The Eastern Beef & Provision Co.

National Labor Relations Board - Board Decisions

Jan 29, 1974

208 N.L.R.B. 756 (N.L.R.B. 1974)

756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Eastern Beef & Provision Co. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO.' Case 38-CA-1361
January 29, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 10, 1972, Administrative Law Judge2
Sidney D. Goldberg issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Charging Party each filed exceptions and supporting
briefs to the Decision of the Administrative Law
Judge, and the Respondent filed a brief in opposition
to the exceptions filed-by the General Counsel and
the Charging Party.
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 the light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith. Also, for the
reasons discussed, infra, we deem it proper to remand
this proceeding to the Administrative Law Judge for
consideration of his findings in light of our determi-
nation, herein.
Contrary to the conclusions of the Administrative
Law Judge, we find that both Joseph and Edmund
Zosky, sons of President Albert Zosky, are agents of
the Respondent and that their conduct and knowl-
edge of union activities is chargeable to the Respon-
lent.3 Albert Zosky and his three sons are the sole
owners of the Respondent corporation. Albert Zosky
owns 55 percent of the Respondent's corporate stock
and each of his three sons owns 15 percent of the
stock. The corporation has only two officers; Albert
Zosky is president and his son, Edmund, is the
secretary-treasurer. Although each of the sons has
outside interests, they are employed on a full-time
basis at Respondent's plant and at the time of the
hearing were receiving the same weekly salary as
their father, Albert Zosky. Although there is a
conflict concerning the exact nature of their duties
and responsibilities, Joseph Zosky admitted that he
1 By inadvertence the Charging Party's name is incorrectly shown in the
caption of the Administrative Law Judge's Decision. The error is hereby
corrected.
2 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
3 For our purposes here, it is unnecessary to determine whether or not
Joseph and Edmund Zosky are also supervisors within the meaning of Sec.
2(l 1) of our Act.
and his brother, Edmund, relay messages to employ-
ees from his father and that, at least in one instance,
he was instructed to tell an employee that she was
laid off. The full extent of the authority of Joseph
and Edmund to act as representatives of the
Respondent is best demonstrated by employee Lutes'
testimony concerning his request to attend the Board
hearing in the instant proceeding. Lutes testified that,
on the morning of the first day of the hearing, he
advised Edmund Zosky that he intended to leave
work for the purpose of attending the hearing.
Edmund Zosky asked Lutes if he had been subpe-
naed and, when Lutes replied that he had not,
Edmund forbade Lutes from leaving work unless he
had such a subpena. Lutes then took the matter up
with Joseph Zosky and was told by Joseph that "you
can use my name and say you can't go because you
haven't got a subpoena."
The foregoing establishes that Respondent is a
closely held family corporation; that Joseph and
Edmund Zosky4 own a substantial interest in the
Company and are actively employed there on a full-
time basis; and that they speak for and act on behalf
of President Albert Zosky, their father. In such
circumstances, we can only conclude that both
Joseph and Edmund Zosky are agents of the
Respondent and that their conduct and knowledge of
union activities is binding upon it.5
The Administrative Law Judge's finding that
Joseph and Edmund Zosky were not agents of the
Respondent served as the touchstone for his findings
and conclusions with respect to the unfair labor
practice allegations of the complaint. Thus, the
Administrative Law Judge found it unnecessary to
resolve various credibility issues involving alleged
Section 8(a)(l) conduct by Joseph and Edmund
Zosky and their knowledge of the union activities of
employee Martin, who allegedly was discharged in
violation of Section 8(aX3) of the Act. Our finding
herein that Joseph and Edmund Zosky are agents
whose conduct and knowledge of union activities are
chargeable. to the Respondent goes to the very heart
of the issues raised by the complaint and requires
that the evidence be reevaluated in light of this
finding. Accordingly, we shall defer ruling on the
unfair labor practice allegations of the complaint at
this time in order to permit the Administrative Law
Judge to reevaluate the evidence in light of our
finding herein .6
4 The other son , Thomas Zosky, is not alleged by the General Counsel to
be an agent or supervisor of the Respondent . Accordingly, we make no
findings concerning the management status of Thomas Zosky.
S Briber Trucking, Inc., 166 NLRB 745.
6 The parties were permitted to make a complete record on all the issues
during the hearing and hence , we deem it unnecessary to remand this
proceeding for further hearing.
