The Meat Cleaver

National Labor Relations Board - Board Decisions

Dec 18, 1972

200 N.L.R.B. 960 (N.L.R.B. 1972)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph C Asher d/b/a The Meat Cleaver and
Butchers Union Local 551, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO
The Meat Cleaver and Butchers Union Local 551,
Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, Petitioner Cases
21-CA-10412, 21-CA-10680, and 21-RC-12342
December 18, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 21, 1972, Administrative Law Judge 1
Jerrold H Shapiro issued the attached Decision in
this proceeding Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a supporting brief
and an answering 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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of the
Act by interrogating employees about their union
activities and sympathies, by creating the impression
that the employees' union activities were being kept
under surveillance, and by threatening to close its
store before it would allow the Union to "step in "
We also agree that the evidence does not sufficiently
establish that Respondent further violated Section
8(a)(1) of the Act,2 or that it violated Section 8(a)(3)
of the Act, by discharging Stephenson, Corbett, and
Smith 3 We do not agree, however, with the Adminis-
trative Law Judge's conclusions that Respondent's
discharge of Derry was not unlawfully motivated
Based on numerous experiences as both a member
of the Meat Cutters Union and as a store owner,
Asher, Respondent's owner, admittedly harbored a
deep animosity toward the Union and its representa-
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 We do not adopt the Administrative Law Judges finding that
Respondents remarks to former employees Fraser and Hawkins even if
made outside the presence of any of Respondent s employees, violated Sec
8(a)(1) of the Act
3 Although the Administrative Law Judge found Corbett was absent
from work on August 28 and 29 he subsequently noted that the absences
tives even prior to the instant matter That animosity
again arose on August 30, 1971,4 when Asher
received a copy of the Union's representation
petition filed in Case 21-RC-12342, and thus learned
of the Union's interest in his employees Commenc-
ing on that date, and continuing for several months
thereafter, Asher engaged in a course of unlawful
conduct predicated on clearly established union
animus best characterized by his admissions that
while he did not change any employee standards
after receiving a copy of the petition, he changed his
standards, and that he would like to have formed his
own union " Just to knock [the Union] out
Just to knock [the Union] right out of [the] box"
This prepossession extended beyond Asher's 8(a)(1)
conduct to Derry
Maxine Derry was discharged, ostensibly because
"there was too much work up front [of Respondent's
store] that [she] was not getting done " Derry, who
was employed as a cashier, signed a union authoriza-
tion card on August 24 The credited evidence shows
that after August 30 but sometime during that week,
Asher received a phone call from an anonymous
person claiming to be "on the Union Board" who
informed Asher "who [among Respondent's employ-
ees had] signed all the [Union] cards and who the
ring-leader was " The work which she allegedly was
not getting done consisted of her alleged failure,
some 2 to 3 weeks prior to her discharge, to clean
some glasses, "Clean the cigarettes up Clean
underneath the checkstand," unpackage and place in
a cooling case some cream cheese, and an otherwise
unexplained "Anything she hadn't done for the past
three or four weeks" prior to her discharge Yet,
Derry was neither reprimanded nor told that her
work was unsatisfactory Nevertheless, Respondent
abruptly discharged her on September 14, the day
before payday, even though she admittedly had done
nothing on that day to warrant such action Moreo-
ver, Respondent also apparently acted contrary to its
own interest by dismissing her when it did since she
was the only cashier on her shift Further, despite the
work infractions, real or supposed, for which she was
not chastised, Derry's dismissal occurred approxi-
mately I week after Asher had learned that she too
had signed a union authorization card
These facts clearly indicate that the advent of the
Union and Respondent's knowledge of its supporters
compelled Respondent to "change its standards"
occurred on August 29 and 30 and found that Corbett was discharged on
August 31 The record shows that Corbett was absent on August 28 and 29
and discharged on August 30 In addition while we agree that Smith s
termination was not unlawful we do not agree with the Admrmstrative Law
Judge s finding that Respondent was unaware of Smith s union activity at
the time of his discharge
4 All events herein occurred during 1971
200 NLRB No 130
THE MEAT CLEAVER 961
with respect to work deficiencies, and to continue its
course of action calculated to "knock [the Union]
out of [the] box" Accordingly, we find, contrary to
the Administrative Law Judge, that Respondent had
knowledge of Derry's union activity, and that it acted
on that knowledge in discharging her We also find
that Respondent's assigned reason for discharging
Derry is pretextual, and that it discharged Derry
because of her union activity and in order to rid itself
of a union adherent in furtherance of its attempt to
eliminate the Union, and that it thereby violated
Section 8(a)(3) of the Act
Having found that Respondent unlawfully dis-
charged Maxine Derry,5 we shall order Respondent
to offer her immediate and full reinstatement to her
former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice
to her seniority and other rights and privileges, and
to make her whole for any loss of earnings she may
have suffered by reason of the discrimination against
her by payment to her a sum of money equal to that
which she normally would have earned from the date
of her discharge to the date of Respondent's offer of
reinstatement, less net earnings during such period
Backpay shall be computed in the manner set forth
in F W Woolworth Company, 90 NLRB 289 Interest
at the rate of 6 percent per annum shall be added to
such net backpay and shall be computed in the
manner set forth in Isis Plumbing & Heating Co, 138
