problem: he made no effort, therefore, to communicate
with Bolcao directly thereafter. When a I ocal No. 126 rep-
resentative communicated with Atwater Meat's general
manager shortly thereafter, that firm's retroacti\e health
and welfare contribution payments. p abhlc in
Kuechenmeister's behalf. were promptl? remitted
While a witness. Bolcao reported that Atiater Mleat's
bookkeeper following Kuechenmeister's Januar! 1976 re-
call for meat "boning" work had somehow neglected to
notify Local No. 126's health and welfare benefit fund
with regard to complainant's rehire. Consequentl>s
Kuechenmeister's name had not been thereafter listed on
the fund's monthly "billing" staterments: contributions had
not been made in his behalf so Bolcao claimed for
"three" months only. According to Bolcao, Atw ater Meat's
failure to remit contributions in Kuechenmeister's behall
had been reported by I ocal No. 126 Business Representa-
tive White, sometime during "October . . . ul . . .()cto-
her . .. September . October" thereafter. The firm's
reported delinquency, so Atwater Meat's general m;ana.er
testified. had forthwith been remedied some time hceir,
complainant's purportedly "unpaid medical hill" problem
had developed. Within my view. however. Bolcao's testi-
mony thus summarized merits no credence. His \sitness
chair memory, with respect to when he first heard from
Local No. 126's representative and personall discoered
Atwater Meat's mistake, was concededls less than positi e:
he had, so the record shows. previousls sworn within ,a
prehearing statement that Local No. 126's representatixe
had called Atwater Meat's mistake to his attention during a
December 1976 contract: he purportedl, recalled that At-
water Meat's delinquent health and welfare contributions.
covering Kuechenmeister's period of service, had covered
"three" months only, though complainant had concededlsx
been rehired in January 1976 and had worked c or r
months thereafter: he [Bolcao] contended that
Kuechenmeister's previously delinquent health and sxelfare
contributions had been remitted some time before
complainant's December 1976 protest but proffered no ex-
planation calculated to rationalize the union benefit fund's
failure to pay complainant's May 1976 medical bills. subse-
quently presented. Bolcao's testimony, within m v iew.
fails to satisfy "logical probability" tests: taken bh and
large, his proffered recollections "carrn their owkn death
wound." whether derived merely from poor memor'., from
subconscious rationalization. or from some purpose to mis-
lead.
Respondent's partner contended while a witness thlat
when Atwater Meat's bookkeeping mistake w as reported.
he had "realized" forthwith that "correctixe measures"
ssoIuld be ilcquiIed: hle s. idt that cl l. ed cL OIilIlt IItt)tIs. p1Il-
aibit iIl K l. itClllllie I cisi ;1 Ilil d hChl l Iad bee rI ltted fort i-
xsittl [loeC\ert, \i\;atei MC;:t' g eneIr;ll min:a? ic decl IaredL
Iil lC t still\ i. hLeitiC ilii l 1 i e tl.uld 1not _"under.iiiand
whnat's nilporlnti" ntok. I-egarrding his firm's ul-portedli
neIlci dispuited mist aike. since it had been corrected
promptl, follioing its discovers, without protest.
5. Kuethllencieister's discharge
C)n JanLiar, 7. 1977. Respondent's regulai pradas. Kue-
chenlniCister waIs dliscll;I ged (iCeneral Mlanagei NMI' i con-
cCdedbls lnotified Conipl.irlanil that lu wis heinic terlminiat-
ed. With iespect thereto, Narl testified that, du ing the
wTcek s Irlith follos old Kuechlienitnllster', I)ecemiici 9. I970
delsel1i diffirltIC. lie [N iril ha i continued hi s personal
"obsherl-.nl,)s" iee.dldllt' tile IIe'it borler'> s.oi'k brreak
pirlcttices: thait Conlliplpailnt. dtingl tile veek im qutestion.
had C tintied to to ake 'excessie'' nonscheduled braiks:
thait he Nari had rachced a '['hursda', lDecember 16i dcci-
slon to ,lishcharie Klucehenmeister the followiln da;is thatll
u hen pai\ldi. I)ecember 17. camie. complainant gai;e Nmili
a ('hlistllas plresent: thit. beci'e of this. Respondent
pairtnership's g enerlrl imanager "didn't hase the heart" to
discha.rg e Kiilechenineiser that 'ers, da'\; and thlt lthe prospectl e campaign for reptesenta-
lise slatus. rccoienltion andl contract necotlatlons \ ithiln
(iener;ll ('ounsel's ('o.tnllltint. howex\er. Resrpondcent part-
nership has not hbeen chliarred specificall \' ith staluttoril
proscri bed ilntlferfrence. restraint, or coercion. hbottomend
upon promised profit-sharing programs or promised health
and \v elfare insurance coverae. IFurther, such concei abhle
promnises. thouh cleairlx "litigated'' sufficientlx herein.
