Beer Co. of Battle Creek, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1966

161 N.L.R.B. 267 (N.L.R.B. 1966)

BEER COMPANY OF BATTLE CREEK, INC . 267
(e) Notify the Regional Director for Region 2, in writing , within 20 days from
the receipt of this Decision , what steps it has taken to comply therewith.9
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges
unfair labor practices not found herein.
o In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read • "Notify the Regional Director for Region 2, in writing , within
10 days from the date of the receipt of this Order , what steps Respondent has taken to
comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT threaten our employees with reprisals or warn them against
engaging in concerted or union activities.
WE WILL NOT refuse to reemploy employees because they engaged in con-
certed or union activities.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
employees in the exercise of their right to engage in or to refrain from
engaging in any or all of the activities specified in Section 7 of the Act, except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment , as authorized
in Section 8(a) (3) of the Act , as modified by the Labor -Management Report-
ing and Disclosure Act of 1959.
WE WILL offer Carl Blum , Joseph LiCausi , and Frank Infranca immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to any rights or privileges previously enjoyed and make
them whole for any loss of pay they have suffered by reason of the discrimina-
tion against them.
JOHN LANGENBACHER CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-Notify the above -named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Fifth
Floor , Squibb Building, 745 Fifth Avenue, New York, New York 10022, Tele-
phone 715-5500.
Beer Company of Battle Creek , Inc. and Local 34, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America (Ind.). Case 7-CA-54i2. October $1, 1966
DECISION AND ORDER
On July 20, 1966, Trial Examiner Jerry B. Stone issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner 's Deci-
161 NLRB No. 24.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion. He also found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended the,
dismissal of such allegations. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief. The General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and briefs , and the entire record
in this case, and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.],
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
Upon a charge filed on January 18, 1966 , by Local 34, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America (Ind.)
(herein sometimes called the Union or Charging Party), the General Counsel of
the National Labor Relations Board , by the Regional Director for Region 7, issued
his complaint dated February 28, 1966 , against Beer Company of Battle Creek,
Inc. (herein sometimes called the Respondent or Employer).
The complaint alleged ( 1) the discriminatory termination or layoff of Leroy
Blain, Michael J. Porter, and William C. Wedel on or about January 15, 1966
(alleged violative of Section 8(a)(3) of the Act ), and (2 ) various acts of inter-
ference , restraint , and coercion ( violative of Section 8(a)(1) of the Act), includ-
ing acts of threats and interrogations directed toward the employees . The Respond-
ent's duly filed answer admitted many of the facts , but denied other facts and
denied the commission of unfair labor practices.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry
B. Stone at Battle Creek, Michigan , on April 22 , 1966 . All parties were represented
at and participated in the hearing and were afforded the right to present evidence,
to examine and cross-examine witnesses , to offer oral arguments , and to file briefs.
Upon the entire record in this case and from my observation of the witnesses,
the following findings of fact, conclusions of law , and recommendations are made.'
FINDINGS OF FACT 2
1. THE BUSINESS OF THE EMPLOYER
Beer Company of Battle Creek, Inc., the Respondent , is, and has been at all
times material herein, a corporation duly organized under and existing by virtue
of the laws of the State of Michigan . At all times material herein , Respondent has
maintained its only office and place of business at 4407 West Columbia Avenue
in the township of Battle Creek, Calhoun County, and State of Michigan, where it
is, and has been at all times material herein , engaged in the sale and distribution
of beer, wine, and related products . During the year ending December 31, 1965,
which period is representative of its operations during all times material hereto,
' All credibility resolutions made with respect to the witnesses ' testimony are based on a
composite evaluation of witness ' demeanor and logical consistency of evidence.
2The findings of fact as to the business of the Employer , the labor organization involved,
and the supervisory status of certain individuals are based upon the pleadings and admis-
sions thereto unless otherwise indicated.
BEER COMPANY OF BATTLE CREEK, INC. 269
Respondent, in the course and conduct of its business operations, purchased and
-caused to be transported and delivered at its Battle Creek, Michigan, place of
business, beer, wine, and other goods and materials valued in excess of $900,000,
of which goods and materials valued in excess of $800,000 were transported and
delivered to its place of business in Battle Creek, Michigan, directly from points
located outside the State of Michigan. As conceded by the Respondent and based
upon the foregoing facts, it is concluded and found that Beer Company of Battle
Creek, Inc., is now and has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 34, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America (Ind.) is a labor organization within the meaning of
Section 2(5) of the Act. It is so concluded and found.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The issues herein are simple and concern whether or not the Respondent (1)
violated Section 8(a)(1) of the Act by allegedly interfering with, restraining, or
coercing employees in their engagement in union activities 3 and (2) violated
Section 8(a)(3) of the Act by allegedly discriminatorily terminating or laying off
employees Leroy Blain , Michael J. Porter, and William C. Wedel on January 15,
1966.
B. Preliminary and undisputed findings
At all times material herein, the following named persons occupied the posi-
tions set opposite their respective names and have been and are now supervisors
and agents of the Respondent within the meaning of Section 2(11) of the Act.
Name Position
Clair R. Lussier___________________________________ President
Louis G. Lussier__________________________________ Secretary
Norman J. Labrecque______________________________ Sales Manager
Carlos Perez -------------------------------------- Sales Supervisor to
February 25, 1966
C. The facts relating to the unfair labor practices 4
1. Background
For several years, at least since 1957, the Respondent has engaged in the sale
and distribution of beer and related products in a two-county area (Calhoun and
Berry) contiguous to Battle Creek, Michigan. At some time between 1957 and
1964 the Respondent had also ventured into the business of distribution and sale
of wine and had ceased such venture. Around October 1964 the Respondent again
ventured into the sale of wine.
Around October 1964, the Respondent had entered into commitments with the
Universal Wine and Liquor Corporation as to the distribution and sale of wine in
a three-county area (Kalamazoo, Calhoun, and Berry) served by Respondent's busi-
ness. The evidence does not establish the exact legal commitments raised, but does
establish that Respondent considered that it had or desired to secure an exclusive
franchise for the distribution of the products that it was going to distribute.
The Respondent commenced its 1964 wine venture by making Roger Lussier,
brother of President Clair Lussier, a wine salesman. Apparently in April 1965 the
Respondent transferred two of its beer route salesmen into a wine division that
was set up and hired several new beer route salesmen.
s Respondent's acts alleged violative in this respect consist of alleged illegal Interroga-
tion ( as to union activity), alleged illegal threats relating to union activities, and related
acts.
'All facts found are based upon a composite evaluation of the documentary evidence and
the credited testimony of all the witnesses. As to the dates Involved as to days and hours
of events there is no real dispute except as to minor and immaterial variation. The testi-
mony of any witness in variance with facts found is discredited as being inconsistent with
the logical consistency of all of the evidence.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As of the time immediately preceding January 15, 1966, the Respondent operated
seven established beer sales and delivery routes. These seven routes were serviced
by seven route salesmen.5
The duties of the route salesmen, in essence, consisted of delivering beer and
collecting payment therefor, soliciting beer orders, occasionally delivering wine
orders, picking up empties, distributing and displaying advertising material, and
maintaining good relations with customers.
The Respondent employed three salesmen in its wine divisions As indicated.
above the wine was delivered by the beer route salesmen and by the warehouse-
man, Andrew Moffett, who used a small "bus" several times a week to make spe-
cial deliveries of wine to customers.?
2. Events of November 1965
In November 1965, Clair Lussier 8 (Respondent's president) complained to Jack
Levine (sales manager of Universal Wine and Liquor Corporation) that the former
franchise dealer 9 was continuing to sell and distribute products in Respondent's
area. Lussier told Levine that he was frustrated in trying to achieve an under-
standing with Universal Wine and Liquor Corporation and that he was ready to
get out of the wine business. Levine told Lussier that he was having some problems
(relating to Levine's authority), that he had presented an ultimatum to Universal
Wine and Liquor Corporation to the effect that if he did not receive the authority
he felt necessary to function in his job by January 15, 1966, that he was going to
quit. Levine asked Lussier to hold off his decision to leave the wine business until
January 15, 1966. Lussier decided that since November and December were the
two best wine selling months and because of Levine's statements, that he would
wait until January 15, 1966, before deciding about continuing or quitting the wine
business.
3. Events of December 1965
Around December 1965, the Respondent apparently made some route cuts.19'
Approximately around this time Clair Lussier discussed with Marvin Bliss the pos-
sibility that he would go out of the wine business and cut back on the number of
wine salesmen. .*N
D. Commencement of concerted activities and events thereafter
1. Events circa January 7, 1966
Around January 7, 1966, some of the seven route salesmen (drivers) became
unhappy about the route cuts, loading procedures, and a question as to who they
were to receive instructions from. During the period of time between January 7
and 14, 1966, the route salesmen discussed with each other the aforementioned
problems and decided that they should have a meeting before January 18, 1966,
among themselves to discuss the problems and arguments about the same and to
prepare themselves for discussion of the same at a monthly sales meeting to be
6 Prior to January 15, 1966, the route salesmen ( sometimes referred to herein simply
as drivers ) were (1) Edgar Jones-hired in 1962, (2) Patrick Porter-hired March 17,
1963 , (3) Douglas Gossett-hired November 1963, (4) Leroy Blain-hired April 1965,
(5) Wayne Hawk-hired after Blain and before May 27, 1965, (6) William Wedel-
hired May 27, 1965, and (7) Michael J. Porter-hired July 11, 1965.
