Ace Beverage Co.

National Labor Relations Board - Board Decisions

Dec 16, 1977

233 N.L.R.B. 1269 (N.L.R.B. 1977)

ACE BEVERAGE CO.
Ace Beverage Co. and William W. Hoffer, Ray
Furstenau, Epifanio Gonzalez, and Ron Drake.
Cases 21-CA-15142, 21-CA-15150, 21-CA-
15162 and 21-CA-15163
December 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On July 21, 1977, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief; the General Counsel
filed cross-exceptions, a motion to strike Respon-
dent's brief,' and a brief supporting cross-exceptions
and answering Respondent's exceptions; and Wil-
liam W. Hoffer filed an exception.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions 3 of the Administrative Law
Judge, to modify the remedy so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977),4 and to adopt his
recommended Order, as modified below.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent violated
Section 8(a)(l) and (3) of the Act by demoting
employees Ron Drake and Epifanio Gonzalez.5
In addition, we find that Respondent violated
Section 8(a)(1) of the Act by threatening Drake and
Gonzalez on May 17, 1976, with demotion and
possible discharge if they did not cross the picket line
and work during an anticipated strike.
I The General Counsel filed a motion to strike Respondent's brief on the
grounds that it did not comply with the Board's Rules and Regulations.
Inasmuch as Respondent's bnef substantially complies with our require-
ments, we deny the General Counsel's motion.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 In affirming the Administrative Law Judge's findings and conclusions
herein, we find it unnecessary to pass on his arguendo finding that, even if
Respondent's president stated that in order to qualify for Respondent's
profit-sharing plan, employees could not remain members of the Union,
such a statement "would not seem to have the express purpose of impinging
upon the employees' freedom of choice for or against unionization ....
I See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
5 Member Penello agrees with the Administrative Law Judge's finding
233 NLRB No. 186
Based on the credited testimony of Drake and
Gonzalez, the Administrative Law Judge found that
Supervisors Hull and Wells held separate meetings
with Drake and Gonzalez in Hull's office on May 17,
1976. Hull asked each employee if he would cross the
picket line and work in the event of a strike. Drake
expressed reluctance, based in part on his fear that he
might lose his union pension rights. He asked Hull
what would happen if he refused to cross the picket
line. Hull replied that he might or might not have a
job with Respondent, but that he definitely would
not remain a "route supervisor."
When Gonzalez was similarly asked if he would
work during a strike, he said that he had been a
member of the Teamsters for 30 years and that he
would certainly not jeopardize his pension with the
Union. Gonzalez testified that Hull then stated that,
if Gonzalez did not work during the strike, he might
or might not lose his job, but that he definitely would
not be a "supervisor."
Although the foregoing threats of demotion and
possible discharge were not alleged in the complaint
as separate unfair labor practices, the incidents were
fully litigated at the hearing and the Administrative
Law Judge specifically credited the testimony of
Drake and Gonzalez that Hull made the statements
set forth above. Therefore, and because the state-
ments occurred in the course of conduct which was
alleged as unfair labor practices and were closely
related to such conduct, the Board is not precluded
from finding that said statements violated the Act.
Accordingly, we find that Hull's May 17 statements
to Drake and Gonzalez violated Section 8(a)(1) of
the Act. 6
In view of the nature of the discrimination for
union activity which "goes to the very heart of the
Act," 7 and the unfair labor practices here found,
there exists the danger of the commission by
Respondent of other unfair labor practices pro-
scribed by the Act. Accordingly, we shall modify the
recommended Order of the Administrative Law
that Drake and Gonzalez were statutory employees and not supervisors
within the meaning of the Act. In adopting the Administrative Law Judge's
finding that the demotions of Drake and Gonzalez were unlawful, Member
Penello does so on the ground that Drake and Gonzalez would not have
been demoted but for their membership in the Union. Thus, Drake credibly
testified that, although Hull told him about the brewenes' desire for younger
men in the "route supervisor" positions, Hull also told him that "the main
reason I was being demoted . .was that I could no longer be in the union
and be a supervisor." Similarly, Gonzalez credibly testified that although
Hull said that there had been complaints about Gonzalez' work, Hull
further stated, "the fact is, that you are a member of the union and that is
. . .the main reason" for Gonzalez' demotion.
6 Although the Administrative Law Judge made no finding regarding
these statements, his failure to do so appears to have been inadvertent
inasmuch as par. I(a) of his recommended Order requires that Respondent
cease and desist from, inter alia, "Threatening to demote or discharge
employees for refusing to work during the course of a strike .... "
I N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 532-536 (C.A. 4, 1941).
1269
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judge to order that Respondent cease and desist
from in any other manner infringing upon the rights
guaranteed employees in Section 7 of the Act. 8
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 2 and
renumber subsequent Conclusions of Law according-
ly:
"2. By threatening Ron Drake and Epifanio
Gonzalez with demotion and possible loss of jobs
because of their refusal to work during the course of
a strike, Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(l) of the
Act."
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 below and hereby orders that the Respon-
dent, Ace Beverage Co., Los Angeles, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the recommended Order, as so
modified.
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Threatening to demote or discharge employees
for refusing to work during the course of a strike by
Teamsters Local 896 of the Beer Drivers, Salesmen
and Helpers International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
"(b) Demoting employees or discriminating in any
manner against any of its employees in regard to
their hire or tenure of employment, or any term or
condition of employment, because of their union
membership, sympathies, or activities.