NLRB 716
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Joseph C Asher, d/b/a The Meat Cleaver, Garden
Grove, California, its officers, agents, successors, and
assigns, shall
1 Cease and desist from
(a) Interrogating its employees about their union
activities and union sympathies
(b) Creating the impression of surveillance of the
union activities of its employees
(c) Informing employees that the store would be
closed if they joined or assisted the Union
(d) Discouraging membership in Butchers Union
Local 551, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any
other labor organization, by discharging its employ-
ees or by otherwise discriminating against its
employees in regard to their hire, wages, tenure of
employment, or other terms or conditions of employ-
ment
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed to them in Section 7 of the Act
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to Maxine Derry immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority and other rights
and privileges, and make her whole for any loss of
earnings she may have suffered by reason of the
discrimination against her in the manner set forth in
our Decision and Order herein
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under terms of this Order
(c) Post at its store in Garden Grove, California,
copies of the attached notice marked "Appendix "6
Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly
signed by an authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith
IT IS FURTHER ORDERED that the consolidated
complaint herein be, and it hereby is, dismissed
insofar as it alleges violations not found herein
IT IS FURTHER ORDERED that Case 21-RC-12342
be, and it hereby is, severed and remanded to the
Regional Director for Region 21 for further action in
accordance with Section 102 62(a) of the Board's
Rules and Regulations
5 Respondent challenged the ballot cast by Derry in the election held on
October 5 1971 in Case 21-RC-12342 on the ground that she was not an
employee and , therefore ineligible to vote
6 In the event that this 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
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice
The Act gives employees the following rights
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any such
activities
WE WILL NOT question you about your activi-
ties on behalf of Butchers Union Local 551,
Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, or about your
sympathies for this Union or any other union
WE WILL NOT create the impression that we are
engaging in surveillance of your union activities
WE WILL NOT threaten you that the store will be
closed if you support or join the Union or any
other union
WE WILL NOT discourage membership Butchers
Union Local 551, Amalgamated Meat Cutters
and Butchers Workmen of North America,
AFL-CIO, or any other labor organization, by
discharging our employees or by otherwise
discriminating against you in regard to your hire,
wages, tenure of employment, or other terms or
conditions of employment
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
Act
WE WILL offer Maxine Derry immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent
position, without prejudice to her seniority and
other rights and privileges, and make her whole
for any loss of earnings she may have suffered by
reason of the discrimination against her in the
manner set forth in our Decision and Order
herein
JOSEPH C ASHER D/B/A
THE MEAT CLEAVER
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5254
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERROLD H SHAPIRO, Trial Examiner Upon charges
filed by the Union named above in Case 21-CA-10412 and
Case 21-CA-10680 on November 9, 1971, and February
23, 1972, respectively, the General Counsel of the National
Labor Relations Board (the Board), by the Regional
Director of the Board, Region 21 (Regional Director),
issued a consolidated amended complaint dated April 5,
1972, against Joseph C Asher d/b/a The Meat Cleaver
(Respondent), alleging that the Respondent had engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the National Labor
Relations Act (the Act) The Respondent filed an answer
denying the commission of the alleged unfair labor
practices
In the representation matter, Case 21-RC-12342, pur-
suant to an agreement for consent election executed by the
Respondent and the Union, and approved by the Regional
Director, an election was conducted on October 5, 1971,
among the employees of Respondent, in an appropriate
bargaining unit The tally of ballots showed that chal-
lenged ballots were sufficient in number to affect the
results of the election On January 28, 1972, the Regional
Director ordered a hearing on certain of the challenged
ballots and ordered that it be consolidated with the unfair
labor practice proceeding in Case 21-CA-10412 for
hearing, ruling, and decision, and that the Trial Examiner
thereafter sever and transfer the representation matter to
the Regional Director for further processing
A hearing was held in Los Angeles, California, on April
25 and 26, 1972
THE MEAT CLEAVER 963
Upon the entire record 1 in the case and from my
observation of the demeanor of the witnesses 2 and having
considered the posthearing briefs, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, Joseph C Asher, an individual doing
business under the name of The Meat Cleaver is engaged
in the business of operating a retail meat and food store
located in Garden Grove, California, which during its past
fiscal year grossed in excess of $500,000 and purchased
goods and products valued in excess of $4,000 directly
from business enterprises located in the State of Califorma,
which in turn purchased and received said goods and
products directly from enterprises located outside the State
of California The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
Butchers Union Local 551, Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO,
(Union), is a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Issues
The principal issues posed by the pleadings and litigated
in the unfair labor practice proceeding are
1 Whether in violation of Section 8(a)(3) and (1) of the
Act, Respondent discharged employees Athena Corbett,
Robert Stephenson, Oscar Smith, and Maxine Derry
because of their activities on behalf of the Union