hasve not been dlesigllnated unfair labor nractices. ex en ith-
in (General ('ounlsels post-hearing brief. In sioU.i no conw tl-
1iol 1h(s hca tn p",li'/'c. thul tor. for tin' c miot,'/otlm hot
/omd upio' n th/ rcco'rd made iur111 Rc'ponde)I'nl Pa(1111011 r iq(
ptipor/cd -promr.wcu" %ruhld h o, ctns.d'r'd tuimhr/di pro-
o rit d. I;ad G(eneral ('ounsel's representati\e. ho,\\exer.
pressed suech contentions herein. hi s belaledl, stated post-
tlon. withiln ix vi >,ie\,s. would merit reljection. lWhen Restpon-
dlenI's partners suggceested their readiness to pro\ ide part-
nership emploliees \\ith "'rofit-sharingt' ;and "hea;lth and
aelfare' hbenefits. Butchelr's nion l.ocal No. 127's repre-
sentitiltl had. for the tilte behing. w\ithdra\; n his prcsupllll -
tie\l "baire" request for Respondent's contr;actuaI conm-
mitillent no union-srponsored campaign for Inla.joritH
represent;tixe status had elt been initiated: Respondeint's
partlners had not set been 'i, en an, reason to heliexle that
their MIodesto fatucilt' s production crew currentl' desired.
or ecl-e currentlx seeeking. union represenltation. lhis being
so. no deterl-mlniatinll thait stalut orilx proscribed "prormises
of benefit" ,elre hbeing madeet. calculated to interfere 5\ ith.
restrain. or coeclCe Rcspltdenil's \, orkers '\ith respelt to
their cutrrenlt or pi'rospCltlXC exercise of st;atutoilt l itlian-
teed rights. could reasonabhl he considered uartranted.
W\ithin mi \tie, . A co ntraa\r conclusion might conceix\ a bl
be considered u'arranteld. should this Board conclude that
generalized promises of benefit. proffered in sacuo. before
a labor orcanization's statutoril', warranted representa-
tional interest has been m;ianifested and before the con-
cerned emplo er's ,'orikers ha.e demonstrated ans desire
for union representation. \iolate the statute. Ilo,.texer. no
such proposition. so falr aI I can tell, has heretofore beeni
considered cornpllpsseld , ithln Section 8(a)( I)'s 2eneralli/ed
"unfair labor practice" proscription.
2. Kiuechenmeister's terminration
Ilpon this record. G(eneroal ('ounsel's representatisv e con-
tends that Responden i's presentl! proffered rationale for
Kuechenmeister's termination should be considered pre-
textual. since his true behavior patterns wuith respect to
work break periods and his purportedlx lackadaisical work
habits had been "condloned. indeed respected." previousl)
hb Respondent's partners.
Since G(eneral ('ounLsel's testimonial and documentars
presentation. however. pro\ides no clear-cut "''direct evi-
dence" calculatecl to demonstrate Respondent's purpose to
-01
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violate the statute, the record considered in totality merely
reflects a bare, rather tenuous "circumstantial evidence"
case. Any conclusion that Respondent partnership's chal-
lenged conduct really derived from a statutorily proscribed
motivation, should such a determination be considered
warranted, would perforce derive from mere "inferences"
bottomed on the total situation. Essentially. this means
that General Counsel would have that total situation's su-
perficially innocent semblance disregarded or at least sub-
ordinated--while contending that various "indirect" mani-
festations of Respondent's statutorily proscribed motivation
should, rather, be considered sufficient to outweigh some
facial appearance of perfectly proper conduct.
In short, then, we have herein no direct proof that Re-
spondent's partners, together or separately, harbored statu-
torily proscribed "animus" directed against Kuechenmeis-
ter in particular. Indeed, Carlo Nari's course of conduct in
connection with complainant's dismissal would, taken at
face value, support Respondent's contention that he was
really discharged for cause. Nevertheless, questions re-
main: would the record herein, considered in totality, war-
rant some contrary determination? W'ith due regard for the
statute's mandate that conclusions with regard to purport-
ed unfair labor practices committed must be based upon
"the preponderance of the testimony taken" plus relevant
documentation, I remain unpersuaded for several reasons
that the present record would warrant conclusions consis-
tent with General Counsel's position.