6The wine division salesmen were (1) Marvin Bliss-hired around 1963, (2) Roger
Lussier-it 1s not clear when Roger Lussier was initially hired or whether he was re-
hired-in any event he was clearly employed as of around October 1964, and (3) William
Vancoli-hiring date unknown except as being before Gossett's date of hire of (No-
vember 1963).
7The Respondent also had an -over-the-road driver, Henry Vaughn, who used one of
two semitrailer trucks owned by Respondent to make trips from Battle Creek, Michigan,
to Milwaukee, Wisconsin, to pick up beer and return empties. Vaughn's date of hire is
not established in the record.
8 There are three Lussiers ; Clair Lussier, president ; Louis Lussier, secretary and
treasurer ; and Roger Lussier. Unless indicated otherwise the name Lussier as used her,
refers to Clair Lussier, Respondent's president.
9 Who had continued commitments with Universal Wine and Liquor Corporation as to
the sale and distribution of Wine in Pawpaw and Berrien Counties, Michigan.
w A cut in the number of stops for some of the drivers.
BEER COMPANY OF BATTLE CREEK, INC. 271
held by the Respondent on January 18, 1966. At some time during the week of
January 7 to 14, 1966, some of the drivers decided to have the meeting on Janu-
ary 15, 1966.11
2. Events of January 13, 1966 12
Around January 13, 1966, President Clair Lussier telephoned Jack Levine, sales
manager of Universal Wine and Liquor Corporation, and said to him, "Jack, you
know the 15th is Saturday, how do we stand?" Levine said, "Well, I don't know."
Clair Lussier restated his previous complaints about the wholesaler (that he had
replaced) servicing accounts in Respondent's area. Levine asked Lussier how
detrimental this problem was. Apparently Lussier told Levine the problem was
detrimental.
Levine, either at this time or earlier, scheduled with Lussier an appointment
during the week of January 17-21, 1966.
Apparently right after Lussier's conversation with Levine,13 Lussier decided
because of the tenor of Levine's remarks that his chance of eliminating the compe-
tition by the prior wholesaler was slight, that if he were to continue in the wine
business that he had to convince the Universal Wine and Liquor Corporation that
he was serious about "getting in" or "getting out" of the business. Lussier decided
that the best way to convince Universal Wine and Liquor Corporation that he was
serious about "getting in" or "getting out" of the business was to reduce his wine
staff by the weekend. Lussier, who was thinking of expanding his beer sales force,
decided to reduce his wine staff by one by moving Bliss from his wine staff to a
beer sales-capacity position in the beer portion of his business.14
3. Events of January 14, 1966 circa 8 a.m.
Around 8 a.m. on January 14, 1966, Michael J. Porter was in Sales Supervisor
Carlos Perez' office. Perez told Porter that the Respondent was thinking about
11 It is clear that Patrick Porter, Michael J. Porter, and Douglas Gossett had so
decided. Blain was asked, on January 14, 1966, by Gossett as to whether he was going to
attend. Wedel learned of the proposed January 15, 1966, meeting on the night of January 14.
1966. It is unknown as to when Jones and Hawk learned of the proposed meeting, except-
ing as before January 15, 1966.
12 Clair Lussier testified that the telephone call occurred on Wednesday (January 12,
1966) or Thursday (January 13, 1966). His testimony was to the effect that he made a
decision shortly thereafter. Since he spoke to Gossett about Bliss' transfer on January 14,
1966, I find that January 13, 1966, is the more probable date.
18 Clair Lussier's testimony was somewhat generalized and as best determined from such
testimony it was to the effect that he decided immediately following his conversation with
Levine on what he was going to do. In any event it is clear from a consideration of
Lussier 's testimony and the statements made to Gossett concerning Bliss that the decision
was made at least prior to January 14, 1966, at 3 p.m. The placement of the decision at
any time between the termination of Lussier's and Levine's conversation on January 13,
1966, and the talk with Gossett would not vary the effect and meaning as to this decision.
14 The fact that Clair Lussler was thinking of expanding his beer sales force and
decided to reduce his wine staff by one by moving Bliss from his wine staff to a sales
capacity in the beer portion of his business is clearly established by (1) Perez' statement
to Michael Porter on January 14, 1966, concerning a contemplated expansion of business
and new opportunities as a salesman , (2) the fact that after the termination Bliss ulti-
mately ended up in a "sales promotion" job; (3) Lussier's credited testimony that around
December 1965 he had definitely decided to put Bliss into the beer operation; (4) Lussier's
statements to Gossett about curtailing the wine business and the reason for keeping Bliss
in a sales capacity in beer; (5) the fact that if Bliss were being transferred to the same
type job as Gossett that the explanation talk to Gossett (concerning Gossett's desires for
advancement) was unnecessary ; '(6) the fact that, since Vancoli and Bliss both were
transferred to route-salesmen jobs, if an explanation as to Bliss were necessary then an
explanation as to Vancoli was also necessary. It is noted that Vancoll's transfer to the
wine division had originally been a result of his selection over Bliss. Clair Lussier credibly
testified that Bliss in December 1965 knew of the economic problems facing the wine
division because he (Lussier) had told Bliss and Roger Lussler what (quantity) was needed
in sales to achieve a break-even point. Clair Lussler also credibly testified to the effect that,
although he had not received the December 1965 financial statement, on January 15, 1966,
he knew what the December 1965 sales were. Accordingly, it is clear that on January 14,
1966, that Clair Lussier had a good understanding of the financial picture of his wine
division at the time he decided to transfer only one man from the wine division.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expanding his business , that Respondent would use the nucleus of route salesmen
as a basis for their salesmen , and that Porter should start laying his groundwork
now.15 Perez also told Michael J. Porter that he was to meet with Supervisor Louis
Lussier ( treasurer ) and Norman Labrecque (sales manager ) that night.18
4. Events of January 14, 1966, 9:30 a.m.14
On the morning of January 14, 1966 , around 9 : 30 a.m ., route salesmen Gossett
and Blain met Kip Browning , a driver for a company described as Prestage
(another beer distributing company ), at a place on their routes 18 and the three
decided to have breakfast at a place called Luigi's. Around 9:30 to 10:00 a.m. the
three met at Luigi 's for breakfast . As the three were sitting at breakfast , 19 Gossett
asked Blain if he were going to be "the meeting ." Browning asked Gossett and
Blain what kind of meeting they were talking about . Gossett told Browning that
they were going to have a union meeting . Browning asked Blain and Gossett if
they weren 't kidding . Gossett and Blain told Browning that they weren 't kidding,
that they were going to have a union meeting and organize Battle Creek, Michigan.
5. Events of January 14, 1966, around 3 to 3:30, p.m.
Around 3 p.m. on January 14, 1966, Gossett was asked by President Clair
Lussier to go in Lussier's office. In the office Clair Lussier commenced discussing
the fact that he planned to curtail part of the wine operation and move Marvin
Bliss from the wine division and back to the sales division in a sales capacity.,
Clair Lussier told Gossett in effect that he knew that Gossett was probably looking
forward to some kind, of advancement , that he wanted Gossett to understand his
problem, that he felt that he had an obligation to Bliss because Bliss was the first
employee he had transferred to the' wine division, and.he felt that he had an obli-
gation to keep Bliss in a sales capacity before moving Gossett forward20
Clair Lussier 's conversation with Gossett was interrupted by a telephone call
from -Dick Prestage of Prestage (a beer company) 21 Gossett heard the Lussier end
of the telephone conversation between Clair Lussier and Dick Prestage.' Gossett
asked Lussier if it ' were Dick Prestage who had telephoned Lussier . Clair Lussier
said that it was. Gossett told Lussier that before he said anything that he knew
what it was all about . Gossett then proceeded to tell Lussier ' that he , Leroy Blain,,
and Kip Browning ( a Prestage driver ) had had breakfast together.' Gossett ' told
Lussier , that he and ' Blain at breakfast had tried to ,"con" Browning, into buying,
151 note that the route salesmen are essentially drivers and that Respondent utilized it
sales manager and sales supervisor for soliciting new accounts as to its beer business and
wine salesmen for its wine business . It is clear that Perez' message envisioned additional'
salesmen who would solicit new accounts,only.
11 Michael Porter met with Labrecque , Louis Lussier , and Perez around 4 p m .' that day.
17 Based upon the credited testimony of Blain. Gossett 's testimony as to this event was
somewhat similar but appeared to stretch the "joking aspect." I am convinced that
Gossett in explaining the incident to Clair Lussier later attempted to make the incident
appear more innocent than it was. I find his version not to be as reliable as Blain's
version and discredit it to the extent inconsistent with Blain's.
18As credibly testified to by Blain , Gossett and Blain met Browning at Louis Newman's.