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
8 N.L.RKB. v. Express Publishing Company. 312 U.S. 426, 437 (1941).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to give evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
The Act gives all employees these rights:
To form, join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest
or protection
To refuse to participate in any or all these
things.
WE WILL NOT threaten to demote or discharge
employees for refusing to work during the course
of a strike by Teamsters Local 896 of the Beer
Drivers, Salesmen and Helpers International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization.
WE WILL NOT demote employees or discrimi-
nate in any manner against any of our employees
in regard to their hire or tenure of employment, or
any term or condition of employment, because of
their union membership, sympathies, or activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act.
WE WILL offer Epifanio Gonzalez and Ron
Drake immediate and full reinstatement to their
former jobs or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and WE WILL make them whole for any
loss of pay they may have suffered because we
demoted them, with interest.
ACE BEVERAGE Co.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came to hearing before me in Los Angeles, California, on
April 26 and 27, 1977.1 Hoffer filed the charge in Case 21-
CA-15142 on October 20; and on October 26 Furstenau
filed the charge in Case 21-CA-15150, Gonzalez filed the
t All dates are in 1976 unless otherwise specified.
1270
ACE BEVERAGE CO.
charge in Case 21-CA-15162, and Drake filed the charge
in Case 21-CA-15163. The cases were consolidated for
hearing and incorporated in the instant complaint which
was issued December 21, 1976. The complaint alleges in
substance that Ace Beverage Co. (herein called Respon-
dent Ace or Company) demoted two employees allegedly
because of union or concerted activities and promised
benefits to the employees in violation of Section 8(a)(I) of
the National Labor Relations Act, as amended. By its
answer, Respondent admitted certain allegations, but
denied the commission of any unfair labor practices and
alleges affirmatively that the two demoted employees were
supervisors and therefore beyond the protection of the Act.
All parties were afforded full opportunity to participate,
to present relevant evidence, to argue orally, and to file
briefs.
Upon the entire record in the case, and from my
observation of the demeanor of the witnesses, and having
duly considered the briefs filed by the parties, I make the
following:
FINDINGS OF FACT
2
The complaint alleges and the answer admits facts which
establish these jurisdictional elements. I find these facts to
be as pleaded in Respondent's answer.3
Ace Beverage Co. is in the business of distributing beer
at wholesale to retailers.
A. Background
1. John Anderson is the sole owner of Ace. He also
owns and operates Metro Distributing Company, which is
a facility located across the street from Respondent. Metro
underwent a protracted strike by then Local 203 in the
course of which considerable violence took place. For
example, two of Metro's trucks were firebombed, truck
tires were slashed, and a warehouse was damaged.
2. The Company and Union were functioning under a
contract with Local 203, which expired by its terms on June
1.
3. A strike commenced at Ace on October 6 and ended
on December 6.
4. Don Wells was the company sales manager and
Robert Hull was the vice president and general manager.
Both of these men are clearly supervisors within the
meaning of Section 2(11) of the Act. Hull is answerable to
Anderson, but he is in charge of the day-to-day operations
since Anderson is not at the facility on a daily basis. Wells
is under the supervision of Hull.
5. Ron Drake was described as a route supervisor
having five route salesmen on his team. Epifanio (Eppie)
Gonzalez was described as a route supervisor having six
salesmen on his team. Both of these men were demoted on
or about September 14. These demotions are the basis for
the General Counsel's 8(a)(3) allegation (complaint allega-
tion 6(a)).
2 No issue of commerce or labor organization is presented.
3 Respondent in its answer denied that Local 203 of the Beer Drivers,
Salesmen and Helpers, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of Amenca, is labor organization. The reason
for this denial is because the Union. Local 203. was merged into Teamsters
Local 896 on December I.
B. Issues
I. Whether Drake and Gonzalez were supervisors
within the meaning of the Act at the time they held the
positions of sales supervisors.
2. Whether Respondent violated Section 8(aX1) and (3)
of the Act by demoting Drake and Gonzalez from their
positions as sales supervisors to the positions of route
salesmen.
3. Whether Respondent violated Section 8(a)(1) of the
Act by promising benefits to employees in order to
encourage them to withdraw their support from Beer
Drivers, Salesmen and Helpers, Local 203, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union.
C. Certain Principles Should Be Noted
The Board's determination is based on the existence of
authority rather than on assertions that supervisory
authority has been conferred on a particular person.4 The
routine direction of the type customarily exercised by
experienced employees over those less skilled does not
confer supervisory status within the meaning of the Act.5
Further, the responsibility for making work assignments in
a routine fashion does not make one a supervisor nor does
the assumption of some supervisory authority for a
temporary period create supervisory status.6
All of the above principles are set forth in Beth Israel
Medical Center reported at 229 NLRB 295 (1977).
D. The Facts and Discussion
On June 1, 1976, the collective-bargaining agreement
between Respondent and the Union expired. Around this
date a strike began at Metro. Respondent's employees
continued to work without a contract until October 6, 1976,
when they went on strike. The strike ended on December 6,
1976, when a strike agreement and a new contract were
agreed upon by most of the beer distributors in the Los
Angeles area.