First: I note that complainant's direct participation in
union-related conduct calculated to promote some possible
Local No. 127 campaign for representative status had,
prior to his discharge, been minimal.
Kuechenmeister testified that a Local No. 127 represen-
tative had, during "the last part of November, 1976," spe-
cifically, requested him to provide the names of his fellow
Modesto workers; that he had, further, been requested to
probe their willingness to sign union designation cards:
and that he had spoken, generally. with one fellow worker.
The record further warrants a determination, which I
make, that complainant had suspended his "activity" as
Local No. 127's presumptive protagonist sometime during
late December or early January, before his termination.
following the conversational suggestion of his fellow work-
er, George Kline, that Local No. 127's leadership was
preoccupied with contract negotiations elsewhere and pre-
sumably would mount no genuine representation cam-
paign with respect to Respondent's workers until some
time thereafter.
Further, I note that despite General Manager Nari's
conceded knowledge with respect to complainant's
Butcher's Union membership and his conceded "belief"
that Kuechenmeister might eventually become a vocal lIo-
cal No. 127 sympathizer, coupled with his presumptive dis-
covery through his son, Robin Nari, that complainant had
already discussed unionization with one fellow worker, he
[Nari] did not manifest a negative reaction thereafter; nei-
ther did he take countermeasures calculated to forestall
unionization directly following his probably "late Novem-
ber- early December" discovery.
Second: Reliable, substantial, and probative evidence
sufficient to sustain a determination that Respondent's
partners were significantly disturbed by Kuechenmeister's
presumptive union sympathies. or by his limited participa-
tion in Local No. 127's preliminary, somewhat lackadaisi-
cal, low-key representation campaign, cannot be found
within the present record. General Manager Nari's Octo-
ber 1976 conference with Respondent's meat boners-
though presumably prompted by his two prior contacts
with Local No. 127's representative-had clearly preceded
Kuechenmeister's minor participation in prounion solicita-
tion. And Bolcao's various mid-November comments, pre-
viously noted herein, had likewise, so far as the record
shows, preceded complainant's purportedly participative
role as Local No. 127's protagonist. Respondent's partners,
however, had displayed neither displeasure, resentment,
nor any purpose of reprisal, bottomed upon their presump-
tively post hoc discoveries with regard to Kuechenmeister's
statements or conduct. With matters in this posture, Gen-
eral C ounsel's contention that Respondent's partners had
subsequently demonstrated "animus" directed against
partnership workers who might possibly promote their
firm's future unionization smacks of hyperbole, within my
Eiew. Within his brief. General Counsel's representative
suggests that:
Respondent knew that Kuechenmeister would aid in
the unionization of its plant after January 1, 1977.
Moreover. during December, Kuechenmeister demon-
strated anew his commitment to union principles by
asserting his claim to benefits owed under a collective-
bargaining agreement. Bolcao personally resented this
claim, referring to it as Kuechenmeister's attempt to
"sue" him. To the same extent, he resented it because it
reminded him of what he considered to be exorbitant
payments to union health and welfare plans. More-
over, it reminded both Bolcao and Nari of the an-
nounced goal of employees to seek unionization of
Respondent's plant. Therefore, in early January, both
in response to Kuechenmeister's health and welfare
claim, and in the hopes of thwarting the employees'
stated goal of obtaining a union contract after January
1. 1977, Respondent fired Kuechenmeister [emphasis
supplied].
However, save in certain peripheral respects, these conten-
tions lack record support. Respondent's partners may con-
ceivably have had knowledge sufficient to warrant some
suspicion or belief that complainant might promote a pro-
spective Local No. 127 representation campaign, should
such a campaign be commenced thereafter; the record nev-
ertheless will not warrant a determination that they
"knew" a representation campaign would soon be initiated
or that Kuechenmeister would thereupon become Local
No. 127's principal protagonist. And Counsel's suggestion
that Bolcao personally "resented" Kuechenmeister's claim
for medical benefits, bottomed upon Atwater Meat's con-
tractually mandated participation in Local No. 126's
health and welfare plan, derives merely from a tenuous
"inference." While a witness, Bolcao did not describe
Kuechenmeister's claim as some "attempt" to "sue" him;
he testified merely that his partner, Carlo Nari, had so
characterized complainant's position.
