Full Service Beverage Co. of Colorado

National Labor Relations Board - Board Decisions

Aug 7, 2000

331 N.L.R.B. 945 (N.L.R.B. 2000)

FULL SERVICE BEVERAGE CO. OF COLORADO 945
Full Service Beverage Company of Colorado and
Frank Louis Sample and International Brother-
hood of Teamsters, Local No. 435. Case 27–CA–
15359
August 7, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On May 29, 1998, Administrative Law Judge Albert
A. Metz issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Full
Service Beverage Company of Colorado, Denver, Colo-
rado, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the June 13, 1997
unlawful written warning, suspension, and discharge of
Frank Sample, and within 3 days thereafter notify this
employee in writing that this has been done and that the
written warning, suspension, and discharge will not be
used against him in any way.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We have modified the Order to conform more closely to the com-
plaint and the judge’s conclusions as to actions taken against Sample.
See sec. VIII of the judge’s decision.
Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT issue written warnings, suspend, dis-
charge, or otherwise discriminate against any of you for
supporting the International Brotherhood of Teamsters,
Local No. 435 or any other union.
WE WILL NOT suggest to employees that the Com-
pany’s proposed MORE committee would be an alterna-
tive to union representation.
WE WILL NOT ask employees to attend union meetings
in order to report to us what occurred at the meetings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days form the date of the Board’s
Order, offer Frank Sample full reinstatement to his for-
mer job or, if his job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Frank Sample whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the June
13, 1997 unlawful written warning, suspension, and dis-
charge of Frank Sample, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the written warning, suspension, and discharge
will not be used against him in any way.
FULL SERVICE BEVERAGE COMPANY OF
COLORADO
Chet Blue Sky, Esq., for the General Counsel.
Gustav Auchey, Esq. and Brian Meegan, Esq., for the Respondent.
Linda Cote, Esq., for the Union.1
DECISION
ALBERT A. METZ, Administrative Law Judge. This case in-
volves issues of whether the Respondent has violated Section
8(a)(1) and (3) of the National Labor Relations Act (the Act).2
In the entire record, including my observation of the demeanor
of the witnesses, and after consideration of the briefs, I make
the following3
1 The caption of this case was amended at the hearing to reflect that
Teamsters Local 435 (the Union) was also a Charging Party.
2 29 U.S.C. § 158 (a)(1) and (3).
3 The case was heard at Denver, Colorado, on March 16–20, 1998.
All dates refer to 1997 unless otherwise stated.
331 NLRB No. 114
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 946
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. BACKGROUND
The Respondent operates a nonunion beverage distribution
business in the Denver, Colorado area. At the relevant times the
Respondent’s supervisory hierarchy consisted, in part, of Direc-
tor of Distribution Walter Apodaca, Driver Supervisor James
Ferris, and Human Resources Manager Karen Purre.
III. SAMPLE MAY 7 DISCIPLINE
In April 1997 the Respondent was having difficulty hiring
enough drivers to fill its needs. Employee Frank Sample started
work for the Respondent on April 18. Sample was hired as a
truckdriver and was paid an hourly wage when he started. On
May 7 the Respondent gave Sample a written warning because
he was not answering his beeper pages, having his wife call in
to report his absence for the day, and an unspecified “attached
complaint.” The notice further warned that he must comply
with company regulations or risk further action.
In late April the Respondent notified its drivers that their pay
would be changing from an hourly rate to a salary. When Sam-
ple and other drivers received their first paychecks under the
salary system they were dissatisfied with the change.
IV. SAMPLE JUNE 3–4 DELIVERY PROBLEMS
On June 3 Sample did not make all of his scheduled deliver-
ies. He was chastised by Apodaca for this and told of the im-
portance of completing his route. On June 4 Sample missed 11
of his scheduled 25 delivery stops. Sample was not spoken to
immediately about this problem because he left the Respon-
dent’s premises before the missed deliveries were noted by
supervision. Sample worked June 5 without incident. A written
warning was prepared for Sample outlining his missing deliver-
ies. (G C Exh. 9.) It is unclear exactly when the warning was
actually written. Although it is dated June 4, it was not signed
by Apodaca until June 6. The warning was not shown to Sam-
ple until June 13. The Respondent asserts this was because
supervision was unable to connect up with Sample in the mean-
time. As recited below, I do not credit this explanation.
V. SAMPLE’S UNION PETITION
On the evening of June 5 Sample used his home word proc-
essor to prepare a multipage document relating to union repre-
sentation for the drivers. This document included a signup list
for drivers to express their interest in meeting with a union
representative. Sample took the document to work with him
when he reported at 4:30 a.m. on the morning of June 6. He
posted it on the bulletin board in the driver’s room and left on