Pursuant to the terms of the strike settlement agreement
if a decertification petition was pending involving a
salesmen unit of a certain employer, the salesmen of the
employer would return to work if the Union won the
decertification election but if the Union lost the election
the employer was not required to reinstate any striking
salesmen (Resp. Exh. 8). Such a decertification petition was
filed by Respondent's employees and an election took
place on January 6, 1977. The ballots in that election were
impounded pending the outcome of an appeal of the
dismissal of 8(a)5) charges against Respondent and most
of the other beer distributors involved in the December 6
strike settlement agreement.7
West Penn Power Co. v. N.LR.B., 337 F.2d 993, 996 (C.A. 3, 1964).
5 Southeastern Cast Stone, Incorporated 185 NLRB 688, 691-692 (1970).
and cases cited therein.
R Mid-State Fruit. Inc., 186 NLRB 51 (1970).
? Official notice is taken of the Board's proceedings in Case 21 RD-
1405.
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Employment Status of Drake and Gonzalez
Before September 14, 1976, Respondent's sales staff
consisted of 11 route salesmen, Sales Supervisors Drake
and Gonzalez, Draft Manager Mary Buchanan, Sales
Manager Don Wells, and General Manager Bob Hull.
Each route salesman was assigned a definite area which
was his responsibility to take care of. His duties consisted
of calling on all the accounts in the assigned area of that
route that had any liquor, beer, or wine licenses. He
inventoried stock, asked for new orders, rotated beer,
stocked shelves, and asked for permission to install floor
displays and new package products. Drake worked for 5
years as a route salesman from 1964 to 1969 and he was the
supervisor from 1969 until September 13, 1976. Thus,
Drake was a route supervisor for approximately 7 years.
Drake's group consisted of five salesmen and Gonzalez had
six. Before 1975, when Gonzalez was named supervisor,
Drake had been the only sales supervisor for all I I route
salesmen.
One of the primary duties of the route supervisor was to
back up as a substitute for route salesmen who were on
vacation or sick leave. The sales supervisor also worked
with the men in the field attempting to improve the sales in
his area, particularly with respect to major accounts. In
helping maintain proper relations with these key accounts,
the sales supervisor would call on these accounts, with or
without route salesmen, and attempt to sell new packages,
set up floor displays, rotate the beer, and place advertising
signs. Additionally, the sales supervisors instructed the
route salesmen in the proper bookkeeping procedures,
pricing procedures, the correct way to rotate beer, and the
establishment of a schedule of calls on a route. In the
performance of these duties, the supervisor was expected to
ride with the route salesmen on his route about once every
3 months.
The sales supervisors also had the responsibility of
collecting money which represented customer's checks
which had not been honored by the bank. However, he did
not have any authority to determine the amount of money
that a customer would have to pay to satisfy his debt.
Route salesmen earned $1,019 a month. Sales supervisors
earned $1,060. In 1974 and 1975 Drake received a $200
bonus for the year. The salary for a route salesman was
determined by the union contract. Such salesmen were
reimbursed every 2 months or so for parking, telephone
calls, and matters of that nature. As sales supervisors,
Drake and Gonzalez received $75 every 2 weeks with
which they were expected to take care of trade spending. s
Route salesmen used a company car while performing their
duties. The sales supervisors had the use of a company car
7 days a week.
Both Drake and Gonzalez testified that as sales supervi-
sors they did not have the authority to hire, fire, transfer
employees from one route to another, assign an employee
to a route, promote, grant time off, or to schedule
vacations. Furthermore, both Drake and Gonzalez testified
that they had never been told that they had the authority to
hire, fire, promote, or discipline employees and, in fact, had
8 Trade spending was defined by Drake as the spending of money used
to purchase beer for customers.
never recommended any such action. Occasionally, they
were asked to express an opinion as to whether a particular
employee should be hired. Similarly, Drake recalled that
on a number of instances he had been asked to express an
opinion on an employee's termination. In every case,
Drake testified that the final decision was made by Hull
and his own evaluation and observations of the employee
in question. Both Gonzalez and Drake testified that they
had never recommended that an employee be disciplined
and instead of giving verbal reprimands had merely
informed employees of their errors. Even in the event of an
emergency neither Gonzalez nor Drake had the authority
to give an employee permission to leave work. The
authority to grant time off was exercised by Hull.
Vacations were determined by seniority. Both sales
supervisors had a vacation list and they would rule out the
weeks when the employees were not allowed to go on
vacation because of company policy. For example, if a
holiday occurred during the week that an employee wanted
a vacation, he was not permitted to take a vacation at that
time. Apparently, holidays are important periods during
which there is greater demand for beer. In the event of a
holiday, Drake would just run a line through those weeks
which vacations could not be taken.
With respect to the authority to discipline employees,
Drake's testimony was corroborated by employees (Hoffer,
Telles, and O'Shell). These employees corroborated the
fact that even when they were given corrections, both
Hoffer and Telles testified, they did not feel compelled to
follow such corrections. The record shows that Drake
never recommended that an employee should be discip-
lined and instead of giving verbal reprimands he had
simply informed employees of their errors.
Gonzalez testified that he did not have the authority to
recommend that employees be hired, fired, or promoted,
but he had on occasion, and when requested, expressed an
opinion. With respect to recommending terminations,
Gonzalez testified that he had never recommended anyone
be fired and that the only time that he had been involved in
the decision to terminate an employee was the time
Respondent hired Andrew Hernandez. According to
Gonzalez, whom I credit, Hull had instructed Gonzalez
that Hernandez was to be fired after Gonzalez rode with
him, and Gonzalez was instructed to report that Hernandez
was not performing his job properly. Gonzalez refused to
do what Hull requested because he found that Hernandez
had not made any mistakes during the day that he rode
with him. In fact, Gonzalez reported that Hernandez did a
satisfactory job and with further experience would make a
good salesperson. There is no evidence in the record that
Gonzalez had ever disciplined an employee or recommend-
ed such action.