2 Whether in violation of Section 8(a)(1) of the Act,
Respondent created the impression that employees' union
activities were being kept under surveillance, threatened
employees with various economic reprisals if they support-
ed the Union, and interrogated employees about their
union activities and sympathies
B The Setting
Respondent operates a retail food store selling meats and
groceries, employing approximately 12 employees On
August 30, 1971,3 Respondent received from the Regional
Director a copy of the representation petition filed by the
Union in Case 21-RC-12342 alleging, among other things,
that a substantial number of employees desired to be
represented for purposes of collective bargaining by the
Union and asked for an election among Respondent's
meat cutters and retail meat department employees
including cashiers On September 15, Respondent and the
Union with the approval of the Regional Director entered
r The transcript of the record is hereby corrected in accordance with
General Counsel s motion to correct transcript
2 This is not a mere shibboleth The demeanor of Respondent Joseph
Asher and the other witnesses who testified plays a significant role in my
determination of the critical issues I am inclined in most instances to credit
the testimony of all witnesses with one exception Joseph Asher except of
course where his testimony is uncontradicted and not inherently improbable
into an "Agreement for Consent Election" in which they
agreed, among other things, that a secret ballot election
would be conducted by the Board on October 5 to
determine whether the retail store employees desired to be
represented by the Union The result of the election
conducted on October 5 was inconclusive because the
voting eligibility of certain employees was challenged The
Regional Director directed that a hearing on these
challenges be held and consolidated with the unfair labor
practices alleged in this proceeding
C Interference, Restraint, and Coercion
On August 30, Respondent Joseph Asher called employ-
ee Richard Hawkins into his office and asked if the Umon
approached him to sign a petition for representation
Hawkins replied "no" Respondent asked if he was positive
the Umon had not approached him Hawkins, a supporter
of the Union, continued to maintain his ignorance At this
point, Respondent picked up a list of his employees which
was lying on a desk in view of Hawkins and Hawkins
observed Respondent place a check mark aside of his
name Later that day Respondent once again (this time in
the store) asked Hawkins "if [he] had been approached by
the Union" with Hawkins continuing to profess ignorance
In a like manner, Respondent, during the middle of
September in his office, asked employee Andres Flores "if
[he ] knew anything about the Union " When Flores replied
"no" Respondent stated, "Well, somebody is trying to
organize the union [and] he was going to find out who was
trying to organize it " Respondent had no legitimate
purpose in questioning either Hawkins or Flores, nor did
he inform them of such a purpose, nor give them any
assurances against reprisal Based upon the foregoing, and
especially when viewed in the context of Respondent's
other unfair labor practices I find that in interrogating
Hawkins and Flores Respondent violated Section 8(a)(1)
of the Act Blue Flash Express Inc, 109 NLRB 591 and
Struksnes Construction Co, Inc, 165 NLRB 1062 I am also
of the opinion and find that when taken in the context of
the interrogation, that in warning employee Flores that,
"he was going to find out who was trying to organize the
[Union]," and in letting Hawkins see that he was keeping a
check list of employees based upon their union sentiments,
Respondent engaged in the type of conduct which by its
very nature was calculated to create in the minds of the
employees the impression that the Respondent was keeping
their union activities under surveillance, and as such
Respondent further violated Section 8(a)(1) of the Act
On September I1 when he told employee Robert
Stephenson that he was discharged, Respondent stated to
him, among other things, "I know you signed a [Union]
card " Stephenson replied that if Respondent thought he
was the instigator of the Union Respondent was wrong In
response, to quote Stephenson, Respondent stated "no, I
know you were not as a matter of fact, I had an
or incredible All witnesses impressed me as Asher did not as particularly
forthright and careful witnesses and I view their testimony as more reliable
than that of Asher especially where it conflicts with his testimony Asher s
testimony was punctuated by outbursts of temper , a failure to answer
questions responsively and by his arguments with Counsel
3 Unless otherwise specified all dates refer to 1971
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anonymous phone call the other night and a member of the
Board called me I done a favor for this person seven years
ago and he told me who signed all the cards and who the
ring-leader was "4 Whether in fact there was an anony-
mous telephone call is not significant, "the significant fact,
in [my] opinion, is whether [Respondent's] statement had a
reasonable tendency to discourage the employees in
exercising their statutory rights by creating the impression
that he had sources of information about their union
activity," American National Stores, Inc, 195 NLRB No 3
Accordingly, I find Respondent violated Section 8(a)(1) of
the Act by giving employees the impression that their
union activities were under surveillance American National
Stores, Inc, supra
During the middle of September employee William
Cottonero observed Respondent and employee Randy
Fellin talking in the store about 20 to 25 feet away when
Cottonero heard Respondent speak in a loud and angry
tone of voice stating, "he would close the shop before he
would allow a union to step in" 5 I find that by telling
employees he would close the shop before he would allow a
union to come in that Respondent violated Section 8(a)(1)
of the Act
In October, a former employee of Respondent, William
Fraser, then an employee of another company, was making
a delivery at the premises of Respondent at which time in
the presence of an employee of Respondent he mentioned
to Respondent he understood that the Union was attempt-
