Thay Dairy Co., Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1977

233 N.L.R.B. 1383 (N.L.R.B. 1977)

THAYER DAIRY COMPANY
Thayer Dairy Company, Inc. and United Dairy and
Bakery Workers Union, Local No. 87, AFL-CIO.
Cases 7-CA-13593 and 7-RC-13951
December 21, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 29, 1977, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Thayer Dairy
Company, Inc., Clare, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the
attached notice is substituted for that of the Admin-
istrative Law Judge.
IT IS FURTHER ORDERED that the election held on
December 13, 1976, in Case 7-RC-13951 3 be, and it
hereby is, set aside, and that Case 7-RC-13951 be,
and it hereby is, remanded to the Regional Director
for purposes of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The Administrative Law Judge inadvertently miscited Ohmite Mfg. Co.
The correct citation for this decision is 217 NLRB 435 (1975).
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (196%2).
3 The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election. The tally was 12 for, and 16 against, the Petitioner;
there was I challenged ballot, an insufficient number to affect the results.
233 NLRB No. 205
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and we have been
ordered to post this notice. We intend to abide by the
following.
The Act gives all employees the following rights:
To engage in self-organization
To form, join, or assist unions
To bargain collectively through represen-
tatives of their own choosing
To engage in activities together for the
purposes of collective bargaining or other
mutual aid or protection
To refrain from any and all such activi-
ties.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of your aforementioned rights.
WE WILL NOT coercively interrogate any of our
employees concerning their or any other employ-
ee's participation in, assistance to, or support of
any union.
WE WILL NOT discharge or otherwise discrimi-
nate against any of our employees with respect to
their job or working conditions because of union
membership or activity.
WE WILL offer Robert Spicer reinstatement to
his former job or, if that job no longer exists, to a
substantially equivalent one, without prejudice to
his seniority or other rights and privileges, and
make him whole for all loss of pay he suffered,
plus interest.
All our employees are free to become or remain
members of United Dairy and Bakery Workers
Union, Local No. 87, AFL-CIO, or any other union.
THAYER DAIRY
COMPANY, INC.
DECISION AND REPORT ON OBJECTIONS
PLATONIA P. KIRKWOOD, Administrative Law Judge:
These consolidated proceedings were heard before me at
Harrison, Michigan, on April 25, 1977, with all parties duly
represented.
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case 7-CA-13593 involves a complaint' which alleges in
substance that Respondent violated Section 8(a)(3) and (I)
of the National Labor Relations Act, as amended, in the
course of an organizational campaign conducted among its
employees by United Dairy and Bakery Workers Union,
Local No. 87, AFL-CIO (herein the Union or Local 87).
More specifically, the complaint asserts that Respondent:
(I) urged employees to engage in surveillance of, and
report to it, any union activity by fellow workers; (2) told
employees that they would place their jobs in jeopardy if
they supported a union; and (3) discharged Robert Spicer
because of his support of the Union. Respondent denies
the commission of any unlawful conduct and defends the
8(a)(3) allegation based on its discharge of Spicer on the
ground that the latter was a supervisor within the meaning
of the Act.
Case 7-RC-13951 presents for resolution an issue raised
by the Union's objections to an election held on December
13, 1976.2
At the hearing all parties were afforded full opportunity
to examine and cross-examine witnesses, to introduce
evidence, to argue orally on the record, and to submit
briefs. Oral argument was waived. Briefs submitted by the
General Counsel and Respondent, respectively, have been
duly considered. Upon consideration of the evidence,
including my observation of the demeanor of the witnesses
while testifying, and the entire record in the case, I make
the following:
FINDINGS OF FACT AND CONCLUSIONS
3
A. The Alleged Unfair Labor Practices
1. Background information
In early to mid-October, 4 the Union began a campaign
to organize Respondent's employees. The evidence shows
that during the first week in October, Spicer had a
telephone conversation with Union Agent Ball, and pursu-
ant thereto a meeting was held at a local hotel about 2 days
later. Present at the meeting were Spicer and Union Agents
Ball and Katzner. After some discussion, Spicer was given
authorization cards which he took to the homes of the
employees. He obtained signatures on 16 cards, all of
which he then delivered to the union office. Such delivery
took place about 10 days following the meeting at the
hotel.