19 A driver from Albion Beverage , Inc., was also present.
so I note that neither Gossett nor Clair Lussier testified to any, mention , of William
Vancoli's being transferred to the beer division . Since Vancoli had received advancement
over Gossett to the wine division and since Clair Lussier 's talk to Gossett was because of
concern over Gossett's thoughts of advancement , it is clear that if Clair Lussier had
intended to transfer Vancoli at this time , the transfer of Vancoli would have been men-
tioned . Since no mention was made of transferring Vancoli, it is clear that there was no
intention of transferring Vancoli to the beer division . Considering Perez' statement to
Michael Porter as to the expansion of business and opportunity of advancement as a
salesman on this, same date , the new A & P stops which commenced sometime before
February 14, 1966, and the fact that Gossett was told that Lussier wanted to keep Bliss
in a sales capacity before advancing Gossett, I am convinced that the intention was. to
transfer Bliss to a job in the capacity as a salesman in the beer division and not to a
route-salesman job similar to the jobs of Gossett , Blain,, the two Porters , and Wedel.
2 Gossett credibly testified to the effect that prior to the telephone call there had been
discussion of curtailing the wine division.
BEER COMPANY OF BATTLE CREEK, INC. 273
three breakfasts for a little phony conversation, that they had told Kip that they
had a hot tip and if he would buy their breakfast that they would put him in on
the hot tip, that they had a little union activity going and were really going to
surprise the group. Gossett told Lussier that there was no union activity going on
but that what really was happening was that some of the route salesmen were
meeting to discuss their grievances that night at Patrick Porter's house 22
Alleged Illegal Threat
The complaint alleges that "on or about January 14, 1966, Respondent by its
president and agent Clair R. Lussier, at its Battle Creek, Michigan, place of busi-
ness, threatened its employees with discharge and other reprisals because of their
activities on behalf of, and assistance to, the Union." As best appears from the
record, the only evidence possibly relating to this allegation is the evidence relating
to Lussier's conversation with Gossett set out above. Such evidence does not estab-
lish that the alleged threat occurred.
6. Events of January 14, 1966, circa 4 p.m.
Around 4 p.m. on January 14, 1966, Michael J. Porter met with Treasurer Louis
Lussier, Sales Manager Norman Labrecque, and Sales Supervisor Carlos Perez.
The meeting lasted until 6:30 p.m. The discussion that ensued at the meeting con-
cerned the question of supervision and to whom one went for instructions. Louis
Lussier, Labrecque, and Perez told Michael Porter that when Perez was not present
and an employee needed instruction that he should go to Labrecque, if Labrecque
and Perez were not present, he should go to Clair Lussier; and if Labrecque, Clair
Lussier, and Perez were not present, he should go to Louis Lussier.
7. Events of January 14, 1966, 7 to 8:30 p.m.
Around 7 p.m. on January 14, 1966, William Wedel, Patrick Porter, Douglas
Gossett, and Michael J. Porter were all at "The Oasis Lounge" in Battle Creek,
Michigan. There they commenced discussing the driver salesmen grievances, the
January 18, 1966, sales meeting the presentation of their grievances, and the fact
that they would have their meeting to discuss their grievances among themselves
at Patrick Porter's house the next day. Apparently around 8 or 8:30 p.m., Wedel,
the two Porters, and Gossett decided to leave "The Oasis Lounge" and continue
their discussion at Patrick Porter's home.
8. Events of January 14, 1966, 9 to 10 p.m.
Around 9 p.m. on January 14, 1966, Wedel, Patrick Porter, Michael Porter, and
Douglas Gossett had reached Patrick Porter's home and resumed their discussion
of grievances and of how to present the grievances on January 18, 1966, at the
sales meeting. As indicated previously, one of the driver's grievances was because
they were upset over the number of "bosses" they had. The drivers wanted to be
answerable to one person and to know from whom they were to receive directions.
Wedel, the two Porters, and Gossett discussed the instructions and statements
made to Michael Porter by Perez, Labrecque, and Louis Lussier that day as to
whom the employees would get instructions from.
In the meantime, around 10 p.m., President Clair Lussier and Supervisor Carlos
Perez were at the "Spa Steak House." Lussier and Perez discussed the conversation
that Lussier had had with Gossett earlier that day wherein Gossett had told Lussier
of the proposed grievance meeting to be held at Patrick Porter's home. Lussier
told Perez to get Patrick Porter on the telephone and to invite him to the "Spa"
so that they could discuss the matter.
Around 10 p.m., Perez telephoned Patrick Porter at Porter's home and asked
Porter if he could talk to him. Patrick Porter told Perez that he could. Perez
It is clear from Lussier's credited testimony (1) to this incident, (2) as to his in-
structions to call Patrick Porter, and (3) as to his conversation with Patrick Porter that
night and as to the facts as to the events) that Gossett told Clair Lussier that there was
no union activity but a grievance meeting of the route salesmen was going to be held
at Patrick Porter's house.
264-188-67- vol. 161-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Patrick Porter what he was doing. Patrick Porter told Perez that he was.
doing nothing. Perez then asked Patrick Porter who was there. Patrick Porter told
Perez that just he, his wife, and his brother and his wife were there. Perez told
Porter that he would be by to get him.
Patrick Porter told Wedel, Michael Porter, and Gossett of Perez' conversation-
Wedel and Gossett decided to leave Patrick Porter's home so as to avoid being
seen by Perez.
Shortly after 10 p.m. Perez arrived at Patrick Porter's home. Perez told Patrick
Porter that he had a trouble call at Hynie's Comers 23 Perez and Patrick Porter left
in Perez' car but instead of going to Hynie's Corners Perez drove to the "Spa"
steak house. Perez and Patrick Porter went into the "Spa." Perez asked Patrick
Porter if he saw anyone he knew. Patrick Porter told Perez that he did, that he
saw "Big Daddy." Clair Lussier, "Big Daddy," who was sitting at the bar, carne
over to where Perez and Patrick Porter were. Lussier asked if they couldn't go,
back to the table and talk. Perez, Patrick Porter, and Lussier then went to a table,
sat down, and commenced talking to each other. Lussier said, "Pat, you know
there are no secrets in the beer business, I hear that there is going to be a meeting
at your house, we had a phone call from some other distributor this afternoon."
Patrick told Lussier that there was not going to be a union meeting, that there was
going to be just a meeting as to the gripes that the driver salesmen had Patrick
Porter told Lussier that his gripes were as to the loading procedures and route
cuts24 Lussier inquired as to the gripes the other drivers had. Patrick Porter told
Lussier that he did not know what their gripes were. Lussier told Patrick Porter
that when certain beer companys in Kalamazoo and Benton Harbor went union,
the Union was weeded out and the companys terminated some of the employees.
Lussier told Patrick Porter that he could do the same thing and that the Union
could also be bought off. Lussier told Patrick Porter that he should be sure to,
present to the drivers at the January 15, 1966, meeting the story of what happened
at Benton Harbor and Kalamazoo , Michigan, as an example of what could happen.
The foregoing conversation terminated around midnight. Perez then drove Patrick
Porter home.
Conclusions as to Alleged Conduct
Considering all of the foregoing I conclude and find that Clair Lussier ( 1) in a:
manner constituting interference , restraint , and coercion within the meaning of
Section 8 (a)( I) of the Act, interrogated Patrick Porter concerning employee union,
activities and concerted desires, (2) threatened that employees would be discharged
if they engaged in union activities, and (3) in a manner constituting interference,
restraint, and coercion asked an employee to communicate threats of discharge
because of union activity to other employees. Such conduct constitutes conduct
violative of Section 8(a)(1) of the Act.
The complaint also alleges in effect that the Respondent , by Clair Lussier, on
January 14, 1966, at "the Spa Steak House," "gave its employees the impression
that it had placed under surveillance their union or concerted activities ." Consider=
ing all of the foregoing evidence, I am convinced, conclude , and find that the
evidence does not establish this alleged violation.
9. Events of January 14, 1966, circa midnight
On the trip taking Patrick Porter home, Perez told Patrick Porter to call him
after the January 15, 1966, meeting and to tell him what had gone on25 Perez
later reported to Clair Lussier what he had told Patrick Porter.
Perez' Illegal . Conduct
The complaint alleges that "on or about January 14, 1966, Respondent, by its
agent Carlos Perez, in a car driving on the streets of Battle Creek, Michigan,
zv Located 10 miles north of Albion, Michigan.
24 The taking of individual stops away from a route.
25 Clair Lussler testified to the effect that he had no conversation with Perez as to,
surveillance or watching or spying on the employees and that he did not give instructions,
to anyone about it . It is not clear whether this testimony was intended to reveal that
Clair Lussier knew nothing of what Perez told Patrick Porter or not. If'so, I discredit it as,
such. I find it hard to believe and do not believe that Perez Aid not tell Clair Lussier
that he had told Patrick Porter to report what went on-and'I infer from all the facts.
that he did so tell Lussier.
BEER COMPANY OF BATTLE CREEK, INC. 275
requested that employees engage in surveillance of the concerted or union activi-
ties of its employees and report these activities to Respondent."
The foregoing facts relating to Perez' conversation with Patrick Porter on the
trip home clearly establish this violation as alleged . Such conduct is violative of
Section 8(a)(1) of the Act.