902
SUPERIOR MEAT COMPANY
Contrariwise, Bolcao's proffered recollections-which
Kuechenmeister neither challenged nor sought to qualify-
reflect no manifestation of resentment on his part. So far as
the record shows, Atwater Meat's delinquent health and
welfare contributions for Kuechenmeister's particular ben-
efit were remitted shortly after the firm's delinquency was
discovered, whenever that was, without protest.
Third: Respondent partnership's basic defense with re-
spect to Kuechenmeister's discharge-that he was termi-
nated because of his poor job performance--has not been,
within my view, persuasively overborne. True, complainant
did testify, when queried with regard to his consistent prac-
tice of taking nonscheduled "work breaks" during which
he frequently smoked cigarettes, that he took no more than
"three" or "four" such breaks daily. His witness chair re-
cital, however, has not been convincingly corroborated.
General Counsel's sole corroborative witness, George
Kline, pleaded a lack of knowledge when queried with re-
spect to whether Kuechenmeister took more than three
nonscheduled work breaks daily. Then, when asked wheth-
er Kuechenmeister routinely took more such breaks than
he [Kline] took, complainant's fellow worker conceded that
he could not, "for sure," reply. Finally, Kline declared his
witness-chair "belief" that Robin Nari and Ray Lorenz,
fellow meat boners, had more than once openly declared
their view that Kuechenmeister was taking too many
breaks.
Respondent's witnesses, contrariwise, testified consis-
tently that Kuechenmeister did, throughout his 3-month
period of service, take more nonscheduled break periods
daily than his fellow workers. Conceivably, General Man-
ager Nari's testimony, particularly with reference to
Kuechenmeister's nonscheduled break practices-together
with Robin Nari's proffered recollections-should be dis-
counted; we are dealing, herein, with a discharged worker's
purported behavioral patterns, with respect to which no
definitive documentation can be provided and biased "aft-
erthought" may perhaps have colored memory. The record,
however, does reflect Ron Simpson's corroborative testi-
mony. And Roger Carlsen, plant manager for La Italia
Meat Products, Respondent's sublessor, did testify-con-
cededly, on the basis of daily "observations" which he
made within their shared premises-that complainant took
"maybe two or three" more breaks, daily, than his fellows.
Both Simpson and Carlsen, were presumably, disinterested
witnesses; their mutually corroborative testimonial presen-
tations, within my view, merit credence.
With matters in this posture, Respondent's basic conten-
tion that General Manager Nari had valid grounds for his
progressive disenchantment with Kuechenmeister's perfor-
mance cannot be, within my view, lightly dismissed. And
with respect to Nari's proclaimed further grounds for dis-
satisfaction with complainant's performance-namely, his
presumably thoughtless, irresponsible failure to complete a
truck delivery in timely fashion--little need be said. While
a witness, Kuechenmeister, when confronted with Nari's
critically descriptive testimonial narrative, proffered no de-
nial; substantially, complainant conceded his misfeasance.
Upon this record, Respondent partnership has, within my
view, persuasively demonstrated deficiencies in
Kuechenmeister's job performance, clearly sufficient to
provide General Manager Nari with "good cause" for his
[complainant's] termination.
Fourth. General Counsel's contention that
Kuechenmeister's break and work habits were nevertheless
"condoned, indeed respected," before his discharge-suffi-
ciently to warrant a determination that General Manager
Nari's presently claimed reliance upon those habits to justi-
fy the meat boner's challenged termination should be con-
sidered pretextual--carries no persuasion. In his brief,
General Counsel's representative has, within my view, suc-
cinctly summarized Respondent's case:
He [Nari] noticed in mid to late November that Kue-
chenmeister was taking excessive breaks, he warned
Kuechenmeister about this: he then closely observed
him for a week, confirming his early belief that Kue-
chenmeister was taking excessive breaks; and then
Kuechenmeister made the time-wasting delivery to
San Jose. But at this point, Nari, who does not believe
in counseling or reprimanding journeyman butchers,
nevertheless decided for reasons not stated at the in-
stant hearing that one more week's observation of
breaks was necessary. At the conclusion of this second
week of observation, Nari decided to terminate Kue-
chenmeister. However, the day after this decision,
only because Kuechenmeister gave him a small Christ-
mas present. Nari, contrary' to his beliefs about the
best interests of Respondent, decided to accept the gift
and postpone Kuechenmeister's discharge until Janu-
ary 7, 1977.
