Standard Beverage, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1975

216 N.L.R.B. 283 (N.L.R.B. 1975)

STANDARD BEVERAGE, INC. 283
Standard Beverage, Inc. and Beer Drivers, Salesmen
& Helpers Union Local No. 203 , International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America . Cases 21-CA-
11736 and 21-CA-12042
January 23, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
On July 31, 1974, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed limited exceptions with supporting argument.
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
argument and has decided to affirm the rulings,'
findings , and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified herein.
In his Decision, the Administrative Law Judge
found that Respondent unlawfully manipulated job
assignments in order to reduce incentive payments to
union supporters. However, the Administrative Law
Judge failed to find that this conduct violated Section
8(a)(3) of the Act. Inasmuch as the manipulation of
job assignments resulted in a decrease in pay for
union supporters , we find that this conduct necessari-
ly discourages employees from engaging in union
activities in violation of Section 8(a)(3) of the Act.
Accordingly, we shall modify the recommended
Order and provide for an appropriate remedy.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified herein and hereby orders that Respondent,
Standard Beverage, Inc., Los Angeles, California, its
officers, agents, successors, and assigns , shall take the
action set forth in the said recommended Order as
modified below:
1. Substitute the following for paragraph 1(i):
"(i) Discouraging membership in or activities on
behalf of Beer Drivers , Salesmen & Helpers Union
Local 203, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
or any other labor organization of its employees, by
216 NLRB No. 53
discharging, suspending, manipulating work assign-
ments, issuing reprimands to, or in any other manner
discriminating in regard to the hire or tenure of
employment or any term or condition of employment
of its employees."
2. Insert the following as paragraph 2(c) and
reletter the existing paragraphs accordingly:
"(c) Make whole James Fritz, Bruce Boughton,
James Ciccaretli, and Carey E. Clarke for the income
they lost by reason of the discriminatory manipula-
tion of their job assignments in accordance with the
formula set forth in the section hereof entitled the
`Remedy.' "
3. Substitute the attached notice for the Adminis-
trative Law Judge's.
1 In the absence of exceptions thereto , Member Kennedy adopts pro
forma the Administrative Law Judge 's ruling which imposed a "penalty" on
witness John Fahy by sinking portions of Fahy's testimony because Fahy
refused to produce certain documents.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the
opportunity to present their evidence, it has been
decided that we, Standard Beverage, Inc., violated
the law and we have been ordered to post this notice.
We intend to carry out the Order of the Board and
abide by the following:
The National Labor Relations Act gives employees
the following rights:
To engage in self-organization
To form, join , or assist any union
To bargain collectively through represent-
atives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection.
WE WILL NOT do anything to interfere with you
in the exercise of the aforementioned rights, and
all our employees are free to become or remain a
member of Teamsters Local 203, or not to
become or remain a member of that or any other
union.
WE WILL NOT promise you improved wages or
other employee benefits to induce you to cease
supporting a union, or threaten you with a
reduction in such benefits because you assist or
support a union.
WE WILL NOT threaten you with termination or
more difficult working conditions because you
assist or support a union, or promise less difficult
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working conditions if you cease to support a
union.
WE WILL NOT question you about your assist-
ance to or support of a union, or place you in the
position that you are called upon to declare
whether you are for or against a union.
WE WILL NOT urge you to seek employment
elsewhere because you assist or support a union.
WE WILL NOT manipulate or threaten to
manipulate work assignments so as to prevent
those employees who assist or support a union
from earning any bonus or incentive pay that we
have in effect for our employees.
WE WILL NOT enter into or pursue any plan or
scheme to rid ourselves of employees who assist
or support a union, to avoid our obligation to
bargain with a union that is the representative of
our employees in an appropriate unit.
As the National Labor Relations Board has
found that we violated the law by suspending
James Fritz and Peter Dickenson, and by dis-
charging James Fritz, James Ciccarelli, and Peter
Dickenson, WE WILL offer each of them his old
job back, if the same exists, and if not, a
substantially equal job, without any loss in
seniority or other rights and privileges, and make
up to them the pay they lost with 6-percent
interest.
As the National Labor Relations Board has
found that we violated the law by manipulating
the job assignments of James Fritz, Bruce
Boughton, James Ciccarelli, and Carey E. Clarke,
thereby causing these employees losses in income,
WE WILL make them whole for the pay they lost
with 6-percent interest.
As the Board found that we violated the law by
reprimanding James Fritz, James Ciccarelli, Peter
Dickenson, Carey Clarke, G. S. Loell, and Bruce
Boughton, WE WILL remove from our records and
destroy any and all reprimands which the Board
found we issued to the aforementioned individu-
als because of their activities in support of Beer
Drivers, Salesmen & Helpers Union Local 203,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, and
advise each of said individuals, in writing, that we
have done so.
WE WILL, in writing, notify any employer to
whom we have given reference on any of the
individuals named above, that in compliance with
the order of the Board we have removed from our
files and destroyed any reference to the fact that
Issued February 27, 1974 . In Case 21-CA-11736, the charge was filedI
and served April 20, 1973. In Case 21-CA-12042, the charge was filed and
served August 17, 1973, and amended October 26, 1973.
No issue of commerce or labor organization is presented. Thes
such individual was reprimanded or suspended by
us, and send a copy of such advice to the
employee involved, at his last known address.
STANDARD BEVERAGE,
INC.
DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN: Administrative Law Judge: This
proceeding tried before me at Los Angeles, California, on
April 23 through 29, 1974, with all parties present and duly
represented by counsel , involves an amended consolidated
complaint' pursuant to Section 10(b) of the National
Labor Relations Act, as amended (herein the Act), which
alleges, in substance , that Standard Beverage , Inc. (herein
Respondent or Company), by various statements, inter-
fered with , restrained , and coerced its employees in the
exercise of their rights under Section 7 of the Act,
reprimanded , issued disciplinary warnings to, and dis-
charged certain employees, because of their assistance to,
and support of, Beer Drivers , Salesmen & Helpers Union
Local 203, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (herein Union
or Local 203). By answer , Respondent admitted certain
allegations of the complaint , but denied the commission of
any unfair labor practice . For reasons hereafter more fully
set forth, I find certain allegations of the complaint
sustained by the evidence and recommend a remedial
order.
At the trial all parties were afforded full opportunity to
introduce relevant and material evidence , to examine and
cross-examine witnesses , to argue orally on the record, and
to submit briefs . Oral argument was waived. Briefs
submitted by the General Counsel and Respondent,
respectively, have been duly considered. On the pleadings,
evidence, the stipulations of counsel, and the entire record
in the case , I make the following:
1. FINDINGS OF FACT2
A. Background
Respondent is engaged in the sale and distribution of
malt beverages in the Los Angeles area. Its principal
product is Coors beer. For that purpose Respondent
operates a fleet of trucks and employs drivers, helpers,
salesmen, warehouse employees, office personnel, as well
as the requisite complement of supervisory staff. The
supervisory staff chiefly involved in this proceeding, whose
supervisory status is admitted, is Haralambos T. Haralam-
bos, who is president and in charge of all business of the
enterprise; Max Abbott, general manager ; David Jensen,
driver supervisor and George Kober, head salesman. For
some years the drivers and helpers employed by Respond-
ent have been represented by Teamster Local 203, and a
complaint alleges , and the answer admits facts which establish these
elements of the case . There being no dispute with respect thereto, I find
those facts to be as pleaded . Moreover , it appears as hereafter set forth, the
Board conducted an election on a petition filed by the employer
STANDARD BEVERAGE, INC. 285
collective-bargaining agreement has been in effect between
the Union and Respondent . The last such contract
provided that it was to be in effect from July 31, 1970, to
June • 1, 1973, and thereafter from year to year unless
terminated by notice . Pursuant to this and prior contracts,
Local 203 operated a hiring hall through which Respond-
ent acquired the drivers and helpers it needed for its
operations .3 In addition, the contract has a grievance and
arbitration provision ; a provision dealing with "Health &
Welfare, Dental , Prescription , Visual care and Retiree
Benefits" as well as Pension Benefits , Incentive Payments,4
and provision against discharge for other than good cause.
On August 6, 1971, pursuant to the provisions of the
contract , the Union filed a grievance relating to the
operation of the hiring hall provisions , which grievance
became the subject of an arbitration proceeding, held April
19 and July 27, 1972, which is the final step of the
grievance procedure under the contract . The parties agreed
that because an expeditious resolution of their dispute was
most desirable , the Arbitrator might issue his award
without an accompanying opinion . The award issued by
the Arbitrator on August 2, 1972, provided (a) that it was a
breach of the collective-bargaining agreement for Re-
spondent to refuse employment to any person referred by
the hiring hall, for the purpose of avoiding health and
welfare contributions , or any other provision of the
contract ; (b) the employer might refuse referrals from the
hiring hall if not for arbitrary or discriminatory reasons; (c)
to reduce the area of possible misunderstanding the Union
was directed to submit to Respondent a list of not more
than 40 names of persons having permanent or temporary
status under the contract , and who were not then regularly
employed by another employer , and that the employer
must notify the Union in writing, no later than August 30,
1972, what persons on the aforesaid list were unacceptable
to it, and its reasons for such position , that the reasons
assigned by the employer shall be final unless the Union
within 15 days serves notice upon the employer that its
reasons are considered by the Union to be arbitrary or
capricious , and that such disputes as may arise will be
resolved by the Arbitrator, who retained jurisdiction for
that purpose until May 31, 1973, the expiration date of the
contract ; (d) the Union shall not dispatch persons to the
employer who,are not on the approved list; and (e) that the
Award shall not be a precedent for any other employer
subject to the contract.
Pursuant to the aforementioned award, the Union
prepared and submitted to the Company a list containing
the 40 names as provided in the Arbitrator's award. By
letter dated August 31, 1972, the Company informed the
Union that 33 of the persons named on the Union's list
were unacceptable for specified reasons . By letter dated
3 There is no issue as to the validity of the hiring hall or its operation.
4 The incentive payment provided for is 10 cents per case for all cases
delivered by a driver , without the services of a helper , in excess of 1,250 in a
week.
S Actually, the count is 15, but the evidence shows that the parties
operated from a list of 14 . Apparently, one of the three that the Arbitrator
qualified conditionally , did not meet the conditions the Arbitrator specified,
but the record does not identify this individual . I do not regard this of any
importance in disposing of the issues involved.
6 Par . 6 of the complaint alleges that , between November 1972 and May
1973, Respondent refused to hire 13 employees from the hiring hall
September 8, the Union notified the Company that the
reasons given by the Company for regarding 19 of the 33
persons designated by the employer as unacceptable were
arbitrary and capricious. The differences thus existing
between the parties were considered by the arbitrator, and
resulted in his award that of the 33 challenged by the
employer, 5 were qualified, and 3 others were qualified if
they met certain conditions. This resulted in a list of 14
persons5 to be used by the Union in dispatching to
Respondent , and which Respondent was required to accept
when dispatched by the Union pursuant to its request for
employees.