10. Events of January 14, 1966 around midnight
Shortly after Porter had returned home, Wedel and Gossett returned there also.
The two Porters, Wedel, and Gossett commenced discussing what Lussier and
Perez had said to Patrick Porter at the "Spa" and during the trip to and from
the "Spa." They decided that they should be represented by a union. Gossett then
contacted by telephone Thomas Hill, a member of the Union, about setting up a
meeting with a union representative for the next afternoon around 2:30 or 3 p.m.
Hill thereupon contacted Lee Brown, business agent and secretary-treasurer of the
Union, and arranged a meeting for Saturday, January 15, 1966, around 2 p.m. at
the union hall. Thereafter either Hill or Brown apparently communicated the time
of the meeting to the employees involved.
11 Events of January 15, 1966
On Saturday morning Blain, Wedel, Jones, the two Porters, Hawk, and Gossett
met at Patrick Porter's house. They discussed the oncoming sales meeting on
January 18, 1966, their grievances as to loading procedures, desire to have one
boss, route cuts, Michael Porter's conversation on the day befoie with Labrecque,
Louis Lussier, and Perez, Perez' telephone call to Patrick Porter the night before,
Clair Lussier's and Perez' statement to Patrick porter the night before, and the
appointment with the union representative for the afternoon. They discussed
whether they should join a union and have a union to present their grievances or
whether they should present their grievances directly by Clair Lussier. The fore-
going employees had a vote on what they should do and decided by a vote of six
to one to "go union." 26
Although Perez had instructed Patrick Porter to report to him as to what went
on at the meeting, Patrick Porter did not do S0 .27
12. Events of January 15, 1966, 11 a.m.
Clair Lussier met with a man named Paul Bauman, whose office performed
accounting work for the Respondent. Bauman was also a director for the Respond-
ent but received no compensation as a director. Lussier discussed with Bauman
the financial condition of the Respondent, the problems with Universal Wine and
Liquor Corporation as regarding a competitor, the plan to expand the beer por-
tion of Respondent's business, and the union problem. The Respondent' s financial
statements considered by Bauman and Lussier reflected a loss of $16,899 for the
wine operation for January 1, through November 30, 1965. Although the financial
statement for December 1965 was not available, Clair Lussier knew that although
December 1965 sales had been up, the Respondent had a financial loss for the
month of December. Lussier's meeting with Bauman concluded around 2 p.m.
13. Events of January 15, 1966, 2 p.m.
Around 2 p.m. Wedel, Michael Porter, Gossett, and Blain met with Lee Brown,
business agent of the Union . The aforementioned employees told Brown they
wanted to be represented by a union and they wanted to know the process by
which they should get organized. Brown explained the process fully to them and
told them that before he could start he needed signed application cards denoting
20 All of those present except Hawk were in favor of the union approach.
' I find it proper to infer this based on the logical consistency of facts and the lack
of testimony by Patrick Porter as to having done so. Patrick Porter impressed me as being
an honest and truthful person Had he done so, I am convinced that such testimony would
have been elicited from him at the hearing Except for more clarity in understanding the
facts, a finding herein is not necessary. If Patrick Porter had made such a report, it is
clear that the Respondent would hai e known of the details of the meeting. Since Patrick
Poiter did not make such a report, it is clear that President Clair Lussier would infer
that the employees had rejected his message
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they desired union membership. All five of these employees signed cards apply-
ing to join the Union. The meeting of the employees with Brown lasted until
around 3:30 p.m28
14. Events of January 15, 1966, 2 to 6:30 p.m.
a. The belief of union activity
Considering (1) the conversation between Gossett and Clair Lussier as to Gos-
sett's and Blain's remarks about a union meeting and organizing Battle Creek, and
(2) Clair Lussier's reaction thereto by sending for Patrick Porter to learn of
details and telling Patrick Porter to take a message to the other drivers to the
effect of possible reprisals because of union activity, it is clear that on January 14,
1966, Clair Lussier believed that his driver salesmen were engaged in the initiation
of union activity. Anticipating a report back from Perez (as to Patrick Porter's
requested report) as to what went on at the meeting, and receiving no report, it is
clear that Clair Lussier believed that concerted activity and union activity in its
initial stages by all the drivers continuing despite his threat of reprisals 29
b. Events 2 to 6:30 p.m.
Sometime between 2 and 6 p.m., Clair Lussier decided (1) to terminate the
employment of William Wedel, Michael Porter, and Leroy Blain, (2) to move Bliss
from the wine staff to one of the driver-salesmen jobs (held by Wedel, Michael
Porter, or Blain) instead of into a strictly sales capacity job in the beer division,
(3) to move Vancoli from the wine staff to one of the aforementioned driver-
salesmen jobs in the beer division, and (4) to have Sales Supervisor Carl Perez
take over the other driver-salesman route vacated as the result of the planned
terminations 30
After making the foregoing decision, Clair Lussier contacted Supervisors Labrec-
que and Perez and employees Bliss and Vancoli and told them of his decision and
plans.
Later around 6 p.m. Clair Lussier telephoned the homes of Blain, Michael Porter,
and Wedel and after getting into contact with these employees, told them individ-
ually that he had been going over his books with his accountant, that he had to
cut down on expenses, that he was losing money, and that the solution was a
drastic reduction in personnel. Lussier told the employees that he was sorry to
inform them at this time that they were being terminated, and that they did not
have to report to work on Monday. In the conversations with Michael Porter and
Leroy Blain, the employees asked if they were being terminated because of their
work and Lussier told the employees that it was not for that reason.
15. Conclusion as to discriminatory terminations
The General Counsel contends that the Respondent terminated the employment
of Wedel, Michael Porter, and Leroy Blain on January 15, 1966, to discourage
membership in a labor organization. The Respondent contends that the termina-
tions were because of economic reasons.
The facts clearly reveal that (1) prior to knowledge of concerted or union
activity that President Clair Lussier, knowledgeable as to the financial aspects of
his wine operation, decided to curtail such operation by the transfer of Bliss and
this for the purpose of aiding in persuading Universal Wine and Liquor Corpora-
as Patrick Porter did not go to the union hall with the other drivers but signed a union
card the next day. Wayne Hawk did not go to the union hall and did not sign a union card.
2D Considering the evidence as to what occurred at the meeting at Patrick Porter's house,
even if a report had been made, Lussier would have believed that all of his driver-salesmen
except Hawk were involved.
From the tone of Clair Lussler's and Gossett's conversation on January 14, 1966, it
is highly probable that Lussler believed that the firing of other employees and communica-
tion of his threat of discharge because of union activity would ultimately persuade Gossett
to cease from and refrain from union activity. Considering the facts in this case, I find
it unnecessary however to and do not make a finding in this regard as relating to Clair
Lussier's belief of the effect of the firings and threats on Gossett.
° As indicated later , I find the decision to terminate Wedel, Michael Porter, and Blain
was because of Clair Lussier's belief that they were engaged in concerted and union
activity and on a pretextuous economic basis
BEER COMPANY OF BATTLE CREEK, INC . 277
tion to make certain commitments as to competition, (2) prior to knowledge of
concerted or union activity that Respondent had decided to expand its beer opera-
tions by adding sales persons, and had planned to move Bliss from the wine divi-
sion to a sales-capacity position in the beer operation, (3) on January 14, 1966,
after hearing about a conversation as to a "union meeting" on the morning of
January 15, 1966, that President Clair Lussier was deeply interested in finding out
the details about such meeting, (4) on January 14, 1966, President Clair Lussier
questioned Patrick Porter about the "planned meeting" and told Porter in effect
that employees at another company that had gone union had been weeded out and
terminated, that it could happen here, and that he should be sure to tell the
employees at the planned meeting of this, (5) President Clair Lussier knew that
Supervisor Perez told Patrick Porter to report to him what went on at the Satur-
day morning meeting and that Patrick Porter had made no report, (6) from Patrick
Porter's failure to report as to the meeting that Clair Lussier believed the employ-
ees had rejected his message about the dangers of going union ,31 and (7) assuming
a bona fide decision 32 to curtail the wine staff by two employees, that because of
the original plan to expand the beer operation and transfer Bliss to a sales-capacity
job in the beer operation, that there would only appear to be a basis for the termi-
nation of one driver salesman.33
Clair Lussier testified to the effect that because of his economic problems relat-
ing to the wine division that he decided to cut back on his wine staff, transfer two
men from the wine staff (with more seniority than the employees to be terminated)
to the beer division, and terminate three employees from the beer division. Although
Clair Lussier in his testimony as to the various conversations with employees did
not vary substantially from the employee's testimony, he did vary therefrom as to
what he said the purpose of the conversations were. As indicated later Clair Lussier
on January 23, 1966, found a need for one more employee driver and ultimately
on that January 23, 1966, recalled Wedel for such position . It is noted, however,
that although Clair Lussier had ample opportunity to recall Wedel and to tell
Wedel (who Clair Lussier said was the logical man to recall for the particular
route) that he was being recalled, that Lussier did not do so until Wedel had
presented a signed petition revealing Wedel's rejection of the Union. Considering
the foregoing and the consistency of all the facts, I do not believe and do not
credit Clair Lussier's testimony to the effect that his decision to terminate employ-
ees and to recall Wedel was based on economic factors but rather am convinced
that he was motivated in his decisions to terminate employees (Wedel, Michael
Porter, and Leroy Blain) and to recall Wedel by his consideration of his belief
of their union activities and his opposition to their engaging in union activity. I
therefore conclude and find that Clair Lussier terminated the employment of Wedel,
Michael Porter, and Leroy Blain on January 15, 1966, because of his opposition to
unionism and concerted activities and his belief that they were commencing union
activities at his plant. Such conduct constitutes conduct violative of Section 8(a)(3)
and (1) of the Act. I so conclude and find.