I Issued January 24, 1977, on a charge filed December 16, 1976.
2 The relevant docket entries in the representation case are: Union's
petition filed - November 3, 1976; Stipulation for Certification Upon
Consent Election approved by Regional Director - November 29, 1976;
Election conducted (12 votes for the Union, 16 against, and I challenged
ballot) - December 13, 1976; Objections to Election filed and timely served
- December 16, 1976; Regional Director's Report and Recommendations
on Objections - January 20, 1977; Order directing hearing on objections
and consolidating the same with the hearing in the complaint case -
February 1, 1977.
3 No issue of commerce or labor organization is presented. The
complaint alleges and the answer admits facts which establish those
elements, and I find those facts to be as pleaded.
4 This and all dates hereafter mentioned are 1976.
5 Spicer testified that Grover introduced himself as attorney for the
Company, and Lamenda Ackerman, another witness for the General
Counsel, testified that at another meeting hereafter discussed, at which
2. The alleged unlawful, oral conduct at meetings
held on October 22 by management
On October 22, Spicer was twice called in to the office of
Respondent's president, Donald Thayer, to meet with
Thayer and with Merle Grover, Respondent's labor rela-
tions consultant. 5 At the first meeting, Grover asked Spicer
whether the latter was involved in any union activity,
adding that if he was, the Company was "in a lot of
trouble." Grover then said that the Company regarded
Spicer to be a supervisor; and he suggested that Spicer
ascertain whether there was any card-signing activity
among the employees and report to the Company. Spicer
declined to do what was suggested. He also stated that if he
thought the only way one could get a point across to
Thayer was to join the Union, he would say, "go ahead."
Spicer was then excused. The company officials then
discussed the situation among themselves for a few min-
utes, and called Spicer back. At the second meeting they
informed Spicer that he was suspended for 3 days, with
pay, and that, if, in the interim, he wanted to discuss his
union activity, he could get in touch with Grover.6
At a later time on the same day that Spicer was
suspended, management summoned a number of other
employees (about eight or nine in number) to Thayer's
office to meet with Thayer and Grover.7
Employees Lamenda Ackerman, Charles Gilbert, Luella
Cruse, and Michael Inman, each of whom was present at
this meeting, testified about what management agents said
at the time. Ackerman testified as General Counsel's
witness, the other three employees as Respondent's wit-
nesses. 8 All of them agree that Thayer and/or Grover
explained to them the reasons for suspending Spicer-i.e.,
that he occupied a supervisory position and could not,
therefore, lawfully engage in union activities, and that he
was questioned about his involvement, but had refused to
answer. Ackerman's report, however, in contradiction to
that of the other three employees, attributes to Thayer a
request that if any of the group "knew anything about
union activities," he or she should report about the same to
Thayer.
I resolve the conflicts between Ackerman's report and
that of Respondent's witnesses in favor of the latter.
Ackerman, I observe, was not a convincing witness and
both by her demeanor and the context of her testimony
evidenced considerable confusion concerning this and
other events about which she reported. I am unwilling,
Ackerman was present, Grover introduced himself as a representative of the
State Labor Board. Grover denied that he so introduced himself at either of
the meetings here referred to. I find it unnecessary to resolve the conflict.
The important fact is, as Respondent's answer admits, that at all times
material Grover was its agent.
6 The occurrences at the two meetings between management agents and
Spicer are depicted in the testimony of Spicer, Thayer, and Grover. In the
few instances where there is a conflict, I credit and rely on the testimony of
Spicer, who impressed me as an honest and reliable witness. His testimonial
report, I note, was affirmed in part by the admissions of Thayer that, after
expressing the view that Spicer was a supervisor, management agents asked
Spicer "Whether he would report union activity to management."