ing to organize his store to which Respondent replied, "he
was trying to organize his own company union," and that
he had been discussing the matter with his attorney as well
as with some other person and they were going to see
whether something could be worked out In a like manner,
former employee Richard Hawkins was visiting a friend,
employee Andres Flores, in early December, at Respon-
dent's place of business While on the premises he spoke to
Respondent who told him "he was talking to a friend about
forming his own union," and in response to Hawkins'
question about the legality of such conduct Respondent
stated that it was legal so long as Respondent's name did
not appear "in the union "6 Respondent's statement that
he was in the process of forming his own union made in the
context of the Union's organizational campaign and in the
context of his union animus and other unfair labor
practices was conduct calculated to interfere with restrain
and coerce the employees in the exercise of their rights
under Section 7 of the Act to support the Union, and by
engaging in this conduct I find Respondent violated
Section 8(a)(1) of the Act
George Davis, a part-time employee regularly employed
on Saturdays by Respondent in September, received a
telephone call at home from Respondent who spoke to him
and then turned the phone over to his attorney Both made
the same remarks to Davis, namely that a union was
attempting to organize the store, that there probably would
be a vote, and asked if as a part-time employee Davis
planned on participating in the vote Davis indicated that
he was not interested in voting since it was just a part-time
job for him Nothing more was said No threats or
promises of benefits were made to persuade Davis to vote
or not to vote or how to vote I find that by engaging in this
conduct Respondent did not violate Section 8(a)(1) of the
Act
In the month of September, employee Davis while at
work remarked to Respondent, "how is it going, Joe? You
look kind of tired " To quote Davis, the Respondent
replied, "If this thing gets any worse-or words to that
effect-I can always run this business with my family and I
can just cut my volume down and make it a family
operation " No reference was made by Respondent to what
was meant by "this thing " Davis testified "I don't know if
this was a tale end of another conversation or what " It is
my opinion that this remark is too ambiguous to consititue
a violation of the Act In the context of the remark there is
no reason to assume and Davis did not assume that when
Respondent made the remark he was referring to the
Union's organizational campaign Accordingly, I find that
by making the aforesaid remark Respondent did not
violate Section 8(a)(1) of the Act
In mid-October employee Fred Plante' told Respondent
that he had thought the Respondent would discharge him
after the election Respondent, to quote Plante', answered,
"I am not going to fire you, but I am going to get you good
I will get you legally I have got the money to get you "
At this point, Respondent's son, Jim Asher appeared and
stated "we know how you feel about us We got it all down
on paper I will even play it for you" At this point
Respondent calmed down and engaged Plante' in general
conversation There is no contention that Respondent
thereafter discriminated in any way against Plante' To the
contrary, after this incident Respondent complimented
him on his work and increased his salary It is my opinion
and I so find that viewed in its entire context, including the
ambiguity of the statement, the evidence is unsufficient to
establish that this remark constitutes interference, restraint,
or coercion within the meaning of Section 8(a)(1) of the
Act or that the remark was made to Plante's because of his
union membership or activities Accordingly, by this
conduct Respondent did not violate Section 8(a)(1) of the
Act 7
4 Respondent testified that on either about August 31 or September 1 he
received an anonymous phone call from an individual who represented that
he was on the Union board that Respondent had done him a favor about
7 years ago and now he wanted to return the favor by warning Respondent
the Union was after him Respondent says he thanked the man for the
warning explaining to him that he had already received a notice from the
NLRB Respondent further testified that the only person he told about this
telephone conversation was his lawyer He did not even tell his wife and
certainly not Stephenson Who then told Stephenson Respondents
attorney? As noted supra Stephenson did and Respondent did not impress
me as a credible witness
5 1 note that when Respondent on several occasions testified on certain
subjects such as the Union he lost his temper and raised his voice to such
an extent that it was impossible to continue with his testimony His voice
carried into the adjoining hearing room interrupting a hearing being
conducted in that room Clearly there is nothing unusual in the testimony
of Cottonero that he overheard Respondents remark at a distance of 25
feet
6 Respondent when asked if he had told anyone he was going to form his
own union testified no I d like to Just to knock [the Union ] out, I tell
you Just to knock them out just to knock [the Union] right out of the
box
, The findings in the foregoing paragraphs dealing with the conduct of
Respondent Joseph Asher are in a number of respects contrary to the
THE MEAT CLEAVER 965
To sum up, I find that as described in detail above, the
Respondent violated Section 8(a)(1) of the Act by
interrogating employees about their union activities and
sympathies, by creating the impression he was keeping the
employees' union activities under surveillance, by telling
employees he would close the shop before allowing a union
to step in, and by stating to employees that he was thinking
of forming his own union
In arriving at the foregoing findings I have considered
the fact that at the time Respondent made certain of his
unlawful remarks to Stephenson, Fraser, and Hawkins
(December conversation), they were no longer employees
of Respondent Stephenson technically having been just
discharged and Fraser and Hawkins had previously
terminated their employment The record is not clear as to
whether any employees of Respondent were present when
Respondent spoke to either Fraser or Hawkins In any