Included in the regular duties of the sales supervisor was
the requirement that he ride with each of the route
salesmen in his group at least once a quarter if his
workload made this possible.
During cross-examination, Gonzalez was asked if he had
ever made any recommendations with respect to other
salesmen besides Hernandez. He testified that he did with
1272
ACE BEVERAGE CO.
respect to one truckdriver, Ray Caldera. Three months
later, Caldera was hired as a route salesman, but this was
done without consultation with Gonzalez and without his
knowledge. When Gonzalez was riding with a salesman
and found that he was not doing something properly, he
talked to the salesman in an attempt to correct him, but he
was really only trying to show him an easier way to do the
job. He did not regard this as a reprimand.
Gonzalez also delivered beer to retailers during 1975, but
this work was eliminated in 1976. He also called on
different wholesalers where he picked up a truckload of
beer. In addition, Gonzalez called on high-volume ac-
counts and key accounts, he spent considerable time doing
this work because the books were reviewed by the brewery
and making the calls throughout the city was time
consuming. Gonzalez testified that he occasionally had
complaints from customers, but if they were serious they
were turned over to the sales manager and he would make
final disposition of such complaints. The record also shows
that no evidence was presented that Gonzalez had ever
disciplined an employee or recommended such action.
Part of the regular duties of the sales supervisor was to
ride with each of the route salesmen in his group at least
once a quarter if his workload permitted him to do so. By
riding with the route salesmen, the supervisor was able to
learn the route and the new customers he would have to
deal with when he substituted for the regular salesmen.
At the end of the day, after riding with the route
salesmen, the supervisors were required to fill out a report.
These reports bore the title "Hamm's Wholesaler Personnel
Ratings." The forms contained 20 categories to be rated on
a scale of one to four, four being excellent. The categories
included: Whether the route salesman is known by name
by retailers; whether the route salesman checked his stock
and his replacement in the refrigerator; whether the
salesman rotated his stock; and whether the salesman kept
his floor displays and other advertising material in good
condition. According to Drake and Gonzalez, these reports
provided a guideline to the performance of the salesmen to
determine what mistakes they were making and if they
required additional training. The completed forms were
turned in to the sales manager, who placed them in his own
files, but did not discuss the substance of the forms with
either supervisor.
It is clear from the testimony of Drake and Gonzalez that
the evaluations were used to judge the quality of the
services being rendered to the customer rather than as a
basis for making decisions on the employment status of
each salesman.
In a single instance, which occurred in January 1976,
both Gonzalez and Drake were asked to fill out a new form
for each salesman. Wells developed this form and said it
was to be a 6-month evaluation but he did not use the form
a second time. On each form, the supervisors were asked to
make general comments on the salesman's progress, his
good points and areas where he needed improvement, and
if the salesman was performing the tasks best suited to his
ability or if he should be discharged. The forms were
turned in to Wells who again placed them in his office files
but not in the employees' personnel files and were never
heard of again.
It should be noted that when Drake was first offered a
job as route supervisor he was told by Larry Davenport
(who was the previous general manager and is no longer
with the Company) that he had a choice as to whether or
not he could stay in the Union, that it was immaterial to
the Company. Drake elected to stay in the Union. This
situation took place 7 years before he was demoted.
On one occasion, when Hull and Wells were both away
from the facility attending a sales seminar, they left written
instructions as to what was to be done in their absence.
Also, during the time that Hull and Wells were away from
the office there was a representative from management in
the facility. This person was Judith Brady, the office
manager. Brady is assistant to Anderson, who is the
president and owner of the business. She was in charge of
the office and plant when no one else of the top
management hierarchy was present.
F. The Demotion of Drake and Gonzalez
Hull and Wells held separate meetings with Drake and
Gonzalez in Hull's office on May 17. Hull asked each man
if he would cross the picket line and work in the event of a
strike. Drake replied by saying that he had been a union
man for 17 years and he did not want to jeopardize his
pension. Wells made a remark about the fact that he
understood that the new laws on pensions allowed a union
member to freeze his pension rights. Drake asked what
would happen if he decided not to cross the picket line.
Hull replied that, in that event, Drake might or might not
have a job with Respondent, but he definitely would not
remain a supervisor.
When Gonzalez was asked the same question, he stated
that he had been a member of the Teamsters Union for 30
years and that he would certainly not jeopardize his
pension with the Union. Again, Wells made mention of the
fact that under the new laws the union members could
freeze their pensions. Gonzalez testified that Hull then
stated that if he did not work during the strike he might or
might not lose his job with the Respondent but that he
definitely would not be a supervisor. Both Hull and Wells
deny this testimony as given by Drake and Gonzalez.
Both Drake and Gonzalez gave their testimony in a
thoughtful, careful manner and impressed me by their
demeanor as being reliable witnesses. I credit their
testimony. I do not credit the denials of Hull and Wells.
In this connection it should be noted that at the time of
their demotion they were not discharged but where
demoted from their supervisory positions. This seems to
confirm the accuracy of the testimony of Drake and
Gonzalez because, while they were not discharged, they
were kept in the Company's employment on a reduced
status. These facts also demonstrate that the denials by
Hull and Wells are refuted by the facts as they developed
in the unfolding of the events which took place.