B. Current Facts
The General Counsel's basic contention is that in late
1972 or early 1973, Respondent embarked upon a course of
action designed and intended to rid itself of the Union.
Although conceding that in many instances the conduct
upon which he relies would perhaps not, standing alone,
establish an unfair labor practice, that considered in total
context, the facts establish the aforesaid unlawful objective
and purpose. The evidence relied upon by the General
Counsel, much of which is not in conflict, shows the
following:
1. Hiring practices: November 1972-May 1973
period
As heretofore indicated, the arbitrator's award limited
the Union to referring to Respondent only those employees
who were on the established list, and required Respondent
to accept only those referred from that list. The General
Counsel contends that after November, 1972, and until the
contract expired on May 31, Respondent made it a
practice of calling the Union very late in the day for work
early the following morning, or would call early in the
morning for work that same day, so as to make it more
difficult and in some instances impossible for the Union to
contact and refer men on the approved list. The contention
is that this was done to enable Respondent to avoid hiring
employees likely to be union supporters, and to hire,
instead, off the street, men who would be more likely to
vote against the Union in any election that might be held.6
To support this contention he relies in the main upon the
testimony of John Fahy, the Union's secretary-treasurer.
Fahy testified on direct that the Union services from 42 to
45 employers, and that 95 percent of these called him at the
hall between 11 a.m. and 3 p.m. for their personnel needs
the following day; that Standard made it a practice to call
between 4:30 to 5 p.m., generally closer to 5 p.m., and in
some instances the next morning for employees to work
that day, and because he was restricted in his referrals to
(presumably meaning dispatched from the hall ), because of their assistance
and support of the Union , and par. 22 alleges that such refusal was a
violation of Sec . 8(axl) There is no testimony in the record that any of
these employees were ever dispatched to Respondent , or that Respondent
ever refused to hire them Moreover, the uncontradicted testimony of Mrs
Nicholas , which I credit , is that Respondent always hired anyone referred to
it by the Union whose name was on the list promulgated by the arbitration
proceeding , and that Respondent refused to accept only those not on the
list. The point is not argued in the General Counsel's brief, and I assume the
contention has been abandoned . In any event, I find and conclude that the
evidence fails to support par. 6 of the complaint.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the arbitrator's list , this gave him insufficient time,
sometime as little as 20 minutes , to contact and refer men
to Standard . On cross-examination , Fahy admitted that he
kept in his office a log of calls to the hiring hall, which
Respondent 's counsel asked that Fahy produce. After
completing other areas of the cross-examination , Fahy was
temporarily excused to get the log and return to the
courtroom. Upon his return, Fahy and the Union's counsel
informed me that the log was in the courtroom , but that it
would not be produced because it regarded such records as
confidential , particularly so in the instant case , because the
Union was now decertified and the employer should not be
permitted to examine the Union 's dealings with other
employers.? The Union took no position on the question of
relevancy of the log , or any testimony that Fahy might give
in explanation thereof. Respondent argues not only that
the Union's claim of privilege is without merit, but that the
log was relevant and material on the issue of Fahy's
credibility, as well as the General Counsel 's contention that
Respondent's general practice of calling the hall at a late
hour was part of the scheme to rid itself of the Union.
Respondent argued that as a sanction for the failure to
produce the log, in view of the Union 's status as the
charging party in this proceeding, Fahy's testimony should
be stricken in its entirety .8 The General Counsel argues
that Fahy's testimony cannot be stricken because the
Board's Rules and Regulations do not give an Administra-
tive Law Judge any authority to strike testimony for refusal
to produce documents, as distinguished from a refusal to
answer questions, and as Fahy expressed willingness to
answer questions concerning the log, I was without
authority to strike any of his testimony.
Upon consideration of the issue I conclude, in accord-
ance with my ruling at the trial, that the log was relevant
and material both on the issue of credibility and insofar as
it may tend to negate the General Counsel 's contention
that Respondent's practice of calling the hiring hall at a
late hour was in furtherance of a scheme or purpose to
evading its obligation to the Union . I also conclude,
particularly in view of the fact that the Union is the
charging party in this proceeding , that some penalty should
attach for Fahy's refusal to produce the log , which might
have aided Respondent in showing that Fahy's earlier
testimony that other employers normally called the hall for
men between II a.m. and 3 p.m., was not true , and that the
appropriate penalty is to strike all of his testimony relating
to the time that employers other than Standard, called the
hall for men . Not only do I strike Fahy's testimony in that
regard, but I affirmatively infer that had the log been
produced , it would not have supported his earlier testimo-
ny in that regard. See Halliday v. United States 315 U.S. 94,
99; Interstate Circuit v. United States, 306 U.S. 208, 225-
226. As the Supreme Court said in the last cited case, "The
production of weak evidence when strong is available can
lead only to the conclusion that the strong would have
been adverse." (id. at 226). This result appears to be not
only in accordance with the spirit and purpose of the
Board 's applicable Rules, but also in furtherance of the
ends of justice . Accordingly , I make no finding as to time
other employers called the hiring hall for men. However, as
supervisor Jensen and office clerical Nichlas, who virtually
always called the hiring hall for men, both testified that
such calls were normally made on behalf of Respondent,
between 4 : 30 and 5 p .m., I regard this as an admission and
find it to be the fact.
2. The representation proceeding
On March 6, Respondent filed a petition for a Board
election among the unit employees (Case 21-RC-1585).
This resulted in a Stipulation for Certification Upon
Consent Election , approved by the Regional Director on
April 18, and pursuant to which an election was conducted
on June 4, when 9 votes were cast for the Union, 11
against, and 7 ballots were challenged. No objections to the
election having been filed, the Regional Director on July
13, after investigation , issued his Report on Challenged
Ballots , recommending that the challenge to one ballot be
sustained ; that the 6 remaining challenges be overruled,
that those ballots be opened and counted and a revised
tally of ballots issued. No exceptions to that Report having
been filed, the Board, by order dated July 31, approved
that recommendation and directed that after the revised
tally of ballots issued, the results of the election be
certified. The revised tally of ballots, dated August 7,
showed 12 votes for the Union and 14 against , and on the
basis thereof a certification issued on August 10, that the
Union was not the exclusive representative of the employ-
ees in the unit.
3. Threats and promises of benefits
a. The preelection period
The General Counsel contends that beginning early in
1973, and continuing through the representation proceed-
ing, and until the end of September , Respondent promised
its employees benefits calculated to induce employees to
cease supporting the Union, and otherwise coerced and
restrained them in the exercise of their rights under Section
7 of the Act. The incidents relied upon by the General
Counsel are:
1. Carey Clarke credibly testified that in January or
February,9 he had a conversation with General Manager
Abbott in the latter's office, at which Abbott raised the
subject of changing Respondent 's operation from a system
of preselling goods to be later delivered , to a system of the
r It may be noted that counsel requested the log only for the period that
Respondent was using the hiring hall, namely , from November 1972
through May 1973.
9 In support of this position Respondent relies on the Board 's Rules and
Regulations , Secs. 102.35 and 102 .44(c) In pertinent part the first
mentioned section provides:
The Administrative Law Judge shall have authority, ... to regulate the
course of the hearing , and if appropriate or necessary, ... to strike all
related testimony of witnesses refusing to answer any proper ques-
tion.....
The second section referred to, in pertinent part, provides:
(c) The refusal of a witness . . . to answer any question which has been
ruled to be proper shall, in the discretion of the administrative law
judge, be ground for sinking all testimony previously given by such
witness on related matters.
9 This and all dates hereafter mentioned are 1973, unless otherwise
indicated.
STANDARD BEVERAGE, INC. 287
driver selling and delivering from the stock on his truck.
Clarke asked when this might take place , and Abbott
replied that he hoped it would be soon, but that before it
could be done the Union would have to be decertified.
Clarke asked Abbott to explain what this meant and what
it involved, and Abbott did so. Clarke then asked what
would happen to the union drivers if the shop went
nonunion, and Abbott replied, "we will just have to get rid
of them." Abbott then cautioned Clarke that what he had
said could be used against him in the event of an unfair
labor practice proceeding, and that he should not talk
about it. Clarke agreed that their conversation would go no
further. 10
The union contract has provisions for pension and health
and welfare benefits for Respondent's employees in the
unit covered by the contract. For its employees not in the
unit (i.e. clericals and at least some supervisors ), Respond-
ent established a profit sharing plan from which, upon
retirement, the employees would receive benefits , as well as
an insurance program designed to provide the employee
with benefits in the event of illness or disability.11
Sometime early in February, Haralambos posted a notice
inviting all employees to attend a meeting to be held after
working hours in the Company's office. Although attend-
ance was voluntary and without compensation, the
meeting was attended by virtually all the drivers, ware-
housemen , and clerical employees . Haralambos opened the
meeting by telling the employees that a Mr. McDonald,
who was well informed in the field of pension benefits,
would address them and explain the pension benefits as
provided in the union contract , as well as the benefits
under the Company's profit sharing plan for its nonunit
employees. Every witness who testified on the subject
agreed that McDonald first explained the pension benefits
under the Union contract, and then explained the
Company's profit sharing plan; that no effort was made to
compare the two plans, or to indicate that one plan was
"better" or more "favorable" than the other, except to the
extent that the listener might draw a conclusion of his own
from what was said . Following McDonald 's presentation,
Haralambos opened the meeting for questions , and several
were asked . Employee Dickenson commented that he had
17 years as a union member, and asked what would
happen to that. Haralambos said that he could freeze it.
Employee Arnold asked if he could be under both plans, or
if he could make voluntary contributions to the profit
sharing fund, and was told that if one was subject to the
union contract he could not participate in profit sharing, or
vice versa . 12 The following morning another meeting was
called by Haralambos where the subject of insurance
to Based on the credited testimony of Clarke. Abbott admitted that he
had a conversation with Clarke at the time and place mentioned, but
claimed that the conversation only related to Clarke 's then job in the
warehouse . Although Abbott denied that he told Clarke that to go on driver
sales the Company would first have to go nonunion , and also denied that he
ever told Clarke that he would deny the conversation because it might be
used to prove an unfair labor practice , he did not "recall" whether the
matter of a decertification vote was discussed at the time, and that he did
not "remember" whether Clarke asked him what would happen to the union
drivers if the plant went nonunion . To the extent that the testimony of
Abbott and Clarke are in conflict on this point, I credit the latter.