208. NLRB No. 110
THE EASTERN BEEF & PROVISION CO.
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to Administrative Law Judge
Sidney D. Goldberg for the purpose of reevaluating
his findings in light of our determination herein.
IT IS FURTHER ORDERED that upon the conclusion of
his deliberations, the Administrative Law Judge shall
prepare and serve on the parties a supplemental
decision containing resolutions of the credibility of
witnesses, findings of fact, conclusions of law, and
recommendations as to the disposition of the issues
and that following the service of this supplemental
decision on the parties the provisions of Section
102.46 of the Board's Rules and Regulations and
Statements of Procedures, Series 8, as amended, shall
be applicable.
TRIAL EXAMINER 'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: This case was
tried before me in Peoria, Illinois, on April 12, 1972. The
complaint,) under Section 10(b) of the National Labor
Relations Act, as amended (the Act), alleges that on or
about November 8, 1971, The Eastern Beef & Provision
Co. (Respondent or the Company), by Albert Zosky, its
president, discharged employee Leo Martin because he
joined or assisted Amalgamated Meat Cutters and Butcher
Workmen of America, AFL-CIO (the union). The com-
plaint also alleges that Albert Zosky's three sons are
supervisors of the Company and that all four of them, since
August 19, 1971, interfered with, restrained, and coerced
employees in their exercise of rights guaranteed by the Act.
Respondent answered, denying that it had interfered
with employee rights and, although admitting that Leo
Martin had been discharged on January 3, 1972, denied
that the discharge was unlawful.
The issues so raised came on for trial before me as set
forth above. All parties were represented, afforded an
opportunity to adduce evidence, to cross-examine witness-
es, and to argue on the facts and the law. At the trial, the
General Counsel amended the complaint to accept the
company's discharge date for Martin and to add allega-
tions of interference with employee rights. Briefs filed by
the General Counsel and by counsel for Respondent have
been considered.
For the reasons hereinafter set forth in detail, I find that
the General Counsel has failed to show, by a fair
preponderance of the evidence, that Respondent's presi-
dent had any knowledge of employee Martin's organiza-
tional activities at the time of his discharge and that,
therefore, the discharge cannot have been to discourage
membership in, or activities on behalf of, the Union. I also
issued February 25, 1972. on a charge filed January 19, 1972.
a By order dated July 20, 1972, typographical errors in the transcript of
record have been corrected
3 Edmund is also secretary-treasurer of the company and was, until the
Company's retirement fund was terminated on February 28, 1972, cotrustee
757
find that the evidence fails to sustain the allegations of the
complaint with respect to interference, restraint, and
coercion.
Upon the entire record herein,2 and considering the
demeanor of the witnesses while testifying, I make the
following:
FINDINGS OF FACT
1. The parties
Respondent, an Illinois corporation, is engaged at
Peoria, Illinois, in the processing and distribution of meat.
Its principal business is the "custom cutting" of meat into
roasts and individual portions for use by restaurants and
institutions. The answer admits that, during the preceding
year, Respondent imported goods and materials valued at
more than $50,000 and that it is an employer engaged in
commerce: I so find.
The answer also admits, and I find, that the Union is a
labor organization.
2. Background
The president of Respondent is Albert Zosky, who has
been operating this business for 40 years. He has three
sons: Joseph, Edmund, and Thomas, all of whom were
employed by Respondent during the period involved in
this case. Each of them, however, has an independent
activity in addition to his work at Respondent's plant. At
the time involved in this case Joseph had just been released
from the armed forces and was going back to school,
Edmund was in the real estate business,3 and Thomas had
been trained in finance. Although both Edmund and
Thomas spent some of their time in these fields, neither
was able to support himself on the proceeds, and they
spent most of their time working in their father's plant.4
Albert Zosky owns 55 percent of the stock in the
Company and the remaining 45 percent is divided equally
among his three sons. Each of the sons received a weekly
salary of $200 and, at the time of the trial, the father, who
had been receiving $600 per week, had recently reduced his
own salary to $200.
The complaint alleges, and the answer denies, that
Albert Zosky and each of his three sons is a supervisor.
The General Counsel's brief, however, restricts this
contention to Albert Zosky and two of his sons, Joseph
and Edmund. As far as Albert Zosky is concerned, the
record is clear that he runs the business , and I find that he
is a supervisor.