The Selection Basis
The facts as a whole clearly reveal the above findings and it is not necessary to
make more detail findings relating to the basis of selection of the employees for
discharge. Where an employer decides to terminate a group of employees as a
threat to others, as revealed herein, and wherein most or all of his employees are
engaged in concerted or protected activities, or he believes so, a random or other-
wise what might appear to be an objective selection basis does not negate the vio-
lative purpose.
Since the Respondent was thinking in terms of a pretextuous economic basis and
on a pretextuous seniority basis, it is clear that he would reject the idea of termi-
nating employees with long term seniority (Patrick Porter, Jones, and Gossett). It
si Or if a report of the meeting had been made that Clair Lussler knew that the em-
ployees had rejected his message about the dangers of going union.
32 As indicated I do not find the decision to be bona fide.
33 The economic data testified to by Clair Lussier only showed losses in the wine opera-
tion. In view of the clear evidence as to planned expansion of the beer operations, I find
that the evidence fails to establish a need for cutback in the number of beer division
personnel . I also find that the evidence fails to justify the switch of Supervisor Perez into
a driver salesman function.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is clear, therefore, that the Respondent realized that if he terminated two employ-
ees on the basis of seniority that the employees terminated would be Michael
Porter and William Wedel.
Considering all the facts' and the foregoing, I am convinced that Clair Lussier,
in considering his belief of the employees' participation in union activity, thought
of Patrick Porter's role in having the meeting at his house, and of Gossett's con-
versation with him about Gossett's and Blain's "union" conversation, was motivated
to get rid of these men. Considering the aspects of a pretextuous seniority basis for
selection and his available manpower, I am convinced that Clair Lussier knew he
could get rid of Gossett or Patrick Porter without firing so many other employees
that he could not run his beer operations. I am also convinced that Clair Lussier
-did not believe he could make an arguable economic support for such a large
layoff or termination. Considering the foregoing, I am convinced that Clair Lussier
realized that if he only terminated two employees that he could not do so and
terminate Blain in a manner that would appear to be a basis of seniority I am
thus convinced that Clair Lussier decided that he would have to terminate more
than two employees in order to reach Blain for termination. Lussier was thus
faced with the fact that if he terminated Blain on a strictly seniority selection that
he would have to terminate four employees and that his economic justification
might not appear good. I am also convinced that Lussier knew that if he termi-
nated four employees that he would not have manpower, absent hiring new employ-
ees, to operate his beer routes. I am convinced that Clair Lussier also knew that
Blain had more seniority than Hawk and believed that the closeness in time in
Blain's and Hawk's initial hiring would make the termination appear to be on a
seniority basis. Considering all the foregoing, I am convinced that Lussier decided
that he could terminate three employees and make it appear to be on an economic
basis and on a basis of seniority selection by utilizing Sales Supervisor Perez,
Supervisor Labrecque, and Bliss on the beer route as replacements. Thus Lussier
terminated Wedel, Michael Porter, and Blain pursuant to such reasoning.
The Terminated Employees Contact With Brown
After Wedel, Michael Porter, and Leroy Blain received their telephone calls from
Clair Lussier telling them that they were terminated, they contacted Lee Brown,
the business agent of the Union, Brown told them that since they were told of the
termination by a telephone call that they should report ready to work on Janu-
ary 17, 1966, so as to avoid any possible misunderstanding as to whether they had
in fact been terminated.
16. The events of January 17, 1967
On the morning of Januray 17, 1966, Wedel, Michael Porter, and Leroy Blain
appeared at Respondent's plant and were in the conference room where the other
driver salesmen and Norman Labrecque, Perez, Bliss, Vancoli, and Clair Lussier
were. Clair Lussier asked Wedel, Michael Porter and Leroy Blain to leave as he
wanted to talk to the others there. Wedel, Michael Porter, and Leroy Blain pro-
ceeded to step outside.
Clair Lussier spoke to the driver-salesman who had not been terminated and to
Labrecque, Perez, Bliss, and Vancoli. Clair Lussier told the driver-salesman 34 that
they were not to mention the termination of Wedel, Michael Porter, or Blain, and
that they should let Labrecque, Perez, and Bliss do any necessary talking about the
termination of Wedel, Michael Porter, or Blain 35 Patrick Porter credibly testified
to the effect that Clair Lussier said that anybody would be terminated right away
if there was any talk about what went on.
After about 10 minutes Clair Lussier concluded his instructions to the employees
in the conference room. Clair Lussier then stepped outside and told Wedel, Michael
Porter, and Leroy Blain that he presumed they were here to talk to him. Wedel,
Michael Porter, and Leroy Blain went with Lussier into the conference room.36
Wedel asked Clair Lussier whether by termination he meant a permanent or tem-
porary termination. Clair Lussier stated that he did not know. Wedel, Michael Por-
M Patrick Porter, Jones, Gossett, and Hawk.
33 Bliss' route was parallel to Gossett's, Labrecque's route was parallel to, Patrick
Porter's, and Perez' route was parallel to Jones' route
N Apparently the other employees had left on their routes by this time.
BEER COMPANY OF BATTLE CREEK, INC. 279
ter, and Leroy Blain asked if the reason they were terminated was because they had
done something wrong. Clair Lussier said no, that he would consider hiring them
again. Wedel asked if they should apply for unemployment compensation. Clair
Lussier said that they should do so. Wedel, Michael Porter, and Leroy Blain asked
if they could get their paychecks. Clair Lussier stated that the bookkeeper was not
there and that he was not qualified to handle giving them their checks then. Wedel,
Michael Porter, and Leroy Blain again asked if they were terminated because they
had done something wrong. Clair Lussier again told them no, that he would con-
sider hiring them again.
Later that morning, union officials, John Ford and Lee Brown, contacted Clair
Lussier at his office. The union officials told Clair Lussier that they had union cards
,(designating the Union as bargaining representative of Respondent) signed by a
majority of his employees, and demanded that the Respondent recognize the Union
as bargaining agent for his beer truckdriver salesmen. Clair Lussier declined to
recognize the Union as bargaining agent of the described employee unit.
17. Events January 17 to 21, 1966
On Monday, January 17, and continuing to January 21, 1966, there were numer-
ous telephone calls by and between the following; the terminated route salesmen,
their wives, the nonterminated route salesmen and their wives.
At sometime during this period of time, apparently on January 20, 1966, Patrick
Porter asked President Clair Lussier if he would like to get together with the rest
of the drivers (route salesmen) and find out what their grievances were, to see if
Lussier could settle the problems without the employees going to the Union, and to
find out the reason for the problems. Clair Lussier told Patrick Porter that he
would like to do so.
Patrick Porter, thereupon, notified the route salesmen (including the terminated
route salesmen but excluding the replacemont route salesmen) of the meeting
scheduled with Clair Lussier at Patrick Porter's house on January 21, 1966.
18. Events of January 21, 1966 37
On January 21, 1966, about 8 p.m., Clair Lussier met with Jones, Hawk, Patrick
Porter, Gossett, Michael Porter Wedel, and Blain at Patrick Porter's house.
Lussier told the assembled group that he felt like a quarterback finding out from
the other team what they were doing, that he was nervous, that his lawyer had
advised him to have witnesses because they might say he had said something he had
not said, that he came there on his own merit of good will, that he thought they
could discuss the employee's reasons for wanting a union and his reasons against
and come to a conclusion on the matter.
Blain asked Lussier to tell him why he was at the meeting since he had been
terminated. Lussier told Blain that the Union did not consider Blain fired, that the
Union considered Blain as being eligible to vote, and that therefore he had to talk
to Blain also. Blain asked Lussier to tell him why he had been fired. Lussier told
Blain that the reason he had given was because of business, that some of his ven-
tures had not worked. out, that if things went the way that he wanted them to and
the way it seemed they would go, that business could get better tomorrow, and that
it was his prerogative if he wanted to keep Blain on at a loss. Blain asked Lussier
why he would not let them vote the Union in, and if Lussier did what he said,
they could then vote the Union out.
Lussier told the employees that the Union would do more harm than good, that
the Union would keep him from expanding my making unfair demands for addi-
tional drivers and unfair wages.
Michael Porter told Lussier that the Union could not ask for more than he
((Lussier) had, that the more money he (Lussier) made by expansion meant the
more money the Union could ask for the employees.
Lussier discussed the various benefits the Respondent's employees had and com-
pared them to benefits at other companys. Lussier told the employees that under
a union he would not have to give them some of the benefits (insurance, sick pay,,
and apparently a recreational site) that he gave them.