event, the protection of Section 8(a)(1) of the Act extends
beyond the immediate employer-employee relationship
(see Fabric Services, Inc, 190 NLRB No 105 and cases
cited therein) Moreover, it is inevitable that the remarks
would receive widespread dissemination among the Res-
pondent's employees (cf General Stencils, Inc, 195 NLRB
No 173) The general validity of this supposition is
bolstered here by the fact that Respondent employs only a
small number of employees thus making it more likely that
the former employees would visit their former acquain-
tances Indeed, the reason that Fraser was at the store was
to visit his friend, employee Flores There is no evidence
that the unlawful remarks made to Stephenson, Fraser, and
Hawkins were not made known to other employees of
Respondent In the circumstances, I conclude that the
remarks made to Stephenson, Fraser, and Hawkins even
absent the presence of employees of Respondent constitute
interference, restraint, and coercion within the meaning of
Section 8(a)(1) of the Act Alco Mining Co, 169 NLRB 491,
493, footnote 11, Fabric Services, Inc, supra
D The Discharge of Oscar Smith
Smith, employed by Respondent in the retail store, was
discharged on September 12 for the reason that he reported
to work on that day drunk During 5 years of employment
by Respondent he had been discharged on numerous
occasions because of his drinking habit Each time he was
eventually reinstated Consistent with its past practice
Respondent reinstated Smith on November 2 but this time
placed him at the wholesale plant, telling Smith he "did not
want him around the retail store whatsoever " Smith's only
union activity was the signing of a union authorization
card on August 26
In view of the existence of a valid reason for Smith's
testimony of Joseph Asher but in accordance with the testimony of
employees Davis Stephenson Flores Plante Fraser Hawkins and
Cottonero whom I credit See In 1 supra
S It is not surprising the Respondent did not want Smith with his
drinking problem around the retail store but rather reinstated him away
from the public at its separate wholesale plant
9 In arriving at this conclusion and in connection with all of the alleged
discriminatory discharges I have carefully considered the testimony of
employee Hawkins that 2 weeks before the election he overheard
Respondent state to another employee he figured it was the two girls and
got rid of them Then he figured it was another employee so he got rid of
discharge, the minimal nature of his union activity,
Respondent's lack of knowledge of his union activity, and
his reinstatement consistent with Respondent's past prac-
tice,8 I find that General Counsel failed to sustain the
burden of proof that Smith's discharge was the result of his
union activity
E The Discharge of Maxine Derry
Derry began work for Respondent on July 13 and
worked as a cashier until her discharge on September 14
On that date at the end of Derry's work shift Respondent's
wife, Mrs Asher, informed her she was discharged for the
reason "there was too much work up front that was not
getting done " Derry had never been told her work was not
satisfactory or warned that unless it improved she would be
terminated Shortly after Derry started to work, Mrs Asher
assisted her in securing a loan from a bank by notifying the
bank, at Derry's request, that Derry was an employee of 1-
1/2 weeks and that, "thus far it appears that she will be in
our employee (sic) permanently " On August 24, Derry was
visited at her home by a union business representative, and
upon his request she signed a union authorization card
There is no evidence that Derry engaged in any other
activity on behalf of the Union or that she spoke to any of
the other employees about the Union
It is my opinion, and I find, that the key element for
unlawful motive-company knowledge of Derry's union
activity-is lacking There is no direct evidence of
company knowledge 9 And, I am unable to infer knowl-
edge of Derry's union activity whereas here it was limited
to signing a union card for a union business representative
in the secrecy of her home, and there is no evidence that
she ever expressed her union sympathies to other employ-
ees In short, there is no basis for inferring the actual
communication of information about Derry's union
activity or sentiments to the Company I must conclude
that there is insufficient evidence that the Respondent
knew of Derry's union activity, and acted on this
knowledge in discharging her on September 14 According-
ly, in these circumstances, assuming without deciding that
the reasons advanced by Respondent to justify the
discharge of Derry lack substance, I shall recommend that
the portion of the consolidated complaint alleging that
Derry was unlawfully discharged be dismissed See The
American League of Professional Baseball Clubs, 189 NLRB
No 85
F The Discharge of Athena Corbett
Corbett began work for Respondent on August 31, 1970,
and worked 1 year as a cashier until her discharge on
August 31 The normal work schedule of Corbett was
him ' This was the only part of the conversation Hawkins overheard as he
was walking from one part of the store to another Under the circumstances
it is my belief that this remark taken by itself or in the context in which it
was heard is so vague and ambiguous as to be meaningless Such a remark
cannot be construed to mean that Respondent said he discharged three
employees because he figured it was they who were behind the Union To
arrive at this inference it is necessary to know what was said in the portion
of the conversation not heard by Hawkins In short any finding that
Respondent stated he had discharged employees for union activities would
be based on sheer speculation which is not a substitute for proof
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monday through Friday, 3 p in to 9 p in except Tuesday,
her day off, Saturday 12 p in to 9 p in , and Sunday 12
p in to 7 p in Corbett, the only cashier employed on her
shift, called in sick on Saturday and Sunday, August 28
and 29, and was absent from work those days The next
day (August 30) when she finished work, Mrs Asher
informed her that she was being terminated explaining,
that it was the opinion of Respondent and Mrs Asher that
Corbett had been taking too much time off and they did