On September 1, Gonzalez again met with Hull and
Wells in Hull's office at which time Hull announced to
Gonzalez that, effective September 14, Gonzalez would be
demoted back to the position of route salesman. According
to Gonzalez, Hull stated that there had been some
complaints from salesmen about Gonzalez, but the main
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason he was demoted was because a supervisor could not
be a union member.
On September 7, Drake was called into Hull's office
where he met with both Hull and Wells. He was told that
effective September 14 he was being demoted to a route
salesman. Drake protested, pointing out that he had been
with the Respondent almost 13 years and he did not think
it was fair that he should be demoted at this time.
According to Drake, Hull replied that Respondent was
making changes and the main reason for the demotion was
that a supervisor could not be in the Union. As a second
reason Hull stated that both Olympia and Anheuser-Busch
had recommended that younger men be hired to take over
these jobs.
G. The Independent 8(a)(1) Conduct of Respondent
A meeting of all employees took place in the salesroom
at Ace on August 2, 1976, at which Anderson spoke to the
employees. This was a day when the Olympia Brewery
hosted a baseball game and dinner for the sales employees.
Anderson talked for 20 to 30 minutes in the course of
which he discussed three main topics. First, he gave a
summary of the negotiations he had had with the Union.
Anderson told the employees that he had met with the
union leaders and thought the parties had worked out an
agreement but the Union later reneged on their agreement.
Second, Anderson discussed the fact that there had been a
lot of violent instances which had taken place at the facility
of the Metro Company, which is also owned by Anderson
and is located across the street from the Ace operation.
There had been a strike for approximately 60 days at
Metro during the course of which two warehouses had
been firebombed, one warehouse had been leveled, four of
the company's trucks had been firebombed, and every day
tires on company trucks had been slashed. Anderson urged
all the employees not to participate in any violence but to
maintain a low profile. The third topic discussed concerned
the Company's profit-sharing plan. Anderson testified that
the plan's purpose was to equalize employees who were not
covered by any other plan.
In answer to a question put to him by his counsel,
whether Anderson had discussed decertification of the
Union, Anderson replied that the question might have been
raised about decertification from the floor. He stated there
were a number of companies that had been decertified. He
did, however, deny that he had alluded to or recommended
decertification by any of his employees. Anderson also
denied that he had mentioned during the course of his talk
that Ron Drake and Eppie Gonzalez had withdrawn from
the Union. He said he believed they were still members of
the Union. In his testimony, Anderson also stated that he
did not suggest that any employees withdraw from the
Union.
Anderson testified that he paid particular attention to the
requests of Anheuser-Busch and Olympia Brewing Compa-
ny because these were the two major suppliers of beer to
his Company. He said that the two companies made a
semiannual review and appraisal of the job being done by
Ace as a distributor. In a semiannual review that took place
in December 1975, Ace had received a poor rating from the
Olympia Brewing Company and one of the items demand-
ed by Olympia of Ace was that the Company should revise
and overhaul their sales management personnel who were
not doing a good job. As a consequence of the pressure
against Ace by Olympia, the Company agreed to shift their
present sales manager and the two sales supervisors.
Vic Anderson is the Olympia representative who has
specific jurisdiction over Ace Beverage. About 6 or 7
months after the December negative evaluation, both
Olympia and Anheuser-Busch gave Anderson a demand
that the recommendation which they had made be put into
effect by a definite date and they insisted on tying Ace
down to a specific commitment. At this point Anderson
said he approved the demotion of Drake and Gonzalez.
Hull had the obligation to make the changes described
above but only with the approval of Anderson. Anderson
stated that his approval had nothing to do with the union
membership of Drake or Gonzalez.
Respondent offered Danny Telles as one of its witnesses.
Telles has held the position as sales supervisor for about 7
months. He replaced Gonzalez. Prior to the time he
became a sales supervisor he was a salesman for Ace for a
period of 4 years.
During the time Telles was a salesman his supervisor was
Drake. With respect to the mistakes that he made, Drake
would tell him what was wrong and tell him how to correct
it. He was not required to obey these directions unless he
thought they were correct.
With respect to evaluation reports, Telles said that the
purpose of the reports was to find that the job being done
by the salesmen was adequate or if they needed more
training.
With respect to being granted time off from the job,
Telles testified that when he asked Drake permission to
take a day off Drake would say that it really was not up to
him. He would have to ask Bob Hull.
Adverting to the talk given by Anderson on August 2,
both Hull and Wells testified that in this talk no mention of
decertification was made by Anderson. In his direct
testimony, Anderson was asked by his attorney if he had
discussed decertification of the Union. Anderson replied
that the question might have been raised. There were a
number of companies that had been decertified. He denied
that he had recommended decertification by any of his
employees. It is significant to note the conflict in testimony
between Hull and Wells and the testimony of Anderson.
The Company points to certain duties and actions of
Drake and Gonzalez to establish their supervisory status.
However, an examination of Gonzalez' and Drake's work
duties clearly reveal that they did not possess any such
authority.
Both Drake and Gonzalez testified that while they had
no authority to hire employees they had, on occasion,
expressed an opinion about the hiring of certain people.
Respondent produced no evidence that it relied on the
opinions of Drake and Gonzalez without conducting its
own independent investigation.