11 Information as to the precise scope , operation and benefits under the
plan, is not in the record.
benefits were discussed. A number of unit and nonunit
employees attended. Again Haralambos introduced a
speaker who explained first the insurance benefits provided
under the union contract, and then the insurance benefits
provided by the Company for its nonunit employees. No
effort was made to compare one plan to the other, or to
indicate that one plan was superior to the other, although
as least one employee (Fritz) testified that the benefits
under the plan for the nonunit employees were greater in
all categories , than those called for by a union contract.13
On his direct examination the only reason Haralambos
gave for calling these meetings was that several employees
had inquired as to their benefits in the Company, and that
he thought the most expeditious way to explain it was
through a meeting . On cross-examination he expanded on
this somewhat, saying that several employees inquired as to
what the benefits were under the Teamsters plan. However,
he could not recall the identity of any employee who made
such an inquiry of him, nor did any employee testify to
having made such an inquiry.
b. During the election proceeding
1. Sometime in April or May Respondent held a
number of dinner meetings with the drivers and helpers,
who were invited to attend in groups ranging from three to
five. Abbott testified that these meetings were held over a
2- to 3-week period and were for the purpose of giving the
employees an opportunity to talk to him, and he to them.
Abbott admitted that in selecting the employees to be
invited to a particular dinner he divided them into what he
regarded as prounion and antiunion groups because he felt
an employee would be more comfortable in a group that
shared his views. Driver Fritz credibly testified that at the
meeting he attended, and which was also attended by
employees Arnold, Ciccarelli, Dickenson, and Boughton,
as well as General Manager Abbott and Driver Supervisor
Jensen, Abbott asked the employees if there was any
problem they wanted to discuss. There is no evidence that
any employee voiced any complaint, or brought up any
particular subject. Abbott then discussed the company's
desire to change to a driver sales operation and that while
such an operation would result in eliminating some drivers
it would bring about "a lot more money" for those that
remained. When one of the employees asked when the new
system would go into effect, Abbott replied that as long as
the Union was there the new program would not be started
because Respondent could not afford to pay as much as
$200 to $500 a week for a man.14
2. Following the aforementioned dinner meeting, Ab-
bott and Ciccarelli had further conversation in the parking
12 Based on the testimony of Fritz, Arnold , and Haralambos, which on
this point is not materially in conflict.
13 Based on the testimony of Fritz and Haralambos which , on this point,
is not materially in conflict . There is no testimony that at the meeting
dealing with the insurance plans, any statement was made to the effect that
if employees subject to the union contract rejected the Union, they would
receive the benefits provided for the nonunit employees.
14 Based on the credited testimony of Fritz . Abbott did not deny the
aforesaid discussion with Fritz . Jensen's only testimony regarding this event
was that there was no discussion of decertification or of getting out of the
Union . To the extent that Jensen 's testimony may be regarded as in conflict
with that given by Fritz on this point , I credit the latter.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lot of the restaurant, which began on the subject of driver
sales , but soon turned to Ciccarelli's views about the
Union. Abbott stated that he knew Ciccarelli was proun-
ion, but Ciccarelli refused to admit or deny Abbott's
statement, saying that no matter how the election went he
would never disclose how he voted, because he regarded
that as his business. In the course of discussion Ciccarelli
told Abbott that the only reason he wanted to decertify the
Union,15 was to avoid paying the wages other employers
subject to the contract were paying. Abbott agreed that this
was true, and added that if the Union did win the election,
the Company would operate to a greater extent with two
and three men on a truck to avoid paying the case
incentive the employees were then earning.1e
3. Following the election, but before the final results
were announced, driver Clarke was going over his delivery
orders before starting on his day's assignment, and
remarked out loud that the route assigned him was "damn
lousy." Abbott, who was standing nearby and heard
Clarke's remark, replied "If you had voted the other way, it
would be different." 17
4. In the period between the election and the certifica-
tion of the results thereof, Supervisor Jensen, in conversa-
tion with employee Boughton, told the latter that those
employees who voted for the Union should stand by their
convictions and quit to take a job with an employer that
employed members of the Union.is
5. The General Counsel claims that between the
election on June 4 and until September 30, Respondent
imposed more onerous working conditions on those drivers
that were union members, and so manipulated their
assignments as to make it impossible for them to earn as
much from the case incentive bonus as they had in the
past.
With respect to the alleged more onerous assignments, I
find and conclude that evidence fails to support the
General Counsel's argument. Even the General Counsel's
witnesses agreed that the difficulty of an assignment is not
determined solely by the number of cases involved, or the
number of stops to be serviced, but that such factors as the
location of the stops; their distance from the plant and
from each other; the amount of "backtracking" that might
be required to be at a particular stop at a particular time;
whether the establishment to be serviced had a convenient
place for the driver to unload; the amount of handwheeling
and rotation of stock that may be required; and whether
15 It may be noted that the RM petition filed by Respondent was
pending at the time of this conversation.
16 Based on the credited testimony of Ciccarelli. Abbott admitted that he
had a conversation with Ciccarelli in the parking lot, but denied that he
made the statements attributed to him. According to Abbott, the only
concern Ciccarelli expressed was about his future with the company, and
that all he told Ciccarelli was that if he did his work properly, there would
be a job for him. I credit Ciccarellt.
it Based on the credited testimony of Clarke. Abbott did not deny
Clarke's testimony in that regard . The General Counsel argues , relying on
Memphis Chair Company, Inc, 191 NLRB 713 (1971), that Abbott' s failure
to deny Clarke's testimony constituted an admission that this incident
occurred as Clarke testified. In my view the cited case does not support the
General Counsel's argument All the Board held was that the failure to deny
did not furnish a sufficient basis for crediting the contrary testimony. It did
not hold that a failure to deny constituted an admission that the contrary
testimony was true
1s Based on the credited testimony of Boughton . Jensen denied that he
the area is such that the truck and its contents may safely
be left unattended, are all factors which enter into a
determination with respect to difficulty of the assignment.
As no meaningful evidence was adduced with respect to
the aforementioned factors so that an evaluation might be
made of various assignments , or at least a representative
number of them, the General Counsel has failed to carry
his burden of proof in that regard. The unsupported
conclusion of the various drivers, based on no more than
their examination of the daily load sheets, that they
regarded their assignments as more onerous than those
given other drivers, I find inadequate evidence to support
the General Counsel's assertion in that regard.
With regard to the General Counsel's contention that
Respondent discriminatorily reduced the bonus earnings of
the union supporters, the payroll records in evidence show
that in the 24 week period prior to June 9 (the first payroll
ending after the June 4 election), driver Fritz earned
$609.70 in incentive bonus, for an average of $25.40 a
week, while in the 9 week period from June 16 through
August 11, when Respondent announced the end of the
incentive bonus , his total earnings were $18.10, or an
average of $2.01 a week. For Bruce Boughton the figures
are $22.33 a week prior to the election, and $6.70 after the
election; for James Ciccarelli $23.56 prior to the election,
and $6.71 after the election; for Carey Clarke $22 per week
prior to the election, and $1.97 after the election. Although
Peter Dickenson was a union supporter, his incentive
earnings during and prior to the election averaged $17.59 a
week, and after the election the average was $24.58, the
figures would indicate that incentive work was available,
and that Jensen did not make a real effort to distribute it
equally among the drivers, and he claimed he did.19
These figures graphically illustrate that, except in the
case of Dickenson, the incentive earnings of the drivers
who were adherents of the Union were drastically reduced
in the June 16-August II period. In light of my findings
regarding the statements by Jensen, hereafter set forth, that
he would be fired by Respondent if he did not make the
work assignments in such fashion that the union adherents
would be unable to earn more than $10 a week from
incentive bonus, and the fact that Respondent offered no
credible evidence to explain why there was such an abrupt
and substantial reduction in the incentive bonus earned by
the union adherents, I find that Respondent intentionally
prevented the union supporters from earning the incentive
made such a statement , but I do not credit his denial.
19 The General Counsel in his brief, presents a compilation of the
incentive earnings of the union and nonunion drivers , based on hours
drnen , expressing in percentage the amount of increase or decrease in the 9
weeks after the election as compared to the 9 weeks prior to the election. I
have rejected that compilation in favor of that used above, because I do not
regard the basis of the compilation to be sufficiently meaningful . Moreover,
of the 15 employees he lists under the heading nonunion , only 4 testified
(Blood, DiPaolo , Marino , and Weisman), regarding their union affiliation,
or the lack thereof. Blood testified that he joined Local 203 1 week prior to
the election , but then voted against the Union. DiPaolo testified that he
joined Local 203 about 2 weeks before the election , and remained a member
about 3 weeks , but never paid any dues. Marino testified that he was a
member of Local 896, but never a member of 203, and made no attempt to
transfer to it. Weisman, testified that he had been a member of a Teamster
Local , but was not such when hired by Respondent in May, 1973. As to the
remaining 11 , I find nothing in the record to establish that they were or were
not members of the Union.
STANDARD BEVERAGE, INC. 289
bonus because of their assistance to and support of the
Union.20
c. Postelection proceedings
Upon receipt of the information that the Union had lost
the election , multicolored crepe paper streamers were hung
in the office portion of the premises , and a notice was
posted advising all employees of a party to be held the
evening of August 7, at an establishment known as
"Steerberger ." To the notice was attached a rubber rat, and
the legend "Dick Burton then [secty-treas . of the Union] is
a dead rat." This was observed by a number of unit
employees . Some 12 to 15 drivers attended the meeting at
the Steerberger, including Arnold, Clarke, Fritz, Ciccarelli,
and Boughton . Haralambos , as well as supervisors Jensen
and Abbott, were also present . Considerable discussion
took place at this meeting, which requires resolution of
credibility issues . Driver Fritz testified that in a conversa-
tion at one of the tables he heard Boughton complain that
the work assignments were unduly severe , and that
Haralambos replied, if you don't like your job, why don't
you quit.21 Fritz also testified credibly that he heard Clarke
ask Jensen , what is going to happen to us guys, and that
Jensen replied, they are going to get rid of you . At this
point Fritz told Jensen , you know we are being taken
advantage of on the case incentive,22 and that Jensen
replied that he was only doing what he was directed to do;
that if he failed to follow orders he would be out of a job;
and that no driver would be permitted to earn more than
$ 10 a week in case incentive or overtime.23
Additionally, the record shows that about August and
September, Respondent tried to persuade employees Fritz
and Ciccarelli to leave their employment with it and seek
employment elsewhere . The facts with respect to these
incidents are set forth in the sections hereof dealing with
the discharge of the employees mentioned and will not be
repeated here.
4. Alleged discrimination against union adherents
a. Reprimands to, suspension, and discharge of Fritz
Fritz worked for Respondent as a driver from April 1970,
until his termination in late September 1973. He was a
union member , having been initially referred to Respond-
ent through the hiring hall. From June 1972, he was the
Union's shop steward at Respondent's establishment, and
the Union's observer at the election held on June 4. Fritz's
immediate supervisor David Jensen , admitted that prior to
June 4, Fritz was a "very good driver" and never failed to
20 Haralambos and Abbott both testified that they gave no such
instructions to Jensen. I find no reason to accept or reject their testimony in
that regard . It is sufficient , as I have found , that Jensen did so, discrediting,
as I do , all hit testimony that in making his assignments he gave
consideration only to the manner that the product could be distributed with
the greatest efficiency.