With respect to the two sons, the General Counsel
contends that the evidence shows that they both can
"initial timecards to account for absences." that they can
"grant time off," that they can "recommend raises," that
they can authorize purchases of gasoline , and that they are
"thought of by their fellow employees as bosses." In
addition, the General Counsel notes that Joseph "admits
making decisions as to whether an item [in a customer's
thereof with his father.
4 Albert Zosky testified that none of his sons wants to work at the plant
but, since they are still unable to earn sufficient income in their chosen
fields, they work for him "temporarily ." There is no reason to doubt his
characterization of the relationship of his sons to the plant
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order] should be substituted and if there is a substitute for
it," that he "checks the merchandise to be loaded , assigns
routes and dispatches drivers," and that he "admits
relaying instructions from his father to employees." The
General Counsel further points out, with respect to
Edmund, that, in addition to the functions set forth above,
to his corporate office as secretary-treasurer, and to his
position as one of the trustees of the retirement fund, he
also signs company checks.
There is no evidence that either Joseph or Edmund ever
hired, fired, disciplined , or rewarded any employee, or that
either of them ever adjusted a grievance . They did initial
timecards for employees who, by reason of working late
outside the building , could not clock out , but it appears
from the stipulation of facts that timecards could also be
' initialed by Betty Bierly, the office clerk , and Joe
Osternick, the bookkeeper . This function appears to have
been informal ; it carries no indication of authority and
cannot serve as proof of supervisory status.
With respect to the-grant of time off, employee Lutes
testified that on one occasion he asked Joseph Zosky for
time off to go to a funeral in St . Louis ; that Joseph acted
upset and said that, since Lutes had recently been out ill
several times, he would find the additional 3 or 4 days'
absence "awfully hard" to, explain to his father. Lutes
testified that he said that. it "couldn 't be helped" because
he had to go and that Joseph then said "I'll see you when
you get back." Lutes also testified that on the morning of
the trial of this case he told Edmund that he wouldbe
going to court , that Edmund asked whether he had a
subpena, and that, when Lutes said he did not, Edmund
said "you can't leave work unless you got it." About half to
three-quarters of an hour later , Lutes testified, he was told
that it would be all right for him to go but a short time
afterwards Joseph said to him "you can use my name and
say you can't go because you haven 't got a subpoena." The
problem was solved by a telephone call to the representa-
tive of the General Counsel and Lutes appeared.
Edmund testified that, from time to time, employees
have asked him for time off and that he sometimes granted
it and sometimes refused it . He testified, however, that the
requests he dealt with involved only brief absences of an
hour or so and that , if something more were involved, he
would not decide it. Joseph testified that he had never been
asked for time off and, if he ever told anyone he could have
time off, he was merely relaying a message from his father.
Albert Zosky conceded that, when he was not available,
all three of his sons could give employees time off but he
testified that similar permission could also be granted by
Allyn Parks, a butcher, and Lester Allsup, the plant
manager.5 He testified that these requests were usually
directed to Allsup and that they generally consisted of
employee requests to go to some particular place, with
permission being usually granted by the brief .comment "go
ahead if you want to go."
The record shows, as Albert Zosky testified, that the
plant atmosphere is very informal. The requests for "time
off' appear to have been more in the nature of a notice by
the employee that he would be away from work for a brief
period than they were formal , applications for time off.
These notices were addressed to the people in the plant
who might be more accurately described as seniors-by
either length , of employment or family relationship to
Albert Zosky-than as supervisors . I find that these
occasional instances in which Joseph or Edmund Zosky
acquiesced in an employee's statement that he had to take
a brief absence from work are insufficient to establish that
either Joseph or Edmund had supervisory status.
The only support for the General Counsel's statement
that both Joseph and Edmund can "recommend raises" is
the testimony of John Lutess who stated that he spoke
about a raise with Joseph and Edmund Zosky "and also
with Mr. Zosky himself." The General Counsel, however,
directed his questions only to the conversation with Albert
Zosky and he identified the raise in question as having
been granted on January 7, 1972. Lutes testified that he
"asked him if I could have a raise to make what the other
guys was making and he said okay." 7 There is, as appears,
no testimony concerning the content of Lutes' conversa-
tion with either Joseph or Edmund , much less that either of
them recommended to their father that Lutes receive the
wage increase . The request was made directly to Albert
Zosky and he granted it.