Hull's testimony on Drake's recommendations to hire
employees was vague and uncertain. He testified that, as
nearly as he could recall, Drake had made such recommen-
dations but he could not recall the name of any person
whom Drake had actually recommended for hire. He did
1274
ACE BEVERAGE CO.
testify that he believed that Drake had recommended
someone nicknamed Beta. Thus, it can be seen that the
Company presented no evidence that could be accepted as
proof of the fact that Drake made effective recommenda-
tions with respect to the hiring of employees.
With respect to Gonzalez, Hull testified that Gonzalez
made only two recommendations concerning the hiring of
employees and in each case the person recommended was
not hired. From this evidence, it cannot be said that
Gonzalez had the authority to effectively recommend the
hiring of employees.
With respect to termination of employees, Drake testified
that on two or three occasions he expressed an opinion on
the possible termination of an employee. In each case,
however, the final decision was made by Hull after
conducting his own independent investigation. The first
employee, Mike Lozano, manifested a tendency to make
many errors until he was brought into the office and told to
improve his work. Hull discussed this situation with Drake
and it was finally concluded that Lozano should be put on
probation and told that he had to improve or he would be
terminated. Hull testified that he thought Drake had
agreed with his idea of the probationary period, but the
decision was made by Hull.
Similarly, Hull testified that a second employee, Al Gee,
had also made a number of mistakes and Respondent had
received a number of customer complaints concerning Gee.
Hull testified that he thought Drake had recommended
that he, Hull, talk to Gee about his mistakes and tell him
that he either had to improve or he would be terminated.
Drake had given Gee a low score in the evaluation sheet
with respect to his appearance and Hull spoke to Drake
about that score. Drake expressed his opinion that Gee was
very well liked and deserved an opportunity to improve
rather than be discharged. In any event, the opinion to give
Gee another chance was a decision made by Hull.
There was also some discussion with respect to Hernan-
dez which has been discussed supra. In this instance, both
Drake and Gonzalez had ridden the route with Hernandez
and suggested that Hull give Hernandez proper supervision
and thereafter Hernandez became a good salesman. It is
important to point out that with respect to Drake's
involvement in possible recommendations concerning
discharge the instances described above are the only
incidents in his 7 years as supervisor when Drake had even
been questioned about a salesman's performance.
The General Counsel argues that from the above-related
facts it is clear that Drake and Gonzalez did not have the
authority to effectively recommend the termination of
employees. In each instance the Respondent conducted its
own investigation and made its own evaluation on the
merits of the employee's continued employment.
It is also clear that neither Drake nor Gonzalez had the
authority to discipline employees. Hull testified that Drake
and Gonzalez had the authority to verbally reprimand
salesmen and that he had often heard them do so in the
sales department. Hull, however, did not cite any specific
incidents when he had observed either Drake or Gonzalez
reprimanding a salesman. In contradiction to this testimo-
0 O'Shell was one of Respondent's route salesmen until September 14,
when he replaced Buchanan as draft manager.
ny, Respondent's witness O'Shell9 testified that Drake did
not verbally reprimand him when Drake was his supervi-
sor. Telles testified that while Drake would occasionally
correct his work, he did not feel compelled to do what
Drake told him to do unless he felt that Drake was right.
Hoffer testified to the same effect. This establishes rather
clearly that with respect to Telles and Hoffer that Drake
was not regarded as a supervisor by fellow employees. Both
Drake and Gonzalez testified that they did not reprimand
employees, but merely showed them their mistakes and a
better way of doing their work, which was verified by the
employees who had worked with them. Consequently,
there is no evidence that Drake and Gonzalez did have the
authority to verbally reprimand employees.
Similarly, the credible evidence indicates that Drake and
Gonzalez were not supervisors. The evidence clearly
reveals that they did not have the authority to hire,
transfer, suspend, lay off, recall, promote, discharge, assist,
reward, or discipline other employees, or to effectively
recommend such actions.
Despite the fact that both Drake and Gonzalez expressed
opinions on the hiring and termination of employees, they
only did so when requested to express an opinion. The
evidence reveals that these opinions were not effective
recommendations. This is so because even when recom-
mendations were made they were not acted upon without
independent investigation by either Wells or Hull. The
General Counsel cites the case of Wilson Wholesale Meat
Company, 209 NLRB 222 (1974), affd. 516 F.2d 1244
(C.A.D.C., 1975).
Furthermore, Respondent has presented no evidence
that the recommendations made on the evaluation forms
had any effect on the terms and conditions of employment
of the route salesmen. In this connection, the General
Counsel cites the case of Leisure Hills Centers, Inc., 203
NLRB 326 (1973). In that case, licensed practical nurses
filled out evaluation forms on the aides assigned to them
which included recommendations for continued employ-
ment and wage increases. These nurses were found not to
be supervisors within the meaning of the Act because no
action on their recommendations and evaluations were
made without an independent investigation by higher
supervision. In the instant cases, it is clear that Hull
independently investigated the merits of any decision
affecting the salesmen and the evaluations played an
insignificant role in those decisions. The General Counsel
adverts to the Caravan Supply Company, Inc., 203 NLRB
583, 587 (1973). In this case, the supervisor of a lunchroom
filled out written evaluation forms on employees at the end
of the summer when the summer help was being terminat-
ed. Based on these evaluations he rated employees on such
things as how well they got along with others, how well
they did their work, and recommended action concerning
the rehire of the employees. These forms were placed in the
employees' personnel files and were used by management
in determining whether or not the employees would be
rehired for the following summer. Here again the supervi-
sor was found not to be a supervisor within the meaning of
the Act, because his recommendations were not effective
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without an independent investigation and evaluation by
higher supervision. Therefore, as the evidence reveals that
the evaluations filled out by Drake and Gonzalez were
seldom used for any purpose and subject to independent
investigation and evaluation by higher supervision, they
are not supervisors within the meaning of the Act.