I Thayer testified that the purpose of this meeting was to explain to the
employees why Spicer had been suspended.
8 Thayer and Grover also testified about the meeting as witnesses for
Respondent.
1384
THAYER DAIRY COMPANY
therefore, to credit or to rely upon her testimony for
purposes of making any material findings of fact. With
respect to what happened at the meeting, I find that, as
reported by Gilbert, Inman, and Cruse, whose testimony I
credit, Thayer and Grover did not, at that meeting, go
beyond expressing their concern for supervisory participa-
tion in union activities and explaining why Spicer had been
suspended. 9
3. The termination of Spicer's employment
Spicer returned to the plant to resume his duties on
Monday morning, October 27. (According to Respondent,
his 3-day suspension period ended, however, on the next
day.) Truman Glenn, an admitted supervisor who, inter
alia; is in charge of hiring employees, came up to Spicer
and, according to Spicer's uncontradicted testimony, which
I credit, told him that management would not allow him to
come back to work until he talked to "their lawyer." Glenn
repeated this statement twice, and then asked Spicer if
there was anything he wanted to talk about to the lawyer.
Spicer replied, "No," and punched out and went home. He
has not worked for Respondent since that date.
In his testimony on the matter, Thayer admitted, in
effect, that he had decided not to permit Spicer to return to
his job unless Spicer was willing to do what he had been
asked to do and had refused to do when management
suspended him-i.e., refrain from engaging in union
activities and report about any union activity he may
observe. I find, accordingly, that Respondent constructive-
ly discharged Spicer on October 27.10
4. Preliminary conclusions with respect to
Respondent's conduct
It is clear from the above facts that, unless Spicer was in
fact a supervisor within the meaning of the Act as
Respondent claims, Respondent engaged in conduct pro-
scribed by Section 8(a)(1) of the Act, as alleged, by
interrogating Spicer about his union activities under clearly
coercive circumstances, by requesting him to report on the
conduct of any union or organizational activity among the
employees, and by directing him to refrain from engaging
in any prounion activity. It is also clear that its discharge of
Spicer because of his refusal to abide by management's
requests in the respects noted was conduct proscribed by
Section 8(a)(3) of the Act, absent proof of Respondent's
supervisory claim.
For the reasons expressed below, I hold against Respon-
dent on the issue of Spicer's supervisory status.
9 I further find, in accord with the credible testimony of Respondent's
witnesses, that Thayer had other meetings with employees in late October or
early November at which, although he expressed antiunion views, he made
no threatening statements or remarks which exceeded the bounds of
privileged speech as defined in Sec. 8(c) of the Act.
10 Although Respondent. in its answer, denied that it discharged Spicer.
it has apparently abandoned that contention. I note, inter alia. that the
portion of its brief dealing with Spicer's status is headed "Release of Robert
5. The supervisory status of Spicer
a. Description of Respondent's operations and its
hierarchy in general
Respondent is engaged in the manufacture and sale of
ice cream and novelty ice cream products. The top
hierarchy of the Company is composed of Donald Thayer,
who makes all management and economic decisions
involving the Company; Robert Cloud, who is in charge of
production and distribution; and Truman Glenn, who
purchases all ingredients and materials needed in the
Company's operations and hires all new personnel. Except
for a small office force, and a few maintenance men and
truckdrivers, all but two"l of the remaining employees are
connected with actual production. Being a seasonal busi-
ness, Respondent's complement goes from about 50 work-
ers in the winter to a peak of about 100 in the summer. Of
these workers, about six are assigned to the ice cream room
in winter, and about 10 in summer. Spicer regularly works
in the ice cream room year round.
The ice cream production process basically involves
placing a mix or the proper ingredients, flavored as desired,
into large vats or containers which are attached to
machines. By operating the machines, the proper amount
of flavored mix is discharged into a cup or container of the
proper size, a lid is placed on the package by the machine.