L 34 Clair Lussler did not really dispute the testimony of the General Counsel's witnesses
unless it is deemed that a relatively generalized statement constitutes a denial by_virtue
of omission of complete details. To the extent that it might be so deemed it is discredited.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lussier told the employees that he would attempt to solve their grievances and
that a comparison of the benefits he gave with benefits from other companies
should convince them that they did not need a union.
Lussier told the employees that he wanted to get their grievances first hand, that
he wanted them to vote the Union down, that if he were left alone for a year that
he' could straighten out some of the grievances without the need of the Union, and
that the place would be a better place to work without a union
Patrick Porter told Lussier that his gripes were about the loading procedures and
route cuts. Jones told Lussier that he did not like the fact that if a driver took a
day off for being sick that the Respondent kept calling the house to see if the driver
were home or really sick Hawk told Lussier that he thought if a route were cut
that the driver should get compensation based upon the route's income for 13
weeks. The employees also complained about the fact that it was not clear from
whom they should take orders, that there were too many "bosses" involved in their
work, that Perez made promises to them that were not kept, and that Perez threat-
ened them with reduced routes if they did not do what Perez thought they should do.
Lussier and the employees discussed each of the grievances separately and in
detail. Lussier told the employees that he would do something about the loading
procedures, that the routes would not be cut unless the business grew, and that the
employees would be taken care of if the routes were cut. Lussier told the employees
that he would check into all the grievances and try to solve them, that some of
the supervisors were not doing the job they should have done, and that he would
check into the matter.
Lussier told the employees that if this were the extent of the problem that he
would guarantee that he would look into their grievances, that because of this and
the benefits they had that he felt that there was no need for union representation,
that if they would reconsider their action (about the Union) that he thought the
Respondent and the employees could live without any union representation. Lussier
told the employees that he knew he could live better without the Union and he
thought they could also.
The employees and Lussier expressed that as a result of the discussion that there
was no need for a union for the employees. Lussier told the employees that if
they felt this way that they should send a letter to the Union and the NLRB and
try to have the election as soon as possible. Lussier told-the terminated employees
that they should drop their unfair labor practice charges (filed with the NLRB),38
and if the business grew they would be called back to work
Conclusion
The complaint alleges that "on or about January 21,- 1966, Respondent by its
president and agent, Clair R. Lussier, at its Battle Creek, Michigan, place of busi-
ness met with its employees and coercively urged them to cause the instant unfair
labor practice charges to be withdrawn and threatened that the Union would
impede Respondent's business progress."
Considering the foregoing evidence relating to Lussier's meeting on January 21,
1966, with the employees at Patrick Porter's house, it is clear that the incident was
litigated on the basis that it occurred at Patrick Porter's house., Considering the
facts as to what was said by Lussier and the employees at said meeting in the con-
text of the threat, of discharge because of union activity communicated to Patrick
Porter on January 14, 1966, and from Patrick Porter to the other employees, the
discriminatory terminations on January 15, 1966, of Wedel, Michael Porter, and
Leroy Blain the revelation that Lussier would act favorably toward their grievances,
was strongly opposed to the Union, and did not think a union was necessary, it was
clearly revealed to the employees that Lussier was one who took positive action to
combat the Union. Thus Lussier made a promise of more favorable conditions if
the employees refrained from union activities. Considering such facts, Lussier thus
revealed to the employees who were terminated that their recall depended upon get-
ting in his good favor. Thus the suggestion that the labor practices charges should
be withdrawn and that when business picked up that they would be recalled was
made in a coercive manner. Accordingly, Clair Lussier's conduct in such regard
constituted conduct in violation of Section 8(a)(1) of the Act
As I view the evidence relating to Lussier's statement as to the effect of the
Union on his business, the evidence does not establish that Lussier was making a
88 The charges in this case.
BEER COMPANY OF BATTLE CREEK, INC. 281
threat of reprisal as to decrease in business because of the Union but merely
related to an opinion of the problems he felt would occur because of "Union"
demands. Such conduct in this regard is not in violation of Section 8(a) (1) of the
Act. I so conclude and find.
19. The Recall of Wedel
At some time between the night of January 21, 1966, and the morning of Janu-
ary 23, 1966, Patrick Porter's grandfather died. On Sunday morning, January 23,
1966, around 9:30 a.m., Patrick Porter telephoned Clair Lussier and asked if he
could have 3 days off to attend his grandfather's funeral. Lussier told Patrick Porter
that he did not know if he could let him off, that he would see if he could get some-
one to fill in for him and would call him back. Later that morning Lussier called
Patrick Porter back and told him that he could have the 3 days off, that he would
have Perez to fill in for him 39
Around 10 a.m., on January 23, 1966, Patrick Porter telephoned Wedel and told
him that he could not see how joining the Union would help him (Porter), that he
was going to stick up for what he thought was right, and that he was not going to
vote for the Union. Patrick Porter told Wedel that Lussier had let him have the 3
Jays off to go to his grandfather's funeral and that Perez was going to run his
route.40 Wedel told Patrick Porter that they should draw up a piece of paper and
have the drivers (route salesmen) to sign it indicating that they did not want a
union. Patrick Porter agreed with Wedel that this should be done.
Wedel, thereupon, had his wife write a statement indicating the employees' rejec-
tion of the Union, had his daughter -type the statement, took the written statement
to Patrick Porter, Ed Jones, and Wayne Hawk and secured their signatures
thereon 41
The signed written petition is herein set out:
January 23, 1966
We The Undersigned do 'hereby agree that we give our assurance to our
employer Clair Lussier that after thinking it over completely we -feel that we
would no longer go along with.a union for the Beer Co. of Battle Creek.
We sign this under no duress because we,are sure in showing our good faith
in Mr. Lussier he will show good faith in us.
In the event of a union vote (which we realize we signed for previously)
we agree to change our vote from being for a union, we take the stand as of
this day we are against it.
We further feel as adult and sensible men from this day forward if a grave
problem arises that we can come to a satisfactory agreement between both
labor (driver salesmen) and management (Mr. Clair Lussier).
Sincerely,
. -----------------
WILLIAM WEDEL
2. -----------------
PATRICK PORTER
3. -----------------
EDWARD JONES
4. -----------------
WAYNE HAWK
°B Lussier's testimony was not of a precise nature but indicated that he decided that the
work needs warranted taking Labrecque off of a route-and putting him back in his regular
capacity as a sales manager. The facts reveal that Lussler did not recall Wedel or tell
Wedel that he was recalled until after Lussier had notified Patrick Porter that he could
be off and until it was clear that Wedel had repudiated the Union. To the extent that
Lussler's testimony is to the point that he telephoned Patrick Porter (and told him that
he could be off) after hearing from Wedel, it is discredited. To the extent that Lussier's
testimony is to the effect that he decided, on an objective and nondiscriminatory basis,
to recall Wedel,it is discredited.
40 Considering all of the facts, I find it proper to make this factual inference from
Patrick Porter's credited testimony as to what Lussier told him and that he then called
Wedel.
4i Wedel testified credibly that at the time he assumed he would be recalled. Considering
all of the facts, I am convinced that Wedel believed that Respondent would hire him if
he submitted the petition rather than continuing the use of Perez in a nonsupervisory
position.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Around 1 p.m., on January 23, 1966, Wedel and Ed Jones were together. Wedel
telephoned Clair Lussier and told Lussier that he and Jones would like to see him.
Lussier told Wedel that he was busy but could see them at the plant around
6 p.m.42
Around 6 p.m., on January 23, 1966, Wedel and Ed Jones met with Clair Lus-
sier at the plant. Wedel gave Clair Lussier the written and signed petitions of the
four drivers (route salesmen ) indicating rejection of the Union. Wedel told Lussier
that they wanted to give him a majority vote of the seven drivers indicating that
they did not want a union . Lussier told Wedel and Jones that he appreciated the
vote of confidence from the men . After a discussion of the Union and the petition,
Lussier told Wedel that Patrick Porter was going to be off to attend a funeral and
that he was going to recall him to work beginning the next day.
Conclusion
The complaint alleges and the General Counsel contends that the recall of Wedel
under such circumstances constitutes a violation of Section 8 (a) (3) and ( 1) of the
Act.
Considering the facts relating to Wedel's recall and the presentation of the anti-
union petition , I conclude and find that the facts do establish that Lussier was
motivated (in the recall of Wedel) by a consideration of Wedel's switch to a
strong antiunion position. Under such circumstances I conclude and find that the
Respondent by the manner and circumstances of the recall of Wedel violated Sec-
tion 8 (a)(3) and (1) of the Act. This conduct further revealed an execution of
Lussier's promise of benefits if the employees refrained from union activity.
20. Alleged conduct on January 24, 1966
The complaint alleges that "on or about January 25, 1966, the Respondent, by
its president and agent Clair R. Lussier, at its Battle Creek, Michigan, place of
business , told employees that , if its terminated employees ceased their union activi-
ties, they would be recalled to work, and that thereby Respondent would be able to
influence the Board election and keep the Union out."
I find no evidence in the record to support this allegation . Gossett , who testified
to a conversation on January 24, 1966, with Clair Lussier, did not testify to facts
that in any way supported this allegation.