General Counsel's representative suggests that this "scen-
ario" should be considered "inherently incredible" with
due regard for the complete record. Within my view, how-
ever, Respondent's testimonial presentation, despite cer-
tain minor "inconsistencies" and conceivable "improbabil-
ities" notable therein with respect to matters of peripheral
significance, cannot be thus cavalierly dismissed.
True, Nari's failure to terminate Kuechenmeister forth-
with-directly following his San Jose delivery contretemps
or within a week thereafter-might arguably suggest con-
donation. Nevertheless, the general manager's testimony
that he deferred a discharge decision while he continued
"observations" calculated to determine whether
Kuechenmeister's on-the-job behavior might improve car-
ries no fatal flaw. And having observed Nari's mild, fre-
quently self-deprecatory witness chair demeanor, I consid-
er his testimonial recital, particularly in this connection,
more worthy of credence than of rejection.
Likewise, I consider Nari's confession that he subse-
quently postponed Kuechenmeister's planned December
17 termination because he would have felt "embarrassed"
had he discharged someone who had just given him a
Christmas present humanly comprehensible; the general
manager's declaration, which unabashedly reveals him as
something less than a so-called "hardheaded" busi-
nessman, carries the ring of truth, rather than contrivance.
(Complainant, when summoned as General Counsel's wit-
ness in rebuttal. was not questioned regarding any Decem-
ber 17 Christmas gift; Nari's testimony that he received
such a gift stands without contradiction.)
Upon this record, Respondent's further deferral of
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuechenmeister's termination pending the partnership's
first payday following the year-end holidays likewise re-
flects no condonation, within my view, with respect to his
performance deficiencies.
General Counsel's representative, within his brief, does
cite further record testimony, which he would have this
Board consider supportive of his contention that Respon-
dent partnership's management did not really consider
Kuechenmeister's work-related "problems" sufficiently
serious to warrant discharge. Specifically, General Coun-
sel's representative notes record testimony that complain-
ant was permitted to purchase a side of beef on credit,
subject to a consensual "agreement" whereby Respondent
would be recompensed through weekly $25 deductions
from his (Kuechenmeister's) payroll checks. While a wit-
ness, Respondent's general manager declared that
Complainant's purchase and repayment arrangement had
been negotiated before his (Nari's) concern regarding the
meat boner's performance problems developed, since
otherwise he (Nari) would never have confirmed such a
sizeable transaction on credit terms. Consistently. Nari tes-
tified that his arrangement with Kuechenmeister had been
made sometime during the middle of October or first of
November. General Counsel, however, produced two sepa-
rate Kuechenmeister payroll check stubs, which taken at
face value would warrant a determination that
complainant's beef purchase had been negotiated some-
time after Respondent's Friday, November 19, 1976. pay-
day. Inferentially, General Counsel suggests, therefore,
that since Respondent's general manager, concededly.
would not have concluded a substantial credit transaction
with a possible "problem" worker, he [Nari] must have
considered Kuechenmeister's job performance sufficiently
satisfactory as late as November's Thanksgiving holiday
week, during which their purchase and sale arrangement
had presumably been made. Ergo, so General Counsel sug-
gests, Respondent's present contention that General Man-
ager Nari, during the period in question, considered
complainant's work record questionable, should be consid-
ered a post hoc contrivance or constructed defense.
Reliable, substantial, or probative evidence supportive of
General Counsel's suggestion, however, cannot be found
within the present record. None of General Counsel's or
Respondent's witnesses herein could provide precise dates
with respect to relevant developments during this period.
Thus, should this Board consider a determination warrant-
ed, consistent with General Counsel's suggestion, that Nari
permitted Kuechenmeister's beef purchase sometime dur-
ing November's Thanksgiving holiday week, no conclusion
could be drawn definitively that their transaction was real-
ly consummated following the general manager's purported
"warning" that Kuechenmeister should "watch" his non-
scheduled break behavior patterns. Certainly.
complainant's purchase did not follow Nari's claimed 2-
week "observation" period, during which he was checking
Kuechenmeister's break practices closely, nor did it follo"w
complainant's December 9 San Jose delivery difficulties.
Thus, General Counsel's representative cannot, within my
view, contend persuasively that Nari's late-November will-
ingness to sell complainant a side of beef, subject to defer-
red payments, reflects his willingness to condone
complainant's previously demonstrated questionable be-
havior or presumably irresponsible conduct.
In summary. General Counsel's representative, within
my view, has failed to demonstrate persuasively herein that
Butchers Union Local No. 127 was really campaigning
"actively " for representative status, recognition, and con-
tract negotiations prior to Kuechenmeister's termination.