not feel they could depend on her and mentioned that
because of her absence they had to cut their weekend short
and come back to the store Mrs Asher also remarked that
they felt they had been fair with Corbett and now would
like to give the new cashier Maxine Derry a chance
During the months of July and August, Corbett was
absent from work on days she was scheduled to work as
follows Friday and Saturday, July 16 and 17, Sunday,
July 25, Sunday, August 8, Thursday, August 12, Saturday
and Sunday, August 28 and 29 These absences were either
granted ahead of time or if occasioned by illness, as on
August 28 or 29, Corbett called in and notified the
Respondent she would be out sick No one from manage-
ment ever reprimanded or complained to her verbally
about the absences or taking time off from work However,
when she was absent from work, Respondent and his wife
by their attitude and conduct made it clear to Corbett that
they were very unhappy with her even though she had
received permission to be out This is understandable
because Corbett was the only full-time cashier on her work
shift and it was inconvenient for Respondent to have
someone else fill in for her at the last minute
Respondent testified that the reason for discharging
Corbett was "just her absence "
On August 15, Corbett was visited at home by a union
business representative, and at that time she signed a union
authorization card There is no evidence that she engaged
in any other union activities or generally made known her
pro-union sentiments to other employees She testified that
the only time she spoke to an employee about the Union in
the store was on August 30 when employee Hawkins asked
if Respondent had said anything to her about the Union,
advised her not to say anything about signing a union card,
explaining that Respondent was questioning the "butch-
ers "
It is my opinion, and I find, that for the reasons set out
in connection with Derry's discharge, supra, the key
element for unlawful motive-company knowledge of
Corbett's union activity-is lacking In addition, there is
substantial evidence which demonstrates that the Respon-
dent had legitimate cause for Corbett's discharge Respon-
dent prior to the discharge and the union activities had
openly expressed its displeasure to Corbett for being
absent from work on her normally scheduled work days
Consistent with this past displeasure Respondent on
August 31 notified Corbett that the reason for her
discharge was because of the inconvenience caused by her
10 Respondents failure to discharge Smith for absenting himself for
three days in December because of his drinking habit does not prove that
Corbett was the victim of disparate treatment Because of this unfortunate
drinking habit Respondent has continually given Smith preferential
treatment which is vividly demonstrated by the fact that Smith was
reinstated by Respondent after being discharged on approximately 25
last minute absence on August 29 and 30 To sum up, while
General Counsel relies on the timing of Corbett's discharge
(immediately upon the receipt of the representation
petition) that evidence is insufficient to prove a violation of
the Act in the face of evidence which establishes a
legitimate cause for the termination,'0 and the lack of
evidence that the Respondent had knowledge of Corbett's
union activities or sentiments Accordingly, I shall recom-
mend that the portion of the consolidated complaint
alleging that Corbett was unlawfully discharged be
dismissed
G The Discharge of Robert Stephenson
Stephenson was employed by Respondent as a counter-
man from May until September 11 when he was dis-
charged He boned meat, cut up chickens, and in general
worked behind the service counter waiting on customers
Stephenson was not a satisfactory employee, he was too
slow Employee Richard Hawkins commencing in May
and on several occasions thereafter complained to Respon-
dent about this and that Stephenson was not doing his fair
share of the work, and recommended he be discharged
Respondent refused, explaining that Stephenson, who
appears to have been the lowest paid counterman, was
practically working for nothing, that he spent a large
portion of his pay buying merchandise at the store, and
that even though he was a slow worker he still was of some
assistance to the other countermen Respondent however,
assured Hawkins "if it gets too intolerant [that] we can't
stand it, that's a different story"" Respondent did not
however, reprimand Stephenson or threaten him with
discharge for working too slow
On September 6, Respondent signed and posted a notice
to the employees which in substance stated that the
countermen were taking too long to service customers
because of unnecessary talking among themselves, and
threatened employees with discharge if they failed to stop
this practice, explaining it was detrimental to the business
There is no contention nor is there any evidence that this
announcement was anything other than a bona fide one
issued for legitimate business reasons, as explained by
Respondent in testimony which was uncontradicted
The event which led up to the discharge of Stephenson
on September 1 l was credibly described by Respondent
Quoting Respondent
I called him in the office after an incident that
happened at 7 15 that night A customer came up to the
chicken counter I usually watch the boys right
down the side there This is what broke the camel's
back, you might as well say This lady was waiting 15
minutes to get waited on and then [Stephenson] waited
on her and it took [Stephenson] for one chicken, to
take and cut it up, it took him five minutes and I heard
this customer say, `what are you going to do? Cook the
different occasions over a 5 year period
11 The foregoing paragraph is based upon the testimony of Respondent
Joseph Asher and Richard Hawkins Respondent whose testimony is
uncontradicted and substantially corroborated by Hawkins impressed me
as a reliable witness when he testified about the above matters
THE MEAT CLEAVER 967
`god-damned' thing for me'n' and I walked out and I
tried to talk to her at the front of the store
I did not go over to Stephenson No I went down-I
was so boiled up with trying to talk to the customer and
everything, I went back to my wife and told my wife to
make out his check He is getting terminated tonight