Si Haralambos denied that he made such a statement to Boughton or
anyone else. I have credited Boughton because he impressed me as a reliable
witness, while Haralambos did not.
22 This refers to the prior practice of paying the driver on a truck that has
no helper, an incentive of 10 cents per case delivered in excess of 1,250 a
week . Fritz testified that the elimination of the case incentive reduced his
earnings as much as $100 to $140 per month . The record shows that the
complete his assigned work.24 On August 15, Fritz was
assigned as the driver of a truck loaded with 1,360 cases of
beer, to be delivered at 14 designated locations. Dickenson
was assigned as a helper on this truck. Sometime during the
afternoon, when it became apparent that he could not
complete all the deliveries assigned him that day, Fritz in
accordance with usual practice called Jensen and asked
whether he should work overtime to make all the deliveries,
or return to the plant at the normal hour without
completing the deliveries. Jensen told Fritz to return to the
plant at the normal time . When Fritz arrived, Jensen gave
him a written reprimand which stated:
Driver failed to complete a day's work which consisted
of 14 stops and 1360 cases. Brought back 3 stops
[illegible] 359 cases. Helper was Pete Dickenson.
Would not sign or accept copy. Reason was not given
for failure to complete work.
Fritz explained the difficulties he had in completing his
assignment , but did not testify that he so informed Jensen,
but that Jensen rejected these as being matters which occur
in the normal day's work. This was the first time Fritz had
received such a reprimand during his employment.25
Jensen admitted that whether a particular assignment was
"light" or "heavy," involved consideration of not only the
number of stops and the number of cases, but the nature of
the area to be served, the distance from the plant, as well as
the accessibility of ramps, docks, and loading facilities.
On August 17, Fritz was assigned a route which called
for 13 stops to deliver 1152 cases, with Dickenson as his
helper. The evidence shows that on this occasion Fritz
failed to make two stops where a total of 291 cases were to
have been delivered. When Fritz called Jensen to advise
him that he could not complete the work within the regular
hours, Jensen refused to authorize overtime and directed
Fritz to return to the plant. At the plant, Jensen gave Fritz
a written reprimand which reads as follows:
Driver failed to complete day's work which consisted of
13 stops and 1152 cases. Driver brought back 2 stops
for 285 cases. This is driver's second offense for not
finishing assigned day's work. Discipline take 3 day
layoff starting 8-20-73. Would not sign.
On the reverse side of the reprimand appears the following:
Two stops had to wheel because dock was not available
(Ralph's Liquor Stores). Also had to wait for car to pull
out from Santa Anita Liquor. (Usual problems during
day delivery.)
lower figure was probably the more accurate one.
23 Based on the credited testimony of Fritz and Clarke. Jensen denied
making such statements, but I do not credit his denials.
24 Jensen also testified that following June 4, Fritz work performance
was less satisfactory in that he failed to make deliveries required of him. The
contention is hereafter considered and disposed of.
25 Based on the credited testimony of Fritz. Jensen testified that the first
time Fritz returned stops was on August 7, and that he spoke to Fritz about
it, but I do not credit his testimony in that regard . Transcripts of
Respondent's records in evidence show that August 15 , was the first time in
the August 13 to September 19 period that Fritz failed to deliver any
appreciable number of cases.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jensen admitted that this legend reflects what Fritz told
him that day as the reason he was unable to complete the
work.26
A day or two following his return to work after the
disciplinary layoff, Fritz had a conversation with Jensen.
Although the precise manner in which the conversation
arose is not disclosed by the evidence, the credited
evidence shows Jensen told Fritz, in substance , I know you
fellows are getting a screwing, but there is nothing I can do
about it, because we have to go with the people who voted
for the Company. Jensen then asked Fritz how he would
like to have another job, saying it would be with a union
house and probably he would be making more money with
better working conditions . Fritz asked about the location
of the job, but Jensen was unable to give him further
information and suggested that he see General Manager
Abbott, which Fritz did. Abbott told Fritz that the job was
with Sunset Beverage (herein Sunset), that he had been
talking to Jensen about Fritz and his work record, that
Fritz was one of the Company's best drivers, and if Fritz
wished him to do so, he should set up an appointment for
him with officials of Sunset . Abbott additionally told Fritz
that eventually Sunset would also have a decertification
election , and that Sunset would probably ask Fritz
concerning his views about the Union before it would hire
him. Fritz made no reply to these statements, but asked
Abbott to make the appointment for him . Abbott agreed to
do this, and to furnish Fritz with direction for reaching
Sunset's premises . At the end of that day Fritz found
attached to his timecard a note furnishing directions for
reaching Sunset . This note, in evidence as General
Counsel's Exhibit 4, is admittedly in Jensen's handwriting.
A day or two later, Jensen told Fritz not to bother going to
Sunset, because the job had been filled.27
On September 19,28 Fritz was assigned to a route on
which 1212 cases were to be delivered in 15 stops, with
Weisman as • his helper. According to Fritz this was
basically the same route he worked on August 15, and had
difficulty completing . Fritz, after informing Jensen that he
would be unable to complete the assignment, was told to
return to the plant. He did so with 137 cases, leaving one
stop unserviced. At the plant Fritz found a message to see
Jensen, and upon doing so was told by the latter that he
was being dismissed for not doing a day's work.
Respondent's work records for the period Fritz worked
after the two reprimands on August 15 and 17, above
26 The last phrase in parenthesis quoted from the reprimand was, I
assume, Jensen's reaction to the explanation given by Fritz for his inability
to complete the assignment.
27 My findings with respect to this incident are based on the credited,
and in large measure uncontradicted and corroborated testimony of Fritz.
Jensen admitted that he discussed the subject with Fntz , and did so because
Abbott told him that there would be a couple of vacancies at Sunset, and he
had "heard" that Fritz (and Dickenson to whom he also spoke on the
subject, as hereafter set forth), were "unhappy." Jensen also testified that he
"thought" he told Fritz that Sunset was a union shop . Abbott testified he
heard "rumors" that Fritz and Dickenson were "unhappy" in the plant and
wanted to be "elsewhere"; that because of his contacts with other
distributors, he learned that Sunset had two openings and would be willing
to talk to the two men he had in mind if they could clear it with the Union;
that he passed this information on through Jensen ; that while there was
some discussion about where Sunset was located, and that this information
was made available to Fritz and Dickenson , the only thing he heard further
discussed, show the following with respect to Fritz's
performance.
Stops Stops Cases Cases
taken Doliv- taken Deliv- Cases
Date out *red out Bred Retd.
8/23 16 16 307 307 0
8/24 18 18 410 410 0
8/28 20 20 463 463 0
8/29 13 13 1273 1273 0
8/30 23 22 362 356 6
8/31 22 22 336 334 0
9/4 11 10 617 610 7
9/5 15 12 1247 906 341
9/6 21 21 350 348 2
9/7 19 19 335 335 0
9/10 14 13 1120 1065 55
9/12 16 14 646 504 142
9/13 16 14 1149 1011 138
9/14 19 17 420 380 40
9/17 14 13 575 568 7
9/19 15 14 1212 1075 137
Respondent offered no evidence to explain why repri-
mands were not issued to Fritz for his failure to complete
all deliveries on September 5, 10, 12, 13, and 14, when a
substantial numbers of cases were returned undelivered,
and on September 5, 12, and 13 , when returns were in
excess of the undelivered cases on September 19, and for
which Fritz was last reprimanded and discharged . Indeed
Jensen testified that he made the decision to discharge
Fritz on September 19, after Fritz brought back the 137
cases.
b. Reprimand to, suspension, and discharge of
Dickenson
Dickenson worked for Respondent as a driver and/or
helper from April 1970 until his discharge on September
28, 1973, under circumstances hereafter detailed. Dicken-
son was hired by Respondent upon referral from the hiring
hall, and at all times during his employment was a member
of the Union, of which fact Respondent was aware. Prior
to August 7, Dickenson never received a reprimand, nor
was he in any manner criticized for his work. Indeed
Jensen admitted that in the past Dickenson was one of the
better drivers from the standpoint of completing his
assigned work.
about the matter was that the two men never presented themselves at
Sunset, and nothing further was done . Abbott denied telling Fritz that the
latter was one of his best drivers ; that Sunset had plans for a decertification
election at a future date ; that Sunset would ask him his views about the
Union ; simply that the man to see at Sunset was Pruss, but could not recall
whether he told this to Fritz directly or through Jensen . To the extent that
the testimony of Jensen and Abbott conflict with that of Fritz on this point,
I credit the latter.
28 The complaint alleges that Fritz was discharged on "or about"
September 21. The only testimony on the date was that given by Fritz and
Jensen . Fritz testified that his discharge occurred on the same day that he
was given a third and final reprimand, which is not in evidence . Jensen
testified that on September 21, he recommended to Abbott that Fritz be
discharged, and that upon receiving his approval he discharged Fritz.
However, Respondent's work records in evidence show Fritz's last day of
work as a driver was September 19. Accordingly, I assume that this is the
date of his final reprimand and discharge.
STANDARD BEVERAGE, INC.
On August 16, Dickenson made a delivery to a customer,
with instructions to collect payment on delivery . Without
prior authorization Dickenson permitted the customer to
charge the amount of the invoice . The following day, after
the office had the opportunity to check all the paperwork,
he gave Dickenson a reprimand for deviating from
instructions and extending credit without prior clearance.
Dickenson admits the facts , testifying that this was an error
on his part, for which he was entirely to blame.29
On August 21, Dickenson was assigned as driver to
deliver 1,340 cases at 13 stops , with Ciccarelli as his helper
on the truck . According to Dickenson , whose testimony in
that regard is uncontradicted , he was delayed that day by a
wreck on the freeway, and at one stop was without the
services of his helper because of the nature of the
neighborhood , which made it necessary for the helper to
remain with the truck at all times to guard against
pilferage . About midafternoon, Dickenson called the plant
and informed Jensen that because of the aforementioned
events he would not be able to service all the stops assigned
to him by the normal end of the day, and asked for
instructions . Jensen told Dickenson to return to the plant
by 4 p .m. When Dickenson arrived at the plant, with 118
cases having failed to service two stops, Jensen gave him a
reprimand reading:
Driver failed to complete a day's work which consisted
of 13 stops and 1340 cases . Driver brought back 2 stops
for 118 cases . Helper was Jim Ciccarelli. Best's Liquor
said took extra time . No other problems.30
In accordance with Respondent's practice of not repri-
manding the helper unless the driver made a specific
complaint against him, no action was taken against
Ciccarelli.
On September 18, Dickenson was assigned to deliver 14
stops for a total of 1,213 cases . Again Ciccarelli was his
helper . The record does not show just why Dickenson was
not able to complete his assignment that day, but when he
returned to the plant Jensen handed him a reprimand
which reads:
291
After checking at the office , Dickenson went to change
clothes, and finding his uniforms gone from the locker, and
his timecard removed from the rack, he went to Jensen to
find out the reason for this, and was informed that he was
being let go . No reason was given him for his termination.