21. Events of February 2, 1966-alleged interference
On February 2, 1966, around 5:30 p.m., Patrick Porter asked Clair Lussier of
he could talk to him. Lussier told Patrick Porter that he could, to come on into
his office.
Patrick Porter, who apparently knew he was to later give a statement concern-
ing the unfair labor practice charges to an NLRB agent , asked Lussier to explain.
what giving a statement to the NLRB was like. Lussier told Patrick Porter that there
was nothing to it, that he should go "down there" and raise his right hand and
swear to tell the truth.
Patrick Porter then told Lussier what he was going to tell the NLRB in his
statement including his statement as to what Lussier had said happened to the
Union at Benton Harbor and Kalamazoo , Michigan , and as to Lussier's story as to
the termination of the employees at Benton Harbor, and as to Lussier 's statement
that he could use the foregoing as an example at the meeting (of drivers on Janu-
ary 15, 1966). Lussier asked Patrick Porter, in effect, if he could leave out the
part about the story about Benton Harbor and Kalamazoo, Michigan, and use of
it as an example. Patrick Porter told Lussier that he could not see how he could
do so.
Lussier told Patrick Porter to wait a minute, that he would call his lawyer. Lus-
sier was unable at the time, however, to contact his lawyer. Later Lussier told Pat-
rick Porter that he could give his statement as it had occurred.
Conclusion
The complaint alleges that "on or about January 31, 1966, the Respondent, by
its president and agent Clair R. Lussier, at its Battle Creek, Michigan, place of
12 As indicated, I find it hard to believe, and do not believe that if Lussier had decided
on Wedel by around 10 a in. that he would not have told Wedel to report to wort: during
this 1 p.m. conversation.
BEER COMPANY OF BATTLE CREEK, INC. 283
business interfered with Board process by attempting to induce its employees to
change their statements given to agents of the National Labor Relations Board and
by interrogating them in regard to their testimony."
Considering all of the facts relating to Lussier's conversation with Patrick Porter
on February 2, 1966, as to Porter's intended statement, I conclude and find that
the facts do not reveal illegal interrogation within the meaning of Section 8(a)(1)
of the Act. Although Lussier may have overstepped the bounds of permissible con-
duct in asking Patrick Porter if he could leave out certain portions of his statement,
it is not believed that such conduct, viewed in total context with Lussier's later
statements ( after consultation with his lawyer) that it was all right to include all
portions of the statement , is sufficiently serious to justify a remedial order . Accord-
ingly a finding of violation in this regard is not made 43
22. Events of February 4, 1966
On February 4, 1966 , a representation hearing in Case 7-RC-7171 was held?4
At the hearing the Respondent sought a bargaining unit of route salesmen, ware-
housemen , over-the-road drivers, and wine salesmen . At the hearing the Union
sought a unit of route salesmen and that the certification be based upon the driver-
salesmen working on or before January 15 , 1966.45
23. Recall of Michael Porter-event of February 7 and 14, 1966
On approximately February 7 , 1966 , Michael Porter told Clair Lussier that he
had a card from the unemployment office to get a job at Anderson Dairies and
asked Lussier what his status was with the Respondent . Lussier told Michael Porter
that he had acquired a new account with A & P and that he could use another
man to ease the burden . Michael Porter was told to report to work on February 14,
1966, and did s0.46
24. The wine operation-January 17-April 8, 1966
After January 17 and to April 8, 1966, Respondent continued to utilize Roger
Lussier in his wine operations . Initially Roger Lussier was used to maintain the
accounts while Respondent waited to see what Universal Wine and Liquor Corpo-
ration was going to do about some "chain accounts ." Apparently sometime between
February 4, and April 8, 1966 , the Respondent decided to go out of the wine oper-
ation entirely.47
The Respondent thereafter proceeded to prepare for disposition of his wine stock
and around April 8, 1966 , went completely out of the wine operation for practi-
cal purposes.48
43 Frontier Homes Corporation , 153 NLRB 1070.
u Involving the Union and Respondent herein and the question of determining repre-
sentative status.
By this the Union was apparently contending that Blain , Michael Porter, and Wedel
be considered as eligible voters in an election.
♦6 Lussier testified that his reason for recalling Michael Porter was because he was
planning to let Perez go and wanted " insurance." Although there apparently were several
minor reasons for recalling Michael Porter, I am convinced that the overall evidence
reveals that Lussier was attempting to run his business with as loyal help as he could,
that, however , Lussier realistically knew that he did not want to lose the potential em-
ployment of Porter , and knew that in order not to lose him , that he had to recall him at
this time.
"I discredit Clair Lussier 's testimony to the effect that within 2 weeks of January 15,
1966, he decided to go out of the wine operations entirely I note that Respondent at
the representation hearing held on February 4, 1966 ( Case 7-RC-7171 ), contended for
inclusion of the wine salesmen in the appropriate bargaining unit
is On April 22, 1966 , Respondent had some wine inventory scheduled to be picked up by
Universal Wine and Liquor Corporation around April 29, 1966. The logical consistency of
all the facts and the pendency of the hearing in this matter on April 21 , 1966 ( as set),
make it highly suspicious that the ultimate cessation of the wine operation was a con-
tinuation of a pretextuous coverup. It is however , unnecessary to make a finding in this
regard as the facts reveal that at the time Respondent decided to terminate Wedel , Michael
Porter, and Blain , such was done for an illegal purpose.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25. Number of employees
At the time of the hearing in this matter Respondent had hired no new employ-
ees, had discontinued three employees in the wine division and transferred them
into beer operation, had terminated one supervisor, and had recalled two of the
terminated drivers (Wedel and Michael Porter) 49
26. Respondent's contention as to its failure to recall Blain
The Respondent contends in effect that it learned of deficiencies in Blain's job
performance after his January 15, 1966, termination, and learned of an incident
relating to his integrity. The Respondent contends that its route salesmen work
under such conditions that the foregoing removes the obligation, if any, of recalling
or reinstating an employee such as Blain.
The Respondent contends with reference to the recall of Wedel and Michael Por-
ter that such was done on a logical basis and further that Blain was not recalled
because Respondent learned of facts regarding Blain's work that made Blain an
unsuitable employee. Considering Lussier's testimony as to the recall of Wedel and
Michael Porter, there is no suggestion that Lussier considered Blain 's work capa-
bilities or problems in such regard at all. It is clear from the facts that Lussier
recalled Wedel because Wedel had revealed his new antiunion sentiments and that
Lussier recalled Michael Porter because the latter was about to take a new job,
because Lussier had new accounts, and possibly was planning to terminate Perez.
Lussier's testimony otherwise would appear to be to the effect that he had no need
to recall anyone else.
Where an employee, as Blain , has been discriminatorily discharged, public policy
dictates that such employee is entitled to reinstatement and backpay absent unu-
sual circumstances . The alleged deficiencies in Blain 's work, some known before
his termination and some apparently discovered later, are not the type which ren-
der Blain an unsuitable employee with regard to his right of reinstatement and
backpay. The alleged deficiencies as to Blain 's work concern improper stocking
of beer and handling of customers. Where a Respondent has discriminated in the
termination of an employee and has not exhibited conduct designed to remove the
effect of the unfair labor practices it must be presumed that discriminatory moti-
vation toward the discriminatorily discharged employee has continued 50 Thus even
if a Respondent under such circumstances discovers reasons, as referred to herein,
which might otherwise have justified a discharge, his motivation as to failure to
reinstate such employee is based, at least, upon mixed motivation (of discrimina-
tory reasons and otherwise) and thus constitutes a continuation of a violation of
Section 8(a)(3) and (1) in such regard.
The Respondent also contends that it has reason to believe that Blain stole some
money, after discharge, from a customer on one of Respondent's routes51 Gossett,
as a witness for the Respondent, testified to the effect that around February 1,
1966, that Blain told him that he and Michael Porter had been out to the "Fla-
mingo Lounge" on a Wednesday night, that there were no customers there, and
that Blain had "clipped" the owner, a lady named Roberta Spragg, for some
dough. Gossett was asked if Blain told him what Blain had meant by what he said
and answered that Blain mentioned that while Roberta Spragg and Michael Por-
ter were dancing that Blain took some money out of her purse. Gossett testified
to the effect that later he saw Roberta Spragg and told her that he understood that
the boys were at her place and had a party the other night, that she said "Yes, if
you see Leroy tell him that he owes me some money." Gossett then testified to the
effect that she did not say how or what happened at this time, but he had spoken
to Blain and Blain had told him he had taken the money, that he asked her, and
that Spragg said that two five dollar bills were missing out of her purse. Lussier
talked to Roberta Spragg later. Spragg told Lussier in effect that Blain , Michael
Porter, and a third person were in her place of business and that she knew 10
dollars of her money was missing. Lussier testified in effect that he based his
understanding of the event on the facts told him by Gossett as allegedly told Gos-
set by Blain.
'B These facts are related merely to present a complete picture Considering all of facts,
the evidence preponderates for a finding that Respondent has geared its operations and
planned its personnel requirements as a means of pretextuous justification for its dis-
criminatory action in discharging Wedel, Michael Porter, and Leroy Blain.
ro Assuming the existence of, alleged deficiencies as testified to by Respondent's witnesses.