This testimony is uncontradicted Stephenson did not deny
that this episode took place I realized that in most
instances I have discredited Respondent's testimony
including his testimony about his discharge interview with
Stephenson Nevertheless, I find Respondent's testimony
set out above as reliable and credit it 12 On this point he
impressed me as testifying in a straightforward candid
manner and his testimony had the ring of the truth
On September 11 at the end of the workday Stephenson
was called into Respondent's office where, in the presence
of Mrs Asher, Respondent informed Stephenson he was
discharged, explaining "I have no complaints You could
be faster, but as you know, the Union will probably be in
this store and I cannot afford to pay the Union wages I am
going to have to get more work out of fewer people I
know you signed a card " Stephenson replied, "No, if you
think I was the instigator of the Union, you are wrong "
Respondent assured Stephenson that he knew he was not
the instigator explaining that he had received an anony-
mous phone call the other night from a person whom he
had done a favor for several years previously and this
anonymous person told him who had signed all the cards
and the name of the ringleader At this point, Respondent
gave Stephenson his final check, they went to the front of
the store where he paid his grocery bill and left, with
Respondent offering to shake his hand, commenting, "if
circumstances were different I would be glad to have you "
Stephenson signed a union authorization card on August
23 in the Company's parking lot at about 9 p in after work
He was solicited to sign the card at that time by employee
Hawkins This was his only union activity and there is no
evidence that he ever expressed his union sentiments to any
of the other employees
Based upon the foregoing and the record as a whole I am
of the opinion, and find, that in discharging Stephenson,
Respondent was motivated by his conduct as a slow
worker and not by his union activities Before the Union's
organizing campaign, Respondent was aware of Stephen-
son's failings as an employee and although he took no
action against Stephenson, Respondent assured employee
Hawkins who had complained about Stephenson that if
Stephenson's slow working habits got to be "too intoler-
ant" that he would be discharged or disciplined On
September 6, Respondent, because its countermen were
taking too long in serving customers, posted a notice on the
bulletin board threatening the employees with discharge if
this practice did not stop On September 11, Respondent
observed a customer being waited on by Stephenson
12 Judge Learned Hand appropriately said in N L R B v Universal
Camera Corp 179 F 2d 749, 754 (C A 2) reversed and remanded on other
grounds, 340 U S 474
It is no reason for refusing to accept everything that a witness says
because you do not believe all of it , nothing is more common in all
abruptly walk out of the store for the reason that
Stephenson was too slow in cutting up her chicken
Respondent failed in his effort to placate the customer
Stephenson was notified of his discharge immediately
following this episode In the light of the foregoing
background and the Respondent's volatile temper which
he exhibited throughout the hearing, I am convinced that
Respondent told the truth when he testified that the
incident involving the irate customer is what prompted him
to abruptly discharge Stephenson To quote Respondent
"This is what broke the camel's back I was so boiled
up with trying to talk to the customer and everything, I
went back to my wife and told my wife to make out his
check " In reaching this conclusion I have carefully
considered the fact that Respondent's reason for the
discharge given to Stephenson may be viewed as an
indication that union activities played a part in the
discharge But, in view of the persuasive character of
Respondent's assigned reasons for the discharge, I believe
that probative weight as an admission against interest
should not be given to Respondent's exit statement to
Stephenson In my opinion, what we have here is a
situation where a statement in the form of an admission is
so patently at odds with other clearly established facts that
no effective force can be given it 13 (See e g Traveleze
Trailer Company, Inc, 163 NLRB 348, 362 (Cuevas layoff)
The record as a whole including Stephenson's less than
satisfactory employment record, his failure to properly
perform his duties on the night of the discharge, and the
minimal nature of his union activity tends to rebut the
truth of the declaration made Also, it does not make sense
that Respondent would discriminate against Stephenson
who only signed a union card, but take no adverse action
against employee Hawkins, who Respondent knew was
apparently the leading employee advocate for the Union
Hawkins who solicited Stephenson and who acted as the
Union's observer at the election, testified that Respondent
through its attorney even before the election had told him
that Respondent had heard he was behind the Union but
assured him he would not be discriminated against and
further testified that in fact he was not discriminated
against Based on the foregoing and the record as a whole
it is my opinion and I conclude that Stephenson's
objectionable conduct caused his discharge, and would
have done so in the absence of any union activity
IV THE CHALLENGED BALLOTS
The challenged ballots involved in this proceeding were
cast by Maxine Derry, Oscar Smith, Robert Stephenson,
Randy Fellin, and Edward Reta The ballots of Derry,
Smith, and Stephenson were challenged by the Employer
on the grounds they were not employees Having found
their discharges were not unlawful, I now find they were
not eligible to vote and shall recommend that the
challenges to their ballots be sustained
The ballots cast by Randy Fellin and Edward Reta were
kinds of judicial decisions than to believe some and not all
13 It appears that the union related explanation for the discharge given
to Stephenson by Respondent was invented for the purpose of chilling
unionism among Respondent s remaining employees
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
challenged by the Union which contends that they do not
have a sufficient community of interest with the employees
included in the appropriate bargaining unit "all retail