Jensen did not claim that he gave Dickenson any reason
for his termination . His testimony , as well as that of
Abbott on this point, was that on September 28, the last
workday in the month , the final decision was made to
convert from "presale" to "driver-sale," on October 1, and
that this required a reduction from 16 to 14 drivers, and
that Dickenson and Ciccarelli (whose termination is
hereafter considered), were selected for discharge that day
to reduce force to the number indicated. According to
Jensen, the decision as to which two employees to
terminate on September 28, was made on the basis of
Work performance and attitude; on the stops they were
able to complete; on what they brought back; com-
plaining around the plant ; other drivers complaining
when working with the individual. . . . The perfor-
mance now with what their performance was in the
past.
No evidence was introduced that Dickenson was a
complainer, or that other drivers complained about him.
With respect to Dickenson's record for returning stops, the
evidence shows that between August 13 and September 28,
Dickenson worked as a driver a total of 21 days.31 On I 1 of
these days he was assigned a helper, and on the remaining
10 he worked, alone. On those occasions that he had a
helper the load varied from a minimum of 1,138 cases to a
maximum of 1,469 cases, with an average of 1,271. The 10
assignments that Dickenson worked alone ranged from a
minimum of 288 cases to a maximum of 683, with an
average of 534.5 32 The records also show that in the
August 13 to September 28 period Dickenson completed
all his assignments except in the following instances:
Cases Stops Cases
Stops taken Deliv- Deliv- Cases
Date lbsgd. out ered Bred Retd.
Driver failed to complete a day's work which consisted
of 14 stops and 1213 cases . Driver brought back 3 stops
for 215 cases . This is driver's second offense for not
finishing 'assigned day 's work . Discipline take 3 days
layoff starting 9-18-73 ... .
On September 28, the day Dickenson was terminated, he
was assigned what he described as a "very easy route,"
namely to deliver 527 cases among 15 stops . Apparently,
no helper was assigned . Dickenson completed his assign-
ment and returned to the plant between 1:30 and 2 p.m.
29 Based on the credited testimony of Dickenson and Jensen , which is
not in conflict.
30 Jensen testified that Dickenson gave no valid reason for not
completing his assignment on August 21. To the extent that his testimony
may be regarded as in conflict with that of Dickenson, I credit the latter.
Jensen also testified that if an employee 's reason for not completing his
assignment was simply too much work, this was not noted on the
reprimand, but if there was a sp9cific complaint this would be noted. Why
Jensen did not regard the two reasons given him on August 17, as an
adequate excuse for Dickenson's failure to complete his assignment that
8/3 18 621 14 479 142
8/14 14 1244 12 1013 231
8/17 17 288 15 247 41
8/21 13 1340 11 1212 128
8/22 13 666 10 626 40
9/5 13 1138 12 1065 73
9/11 14 1235 12 1039 196
9/18 14 1213 11 996 217
9/24 18 502 17 487 15
As above indicated Dickenson was given reprimands for
failing to complete his assignment on August 21 and
day, Jensen did not explain.
31 On the remaining days he worked as a helper.
32 The worksheet referred to shows that on September 3, Dickenson was
assigned to deliver 122 cases to 14 stops and that he had no helper . As this
would be an average of 87 cases at each stop, and assuming an average of 30
minutes at a stop, which would of itself account for 7 hours work, not
counting driving time for the day, and the fact he never had another
assignment on which he worked alone, that exceeded 683 cases, I assume
that this was an error , and that he did have a helper that day. My figures
reflect this assumption.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 18. No evidence was introduced showing why
Dickenson was not reprimanded on the other dates
indicated above, when he failed to deliver a substantial
number of cases. Nor was any evidence introduced to show
that Dickenson was a less competent employee than the
ones retained, or why he could not have been used as a
helper.
c. Reprimand to and discharge of Ciccarelli
James Ciccarelli worked for Respondent as a driver
and/or helper from July 1971, until his termination on
September 28. Prior to August 21, he had not been
criticized in any way for his work, and indeed had been
commended by Abbott at one of the preelection dinner
meetings, as well as by Kober, an admitted supervisor, as a
good worker.
On August 15, Ciccarelli was assigned as the driver on a
route with Clarke as a helper. When Ciccarelli returned to
the plant that afternoon at the normal hour, Jensen handed
him a reprimand reading:
Driver failed to complete a day's work which consisted
of 14 stops and 1425 cases. Brought back 4 stops for
297 cases.33 Accounts had too much inventory to rotate
and finish all the stops. Helper was Carey Clarke.
Would not sign.
Ciccarelli received no other reprimands for failing to make
deliveries, but on September 26, Jensen gave him the
following reprimand:
Employee did not notify the office that he was $10.16
over. When checking in on 9-25-73 the girl missed a
paid invoice and put it in with the charge invoices thus
making the driver $10.16 over. It is the driver's
responsibility to keep his money separate from his
personal funds and to notify the office if he has any
extra money left after checking in. As of 3:30 p.m. on
9-26 driver had not reported being over any money.
Ciccarelli's work record during the August 13-September
28 period, shows that he was the driver and responsible for
deliveries on 27 days. On four of such days (August 14 and
15 and September 6 and 12, he had a helper assigned to
him) and on the remaining 23 days he apparently was the
only man on the truck. On all of the 27 days referred to, he
completed all his stops, except as indicated by the
following:
Stops Stops Cases Cases
taken Deliv- taken Deliv- Cases
Date out ered out eyed Retd.
8/13 21 17 735 607 128
8/14 14 11 1226 1029 197
8/15 14 10 1425 1087 338
8/23 23 22 325 320 5
9/5 24 23 445 415 30
9/14 19 18 487 460 27
9/19 17 16 515 508 7
9/24 17 16 537 524 13
9/25 21 20 441 413 28
On September 28, Ciccarelli had what he regarded as a
"relatively easy" run. Finishing his work and returning to
the plant early, he found his locker empty, and a note to
see Jensen . Ciccarelli concluded that he was to be
terminated, and went to Jensen's office and gave him his
locker keys. Jensen remarked, "So you know." Ciccarelli
remarked in effect, it is obvious that you have been trying
to get me all week. Jensen responded in effect, I could have
really gotten you had I tried, and handed Ciccarelli his
final check which included his vacation pay. Respondent's
reason for terminating Ciccarelli is, as in the case of
Dickenson, that the decision to go to driver sales on
October 1, reduced the number of routes from 16 to 14,
requiring a reduction of two men, and that Ciccarelli and
Dickenson were selected for termination because they were
the two least efficient of the driver-helpers. No testimony
was offered by Respondent to explain why Ciccarelli could
not have been assigned as a helper, in which capacity he
had so frequently served, nor does his work record, when
compared with that of other drivers, indicate that he was
among the least efficient drivers, from the standpoint of
deliveries made, as Respondent claims.
Several weeks before his discharge, Ciccarelli was
engaged in conference by George Kober, an admitted
supervisor Kober opened the discussion by stating that
what he was going to say was his own idea; that it had not
been suggested by anyone else; that it was strictly between
the two of them; and that if there was ever any attempt to
use it against him, he would deny it. Kober then stated that
he knew that Ciccarelli was prounion, and that although he
was a good worker, he had to understand that there was no
place for him with the Company; that he had said things
against Haralambos; and that he had a bad attitude.
Kober then stated that Ciccarelli had almost 2 weeks
vacation due him, but if the Company had to fire him he
would not get paid for that, and added if we want to get
you, we can get you, just by following you until you make a
mistake, and then fire you for that. Kober then suggested
that if Ciccarelli would quit, he would give him a good
recommendation, and he would get paid for his vacation
time . Ciccarelli asked for time to consider. The following
day, Kober sought out Ciccarelh and asked if he had
reached a decision . Ciccarelli replied that if he quit he
could not collect unemployment, and that he would just
stay on. Kober replied, " I guess that 's how it is going to
be," 34
d. Reprimand to and suspension of Boughton
Bruce Boughton employed by Respondent from May
1972, until discharged in August or September,35 was hired
through the Union's hiring hall, and at all times material
33 Ciccarelli 's August 13 to September 28 work record shows that on
August 15 he returned to the plant with 338 cases, rather than the 297 stated
in the reprimand.
3' Based on the credited testimony of Ciccarelh . Kober denied that he
had any conversation with Ciccarelh of the nature the latter attributed to
him, but did admit that he may have told Ciccarelh that he was a good
driver I credit Ciccarelli
35 The complaint does not allege, nor does the General Counsel contend
that Boughton's discharge was in any respect unlawful.
STANDARD BEVERAGE, INC. 293
was a union member . He worked as a driver and/or helper
on the delivery routes . Except as hereinafter indicated,
Boughton was never reprimanded , or otherwise criticized
by Respondent for his work performance . As heretofore
found, after the Board election , Boughton was told by
Supervisor Jensen , that those employees who voted for the
Union should have the courage of their convictions and
quit their employment with Respondent and get a job at a
union establishment.
On August 15, Boughton was assigned as driver on a
delivery route , with Loell as his helper . When they returned
to the plant at the usual hour of 4 p.m., Jensen gave
Boughton the following reprimand:
Driver failed to complete a day's work which consisted
of 14 stops and 1255 cases . Driver brought back 2 stops
for 202 cases . No problems just 'not enough time.'
Helper was G. S. Loell.
No reprimand was given Loell in accordance with the
usual practice of not reprimanding the helper unless the
driver made a specific complaint that the helper failed in
some way to properly discharge his duty. Respondent's
work records show that Boughton worked August 13, 14,
and 15 , as a driver .36 On August 13, he was assigned a
route which called for the delivery of 562 cases in 18 stops.
He apparently had no helper . Boughton delivered 456
cases, and although he failed to deliver 106 cases at 2 stops,
he was not reprimanded . On August 14, he was assigned to
deliver 1 ,212 cases at 14 stops, with Weisman as a helper.
He delivered to all 14 stops, and returned to the plant with
two cases , which Respondent apparently regarded as
completion of the assignment . Again he was not repri-
manded. Boughton 's work on August 15, is related above.
Thus it will be noted that on the 3 days Boughton worked
as a driver, he returned stops on two of them, and
considering only the number of cases involved , on August
13, Boughton completed 81 percent of his assigned work,
and on August 15, he completed 83 percent of his assigned
work . Why Boughton's performance on August 15 required
a reprimand , but his performance on August 13 did not,
Respondent did not explain.