While both Joseph and Edmund may authorize purchas-
es of gasoline , the stipulation of facts shows that purchases
of gasoline may also be authorized by Betty Bierly and
Joseph Osternick, the office employees, and there is no
showing that such authorization carriers any element of
supervisory authority.
Employee James Compton, one of the delivery drivers,
testified with respect to Edmund that he "would call him a
boss." His only firm testimony , however, was that Edmund
would tell him "what stuff to fill orders with." Edmund
testified that his duties were "putting up orders and
dispatching drivers" : he described his work as collecting
the necessary items to fill customers' orders, arranging the
delivery tickets according to their areas of delivery, and
checking out the drivers. These are the duties of a shipping
clerk and they carry no indicia of supervisory authority;
any directions to the drivers concerning the order of
making deliveries would be based solely on the most
expeditious routing and, therefore , would be strictly
routine in nature . The determination of whether the plant
had in stock a satisfactory substitute for an out-of-stock
item in a customer's order, and whether such substitution
would be acceptable to the customer , also carries no
connotation of supervisory authority.
Finally, the fact that Edmund , as secretary-treasurer,
signs about 2 percent of the checks issued by the Company,
is no criterion of supervisory authority, even presupposing
some discretionary authority not shown herein.
Edmund Zosky's testimony that his work consists of
collecting items to fill customers' orders, lining up the
shipments, and dispatching the drivers was not contradict-
5 Despite this title, Allsup is paid on an hourly basis , receiving only 10 whereas Lutes voted in the Board election based on the petition of the
cents per hour more than Parks, the other butcher, and he voted in the charging party . It is likely that Lutes' duties were those of a shipping clerk.
Board election . I The record shows that on that date Lutes pay was raised from $2.70 to
a Lutes testified that his "main duty is delivery ." The two drivers who $2.96 per hour.
testified , however, stated that they were members of a Teamsters Union,
THE EASTERN BEEF & PROVISION CO. 759
ed by any other testimony . Joseph Zosky's testimony that
his principal job is cutting meat and that he fills in for any
absent employee was also not contradicted and Leo Martin
testified that Joseph had been sent into the cooler to learn
how to cut meat . Albert Zosky's testimony that his three
sons worked reluctantly in the plant , and only so that he
could assure them adequate earnings until they were
established in their preferred occupations , also showed that
he did not delegate any supervisory authority to them.
Albert Zosky further testified that for 15 years he had
employed , as plant supervisor, a man named Gulandi and
that, when Gulandi quit in July 1971, he was not replaced.
Upon all of the evidence, I find that neither Joseph nor
Edmund Zosky possessed or exercised any supervisory
powers. There is, furthermore, no justification for finding,
either on the basis of their fillial relationship to Albert
Zosky or otherwise, that either of them was an agent of the
respondent.
3. Summary of events
Leo Martin, the discharged employee, was hired by
Albert Zosky on September 1, 1971, as a portion control
cutter, to prepare steaks and roasts. -
According to Martin's testimony, during the final week
in December 1971, he and several other employees
discussed the fact that their hours were being cut and their
wage rates were unsatisfactory. They decided to join the
Meat Cutters, and Martin volunteered to obtain blank
cards for use in obtaining an election . On Friday,
December 31; Martin went to the union hall, signed an
authorization card, and obtained a supply of blank cards.
During the weekend he obtained signatures on several of
the cards and, on January 3, 1972, he turned over to the
Union a sufficient number of signed cards to justify the
filing of a petition for an election.
On January 3, Martin reported for work, as usual, about
7 a.m.; he worked during the day and left, again as usual,
about 4 p.m. Later that day Albert Zosky sent an employee
to Martin's house with a message that Martin call him.
Martin did not reach Zosky that evening and Zosky sent
him, by messenger, a letter terminating his employment
with the Company.
The Union's petition was filed January 14, 1972, and
resulted in the holding of an election among respondent's
employees on February 29. Two votes were cast for the
Union, eight votes were cast against the Union, and one
vote was challenged.
4. The issues
In addition to the General Counsel's contention, re-
solved above, that Joseph and Edmund Zosky were
supervisors and agents of Respondent , it is contended that
the discharge of Leo Martin was to discourage his
membership in, and activities on behalf of, the Union.It'is
also contended that the pay increase given employee Lutes
and certain statements made by the Zoskys interfered with
employee rights of self-organization.