Further. nothing within the present record would warrant a
determination that complainant himself really was cam-
paigning "actively" for Respondent's unionization just be-
fore General Manager Nari reached a decision with regard
to his discharge. So far as the record shows. Kuechenmeis-
ter had. before then, discussed a possible benefit which
Respondent's unionization might produce-job security-
with a single fellow worker.
And General Counsel's presentation---calculated to
demonstrate Respondent partnership's presumed "knowl-
edge" or "belief" that Kuechenmeister was. or would most
likely become, Local No. 127's protagonist within the
firm's Modesto facility has, within my view, fallen short.
likewise, General Counsel's representative, despite testi-
monial presentations calculated to show that Bolcao and
Carlo Nari may have considered the possihiliOt of their Mo-
desto facility's pro.pective unionization distasteful, has not,
within my view, preponderantly proven that they feared or
resented complainant's conceivable future role, connected
with a Local No. 127 representation campaign: thus, Gen-
eral Counsel has not persuasively demonstrated Respon-
dent partnership's legal "animus" with regard to
Kuechenmeister's continued tenure.
Contrariwise, Respondent partnership's witnesses
have -persuasively, within my view--shown that General
Manager Nari had sufficient reason, within his managerial
discretion, to consider complainant a less-than-satisfactory
employee: that his December 16 decision with respect to
Kuechenmeister's termination did derive proximately
therefrom: and that his subsequent December 17 deferral
decision, with respect to complainant's dismissal. when
evaluated with due regard for the situation which prompt-
ed it, reflected no condonation of Kuechenmeister's ques-
tionable work record.
Had General Counsel's representative proven some
overt demonstration of Kuechenmeister's union sympa-
thies, known to Respondent's partners, shortly before his
discharge or directly related thereto, determinations might
arguably be considered warranted that his (complainant's
participation in statutorily protected conduct had really
motivated General Manager Nari's decision and that the
latter's proffered January 7 rationale for Kuechenmeister's
challenged termination w as pretextual. No such proof,
from which Respondent's statutorily proscribed motivation
might be readily deduced, has however been provided.
Compare Klate Holt Comnpanv, 161 NLRB 1606, 1612
(1966). Therein, this Board noted that:
[E]ven if we were prepared to find that Respondent
was seeking an opportunity to terminate Davis be-
cause of its annoyance with the way in which he en-
gaged in protected activity, we would not, in this case,
find that Respondent discriminatorily discharged him.
The mere fact that an employer may desire to termi-
904
SU PERIOR MLEA COMPANY
nate an employee because he engages in unwelcome
concerted acti\.ties does not, of itself, establish the
unlawfulness of a subsequent discharge. If an employ -
ee provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore. unlau-
ful.
In short, General Counsel's presentation herein provides at
most some ground for suspicion, within m' view. that
Kuechenmeister's known Butchers Union membership.
coupled with his tentatively demonstrated union synmpia-
thies while in Respondent partnership's hire, may have mo-
tivated General Manager Nari's discharge decision. Suspi-
cion, however, will not suffice. Unlawful purposes ma' not
lightly be inferred. N.L.R B. v. T.A. AMftGaher, Sr.., tr al..
d b/a Columbus Marble 'orks,. 233 F.2d 406, 413 ((. A. 5.
1956). Before any determination can be made with respect
to whether some lawful or statutorily proscribed motive
prompted challenged conduct, the record, considered in to-
talit,. must present some "substantial basis of believable
evidence" pointing toward the concerned employer's de-
monstrably forbidden purpose. Herein, General Counsel
has not. within ms view. sustained his designated burden.'
l pon the foregoing findings of fact, conclusions of law,
and the entire record. and pursuant to Section 10(c) of the
Act. I hereb', issue the following recommended:
ORDER 2
The complaint is dismissed in its entirety.
In reaching tIhn, tncluion. I haze not cllnsidered Respondent's supple-
niitnll brief ( onsislelltl u siih (etneral ('ounsel' motion. II has been disre-
g. rdcd
In the escnt noa exception, are filed as prolided hb Sec 1024t of the
Rule .and ReCul.ItIIis of Ihe Naitinal .abhor Relatlions Board. the findings.
cn-lthilsl.. anld reclrlommenided Order herein shall as proided in Sec
1110 48 of the Rule, aind Regiulaton,. he adopted hb the Board and become
I', findinIgs. incThs sion, . anid Order. and all objections thereto shall be
deemed s ai.ed for .all purposes
905