On August 27, Boughton was given a disciplinary layoff
of 2 weeks starting from that date , for unexcused absence
from work, which the General Counsel contends was
discriminatorily motivated. The evidence shows that
Boughton had been on sick leave 1 week and was
instructed that when he felt able to return to work, to come
with a doctor's certificate . When Boughton did not return
to work the following week , Respondent called his home
on a number of occasions , but got no answer . Additionally,
Jensen who lives in the same general neighborhood as
Boughton , drove by the latter's home several times both
going to and coming from work , but saw no car belonging
to Boughton or his wife on the premises. When Boughton
returned to work on August 27, he produced no doctor's
certificate , and the reprimand given him at that time recites
36 Apparently, Boughton's work at all other tunes was as a helper.
31 Clarke testified that he was terminated by Respondent in late August
1973 for missing work . The General Counsel did not allege , nor did he
contend at the trial that Clarke's termination was unlawful . He contends
only that Respondent reprimanded Clarke because the latter engaged in
that he then "had a nice tan," and that his appearance was
not that of one who had been too ill to work. Boughton did
not deny that he failed to produce a doctor's certificate,
nor did he deny or give any explanation of the other
factors which appear on the reprimand . Notwithstanding
my finding hereafter made , that the reprimand given
Boughton on August 15, for failing to complete a day's
work, was discriminatorily motivated , I find and conclude
that the General Counsel has failed to establish by a
preponderance of the evidence that the reprimand of
August 27, and the disciplinary layoff based thereon, were
discriminatorily motivated , and hence the allegations of
the complaint in that regard should be dismissed.
e. Reprimand to Clarke
Carey Clarke worked for Respondent from January
1969, until his termination in August 1973.37 Clarke, who
was referred to Respondent by the unemployment service,
worked first as a janitor, and successively thereafter as a
warehouseman , and driver and/or helper on the delivery
routes . At some time not clear from the record, Clarke
became a member of Teamster Local 896; not of Local
203, the Charging Union here38 Except as hereafter
indicated, there is no evidence that Clarke was ever
reprimanded, or that his work performance was in any way
criticized by Respondent, and I have heretofore set forth
the coercive statements that I have found that officials of
Respondent made to Clarke.
Respondent's work records show that after August 11,
Clarke worked a total of 5 days as a driver,39 with the
following results:
Stops Stops
Date Asagd. Compld.
Cases Cases Cases
taken Deliv- Undeliv-
out ered sired
9/13 13 13 591 410 181
9/16 24 21 436 414 22
9/20 19 18 490 440 50
9/22 21 17 326 239 87
9/23 23 18 311 255 56
On August 16, upon returning to the plant from his
route , Clarke was given a reprimand by Jensen , reading as
follows:
Driver failed to complete a day's work which consisted
of 24 stops and 436 cases. Brought back 3 stops for 21
cases . No real problems just the everyday type of hold
ups. Credit, rotation, overstocked accounts . Just too
much work.
Just why Clarke's work on August 16, called for a
reprimand, and his performance on the other days, as
above indicated, did not, Respondent failed to explain.
union or other protected concerted activities.
38 Local 8% is a party to the contract which bound Respondent until
May 31.
39 On other dates Clarke worked as a helper on trucks driven by other
employees.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
f. Reprimand to Loell
G. S. Loell worked for Respondent from September
1969, until January 1974, as a driver and/or helper.40 He
was a member of the Union, and referred to and hired by
Respondent, pursuant to the hiring hall procedures. Loell
originally worked as a driver/helper but at some time not
entirely clear from the record, apparently in late 1972,
Loell sustained a disability and was assigned to lighter
work 41 When Loell took that work there was admittedly
no representation made to him as to how long it would last,
but General Manager Abbott , with whom Loell discussed
the matter, "implied that it was from now on."
On August 7, without prior notice , Respondent ordered
Loell transferred back as a driver and/or helper, delivering
beer to Respondent 's customers . Because he was unaccus-
tomed to doing such heavy work, Loell found that he could
not always complete his assignments . Between August 13
and September 5, Loell had seven assignments as a driver,
and on six of these he was the only person on the truck,
while on one occasion (August 21), Clarke was his helper,
and his work record shows the following performance.
Cases
Stops Stops Cases Deliv- Cases
Date Assgd. Compld. Assgd. grad Retd.
8/13 19 11 619 487 132
8/16 23 14 483 383 100
8/20 18 13 510 447 63
8/21 14 10 1233 891 342
8/27 20 20 411 401 10
8/28 23 16 389 292 97
9/5 23 16 464 377 87
On August 16, Loell was given the following reprimand:
Driver failed to complete a day's work which consisted
of 23 stops and 483 cases. Brought back 9 stops for 100
cases . Left small stops in order to make time stops.
Victor's Liquor stock extra time. Truck 21 did not run
properly. Also left rear door hard to move. Checked out
truck runs OK and door also seem to work without any
problem.
On August 21, Jensen gave Loell a second reprimand,
reading:
Driver failed to complete a day's work which consisted
of 14 stops and 1233 cases. Driver brought back 4 stops
for 325 cases. This is driver's second offense for not
finishing assigned day's work . Disciplinary action taken
3 day layoff starting 8-22-73. Other drivers are
finishing similar routes without problems . Helper was
Carey Clarke. I talked to Loell 8-20-73 about not
finishing assigned day's work. 8-20-73 he brought back
5 stops . I told him that he must start finishing his
assigned work or I was going to have to lay him off.
Problems on run today-no problem just too much for
two men.
No evidence was offered to explain why Loell's perfor-
mance on August 16 and August 21, merited discipline, but
on the other 5 days he worked as a driver, did not.
g. The discharge of Arnold
Robert Arnold was employed by Respondent as a driver
and/or helper from July 1971 until his discharge on August
15, for allegedly misappropriating company funds. Arnold
was referred to Respondent through the hiring hall, and
during the entire period of his employment was a member
of the Union. Respondent makes no complaint about
Arnold's work performance, except for the alleged misap-
propriation of funds.
Respondent's system for having drivers account for
monies they collect, operates substantially as follows: The
driver is charged with the number of cases in his load that
day. Upon prior authorization from the office he may
deliver beer to a customer on credit , but in such cases he
obtains the customer's signature to a charge slip. In
addition, the driver is authorized to receive any payment
on account the customer may make, and to evidence such
a transaction he prepares a paid on account slip (herein
POA slip). When the driver checks in at the end of his day,
he is required to turn into an office clerical all papers
evidencing his transactions . The office clerical prepares an
adding machine tape charging the driver with (1) the value
of the load he took out that morning, and (2) the amounts
represented by the POA slips, and these are totalled.
Against this total the driver received credit for (1) any beer
he may return to the plant; and (2) the authorized charge
slips signed by a customer. The difference between the two
sets of figures is the amount needed to balance his account,
and this may be in the form of cash or checks, which in
some instances are third party checks. It is important to
note also, that because the driver may turn in a number of
third party checks, Respondent does not post to its
accounts receivable ledger from checks, but from the POA
slip which the driver makes out when he collects on
account from a customer.
On August 8, among the customers where Arnold called,
was an establishment known as Liquor House, operated by
a Mr. and Mrs. Reyas. There Mrs. Reyas gave Arnold a
check for $99.89 in payment of goods she had received the
preceding week and, which had then been charged to her
account. At her request Arnold receipted the original
invoice which Mrs. Reyas had in her files, but Arnold did
not prepare a POA slip to evidence the receipt of the
amount she paid him. According to Arnold, just before
returning to the plant on August 8, he stopped and
separated the charge and POA slips, to make sure they
were in order. Finding only two POA slips, and knowing
that he had collected in three places, he began to
reconstruct his transactions that day to determine where
else he collected on account, and concluded that it was a
customer known as Carriage Room Enterprises, where he
apparently had instructions to collect $42.96. Arnold
testified that he then prepared a POA slip for Carriage
Room Enterprises, in the amount of $42.96, and proceeded
.o The complaint does not allege nor does the General Counsel contend
that Loell's termination was a violation of the Act.
41 This work only required Loell to visit the premises of a customer,
check the date on beer containers , and if necessary rotate the stock . It only
required the exertion of "lifting a six pack of beer [and l moving it. "
STANDARD BEVERAGE, INC. 295
to the plant, giving all his papers to Sandra Sloan, the
clerical who prepared the tape settling his transactions for
the day . There is no dispute that among the papers Arnold
turned in at this time were three POA slips, including the
one made out for Carriage Room, and the check given him
by Mrs. Reyas. Still according to Arnold, Sandra Sloan
prepared the tape which he signed , and announced that he
was $50 over , and that he immediately told her there was a
mistake somewhere ; that he checked the figures hastily and
realizing where the error was, told Sandra Sloan to destroy
the POA slip made out to Carriage Room , as well as the
tape that she had prepared , that he would prepare a new
POA slip for the Reyas account , and she could then
prepare a new tape . Arnold testified that he saw Sloan drop
the adding machine tape , and the Carriage Room POA
slip, in the wastebasket , prepare a new tape which reflected
the POA slip for Reyas, but not the Carriage Room slip;
that when this tape was prepared his account balanced,
and that he then signed the tape paid over all the money he
had collected , and left the premises . Arnold testified that
the tape in evidence (G.C. Exh . 7) is the first tape Sloan
prepared on August 8, and that he had no knowledge as to
what happened to the second tape he claims she prepared.
On August 9, Arnold called in ill, and was out each day
thereafter until August 15, and that he came to the plant
that day because it was payday, and he had 3 days pay due
him.
Sloan identified the various documents constituting
General Counsel's Exhibit 6(a) to (w), and which is the
supporting data from which she prepared the tape which is
General Counsel 's Exhibit 7. She testified that General
Counsel 's Exhibit 6(u), (v) and (w), and which includes the
Carriage House POA slip of $42.96, were the only POA
slips Arnold turned in that day; that Arnold said nothing
to her about any error; made no mention of a POA slip for
the Reyas account ; that General Counsel's Exhibit 7 is the
only tape she prepared for Arnold that day; he made no
request that she destroy that tape, or that she prepare
another ; and that he simply signed the tape , turned over to
her the checks he had, (which included the Reyas check),
and sufficient cash to balance the account 42
The matter came to a head on August 14, when another
driver stopped to make a delivery at the Reyas establish-
ment, for which he had instructions to collect on delivery
because the goods delivered during the week preceding
August 8 , had not been paid for . Quite naturally, Mrs.
Reyas protested that she had paid the bill and produced
her copy of the invoice receipted by Arnold. When the
matter came to the attention of Company President
Haralambos, he, with Mrs . Reyas' permission, obtained
42 For reasons hereafter detailed, I find it unnecessary to resolve the
conflict in the evidence of Arnold and Sloan.
43 Arnold himself admits that in his conference with Haralambos he
made no mention of a second tape , or the preparation of a new POA slip
and the requested destruction of the one he allegedly made out and turned
over in error. Additionally, it may be pointed out that Arnold 's affidavit,
given August 22 , 1973, just 2 weeks after the events here involved, and I
week after his interview with Haralambos , he makes no mention of having
told Sloan that the tape she prepared was in error , that he made out a new
POA slip for the Reyas account , or that he asked Sloan to prepare , or that
she did in fact prepare a second tape.