The package is then moved by the conveyor to a packaging
area, where the individual packages are placed in larger
containers designed to hold a given number of individual
packages, and thence to a freezer room where they remain
until ready for distribution to the wholesale trade. Up to
the point of packaging, the area is known as the "ice cream
room." That room's production schedule is posted by noon
of each day by Production Manager Cloud and in his
absence by Plant Manager Glenn. The schedule sets out
the type and quantity of products to be produced the
following day, the "work list" naming the employees who
are to operate the production line machines in the ice
cream room the following day, and specifying which
employees will be on which production line.12 The normal
hours of work in the ice cream room are from 7:30 a.m. to
4 p.m. Employees are not required to work beyond 4 p.m.
But, if the scheduled production for the day is not
completed, Respondent has a policy of soliciting overtime
volunteers to work until the day's scheduled production is
accomplished.
b. The evidence bearing on Spicer's status
Respondent's attribution of supervisory status to Spicer
rests, in part, on the undisputed fact that when Respondent
last hired him its officials told him that he would be "in
charge" of the ice cream room. It also rests, in part, on such
factors as his rate of pay in comparison to other employees
Spicer," and, after stating its position that Spicer was a "supervisor."
concludes with this statement: "Therefore, his discharge would not be
protected under the terms of the Act itself." (Emphasis supplied.)
at Heitman and Southwill. The former has an advertising assignment and
the latter a wholesale route assignment.
12 There are a number of "stations" on each production line and those
assigned to the "line" constantly rotate their station positions.
1385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(both supervisory and rank-and-file) and the nature of his
responsibilities in giving directions to other employees.
And, finally, Respondent relies on certain incidents alleg-
edly establishing that Spicer granted employees time off,
disciplined them for derelictions of duty, and made
effective recommendations affecting employee tenure.
With respect to the pay factors, the evidence shows, inter
alia, that Spicer, in common with all other employees
excepting only Cloud, Glenn, Heitman, and Southwill,
punches a timeclock and is hourly paid. Spicer's rate of pay
at the time of his termination was $4.30 an hour. Some of
six other employees whom Respondent labels as "supervi-
sors"-all hourly paid-get similar rates. Thus, one is paid
$4.34; one is paid $4.32; one is paid $4.30; two are paid
$4.05; and one is paid $3.75 per hour. However, some other
of the employees who were concededly in the rank-and-file
category at the time of the election,' 3 received comparable
pay. According to Respondent's records, five such rank-
and-file employees get between $3.53 to $4.00 an hour.' 4
With respect to Spicer's assigned work functions and
responsibilities, the undisputed record evidence shows that
Spicer began his workday by directing the employees
named on the production schedule's worklist to go to the
machine production line to which the list assigned them,' 5
and he told the employees on which station on the line they
would begin. He himself would work on a production line
if not occupied with other duties he was expected to
perform-i.e., to see to it that proper quantity and mix of
flavors was put in the vats attached to the machines; to
adjust the machines in the event they did not function
properly; 16 and to inspect the product coming out of the
machine to see if it met the quality standard. If completion
of the production schedule required some employees to
work overtime, he polled the employees to ascertain which
of them were willing to do so, and he reported the results of
the poll to Production Manager Cloud. If he found during
the day that one or two machines would be down for a
substantial period of time, Spicer would see that employees
did not idly stand around by assigning them to other duties
in the ice cream room such as cleaning or scrubbing. 7
With respect to Spicer's alleged authority to grant time off
to employees, there is undisputed evidence indicating that,
as a normal practice, employees addressed requests for
time off to Production Manager Cloud; and that, if any
came to Spicer with such request, Spicer referred them to
Cloud. The latter normally acted on the request without
consulting Spicer; and if he (Cloud) granted the request in
circumstances where a replacement employee was needed
to complete the day's production, Cloud designated the
13 According to the excelsior list which Respondent submitted on
November 22 in the representation proceeding.
14 The remaining 16 get rates ranging as low as $2.40 to as high as $3.40
an hour.
is Spicer, who had a key to the basement where flavors are kept, to the
garage where the timeclock is located, and to the area in which he worked,
apparently opened up the ice cream room and made preliminary checks of
the machines, materials, etc. I note that a number of other employees
(including some who are admittedly rank-and-file employees) also had keys
to the basement, the garage, and the area in which they worked.
is If he was unable to make repairs, he referred the problem to the
maintenance staff.