Respondent contends that the evidence does not support
the allegations of interference with employee rights of self-
:trganization . It further contends that Leo Martin was
discharged by Albert Zosky because of : his chronic
drinking and that Zosky was not even aware of Martin's
organizational activities until the day following his dis-
charge.
5. The discharge of Martin
Leo Martin was hired , as stated , on September 1, 1971.
Albert Zosky testified that he told Martin at that time that
he didn't need him but Martin said he couldn 't find a job
and needed to support his family . Zosky also testified that
he told Martin that the man previously in. his employ had
been drunk all the time and finally quit because at 10 in the
morning he could no longer stand up . Martin corroborated
Zosky's statement to the extent of conceding that Zosky
had said he didn 't think respondent needed anyone at that
time but thought they , might be able to use him.
Zosky further testified that he warned Martin several
times about his drinking and that Martin 's hand was so
unsteady that he had spoiled meat by cutting the portions
to incorrect sizes . Martin conceded that in November he
had been warned about drinking but qualified it by saying
that Zosky had warned all three of the meatcutters about
drinking on the job and told them that it was related to the
problem of insurance in the plant . Parks and Allsup, the
other butchers , corroborated the fact that Albert Zosky
had spoken to them about drinking . Allsup, who did not
drink, testified that two or three times he had reported to
Zosky that Martin had a heavy odor of liquor on his breath
and appeared intoxicated ; that he saw Zosky talking with
Martin ; and that Zosky said he had talked with Martin
about his drinking.
Martin admitted that he drank during the evenings until
after 11, that he did not eat breakfast before reporting for
work the next morning at 7, and that he could have had an
odor of liquor on his breath . Martin testified, however, that
he "could not recall" ever taking a drink on the job, except
for one occasion in November when he accepted a drink
from Parks . Martin also admitted that there had been some
discussion about mistakes he had , made in cutting meat.
There was considerable testimony , both affirmative and
negative , on the subject of Martin 's drinking on the job but
most of it dealt with the strength of the liquor , odor on his
breath . There was also some testimony that Martin seemed
occasionally to stagger and Allsup testified that Martin,
made more mistakes in cutting than should normally have
been expected.
It will not be necessary, for the reasons about to be
stated, to make findings on the issues of whether Martin
actually drank , or was drunk, on the job. It is clear,
however, and I find, that Martin frequently had a strong
odor of liquor on his breath and that this condition existed
during the morning of January 3.
The extent of Martin's organizational activity has been
set forth above . Martin testified that, when he went to the
union hall to obtain blank authorization cards ,' he signed
one for himself . This card is dated December 31, 1971.
Since it appears that work at the plant starts at 7 a.m., it is
unlikely that Martin could have visited the union hall
before reporting for work . Accordingly, he must have
obtained the cards, and signed his own , after work on that
Friday . Martin testified that he obtained signed cards from
76() DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some , of his fellow employees over the weekend and that he
gave. out others before work on Monday, January 3.
Martin further testified that he turned all the signed cards
over to the Union on January 3. While Martin testified that
he obtained additional signed cards during coffeebreaks
and the lunch period on this day, there is no detailed
evidence on this point.
There is' evidence of a brief, very general conversation
between Martin and Joseph Zosky in which reference was
made to a union . Martin testified that Joseph Zosky came
to him in the plant and asked him what he "thought about
the union"; that he answered that he thought it was a good
idea ; that Zosky replied that "if the plant went union they
would have to lay off one or two of the employees"; and
that he responded that it would be "better for two or three
people to make a living than four or five of us to starve to
death" Zosky's version of the conversation, although he
insisted his recollection was vague , was that Martin said he
was going to join , or try to join, the union ; that he asked
why, and Martin answered that he "had to make more
money somehow." To this
,
Zosky testified , he said: "If
that's what you want to do, then I guess that's what you got
to do"
Joseph Zosky testified that he could not remember that
date of this conversation but thought it might have
occurred a week, or "maybe two weeks" before Martin was
discharged . Martin, however, fixed this conversation as
having occurred on January 3, at the time of the morning
coffeebreak, and the General Counsel , in his brief, accepts
it as the date . In view of my findings, above, that Joseph
Zosky was not a supervisor or agent of Respondent, and
the finding, below, that . this conversation was not reported
to Albert Zosky prior to his discharge of Martin, it is not
necessary to.make a finding concerning the precise date of
this conversation.