his delivery route.
Supervisor Ferris was soon made aware of Sample’s union
posting. He made a copy of some of the pages, including a
recitation of its purpose and the signup list. Sample’s name was
the first signature on the list. Ferris, lead driver, Ken Hitchcock,
and Apodaca met with Human Resources Manager Karen
Purre, when she arrived at work that morning. Part of their
meeting was overheard by Purre’s assistant, Helen Elizabeth
Treadway. I credit Ferris’ testimony as to what was said during
this meeting as he had an excellent recall and related events
without embellishment. Ferris recalled Apodaca asking Purre
what they needed to do about “this guy.” Purre asked who he
was talking about. Ferris said he was guessing that Frank Sam-
ple was responsible for the posting because his name was the
first on the signature page and he was the only driver with ac-
cess to a computer. Purre asked if anyone had seen him post it
and was told they had not. Apodaca said, “We want to write
Frank’s ass up for any wrongdoings.” Purre said they needed
to, “document, document, document” everything. Purre testi-
fied that, “I had, all of a sudden, this overwhelming thing I had
to deal with.” She also told the supervisors that anything Sam-
ple was written up for needed to be work related and could not
involve union activities. Ferris stated that they did not need his
union activities because his work history “screwed himself.”
On June 6 Apodaca signed Sample’s warning dated June 4.
Ferris recalled that he had a driver’s status meeting with
Apodaca sometime between June 6 and Sample’s June 20 dis-
charge. Apodaca was angry about Sample’s performance. At
the conclusion of the meeting Apodaca told Ferris to get rid of
Sample because they could not afford to have any “troublemak-
ers” like him.
VI. SAMPLE’S TELEPHONE CALLS TO REPORT ABSENCES
On June 10 Sample called the Respondent’s telephone num-
ber to report that he was ill and would not be at work. He kept
getting the answering service before his 4:30 a.m. starting time.
He tried to get another number to call but the answering service
would not give him one. He finally talked to Hitchcock at about
8:30 a.m. and told him he would not be in that day. He com-
plained to Hitchcock that he had trouble reaching the Respon-
dent that early in the morning. He recalled Hitchcock told him
that it was acceptable to call the answering service and leave a
message if he was not coming to work. Hitchcock denied ever
stating this. Sample was not disciplined for calling in after his
starting time on June 10. On June 11 Sample again reported
sick, this time leaving a message with the answering service at
4:38 a.m. Respondent’s records confirm Sample called to report
his absence on June 11. The Respondent asserts, however, that
employees are instructed to contact supervision directly to re-
port their absence.
On the morning of June 11 Apodaca telephoned Ferris and
learned that Sample was a “no-show” for the day and they had
not heard from him. According to Apodaca he then instructed
Ferris to terminate Sample. The Respondent’s records and con-
duct, however, contradict this testimony. Instead of terminating
Sample a written warning was eventually prepared for Sample.
Although Sample worked June 12 and 13 he was not termi-
nated. On June 13 Hitchcock showed Sample the warning dated
June 4. He asked Sample to sign the warning but he refused. No
other warning was given to Sample nor was discipline dis-
cussed with him this day. The Respondent did, however, pre-
pare at some point a written warning dated June 11. This warn-
ing chastised Sample for leaving a message with the answering
service rather than directly speaking to supervision. That warn-
ing concludes: “If Mr. Sample has any more mishaps he will be
terminated.” (GC Exh. 12.) Sample was not shown this warn-
ing until after his discharge.
VII. SAMPLE’S SUSPENSION AND DISCHARGE
Sample reported to work June 16 but there was no work as-
signed to him and he was sent home. That evening he received
a phone message from Hitchcock telling him to report at 9 a.m.
FULL SERVICE BEVERAGE CO. OF COLORADO 947
On June 17 and he would be assigned to pick up displays.
When Sample reported to work he was called to a meeting with
Ferris and Purre. Purre wanted to know why he had not signed
the June 4 warning which Hitchcock showed him on June 13.
He said he did not agree with it. Purre then questioned why
Sample had not called in on June 11. He protested that he had
left a message with the answering service. Purre said there was
no record of this phone call. Purre then told Sample he was
being placed on a 3-day suspension because he did not call in
on June 11 and because he had refused to sign the June 4 warn-
ing notice.
On June 19, the day before his suspension was to end, Sam-
ple went to Respondent’s facility. He circulated another petition
and letter among the employees seeking their interest in meet-
ing with a union representative. Before leaving the plant, Sam-
ple gave a copy of the letter and other documentation to super-
visor Ferris. This documentation explained to management the
employees’ interest in union activity and cautioned against
violating their rights.
On the morning of June 20 Sample and some union represen-
tatives passed out union handbills at the plant before his start-
ing time. Sample’s handbilling was observed by supervisory
personnel. When Sample went to work that morning he was