1? Cloud had directed him to make such assignments to use up "idle
time."
18 I base these findings on Spicer's testimony which I credit. Spicer's
replacement employee. The only deviation from this
practice which the credible evidence depicts is that Spicer,
on one occasion, granted Carol Saxton permission to leave
early. He explained, in his testimony which I credit, that
Cloud was absent from the plant at the time; that the day's
schedule production was virtually completed; and that he
knew that Saxton had earlier asked Cloud for permission to
leave early and that Cloud had given a reasonable
response.' 8
With respect to Spicer's alleged administration of discipline
to employees, the evidence depicts the following single
incident involving employee Robin Shepherd. According
to Spicer's testimony, which I credit, Shepherd had been
told to wash out a vat, and Spicer learned that she had
refused to do so. Upon being informed of Shepherd's
refusal, Spicer told Shepherd that she would have to choose
between performing the assigned task and continuing at
work, or go home. Shepherd elected to leave. This hap-
pened when Cloud was absent from the plant. The next
morning, Friday, as Cloud admits, Spicer reported the
foregoing facts to Cloud, and Cloud told Spicer he would
speak to Shepherd on Monday, if she returned to work.
Shepherd did return the following Monday, and, as Cloud
further admits, he listened to her version of the facts, and
then, without further consultation with Spicer, concluded
that she was entitled to another chance. He explained to
her, however, that she would have to follow orders,
including those given her by Spicer, and that she would be
dismissed if she failed to follow orders.
With respect to Spicer's authority to make alleged recom-
mendations affecting job tenure or pay, Spicer's credible
testimony establishes that management did not call upon
him to make recommendations covering pay rates or
increases. Nor was he consulted about which or how many
employees should be included in layoffs when such
occurred, except for one occasion in the fall of 1975, when
there was a general layoff in the plant. As to that, Spicer
testified that Cloud came to him, named four employees
being considered for layoff, and asked Spicer which two of
those he regarded to be the better employees. Spicer then
expressed his opinion.'9
c. Discussion and conclusions on the issue of
Spicer's supervisory status
Whether an individual has been vested by his employer
with the requisite authority to make him a "supervisor" 20
must, of course, be determined by the facts of each case.
Certain principles, however, have been judicially establish-
report of the Saxton incident was, I note, affirmed by Cloud. Cloud,
however, testified that he was certain there were other occasions that Spicer
granted employees permission to leave early, but he was unable to describe
when or what these occasions were. Spicer expressly denied that, except for
the occasion mentioned, he had ever granted any time off requests. As
noted, I credit Spicer.
i9 Cloud's version of this incident is as follows: He told Spicer there
would be a general layoff and that the ice cream room would be cut by two
immediately, and perhaps by more at a later date, and he wanted Spicer to
"get in on who we should lay off." Spicer then mentioned the name of one
employee; Cloud agreed with that selection. Spicer then mentioned a second
employee, but Cloud here disagreed. The two men discussed the matter
further and finally agreed on another ice cream room employee for the
layoff.
o0 Sec. 2(11) of the Act provides:
1386
THAYER DAIRY COMPANY
ed. A rank-and-file employee is not transformed into a
supervisor merely by investing him with a "title and
theoretical power to perform one or more of the enumer-
ated supervisory functions." N.L.R.B. v. Southern Bleach-
ery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958),
cert. denied 359 U.S. 911 (1959). And although the powers
enumerated in Section 2(11) of the Act are to be read in the
disjunctive, that section contains "the requirement of
independence of judgment in the conjuctive (i.e., in
connection) with what goes before." Poultry Enterprises, Inc.
v. N.L.R.B., 216 F.2d 798, 802 (C.A. 5, 1954). Thus a
"supervisor" must display true independent judgment in
performing one or more of the functions enumerated in
Section 2(11), for the performance of such functions
sporadically, or merely in a "routine," "clerical," or
"perfunctory" manner does not elevate a rank-and-file
employee to the status of a supervisor. N.L.R.B. v. Southern
Bleachery & Print Works, supra; Poultry Enterprises, Inc. v.