The testimony of Joseph Zosky that he did not tell his
father about his brief conversation with Martin about the
Union and Albert Zosky's testimony that he knew nothing
about union activity before he discharged Martin appear to
me to be supported by the other evidence in this case.
Joseph Zosky did not live with his father but had his own
apartment, where Martin visited him on the night of his
discharge. Albert Zosky and both of his sons testified that
at this time Albert Zosky 's brother was in the hospital,
where he died on January 4, and that Albert spent as much
of his time as he could with his dying brother. Moreover, if
this conversation occurred, as the General Counsel
contends, after the coffeebreak on January 3, it was
practically simultaneous with Albert Zosky's first contact
of that day, as detailed below, with Martin. The conversa-
tion about the Union, in both versions, was vague, and the
testimony of both Albert and Joseph Zosky that it was not
reported to Albert by Joseph prior to Martin's discharge is
credited on the basis of the demeanor of these witnesses
and the other evidence in the case . It is also to be noted
that there was no evidence concerning Martin's activity in
obtaining the additional signed cards which might have
drawn Albert Zosky's attention to his organizational
activities.
Under the circumstances detailed above , the General
Counsel's reference to the "small plant doctrine" cannot
serve as a substitute for direct evidence . A basic statement
concerning the doctrine: was made by the Board in Handley
Manufacturing Corporation, 108 NLRB 1641 at 1650, as
follows:
the mere fact that Respondent 's plant is of a
small size, does not permit a finding that Respondent
had knowledge of the union activities of specific
employees, absent supporting evidence that the union
activities were carried on in such a manner , or at times
that in the normal course of events, Respondent must
have noticed them .8
On January 3, at or about 9:30 a .m. and just after the
morning coffeebreak, Albert Zosky testified, he went into
the cooler where Martin was working. He testified, and
Martin corroborated him, that this was his normal daily
procedure to see that everything was in order. Albert
Zosky further testified that, as he passed Martin , he noted
that Martin's hands were shaking and there was a strong
odor of liquor on his breath . He accused Martin of being
drunk and reminded him 'that he had recently cut some
meat incorrectly, costing the Company $40 to $50, and that
he was again improperly cutting the meat that was before
him. Martin answered , according to Zosky, that he had
only a few beers . Zosky testified that he warned Martin
about using the power tools in his condition and told him
to stop at the office to see him before leaving for the day.
In the afternoon , Zosky testified, he again noted a strong
odor of liquor on Martin's breath and again instructed him
to see him before leaving for the day.
There is no dispute that Martin left the plant about 4
p.m. that day without stopping at the office to see Albert
Zosky. When Martin failed to stop at the office before
leaving, Zosky testified , he tried to get in touch with him
by sending an employee to Martin 's home with a message
to call the office9 The employee reported that Martin was
not at home and Zosky then had the bookkeeper write a
letter instructing Martin not to report for work on January
4, enclosing both his final salary check and his Christmas
Club book. The letter instructed Martin to call Zosky if he
had any questions and Zosky sent it to Martin's apartment
by the same employee.
Martin's testimony concerning the events on January 3
was simply that he worked that day as usual, that he did
not have any conversation with Albert Zosky, and that
Zosky did not instruct him to stop at the office before
leaving for the day. He admitted that he had been drinking
until 11 : 30 the previous night and that he had no breakfast
in the morning.
Martin admitted having received a message that evening
to call the plant and he testified that he went to his father-
in-law's house to use the phone because he had none of his
own.' He further testified that there was no answer at the
plant and that when he called Albert Zosky's home he was
not there. Martin testified that he then went home and
found his letter of dismissal there . On rebuttal, however, he
6 See also: Ralston Purina Company, 166 NLRB 566, 570; Amyx 9 Zosky identified the employee as Malson . the maintenance man, but
Industries, Inc. v. N.LRB.; 457 F.2d 904 (C.A. 8, 1972). Malson, who testified, was not questioned by any party on this subject.
THE EASTERN BEEF & PROVISION CO. 761
testified that, when he was unable to reach Albert Zosky
on the phone, he went to the apartment of Joseph Zosky.