told that he had been terminated but was not given an explana-
tion of the reasons. He returned to the plant on June 23 and
demanded to know specifically why he was discharged. Purre
told him it was because of his four writeups. Sample protested
he had not seen four warnings. Purre showed him warnings
dated May 7 and June 4, 11, and 17. Sample said he had never
seen the June 11 and 17 warnings. Sample requested copies of
the warnings but Purre refused to give them to him. The June
17 warning notice concludes that the suspension was because
Sample failed to adhere to the June 4 warning. (GC Exh. 13.)
The Respondent does not contend that it had shown the June 11
or 17 warnings to Sample before June 23.
VIII. CONCLUSIONS AS TO ACTIONS TAKEN AGAINST SAMPLE
The Government alleges that the warning given Sample on
June 13, his June 17 suspension, and his June 20 discharge are
violations of the Act. The General Counsel has the initial bur-
den of establishing that union or other protected activity was a
motivating factor in Respondent’s action alleged to constitute
discrimination in violation of Section 8(a)(3). The elements
commonly required to support such a showing of discrimina-
tory motivation are union activity, employer knowledge, tim-
ing, and employer animus. Once such unlawful motivation is
shown, the burden of persuasion shifts to the Respondent to
prove its affirmative defense that the alleged discriminatory
conduct would have taken place even in the absence of the
protected activity. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); and Presbyterian/St. Luke’s Medical Center,
723 F.2d 1468, 1478–1479 (10th Cir. 1983). The test applies
regardless of whether the case involves pretextual reasons or
dual motivation. Frank Black Mechanical Services, 271 NLRB
1302 fn. 2 (1984). “A finding of pretext necessarily means that
the reasons advanced by the employer either did not exist or
were not in fact relied upon, thereby leaving intact the inference
of wrongful motive established by the General Counsel.” Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. sub nom.
705 F.2d 799 (6th Cir. 1982).
The Respondent had knowledge of Sample’s union activity,
having seen his name on the June 6 signup list. Apodaca was
clearly distressed by Sample’s union efforts. He wondered
aloud what should be done with Sample and concluded they
should, “Write his ass up.” The ensuing written warnings de-
tailing Sample’s work deficiencies were an effort to document
his poor performance to justify his termination. I find that the
Government has established the elements of knowledge, timing
and, based on the record as a whole, including the violations set
forth below, union animus sufficient to establish unlawful mo-
tivation for Sample’s discharge.
The Respondent in defense of the discharge has demon-
strated that Sample did not always properly perform his work.
Yet the Respondent was in need of drivers and was tolerant of
his job performance until his union activity became known. At
that point the Respondent engaged in a heightened effort to
justify discharging Sample by “writing his ass up.” The June 4
written warning was not shown to Sample for 9 days after it
was allegedly prepared. The June 11 warning was a further
effort to document Sample’s transgressions, but conditioned his
possible termination on his engaging in “any more mishaps.”
Sample was not shown the June 11 or 17 employee warning
notices until after his discharge. Between June 11 and Sample’s
June 17 suspension it is undisputed that Sample did not engage
in further “mishaps.” Sample did, however, circulate a union
petition the day before his discharge and put Ferris on notice he
had done so. On the day of his discharge Sample distributed
union literature at the plant gates.
The Respondent has failed to adequately explain why Sam-
ple was discharged despite the wording of his June 11 warning
notice that he would be terminated if he had additional “mis-
haps.” I infer from the record as whole that the reason Sample
was suspended and discharged was his continued union activ-
ity. I find that the Respondent has failed to persuasively show
that it would have taken the same action against Sample in the
absence of his union activities. Therefore, I conclude that the
June 13 written warning, and Sample’s suspension and dis-
charge are each a violation of Section 8(a)(1) and (3) of the
Act. Wright Line, supra.4
IX. DISCUSSION OF THE “MORE” COMMITTEE
On June 19 a group of employees was in the drivers’ room
discussing complaints about their working situation. Apodaca
joined the discussion and told the drivers if they wanted to dis-
cuss their problems they should individually come to see him.
Driver Christine Howland, Supervisor James Ferris, and Apo-
daca had a conversation in the office shortly thereafter.
Howland and Ferris complained about working conditions in-
cluding the turnover in drivers, long hours, and too many stops
expected of the drivers. Apodaca sent Ferris out of the room
and continued the conversation with Howland. Apodaca said
that he had been a union steward at one time and the Union was
going to hurt the Respondent more than it was going to help.
Howland told him the Union was coming in and he was going
to lose. Apodaca then showed some papers to Howland and
said he had an alternative that he had proposed to upper man-
agement that he thought would be put into effect. The papers