N. L R. B., supra; N. L. R. B. v. Lindsay Newspapers, Inc., 315
F.2d 709, 712 (C.A. 5, 1963). Nor will the existence of
independent judgment alone suffice; for always "the
decisive question is whether [the particular individuals]
have been found to possess authority to use their indepen-
dent judgment with respect to the exercise by them of some
one or more of the specific authorities listed in Section
2(11) of the Act." N.L.R.B. v. Brown & Sharpe Mfg. Co.,
169 F.2d 331, 334 (C.A. 1, 1948). And finally, the burden of
proving that one is a "supervisor" rests on the party
alleging such status to exist. Local No. 636 of the United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL-CIO, et al. (The Detroit Edison Company), 123 NLRB
225, 230 (1959); Riss & Company 127 NLRB 1327, 1330
(1960); Benson Wholesale Company, Inc., 164 NLRB 536,
548 (1967).
Reviewing the above evidence in light of these principles
I must and do find and conclude that Respondent has not
proved, as it claims, that Spicer was a "supervisor" within
the meaning of Section 2(11) of the Act.
It is true that Spicer directed and instructed other
employees in the performance of their work tasks in
performing his overseer and inspection duties in the ice
cream room; that, at the start of the day he told them on
which station of the production line they were to begin;
and that, when a line was temporarily "down" because of
breakdown problems, he told the idled employees to keep
busy with cleanup tasks. But I find no solid evidence that
the performance of these overseer tasks involved any real
exercise of independent judgment. The production sched-
ule which Cloud made up and posted on a daily basis
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
21 Spicer's duties are comparable to those of alleged supervisors in St.
Louis Bagel Bakers, Inc., 224 NLRB 307, 310, 312 (1976); Mid-Stale Fruit,
Inc, 186 NLRB 51 (1970).
12 Cf., e.g.. Soutrh Florida Liquor Distriburors. 113 NLRB 109, 110-111
(1955), where the Board found that the fact that a shipping clerk
established both the quantity of various flavors of ice
cream which management wanted for the designated day,
the number and the identity of the employees who were to
do the work involved, and the lines that they would man.
So far as appears from the record, each of the several
production machine lines in the ice cream room was
substantially the same, and each of the production line
employees performed substantially repetitious and routine
jobs requiring no special qualifying skills. I do not regard
any of Spicer's responsibilities in this respect as being any
different in character than those performed by leadmen or
strawbosses the Board holds to be nonsupervisory employ-
ees2 1--especially since his work-task assignments made no
difference in the pay or status of any of the employees.
The sole concrete evidence of any actions taken by
Spicer which could be said to be of the kind a "supervisor"
might take involved three isolated incidents-one where he
granted the request of an employee (Saxton) to leave early;
one where he reprimanded an employee (Shepherd) for
refusing to do an assigned task and told her she had to
choose between doing her work or going home; and one
where, having been given by Cloud the names of four ice
cream room employees Cloud had put on a tentative layoff
list, he expressed, in answer to Cloud's request, which two
of the four he (Spicer) considered the better workers.
Analysis of the entire circumstances surrounding each
action shows that while Spicer presumably exercised
"independent judgment" on each occasion, the fact was
that he was following a prior decision made by Cloud in
granting Saxton's time-off request; that his reprimand of
Shepherd when Cloud was temporarily absent from the
plant and his implicit recommendation of discipline were
independently reviewed by Cloud; and that, in asking
Spicer in effect which two of the four employees he would
select for layoff, Cloud made it clear that while he wanted
Spicer to be "in" on the layoff selections, Cloud was
determined to follow judgments he had already made
about the layoffs if Spicer disagreed with him. But even
assuming, arguendob, that on one or more of the three
occasions just reviewed, Spicer's actions reflected the
exercise of his independent judgment, the occasions were
plainly isolated in nature. And I would not, therefore,
regard them as sufficient warrant for attributing superviso-
ry status to Spicer.22
In short, upon consideration of the entire record, I find
that Spicer was not a supervisor within the meaning of
Section 2(11) of the Act, but simply, by reason of tenure
and experience, a strawboss or leadman that Congress did
not intend to include in the term "supervisor." 23
occasionally authorized employees to leave early did not establish the clerk's
supervisory status.