44 It may be pointed out that Haralambos incorrectly computes the
amount Arnold allegedly withheld . Respondent's own evidence shows, and
from the bank a photo copy of her check which
Respondent had deposited to its account, and which her
bank had paid. Respondent also caused its office force to
make a complete reaudit of all settlements made by the
various drivers on August 8, on the chance that perhaps
some error had been made in its bookkeeping department,
but no error was found.
On August 15, when Arnold appeared at the plant, he
was told that he was wanted in Haralambos' office.
Haralambos there told Arnold that the facts indicated that
Arnold had failed to make out a POA slip for the $99.89 he
collected from Reyas and pocketed that amount of money,
and asked Arnold if he had any explanation to offer.
According to Haralambos, Arnold only replied that he
turned in the check,43 and that he explained to Arnold that
the failure to turn in the POA slip meant that he needed
$99,89 less in cash to balance his account when he checked
in. Haralambos finally told Arnold that he was discharging
him for stealing, and that the amount of $99.89 would be
deducted from any wages, due him. Upon learning that
such wages were insufficient to cover the amount,
Haralambos told Arnold that he would be billed for the
deficiency.44
C. Contentions and Conclusions
1. The 8(a)(1) allegations
I find and conclude that Respondent violated Section
8(a)(1) of the Act in the following particulars:
1. The meetings called by Respondent in early 1973, at
which it explained the pension and insurance plans, and
which were attended by virtually all employees, both in
and out of the unit represented by the Union. Although the
evidence shows that neither Respondent nor its agent made
any comparison of the plans provided for by the union
contract, with that Respondent provided for its unit
employees, certainly the union members present could
draw their own conclusion with respect to the relative
merits of the two plans. And it is this fact which probably
explains why those witnesses who gave testimony on the
subject, said that with respect to almost every item, the
provisions of the plans for nonunit employees were
superior to the benefits provided in the union contract. As
Respondent introduced no evidence tending to show that
the conclusions reached by those listeners were unreasona-
ble and unwarranted interpretations of what was said, I
must assume that their interpretation of what was said was
it is in accord with that of Arnold, that the latter reported to and accounted
for a POA slip in the amount of $42.96, as collected from Carriage House,
which in fact he had not collected . Thus the amount which Arnold allegedly
failed to remit to the Company (even under the version of the facts
advanced by Haralambos), was $56 .93 ($99.89 - $42 96 = $56.93). It is also
stated on the record that pursuant to established procedure , Arnold filed a
claim for his wages with an agency of the State of California, which after
some kind of hearing, ruled that Respondent should pay Arnold the wages
withheld from him. The basis for this conclusion does not appear in the
record . It also appears that the State Agency has no enforcement powers,
and that Respondent has not complied with its directive ; any effort to
collect from Respondent must be by independent action in the state courts.
No such action has been brought.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasonable .45 In that sense it was more than a mere
noncoercive statement of fact, as Respondent contends,
but a clear promise of benefit to induce the unit employees
to abandon their support of the Union. Although an
employer faced with a union's campaign to organize his
employees , may lawfully communicate to his employees his
views about unionism in general , or his views about a
particular union , the Supreme Court has made it clear that
he may do so only so long as his communications "do not
contain a threat of reprisal or promise of benefit"
(N.LR.B. v. Gissel Packing Co., 395 U.S. 575, 618 (1969)),
and whether particular conduct falls on one side of the line
or the other is determined by deciding "what did the
speaker intend and the listener understand ." (Id at 619.)
I have found, supra, that the unit employees who testified
on the subject, understood that the plan Respondent
maintained for its nonunit employees was superior in
virtually every particular to that provided in the union
contract . I likewise find and conclude that Respondent's
intent and purpose in inviting the unit employees to these
meetings was to impress upon them that they too might
enjoy those superior benefits if they would withdraw their
support from the Union. If this was not Respondent's
intent and purpose, then calling the unit employees to these
meetings makes no sense and served no purpose.46
2. Abbott's statement to Clarke that Respondent would
have to decertify the Union to convert to a driver-sales
operation, and in that event would have no choice but to
"get rid" of the Union drivers then employed by it , as well
as Jensen's statement to Clarke at the Steerberger, that
Respondent was going to "get rid" of all the Union
supporters.
3. Abbott's statement to employees Fritz, Arnold,
Boughton, Ciccarelli, and Dickenson , at one of the
preelection dinner meetings in April, that Respondent
wished to change to driver-sales type of operation, which
would result in the elimination of some drivers, but more
money for those that remained , and that it could not
convert to the new system so long as the Union was the
bargaining representative of the employees, because it
could not afford to pay the $200 to $500 a week to a driver,
as required under the Union contract . This was not only
interference with the Section 7 rights of employees, but a
promise of benefit if the employees would cease their
support of the Union.
4. Abbott's statements to Ciccarelli in the parking lot of
the restaurant after the dinner meeting, that he knew
Ciccarelli was prounion and that if the Union won the then
contemplated election , Respondent would operate with
more two and three-man trucks to avoid paying the
incentive bonus the employees were then earning. The first
statement called upon Ciccarelli to declare himself as
either for or against the Union, and constituted the
coercion proscribed by Section 8(ax 1) of the Act, Beiser
43 A copy of the union contract is in evidence , but the profit sharing and
insurance plan Respondent maintains for its nonunit employees , is not, and
no evidence was introduced with respect to its provisions.
46 Haralambos testified on direct that he called these meetings because
"several employees" had inquired about their benefits in the Company, and
he thought the most expeditious way to explain them was through a
meeting . On cross-examination Haralambos was more specific , saying that
he had received such inquiry, and when asked to name anyone who had
Aviation Corporation, 135 NLRB 399, 400 (1962); Certain-
Teed Products Corporation, 153 NLRB 495, 507 (1965), and
the second was a threat of more onerous working
conditions if the employees continued to support the
Union.
5. Abbott's statement to Clarke, when the latter voiced
complaint about the nature of the assignment given him,
that if he (Clarke) had voted the other way in the election,
the assignments would be different. This was clearly, a
statement that Respondent had retaliated against employ-
ees because they assisted the Union by voting for it in the
election.
6. Jensen's statement to Boughton that those employees
who voted for the Union should have the courage of their
convictions and seek employment at some establishment
where union members are employed . This was plainly
interference with the Section 7 rights of employees, and
hence violative of Section 8(a)(1) of the Act.
7. Jensen's statement to Clarke and the other employ-
ees assembled , that he was manipulating the work
assignments in such a manner as to make certain that
union adherents did not earn more than $10 from the
bonus . This was an admission that 'Respondent was
punishing the union adherents because of their support of
the Union.
8. The manipulation of work assignments , as I have
found, to prevent union adherents from earning the
incentive bonus they theretofore earned, in retaliation for
said employees having assisted or supported the Union,
and to induce them to cease supporting the Union. This
was clearly interference with the Section 7 rights of the
employees.
9. Posting the rubber rat in the office, where all
employees could see it, with the legend that Burton, an
officer of the Union was a "dead rat." In context this was
an interference with Section 7 rights of the employees.
10. The statement by Haralambos to Boughton made
at the dinner following the announcement of the final
results of the election , when the latter complained about
the work assignments given him, that "if you don't like
your job, why don't you quit?" This was an attempt by
management to induce Boughton to quit, and thus rid itself
of a known active union adherent.
11. Jensen's efforts to induce Fritz, and Kober's efforts
to induce Ciccarelli to terminate their employment with
Respondent and accept employment elsewhere. The
violation is particularly flagrant in the case of Ciccarelli
because Kober stated that if he quit he would be paid for
his vacation , but if he waited until Respondent fired him,
as it would do, he would get nothing. Both statements were
plainly made to retaliate against Fritz and Ciccarelli for
their support of the Union, and constituted interference
with their Section 7 rights.
made such inquiry, his answer was "I don 't recall." I do not credit
Haralambos in that regard, but rather conclude that no employee made
such a request of him or of anyone in authority , that was communicated to
him, but on the entire record including the demeanor of Haralambos while
testifying, I am convinced that his testimony was simply an effort to provide
what he thought would provide a lawful reason for his conduct . N.LR.B. v.
Walton Manufacturing Co., 369 U.S. 404,408 (1962).
STANDARD BEVERAGE, INC. 297
12. Based on my consideration of the entire record, I
am convinced that the evidence supports the General
Counsel 's contention that all of the conduct herein set
forth was engaged in by Respondent pursuant to a plan or
purpose to rid itself of all employees who support the
Union, as well as to rid itself of its contract obligations to
the Union . This being the intent and purpose of Respond-
ent's conduct, it follows that said conduct restrained and
coerced its employees in the exercise of their Section 7
rights and hence violated Section 8(axl) of the Act. I so
find and conclude.
2. The 8(a)(3) allegations
I find and conclude that Respondent violated Section
8(a)(3) and (1) of the Act in the following respects:
1. By discriminatorily issuing reprimands to Fritz,
Ciccarelli , Dickenson, Clarke, Loell , and Boughton, dis-
criminatorily suspending Fritz, Dickenson , and Boughton
and discriminatorily discharging Fritz, Dickenson, and
Ciccarelli . My conclusions in these respects are based on
the totality of the following considerations:
(a) The evidence above set forth establishes , as I have
found , that Respondent entered upon a plan or scheme to
rid itself of its obligations to the Union , and of all
employees who sought to assist or support the Union.
Respondent's animus against the Union and all supporters
thereof, is therefore established.
(b) Respondent, through Abbott and Jensen, frankly told
its employees that supported the Union , that if it succeeded
in its purpose to bring about a decertification of the Union,
it was going to "get rid" of the union supporters. That
Respondent made good on that promise is demonstrated
by the fact that by September 28, just 7 weeks after the
final results of the election were announced on August 7,
the employment of every union supporter in the unit
involved had ended.
(c) Each employee discharged by Respondent was, prior
to August 7, a satisfactory employee with no complaint
from Respondent as to the manner in which they
performed their services. Respondent offered no evidence
to dispute that offered by the General Counsel, that prior
to August 7, drivers at times returned to the warehouse
with undelivered merchandise , and that nothing was said
or done about it. No evidence was introduced to show that
in the post certification period the frequency or volume of
undelivered merchandise was any greater than it had been
prior thereto.
(d) On August 13, immediately following the certification
of the results of the election, Respondent instituted its
system of reprimands , which none of the employees
involved had thereto received, and within 7 working days
every employee involved had been reprimanded at least
once , and in some instances twice , for failing to complete
all deliveries assigned to him.47
47 Fritz on August 15 and 17; Ciccarelli on August 15; Dickenson on
August 17 and 21; Clarke on August 16; Boughton on August 15; and Loell
on August 16 and 21.
48 1 have not overlooked the argument that might be made that the
reprimands , while violative of Sec . 8(a)(1), do not violate Sec . 8(aX3)
because as reprimands they do not affect the tenure of employment of such
employees . As Respondent first suspended and then discharged three
(e) The factors above enumerated adequately establish
the General Counsel's prima facie case, and the burden of
evidence then shifted to Respondent to explain away or
establish the existence of a legitimate basis for its conduct.