4 The written warning shown Sample on June 13 was part of an ef-
fort to unlawfully justify his discharge. Nothing in this decision, how-
ever, shall be construed to preclude the Respondent from nondiscrimi-
natorily disciplining Sample because of his failure to properly make
deliveries.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948
concerned a proposal for a MORE (maintaining our reputation
for excellence) committee of employees that meet each month
to express workers’ concerns. Apodaca said that Howland
could be the drivers’ representative on the committee. Apodaca
said he would have a meeting with drivers to discuss matters
and Howland could tell the drivers, when she saw them in the
morning, what they had discussed.
Apodaca admitted discussing the MORE committee with
Howland. He further contended that he considered the commit-
tee a dead issue since it had earlier been received without en-
thusiasm by higher management. Apodaca’s testimony did not
satisfactorily explain why he then bothered to bring the idea of
the committee to Howland’s attention as an alternative to union
representation. I credit Howland’s testimony as to what Apo-
daca said concerning the committee. I find that by proposing
the MORE committee the Respondent intended to interfere
with, restrain and coerce employees in their decision concern-
ing union representation. I further find that Apodaca’s discus-
sion of the committee with Howland was a violation of Section
8(a)(1) of the Act. Modern Merchandising, 284 NLRB 1377,
1379–1380 (1987).
X. ASKING HITCHCOCK TO ATTEND UNION MEETINGS
Ferris recalled that in June he was discussing the union inter-
est of employees with Apodaca when the subject of a union
meeting came up. Apodaca suggested that Ferris go to the un-
ion meeting. Ferris said they would not let him in because of
his supervisory status. Apodaca then told Ferris to ask leadman
Ken Hitchcock to go to the meeting and report what he learned
to the Respondent. Apodaca denied ever telling Ferris to have
Hitchcock attend union meetings. Based on the demeanor of
these witnesses, I credit Ferris’ testimony.
Ferris asked Hitchcock to attend union meetings and report
what he learned. Hitchcock denied ever being solicited by Fer-
ris to attend union meetings. He did admit, however, that he
had in fact attended union meetings and discussed with man-
agement, on his own volition, what happened at the meetings. I
found Hitchcock an unconvincing witness and I conclude that
he was in fact solicited by Ferris to attend union meetings and
report what he learned to the Respondent. I further find that
Respondent’s solicitation of an employee to engage in surveil-
lance of union meetings on its behalf is a violation of Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Full Service Beverage Company of Colorado is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Brotherhood of Teamsters, Local No. 435 is
a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has violated Section 8(a)(1) and (3) of the
Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended5

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER6
The Respondent, Full Service Beverage Company of Colo-
rado, Denver, Colorado, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Suggesting to employees that the Respondent’s proposed
MORE committee would be an alternative to union representa-
tion.
(b) Asking employees to attend union meetings in order to
report to the Respondent what occurred at the meetings.
(c) Issuing written warnings, suspending, and discharging
employees because they engaged in union activities.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Frank
Sample full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Frank Sample whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, computed on a quarterly basis, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove from
its files any reference to the June 4, 1997 unlawful written
warning, suspension, and discharge of Frank Sample, and
within 3 days thereafter notify this employee in writing that this
has been done and that the written warning, suspension, and
discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Denver, Colorado, copies of the attached notice marked
“Appendix.”7 Copies of the notice, on forms provided by the
Regional Director for Region 27, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the

Board and all objections to them shall be deemed waived for all pur-
poses.
6 The Union’s unopposed posthearing motion to correct the record is
granted. It is ordered that the exhibit file be corrected to reflect that the
notes of a June 19, 1997 event signed by witness Christine Howland are
the correct U. Exh. 4.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FULL SERVICE BEVERAGE CO. OF COLORADO 949
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since June 13, 1997. Excel Corp., 325 NLRB 17
(1997).
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.