I have also taken into account the fact that Spicer received about 75 cents
more per hour than the next highest paid employee in the ice cream room.
But as his pay was comparable to that of other highly skilled employees and
seven rank-and-file employees, I do not regard the differential between his
pay and that of the other ice cream room employees to be of aid to
Respondent's claims.
23 See S. Rept. 105, 80th Cong., Ist Seas., p. 4 1947, where it is stated:
The Committee has not been unmindful of the fact that certain
employees with minor supervisory duties have problems which may
justify their inclusion in that act. It has therefore distinguished between
(Continued)
1387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Conclusions with respect to the alleged unfair
labor practices
Having concluded that Spicer was not a supervisor, it
follows that Respondent's admitted interrogation of Spicer
about his activity on behalf of the Union, its further
request that he ascertain and report on card-signing
activity at the plant, and its subsequent suspension and
discharge of Spicer because he refused to divulge his union
activity, to promise to refrain from such activity, and to
report on other employees' card-signing activity plainly
violated Section 8(aXI) and (3) of the Act. I so find and
conclude.
B. Alleged Objectionable Preelection Conduct in
Case 7-RC-13951
The Board's Order on February 11, 1977, referred for
hearing along with the unfair labor practice case "the issue
raised by Petitioner's objections with respect to the matter
of the November 5, 1976 letter." The letter referred to was
sent by Respondent to all employees. It opened by telling
the employees that the Union had commenced a campaign
to organize Respondent's employees; that questions were
being asked about it; and that Respondent wanted to
clearly state its position on the matter. The objections
assert that the following statement in that letter, read in the
context of Respondent's prior actions, carried an implicit
threat of retaliation against the employees:
I. This matter is, of course, one of concern to our
company. It is also, however, a matter of serious
concern to you and your family. Our sincere belief is
that if this Union were to get in here, it would not work
to your benefit, but could work to your serious harm.
This type of "serious harm," preelection statement is not
novel to the Board.2 4 The most recent Board case in which
its import was considered 25 finds that the words are not
"inherently threatening" and that they there fell within the
protected bounds of Section 8(c), even though, subsequent
to the issuance of the statement, the respondent company
in that case fired an employee discriminatorily. 26 The
Board, however, indicated that it would evaluate each such
statement in the context of the facts in each case and would
not hesitate to find them to be coercive threats if the record
shows "a direct relationship between the notice and the
total context in which it has appeared, including unfair
labor practices, which serves to give a 'sinister meaning' to
what otherwise might be viewed as innocuous or ambigu-
ous words." See 227 NLRB 435 at fn. 2.
The facts in the instant case appear to me to warrant
imputing a "sinister meaning" to the "serious harm"
statement. I base this judgment on the fact that Respon-
dent had unlawfully discharged Spicer shortly before it
issued the "serious harm" notice, and had, indeed, also
advised its employees that it had fired him for union-
straw bosses, leadmen, set-up men, and other minor supervisory
employees, on the one hand, and the supervisors vested with such
genuine management prerogeratives as the right to hire or fire,
discipline, or make effective recommendations with respect to such
action.
24 See the cases cited by Member Jenkins in his dissent in Ohmire
related reasons. In that context, employees reading the
statement would, in my view, interpret the "serious harm"
language as an implicit warning that their job status
depended on their abstention from union support. I would
and do, accordingly, conclude that Respondent's distribu-
tion of the preelection letter of November 5 interfered with
the employees' expression of their free choice in the
election and hence constituted objectionable preelection
conduct.2 7 I will therefore recommend that the election
conducted on December 13 be set aside, and that a new
election be conducted by the Regional Director for Region
7 at such time as he may deem it appropriate to do so.