The only evidence it offered in that regard was the
testimony of Jensen who, as heretofore stated, did not
impress me as a credible witness, and the work records of
these employees in the August 13 to September 28 period,
with no records of performance in the prior period against
which said records might be meaningfully compared, does
not, in my opinion, adequately refute or overbalance the
General Counsel's prima facie case. Moreover, it is plain
that work records for the prior period must be in existence,
and Respondent's failure to produce them appropriately
gives rise to the inference, which I draw, that had such
records been produced they would not have supported its
position, for "the production of weak evidence when strong
is available can lead only to the conclusion that the strong
would have been adverse" (Interstate Circuit v. United
States, 306 U.S. 208, 225-226).
(f) What all this adds up to is that promptly after
achieving its goal of having the Union decertified as the
collective-bargaining representative of the employees, as I
have found, and to rid itself of those employees who
assisted or supported the Union, six previously satisfactory
employees became the target or victims of a series of
reprimands, and suspensions , with three of them shortly
afterwards discharged. From this the inference may
appropriately be drawn that their union adherence was a
strong motivating factor in the action against them. And
when there is added to this the fact that the alleged
justification for its action against these employees does not
stand up under scrutiny, it is appropriate to infer that the
stated reasons for its conduct is a pretext, and that
Respondent 's true motive , and the one that it desires to
conceal , was the fact that these six employees were
supporters of the Union. As the Court of Appeals for the
Ninth Circuit stated the principle in Shattuck Denn Mining
Company, 360 F.2d 1018, 1020:
... If he [the trier of fact] finds that the stated
motive for the discharge is false, he can infer that there
is another motive. More than that, he can infer that the
motive is one the employer desires to conceal-an
unlawful motive-at least where , as in this case, the
surrounding facts tend to reinforce that inference.
Accordingly, I find and conclude that Respondent
discriminatorily reprimanded Fritz, Ciccarelli, Dickenson,
Clarke, Loell, and Boughton, discriminatorily suspended
Fritz and Dickenson, and thereafter discharged Fritz,
Ciccarelli , and Dickenson , all because of their assistance
and support of the Union, and thereby violated Section
8(a)(3) and (1) of the Act 48
employees because of the reprimands , and the reprimands being for an
alleged failure to properly perform duties , which is normally the basis for a
discharge, I find and conclude that they sufficiently affected the tenure of
employment of the reprimanded employees to establish an 8(aX3) violation.
See Neptune Meter Company, 212 NLRB 87 (1974). In any event, whether
the violation is of both Sec . 8(a)(l) and (3), or of Sec. 8(axl) alone , in either
event the remedy is the same.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Robert Arnold was a member of the Union
and Respondent's animus was general and against all
supporters of the Union, disposition of the General
Counsel's allegation that Arnold was discriminatorily
discharged involves other considerations, and must be
decided on different principles.
The sole ground urged by Respondent for its discharge
of Arnold was that the latter had misappropriated
company funds. A discharge for that reason has, without
any exception that I am aware of, been held to be a
discharge for cause.49 I deem it unnecessary, and therefore
make no finding that Arnold did not misappropriate funds
as Respondent contends. I hold only that on the facts
outlined in section I ,B,J,(g), hereof Haralambos had
reasonable cause to believe that Arnold failed to account
for funds, or at least a substantial portion of what he
admittedly collected from Mrs. Reyas. Paraphrasing the
language of the Board in Sidney Wanzer and Sons, 171
NLRB 1324 (1968), one finds it difficult to overlook that
when Haralambos confronted Arnold with the fact that he
had collected $99.89 from Mrs. Reyas for which he failed
to turn in a POA slip, and properly account, and asked
Arnold for an explanation, the latter admittedly made no
claim that he had presented such a slip when he settled his
accounts with Sandra Sloan on August 8, or that he then
asked her to prepare a new tape which correctly reflected
the monies for which he was required to account. Indeed,
he made no such claim even when, some 10 days after the
event, he gave his affidavit to the Board agent.
Accordingly, I must and do find and conclude that the
General Counsel has failed to prove an essential element of
his case, namely, that in discharging Arnold, Respondent
was motivated by Arnold's union or other protected
concerted activity. Sidney Wanzer and Sons, Inc., supra.
Upon the foregoing findings of fact, and the entire
record in the case, I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By the conduct set forth in section I,C,I, hereof,
Respondent interfered with , restrained , and coerced its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby engaged in, and is
engaging in, unfair labor practices proscribed by Section 7
of the Act.
4. By issuing reprimands to employees Fritz, Dicken-
son, Ciccarelli, Clarke, Loell, and Boughton, by suspending
Fritz and Dickenson, and by discharging Dickenson,
Ciccarelli, and Fritz because they assisted and supported
the Union, Respondent discriminated against each of them
in regard to their hire and tenure of employment, and the
terms and conditions thereof, to discourage membership in
the Union , and thereby engaged in, and is engaging in
unfair labor practices proscribed by Section 8(a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. The General Counsel has failed to prove by a
preponderance of the evidence that Respondent refused to
hire employees dispatched from the Union hiring hall, as
alleged in paragraph 6 of the complaint , or that the
discharge of Arnold was discriminatorily motivated, and
the allegations of the complaint in those respects should be
dismissed.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices proscribed by the Act, it will be recommended
that it cease and desist therefrom and take certain
affirmative action set forth below, designed and found
necessary to effectuate the policies of the Act.
Having found that Respondent restrained and coerced,
and engaged in serious acts of interference with the
exercise of rights guaranteed the employees by Section 7 of
the Act, as well as extensive discrimination against
employees in regard to their terms and conditions of
employment-violations which go to the very heart of the
Act-I conclude from the totality of such conduct that
Respondent should be required to cease and desist from in
any manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed them by
Section 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120
F.2d 532 (C.A. 4, 1941); California Lingerie, Inc., 129
NLRB 912, 915 (1960).
Having found that Respondent discriminatorily repri-
manded employees Fritz, Ciccarelli, Dickenson, Clarke,
Loell, and Boughton, discriminatorily suspended Fritz and
Dickenson, and discriminatorily discharged Fritz, Ciccar-
elli and Dickenson, it will be recommended that Respond-
ent be required to (1) expunge from its files and records all
reference to the fact that said employee was reprimanded
or suspended under the circumstances herein found
unlawful, and notify the employee involved, in writing, that
it has done so; (2) upon request of the employee involved,
but not otherwise, notify in writing, any employer to whom
it has been asked to furnish reference on said employee,
with a copy to the employee involved, that it has been
ordered by the Board to expunge from its records all
reference to the fact that said employee was reprimanded
or suspended by it, and that it has fully complied with such
order; (3) offer Fritz, Ciccarelli, and Dickenson immediate,
full and unconditional reinstatement to his former or
substantially equivalent job, without prejudice to his
seniority or other rights, privileges, or working conditions,
and make him whole for any loss of earnings suffered by
reason of the discrimination against him, by paying to him
a sum of money equal to the amount he would have earned
as wages from the date of his discharge to the date
Respondent offers him reinstatement, as aforesaid , less any
amount he may have earned during said period, to be
49 Sec. 10(c) of the Act provides that . to him of any backpay, if such individual was suspended or discharged
No order of the Board shall require the reinstatement of any individual for cause.
as an employee who has been suspended or discharged , or the payment
STANDARD BEVERAGE, INC. 299
computed in accordance with the formula prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962); and (4) make whole Fritz and Dickenson for the
earnings lost by reason of their discriminatory suspension,
with the usual deduction for interim earnings and in
accordance with the formula mentioned in (3) above.
Additionally, it will be recommended that Respondent
be required to preserve and upon request make available to
authorized agent of the Board, all records necessary or
useful in determining compliance with the Board 's Order
herein, or in computing the amount of backpay due.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER50
Respondent , Standard Beverage , Inc., Los Angeles,
California , its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Promising improved retirement and health and
welfare benefits to employees to induce them to cease
assisting and supporting a labor organization.
(b) Telling employees that it planned to terminate or
otherwise cease employing those employees that assist or
support a labor organization.
(c) Promising employees improved wages or working
conditions if they would cease supporting a labor organiza-
tion.
(d) Threatening employees with more onerous working
conditions if they continued to support a labor organiza-
tion or telling employees that assignments would have been
more lenient had they not supported a labor organization.
(e) Interrogating employees concerning their assistance
or support of a labor organization , or requiring employees
to declare themselves as being for or against a labor
organization.
(f) Urging employees to seek work with employers of
union adherents, because they had voted for a labor
organization in a Board conducted election , or otherwise
assisted or supported a labor organization.
(g) Manipulating work assignments so as to deprive
employees of the opportunity to earn an incentive bonus,
because they assisted or supported a labor organization.
(h) Engaging in a plan or scheme to bring about the
decertification of a labor organization which is the
collective-bargaining representative of its employees in an
appropriate unit.
(i) Discouraging membership in or activities on behalf of
Beer Drivers, Salesmen & Helpers Union Local 203,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization of its employees , by discharging, suspending,
so In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
issuing reprimands to, or in any other manner discriminat-
ing in regard to the hire or tenure of employment or any
term or condition of employment of its employees.
(j) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Offer James T. Fritz, Peter Dickenson and James
Ciccarelli immediate, full and unconditional reinstatement
to their former jobs or, if such jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges, and make each of
them whole for the wages they lost, in the manner set forth
in the section hereof entitled "The Remedy."
(b) Make whole James Fritz and Peter Dickenson for the
wages they severally lost by reason of their discriminatory
suspension as herein found, in accordance with the formula
set forth in the section hereof entitled "The Remedy."
(c) Expunge from its records and files all reprimands, or
suspensions and reference to reprimands or suspensions
herein found to have been discriminatorily issued by it to
James Fritz, James Ciccarelli, Peter Dickenson, Carey E.
Clarke, G. S. Loell, and Bruce Boughton, and advise each
of them in writing, that it has in compliance with this
Order, expunged such material from its files.
(d) Upon request of any of the aforesaid employees, but
not otherwise, notify in writing any employer to whom it
has furnished reference on said employee, that it has been
ordered by the Board to expunge from its records all
reference to the fact that said employee was reprimanded
or suspended by it, and that it has fully complied with such
order, sending a copy of such notice to the employee
involved, at his last known address.
(e) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records and reports necessary or
useful in determining compliance with this recommended
Order, or in computing the amount of backpay due as
herein provided.
(f) Post at its establishment in Los Angeles, California,
copies of the attached notice marked "Appendix." 51
Copies of said notice, on forms provided by the Regional
Director for Region 21, shall, after being signed by an
authorized representative, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
51 In the event the Board's Order is enforced by a Judgment of the
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."
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken to insure that said notices (g) Notify the Regional Director, in writing , within 20
are not altered , defaced, or covered by any other material . days from the date of this Order, what steps it has taken to
comply herewith.