Joseph Zosky corroborated Martin's testimony that he
came to the apartment but Zosky further testified that
when Martin came there he was drunk and said that he had
been discharged because of his union activities . Joseph
Zosky testified that he answered Martin by saying that he
had not told his father, and his father did not know
anything about the union activities. Martin, on rebuttal,
did not contradict Joseph Zosky's testimony on this point.
If Martin went to Joseph Zosky's apartment because he
could not reach Albert Zosky, he could not have known
that he had been discharged, and, if he told Joseph Zosky
that he had been discharged, he must have already gone
home and found the letter there. Since it has been found
that Albert Zosky did not, in fact, know about Martin's
union activities at the time he discharged him, it is not
necessary to assess the effect of this contradiction in
Martin's testimony. Moreover, Albert Zosky's proven
effort to talk with Martin that evening is consistent with
Zosky's testimony that he asked Martin to stop at the
office before leaving: whereas if Zosky were about to
discharge Martin for organizational activity there would be
no reason for him to try and talk with him.
It is undisputed that Martin came to the plant the next
morning shortly before 7 to clean out his locker. Employee
Leland testified that he believed Martin was drunk at the
time because he was shouting. Albert Zosky testified that
he did not see Martin that morning but, from the reports
carried to him of the threats Martin had made, this was
when he first learned that Martin had been engaged in
organizational activities. I credit Albert Zosky's testimony
on this point.
Based on all of the evidence, and on the demeanor of the
witnesses while testifying, I find that Albert Zosky's
account of the occurrences on January 3. despite minor
inconsistencies , represents an accurate account and that he
did not know anything about Martin' s union activities
when he discharged him.1° Therefore, whether Martin was
drunk, whether he simply smelled like he was drunk, or
whether his failure to stop at the office as instructed simply
exasperated an harassed man to the point of discharging
him, need not be determined in this case. It is an
established principle, requiring no citation of authority,
that, as far as the administration of this Act is concerned,
an employer may discharge an employee for any reason or
no reason, so long as the discharge is not so motivated as to
interfere with rights under the Act. Accordingly, the
General Counsel has failed to prove, by a fair preponder-
ance of the evidence, that Respondent discharged Martin
either to interfere with employees' right of self-organization
or to discourage Martin's membership in the Union.
6. Interference, restraint, and coercion
The complaint alleges, and the General Counsel con-
10 There is no evidence, up to this point at least, of any union animus on
the part of Albert Zosky Betty Bierly, an office employee, testified that,
sometime before this, she heard Zosky tell one of his drivers that he should
join the Teamsters because the other drivers were members of that union.
ii The raises given most employees as of March 24, 1972, are not alleged
as violations of the Act
tends the record supports, five incidents in which Respon-
dent, by words or deed, interfered with, restrained, or
coerced employees in their exercise of rights of self-
organization.
The earliest of these incidents is the conversation,
detailed above, between Leo Martin and Joseph Zosky.
Since it has been found that Joseph Zosky was not a
supervisor and not an agent of Respondent, nothing in this
conversation could support a finding of violation by
Respondent.
The complaint also alleges that on January 3 or 4,
Edmund Zosky interrogated employees concerning their
union activities. There was some evidence of a talk
between Edmund Zosky and employee Compton but, in
view of the finding that Edmund Zosky was neither a
supervisor nor an agent of Respondent, no finding of
violation can be made on any such conversation.