It should be noted that both Drake and Gonzalez had as
their primary responsibility the duty to call upon retailers
and perform the identical duties that were performed by
the salesmen on the routes. Both Drake and Gonzalez
spent much of their time substituting for the route salesmen
and engaged in sales activities at key accounts, they were
compensated on a slightly higher basis than the salesmen,
and they were under Wells' immediate control as were the
salesmen.
H. The Talk of August 2
Anderson testified with respect to the subject of
decertification, "I certainly did, in no way, allude to or
recommend decertification by any of our people .... I
am a lawyer by background, and I recognize the danger of
even bringing such items as that up so I certainly didn't
recommend - there may have been a question raised
about it, but I certainly didn't volunteer it." Respondent's
counsel asked Anderson, "At that meeting did you in any
way suggest to any of the employees that they withdraw
from the union?" Anderson replied, "None whatsoever."
Anderson impressed me as a persuasive witness. I credit his
testimony. The General Counsel did not cross-examine
Anderson.
The General Counsel argues that Anderson's talk of
August 2, 1976, included a discussion of the Company's
profit-sharing plan and by so doing offered a benefit to the
employees if they would relinquish their membership in the
Union. However, I have found that Anderson did not
suggest that Respondent's employees should get out of the
Union. Furthermore, Anderson did not state the profit-
sharing plan was better or worse than the union plan.
Therefore, it did not represent a promise of benefit. He also
did not persuade the employees to take any such action.
Respondent, in its brief, calls attention to the fact that
Hernandez, who was called as a witness for the General
Counsel, corroborated the testimony of Anderson and
"specifically testified that Anderson stated that it was not
his intention to persuade the employees one way or the
other, that the employees should consider all factors."
Respondent further states in its brief that in order to
support the General Counsel's contention two elements are
necessary: "I - That Anderson promised the employees
increased benefits, and 2 - The promise of these benefits
was conditioned upon withdrawing support from the
Union. Neither of these elements is present here." I agree. I
find that Anderson's talk did not constitute preponderant
evidence of independent 8(a)(1) activity and I therefore
recommend that this allegation in the complaint be
dismissed.
The route salesmen spent almost all their working time
without any supervision, out in the field and visiting
to See, for example, Florida Steel Corporation, 220 NLRB 225, 229
(1975); Riverside Industries, Inc., 208 NLRB 311, 312 (1974); Lawson-United
Feldspar and Mineral Co., 189 NLRB 350,. 354 (1971).
customers. Drake and Gonzalez rode with the salesmen,
once every 3 months, and on those occasions they assisted
the salesmen in performing their duties. At the same time,
they acquainted themselves with the customers and with
the routes of the salesmen but did not direct the work of
the salesmen nor exercise any authority over them. It is
clear that Drake and Gonzalez performed the same duties
as other salesmen and were regular employees who neither
thought of themselves, nor were they thought of by the
other salesmen, as possessing supervisory authority.
The Board has consistently held that persons who merely
transmit and execute directions from management and
engage in routine functions are not supervisors within the
meaning of the Act.10 Even with respect to the Gee
incident, where Drake wrote on his evaluation that his
dress was not in accordance with the requirements of the
Company, the Board held that isolated instances of
supervisory authority are insufficient upon which to base a
finding that an individual is a statutory supervisor."
I. Concluding Findings and Analysis
Based on the evidence in the record, detailed supra,
neither Drake nor Gonzalez was a supervisor. For example,
neither man had the authority to discipline employees.
When they pointed out shortcomings in the jobs being
performed by route salesmen, they were simply acting as
more experienced employees who were assisting less
experienced men. Furthermore, contrary to a statement
which appears in Respondent's brief that "fellow employ-
ees of Drake and Gonzalez regarded them as someone
whose requests or instructions were to be obeyed," the
testimony in the record is otherwise. Employees Hoffer,
Telles, and Hernandez all testified without refutation that,
when they were corrected, they would not have to comply
with such corrections unless they felt the instructions were
right and they were wrong. It is difficult to imagine a
clearer manifestation of the nonsupervisory status of Drake
and Gonzalez than to have employees credibly testify that
they did not have to obey instructions of their alleged
supervisors.
Respondent states in its brief that the sole reason why
Drake and Gonzalez were demoted was due to pressure
from Olympia to take such action. There is no doubt in my
mind that Olympia did bring pressure on Ace and, by so
doing, this played a part in the Respondent's decision to
demote the two men. However, even if it is found that the
demotions were in part due to a request from Olympia, it is
equally clear to me that the circumstances of their
demotions prove that the union membership of Drake and
Gonzalez was at least, in part, a reason for the demotions
and therefore the demotions were unlawful.
Respondent also makes a point of the fact that,
according to it, "Drake and Gonzalez attended sales
management meetings at which the salesmen were not
present. These meetings involved new promotions. At these
meetings quotas were recommended by Drake and Gonza-
lez for the salesmen in their groups and their recommenda-
tions were followed. These quotas were used in determining
PI Golden West Broadcasters-KTLA, 215 NLRB 760, 761 (1974);
Highland Telephone Cooperative, Inc., 192 NLRB 1057, 1058 (1971);
Commercial Fleet Wash, Inc., 190 NLRB 326(1971).