meat cutters and retail meat department employees,
including cashiers employed at Employer's [retail store] "
Additionally, it apparently contends that Fellin is a
supervisor within the meaning of Section 2(11) of the Act
Subsequent to the voting eligibility date (September 12),
and the date of the election (October 5), the duties of Fellin
and Reta have changed to the extent that they now only
spend a de minimis amount of time working in the retail
store The essential element however, in determining an
employee's eligibility to vote is his status on the eligibility
pay period date and on the date of the election Any
change in the duties of Fellin and Reta subsequent to these
dates is immaterial to the issues and has, therefore, not
been considered Midwest Television, Inc, 150 NLRB 413,
415, cf General Tube Co, 141 NLRB 441, 444145
The facts set out below relating to the status of Fellin
and Reta are based upon the credible testimony of Fellin
and Reta who in all material respects corroborated one
another I do not consider the testimony of Richard
Hawkins as being reliable in this area His testimony based
upon what he observed the two principals' doing was
necessarily handicapped by the necessity of performing his
own duties, and there was no reason why he should have
paid particular attention to the amount and type of work
performed by Fellin or Reta at the retail store Hawkins
did not impress me as being as accurate in his testimony as
Reta and Fellin who appeared to me to be reliable
witnesses
Respondent, at a distance of between 200 to 600 feet
from its retail store, has operated since approximately July
a wholesale plant where it prepares and sells meats to
institutions-schools, restaurants, and hotels At the time
of the representation election there were four employees
employed by Respondent at the wholesale plant, two of
whom, Reta and Fellin were meat cutters, Fellin having the
title head meat cutter
When the wholesale plant commenced operation, Re-
spondent expected that eventually business would increase
to such an extent that Fellin and Reta would spend all of
their working time employed at that location, but the date
this would take place was speculative At the time of the
election Reta and Fellin were splitting their workweek
between the wholesale plant and retail store From July
through the date of the election, Reta, who worked a full
workweek, spent approximately 50 percent of his time
employed by Respondent working in the retail store
Fellin, who also worked a full workweek, during July and
August spent approximately 50 percent of his time
employed by Respondent working in the retail store, and
thereafter through the date of the election spent approxi-
mately 40 percent of his time employed by Respondent
working in the retail store While employed in the retail
store they used the same tools of the trade, the same skills,
and performed the same type of work as did the unit
employees employed solely in the retail store, and were
supervised by the same person (Joseph Asher) as the unit
employees
Based on the foregoing and the record as a whole I am of
the opinion, and find, that Reta and Fellin on the election
eligibility date and on the date of the election, regularly
performed duties similar to those performed by the unit
employees for sufficient periods of time to demonstrate
that they have a substantial interest in working conditions
in the unit Berea Publishing Company, 140 NLRB 516, 519
The fact that Fellin spent most of his time cutting and
preparing meats for sale to retail customers rather than
waiting on the customers, or that Fellin and Reta spent
about 1 hour of their time in the retail store preparing
merchandise for customers of the wholesale plant does not
change my opinion For, they were still working alongside
of the unit employees, using the same tools of the trade and
the same skills as used by the unit employees Accordingly,
I find that Fellm and Reta were eligible to vote and shall
recommend that the challenges to their ballots be over-
ruled 14
V RECOMMENDATIONS AND ORDER SEVERING AND
REMANDING CASE 21-RC-12342
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend that the challenges to the
ballots of Maxine Deny, Oscar Smith, and Robert
Stephenson be sustained and that the challenges to the
ballots of Randy Fellin and Edward Reta be overruled
Pursuant to the terms of the Order Consolidating Cases
issued by the Regional Director in Case 21-RC-12342, it is
ordered that Case 21-RC-12342 be, and it hereby is,
severed and remanded to the Regional Director for further
action in accordance with Section 102 62(a) of the Board's
Rules and Regulations
VI THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found,
and in any like or related conduct, and take certain
affirmative action designed to effectuate the policies of the
Act
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the
following
CONCLUSIONS OF LAW
1 Joseph C Asher d/b/a The Meat Cleaver is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 Butchers Union Local 551, Amalgamated Meat
Cutters and Butchers Workmen of North America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act
3 By interrogating employees about their union activi-
ties and sympathies, by creating the impression the union
14 1 reject the further contention by the Union that Fellm is a supervisor While he did assign work to employees at the wholesale plant, it was without
within the meaning of Sec 2(I 1) of the Act Fellm at the time of the election the use of any independent judgment He merely acted as a conduit between
did not have or exercise any of the authority set out in Sec 2(11) of the Act the employees and Joseph Asher
THE MEAT CLEAVER 969
activities of employees was being kept under surveillance,
by telling employees the store would be closed before the
Union was allowed to come in, and by telling employees he
was thinking of forming his own union , Respondent has
engaged in and is engaging in unfair labor practices , within
the meaning of Section 8(a)(1) of the Act
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
5 Except for the foregoing , and in particular, by
discharging Maxine Derry , Oscar Smith, Robert Stephen-
son, and Athena Corbett , Respondent did not violate the
Act
[Recommended Order omitted from publication ]