Upon the foregoing findings of fact and the entire record
in the case, I state the following:
CONCLUSIONS OF LAW
1. 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.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Robert Spicer was, at all times material herein, an
employee of Respondent within the meaning of Section
2(3) of the Act, and not a supervisor within the meaning of
Section 2(11) of the Act.
4. By interrogating Robert Spicer as to his activity on
behalf of a labor organization and by asking him to report
on any card-signing activity he might observe, Respondent
engaged in interference, restraint, and coercion of employ-
ees within the meaning of Section 8(a)(1) of the Act.
5. By discharging Robert Spicer because he refused to
disclose his activities on behalf of the Union, Respondent
discriminated against him in regard to his hire and tenure
of employment for the purpose of discouraging member-
ship in or activity on behalf of the Union, and thereby
engaged in, and is engaging in, unfair labor practices
proscribed by Section 8(aX3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THB REMEDY
Having found that Respondent engaged in, and is
engaging in, unfair labor practices, I shall recommend that
it be required to cease and desist therefrom, and that it take
the affirmative action necessary to effectuate the policies of
the Act as set forth below. Further, in accord with
established Board policy where 8(aX3) violations are
found, the recommended Order's cease-and-desist provi-
sions will include a broad injunction against Respondent's
interfering with, restraining, or coercing its employees in
the exercise of their Section 7 rights in any manner. See
N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941);
and California Lingerie, Inc., 129 NLRB 912, 915 (1960).
Manufacturing Company, Subsidiary of North Amnercan Philips Corporation,
227 NLRB 435, 436. fn. 3 (1975).
25 Ohmite Mfg. Co.. supra.
26 Member Jenkins dissented.
27 As the complaint's 8(aXI) allegations make no reference to this letter,
I base no unfair labor practice upon it.
1388
THAYER DAIRY COMPANY
To remedy Respondent's discriminatory discharge of
Robert Spicer, it will be recommended that Respondent
offer Spicer immediate, full, and unconditional reinstate-
ment to his former or substantially equivalent position or,
if that position no longer exists, to a substantially equiva-
lent one, without prejudice to his seniority or other rights,
privileges, and working conditions, and make him whole
for any loss of earnings suffered by reason of the discrimi-
nation against him, by paying him a sum of money equal to
that which he would have earned as wages from the date of
the discrimination against him, to the date of reinstate-
ment, less net earnings during such period, in accordance
with the Board's formula set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). The recommended
Order will also include the usual notice-posting and record-
preserving provisions.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER28
The Respondent, Thayer Dairy Company, Inc., Clare,
Michigan, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating any employee concerning his
or any other employees' activities on behalf of United
Dairy and Bakery Workers Union, Local No. 87, AFL-
CIO, or any other labor organization.
(b) Discharging or in any other manner discriminating
against any employee in regard to his hire, tenure, or any
other term or condition of employment because of mem-
bership in or activities on behalf of Local 87, United Dairy
and Bakery Workers Union, Local No. 87, AFL-CIO, or
any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
28 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Offer Robert Spicer immediate, full, and uncondition-
al reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent one, without prejudice
to his seniority or other rights and privileges or working
conditions, and make him whole for any loss of earnings
suffered, in the manner stated in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records and
reports, and all other records necessary or useful in
determining compliance herewith, or in computing the
amount of backpay due.
(c) Post at its plant in Clare, Michigan, copies of the
attached notice marked "Appendix."29 Copies of said
notice, on forms provided by the Board's Regional Direc-
tor for Region 7, after being signed by an authorized
representive of Respondent, shall be posted as herein
provided immediately upon receipt thereof, and be so
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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 7, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges unfair labor practices not
herein found; that the representation proceeding be sev-
ered from the complaint case; and that it be remanded to
the Regional Director for Region 7 for the taking of action
consistent with the findings and recommendations made in
this Decision.
29 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1389