John Lutes testified, as set forth above, that on January
7, 1972, he asked Albert Zosky whether he could have a
raise "to make what the other guys was making" and that
Zosky "said okay." It was stipulated that on that date
Lutes' wage rate was raised from $2.70 to $2.96. Although
it is clear that by this time Zosky knew that an
organizational campaign was in progress, the routine form
of Lutes' request, and of Zosky's acquiescence, leaves no
room for an inference that it was intended to affect that
campaign. I find, therefore, that the pay raise given Lutes
did not interfere with the employees' self-organizational
rights. i i
Employee Willie Singleton testified that, on a date which
he variously described as both early January and late
January, he had a conversation with Albert Zosky in which
Zosky said that Allyn Parks, one of the meatcutters, was
drinking and that he was "too old," but that he knew Parks
couldn't get a job anywhere else so he kept him on. Zosky
also said, according to Singleton, that he had been in
business for about 40 years and that "he never had no
trouble with the Union until lately." Singleton further
testified that he made no comment to Zosky's statement
except to shrug his shoulders and that Zosky then told him
"to stay with him, stick around and he would give me a
raise as soon as business picked up." Zosky also said,
according to Singleton, that he "didn't want no union in,"
and that, "if the union came in, they would close the shop
down." 12
Albert Zosky categorically denied that he had ever
threatened to close the plant down or take any reprisals
against employees if the Union won the election.13
Singleton admitted that he had been shot in the head and
had difficulty remembering. While he testified that he
worked for Respondent for 2 months in 1972 and it was
stipulated that he voted in the election on February 21, he
testified in this trial on April 12 that he was laid off after
leaving the hospital and that this occurred "2 or 3 months
ago." These dates create an impossible time schedule. He
also testified that, when a Board representative interviewed
iz Singleton also testified concerning a conversation with Edmund Zosky
but, in view of the finding that Edmund Zosky was neither a supervisor nor
an agent of Respondent, no further reference is made to this testimony.
IS Betty Bierly, the office clerk , testified that she asked Albert Zosky
something about the Union during the election campaign and Zosky said
that he would not discuss the matter.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him prior to the trial , he was "kind of drinking and I never
discuss anything when I am drinking ." Although Single-
ton's testimony, if fully credited, would establish a
technical violation on the basis of Zosky 's statement that,
if the Union came in, he "would close the place down," it
seems strange that the Union did not file objections to the
election on the basis of it. In view of the contradiction in
Singleton's testimony , his drinking, and his head injury, I
cannot accept his testimony that Zosky made this
statement . Since Zosky was entitled to express his view that
he did not want the Union in the plant , and I decline to
find that he threatened to close the plant , I do not find
that, in this incident , Respondent interfered with employee
rights of self-organization.
Charles D. Morris, one of Respondent 's drivers, testified
that on January 6 or 7 he was in the office and overheard
Albert Zosky . as he was ending a telephone conversation.
He testified that he then heard Zosky say , as if to himself,
that he would "close it before he would let a union come
in." Morris testifiedY that Zosky said nothing else that
would indicate what be was talking about . According to
Morris , Betty Bierly, the office clerk , was also present but
she testified that she heard nothing , like the words
described by Morris . This evidence , therefore, I find
insufficient as the basis forany finding.
Finally, the complaint alleges that Respondent, by
Albert Zosky, "threatened to rearrange employees' hours if
the union won the election ." In support of this allegation,
Merl Malson testified that , a day or two after the election
was over, Zosky said to him, with no other employee
present, that:
... If the Union had come in . . . there would be no
standing around , everybody would have a duty job and
when the job was over with we would go home. There
wouldn't be any playing around or monkeying around,
we would just go home.
It can be assumed that a statement of this sort , if made
prior to the election, would imply a threat of more onerous
working conditions and constitute restraint or coercion
violative of the Act. The question here, however , is whether
14 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.
the comment , made with respect to a purely theoretical
situation, since the , election had been held and the Union
had lost, justifies a similar finding . . I find that it was a
casual comment, in circumstances which the employee
knew made it inapplicable, and that, therefore, -no
inference can,be drawn of a coercive effect.
7. ConclusionI.
The General Counsel has not shown , by a fair prepon-
derance of credible evidence , that Respondent's discharge
of Leo Martin was either to interfere with employee rights
of self-organization or to discourage employees ' member-
ship in the Union . The evidence also fails to show that
respondent, by any of its supervisors or agents , interfered
with , restrained, or coerced employees in their exercise of
self-organizational rights . Accordingly, the complaint
should be dismissed in toto.
On the basis of the foregoing findings of fact , and upon
the entire record , I hereby reach the following:
CONCLUSIONS OF LAw
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Albert Zosky is, and both Joseph Zosky and
Edmund Zosky are not, supervisors of Respondent within
the meaning of Section 2(11) of the Act.
4. Albert Zosky is, and both Joseph Zosky and
Edmund Zosky are not, agents of Respondent within the
meaning of Section 2(13) of the Act.
5. Respondent has not violated either Section 8(a)(1) or
(3) of the Act.
On the foregoing findings of fact and conclusions of law,
I hereby issue the following recommended:
ORDER 14
The complaint herein is hereby dismissed.
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.