1276
ACE BEVERAGE CO.
incentive pay for the salesmen." I find no support in the
record for this contention of the Respondent. Hull testified
that a "quota is a figure that is put on a sales route, that has
probably been predetermined by the previous year's sales
and the amount that you want to increase over that figure."
This testimony negates the above contention of the
Respondent.
I have credited the testimony of Drake and Gonzalez
that, at the meeting of May 17, Hull told each man
separately that if they did not agree to work in the event of
a strike they might not have a job with Respondent but, in
any event, they would not continue to be supervisors. I
have also found that neither Drake nor Gonzalez was a
supervisor within the meaning of Section 2(11) of the Act.
They therefore were entitled to the protection of the Act.
All nonsupervisory employees in the bargaining unit have a
legal right to honor a strike if one is called by their Union.
Thus, their demotion was in derogation of their right to
strike and was therefore a violation of Section 8(a)(3) and
(1) of the Act. I so find.
With respect to the credibility of Drake and Gonzalez, I
have credited their testimony. It seems highly unlikely that
either man would deliberately fabricate false testimony on
what was said to them by Hull and Wells. Furthermore,
Hull was vague and unconvincing in his version of the
remarks he made in his separate talks with Drake and
Gonzalez on May 17. His testimony contains a fairly large
number of "I don't recall" statements. When he spoke
about complaints made by retailers concerning Drake, he
said that there were too many for him to remember a single
retailer who made such a complaint. Furthermore, he
testified that neither Drake nor Gonzalez mentioned
anything about his Union or about the union pensions
which he did not want to jeopardize by coming to work
during a strike. However, Wells was present with Hull
when these meetings took place and he admitted in his
testimony that both Drake and Gonzalez spoke about not
wanting to lose their union pensions and to each of them he
expressed the opinion that he thought the new pension laws
allowed union members to freeze their pension rights. This
is in direct contradiction to the testimony of Hull. I was
also not impressed with the demeanor of Hull and Wells as
contrasted with the favorable demeanor of Drake and
Gonzalez. Overall, I credit Drake and Gonzalez over Hull
and Wells. In sum, my findings of fact are based upon the
composite of the testimony of both the General Counsel's
and Respondent's witnesses. In resolving credibility I have
relied on the demeanor of the witnesses on the stand, their
ability to recollect events, their straightforwardness in
responding to questions, and their contradictory state-
ments. I also conclude that the natural and probable course
of events from the beginning of the alleged unfair labor
practice was more logically presented by the General
Counsel's witnesses than those of Respondent.
Although the matter is not free from doubt, a number of
witnesses testified that Anderson, in his talk of August 2,
allegedly said that in order to qualify for participation in
Respondent's profit-sharing plan employees could not do
so and remain members of the Union. Assuming arguendo
that such a statement was made, it would not seem to have
the express purpose of impinging upon the employees'
freedom of choice for or against unionization as claimed by
the General Counsel relying on the language of the
Supreme Court in N.LR.B. v. Exchange Parts Co., 375 U.S.
405, 409 (1964). They were offered their freedom of choice.
They either could maintain their membership in the Union
and continue to be covered by the union pension plan or
they could elect to be covered by Respondent's profit-
sharing plan. There was no threat of loss of benefits made
by Anderson dependent on retention of or withdrawal
from the Union. Additionally, there was no suggestion that
employees who elected to participate in the profit-sharing
plan would receive greater benefits than were available
under the union pension plan.
In sum I find that the talk given by Anderson was not
violative of Section 8(aX )) of the Act.
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Ace Beverage Co., is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. By demoting Ron Drake and Epifanio Gonzalez,
because of their refusal to work during the course of a
strike, Respondent engaged in an unfair labor practice
within the meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not otherwise violated the Act.
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of unlawful demo-
tion, in violation of Section 8(aXl) and (3) of the Act. This
will require the Respondent to cease and desist from the
unfair labor practice found, to offer reinstatement with
backpay to Ron Drake and Epifanio Gonzalez and to post
a notice to that effect. In accordance with the usual
requirements, reinstatement shall be to the former posi-
tions occupied by Drake and Gonzalez or to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges. Drake and Gonzalez shall
be made whole for any loss of earnings they may have
suffered by reason of the discrimination against them, by
payment to them of a sum of money equal to that which
they normally would have earned from the day of the
initial discrimination, September 15, 1976, to the date they
are offered reinstatement by Respondent, less net earnings
if any, during such period to be computed in the manner
prescribed in F W. Woohvorth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). There shall be no backpay for the period from
October 6, 1976, to December 6, 1976, during which time
the above-described discriminatees were engaged in a
lawful strike.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 13
The Respondent, Ace Beverage Co., Los Angeles,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening to demote or discharge employees for
refusing to work during the course of a strike by Beer
Drivers, Salesmen and Helpers, Local 896, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by discriminating in any manner against any of its
employees in regard to their hire or tenure of employment,
or any term or condition of employment, because of their
union membership, sympathies, or activities.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Epifanio Gonzalez and Ron Drake immediate
and full reinstatement to their former jobs or, if such
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for such loss of
pay they may have suffered as a result of the Respondent's
13 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.
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its premises in Los Angeles, California, copies
of the attached notice marked "Appendix."14 Copies of
said notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1278