51 A route formerly served by Blain.
BEER COMPANY OF BATTLE CREEK, INC. 285
Blain testified to the effect that subsequent to his termination that he and Michael
Porter had visited the Flamingo Bar, that there was also another person there, that
they were there from around 10 p.m. to 2 a.m52 that they danced, drank, and
played pool, that he didn't play pool but Porter and Roberta Spragg did, that ini-
tially he and Porter paid for their drinks, that later Porter and Roberta Spragg
played pool with the loser being responsible for the drinks, that Roberta Spragg
initially mixed the drinks, that later Michael Porter mixed the drinks (shaker) for
himself and Spragg, and that he (Blain) drank what was left. Blain testified to the
effect that later he was talking to Gossett, that Gossett wanted to know where he
and Michael Porter had been, that he told Gossett that they had been out to the
"Flamingo," that Gossett asked what they were doing, that he (Blain) told Gos-
sett that they had drank and hustled her out of some drinks-about 10 dollars
worth of drinks. Blain testified to the effect that he did not tell Gossett that he
had lifted money out of Spragg's purse or from elsewhere, that later he and Gos-
sett had • another conversation, that he asked Gossett what Gossett had said he
(Blain) had said, that Gossett said he had told Lussier that Blain had said that he
(Blain) had taken some money, that Gossett had not remembered how much he
(Blain) had said it was, whether 10 cents or 10 dollars, that he had told Gossett
that if that is the way you understand it evidently you believe that is what was
said. Blain testified that he did not take any money out of Roberta Spragg's purse.
Considering all of the foregoing and the demeanor of the witnesses, I am con-
vinced that Blain's testimony as to the incidents is more reliable than Gossett's. I
found Blain to be a frank, forthright, truthful, and objective witness. Although I
don't believe that Gossett was attempting to knowingly tell an untrue story, I found
him to appear somewhat confused. As best gathered from his testimony it appears
that he testified to the effect that (1) he told Spragg he understood that the boys
had a party the other night and that Spragg had said that Blain owed her some
money, (2) that Blain later told him of the incident about taking the money, and
(3) that he saw Spragg again and she told him 10 dollars was missing out of her
parse. Considering all of the foregoing, I am convinced that Gossett has construed
the events to mean what he testified to but that his testimony is not reliable and
objective. In essential part Respondent's witnesses to this point gave hearsay tes-
timony. Although hearsay testimony of an admission nature is proper evidence
upon which a finding can be based, I am convinced, considering all of the testi-
mony, that Blain truthfully testified that he did not take money out of Spragg's
purse, and did not tell Gossett that he had done so. Accordingly I find the hear-
say testimony not to be persuasive of the truth as to the facts and have discredited
such testimony inconsistent with the facts found.
Where a respondent has discriminatorily (in violation of Section 8(a)(3) and
(1) of the Act) discharged an employee, such respondent has the legal obligation
of reinstating such employee to his job and of making such employee whole for
loss of wages as a result of such unfair labor practices as part of the remedy of
such unfair labor practices. Belief of acts of unsuitability is not a defense. In such
a situation a respondent's defense is essentially whether the facts reveal, as a mat-
ter of policy, that such remedy should not be required. The facts in this case do
not support such a defense. It is so concluded and found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relationship to trade, traffic, and commerce upon
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, it is
recommended that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases, as provided in
the Recommended Order below, which is found necessary to remedy and to remove
the effects of the unfair labor practices and to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3) and (1) of the Act by
the discriminatory discharge of Leroy Blain,. Michael J. Porter, and William C.
Whether 10 a.m. or 10 p.m. was not clearly testified to, but the probabilities reveal it
to have been Intended as 10 p.m.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wedel on January 15, 1966, it is recommended that Respondent offer Leroy Blain
immediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority and other rights and privileges,53 and make Wil-
liam Wedel, Michael Porter, and Leroy Blain whole for any loss of earnings they
may have suffered by reason of such discrimination by payment to each a sum
of money equal to that which each would have earned as wages from the date of
his discharge to the said offer of reinstatement, less his net earnings during said
period, with backpay computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, 294, and with interest
thereon as prescribed by the Board in Isis Plumbing & Heating Co, 138 NLRB 716.
As the unfair labor practices committed by the Respondent were of a character
which go to the very heart of the Act, it is recommended that the Respondent
cease and desist therefrom and cease and desist from infringing in any other man-
ner upon the rights of employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Beer Company of Battle Creek, Inc., the Respondent, is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 34, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Ind.) is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By discriminating in regard to the hire and tenure of employment of
employees thereby discouraging membership in or activities on behalf of a labor
organization, Respondent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(3) of the Act.
5 The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this case and pursuant to Section 10(c) of the Act, it is
recommended that Respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Local 34, Interna-
tional Brotherhood of Teamsters, Chauffeurs, and Warehousemen and Helpers of
America (Ind ), or any other labor organization of its employees, by discharging
or otherwise discriminating in regard to their hire or tenure of employment or any
term or condition of employment except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(b) Interrogating its employees concerning their or other employees' union
affiliation or activities, or protected concerted activities, in a manner constituting
interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act
(c) Threatening its employees with discharge or other reprisals because of their
activities on behalf of Local 34, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Ind.) or on behalf of any other
labor organization of its employees.
(d) Soliciting employees (1) to engage in acts of surveillance of other employ-
ees' union or concerted activities and to report on the same to the Company, and
(2) to act for the Company in communicating threats of discharges or other repris-
als because of union or concerted activities to other employees.
(e) Promising employees benefits conditioned upon their refraining from union
activities.
53 The record reveals the reinstatement of William C. Wedel on January 24, 1966, and
Michael Porter on February 14, 1966.
BEER COMPANY OF BATTLE CREEK, INC. 287
(f) In a manner constituting interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act, suggesting the withdrawal of National
Labor Relations Board unfair labor practice charges to an employee or discrimi-
natorily discharged employees.
(g) In any other manner interfering with, restraining, or coercing its employ-
ees in the exercise of their right to self-organization to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the Act, and to
refrain from any and all such activities to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer to Leroy Blain immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority and other rights
and privileges.
(b) Notify Leroy Blain if presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Make whole Leroy Blain, William C. Wedel, and Michael Porter for any
loss of pay they may have suffered by reason of the discrimination against them
by payment to them a sum of money equal to their loss of earnings from the
date of their discharge to the date of Respondent's offer of reinstatement in the
manner set forth in the section of this Decision entitled "The Remedy."
(d) Preserve and upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant or necessary to
the determination of the amounts of backpay due and the reinstatement and related
rights provided under the terms of this Recommended Order.
(e) Post at its plant in Battle Creek, Michigan, copies of the attached notice
marked "Appendix." 54 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 7, after being signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt thereof, and maintained by it
for 60 consecutive days thereafter, in conspicuous places where notices to employ-
ees are customarily posted, and take reasonable steps to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 7, in writing, within 20 days from
the date of this Decision, what steps the Respondent has taken to comply herewith.55
IT IS FURTHER RECOMMENDED that the allegations of the complaint (as to alleged
illegal conduct not found to be have been established) set forth in paragraphs
8(a), (b)(2), (e), and (f) be dismissed.
51 In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
sa In the event that this Recommended Order is adopted by the Board this provision shall
be modified to read : "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Leroy Blain immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges and WE WILL notify Leroy Blain , if presently serving in
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Armed Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after discharge from the
Armed Forces.
WE WILL make whole Leroy Blain, Michael J. Porter, and William C. Wedel
for any loss of earnings they may have suffered by reason of the discrimina-
tion against them, all in accord with and in the manner set forth in "The Rem-
edy" section of the Decision in this case.
WE WILL NOT discourage membership in or activities on behalf of Local 34,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, (Ind.) or any other labor organization of our employees, by
discharging or otherwise discriminating in regard to their hire or tenure of
employment or any term or condition of employment except to the extent that
such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT interrogate our employees concerning their or other employ-
ees' union affiliation or activities, or protected concerted activities, in a man-
ner constituting interference, restraint, or coercion within the meaning of Sec-
tion 8(a)(1) of the Act.
WE WILL NOT threaten our employees with discharge, or other reprisal
because of their activity on behalf of Local 34, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind.) or on
behalf of any other labor organization of our employees.
WE WILL NOT, in a manner constituting interference, restraint, or coercion
within the meaning of Section 8(a)(1), suggest to employees or discrimina-
torily discharged employees the withdrawal of National Labor Relations Board
unfair labor practice charges.
WE WILL NOT solicit our employees (1) to engage in acts of surveillance of
other employees' union or concerted activities and to report on the same to
us, or (2) to act for us in communicating threats of discharge or other repris-
als because of union or concerted activities to our employees.
WE WILL NOT promise our employees benefits conditioned upon their refrain-
ing from union activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
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 Sec-
tion 7 of the Act, and to refrain from any and all such activities, except to
the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
All of our employees are free to become or remain, or to refrain from becoming
or remaining, members of Local 34, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Ind.), or any other labor
organization, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
BEER COMPANY OF BATTLE CREEK, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 500
Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone
226-3244.