Gerken & Sons Wholesale Foods

National Labor Relations Board - Board Decisions

Jan 14, 1974

208 N.L.R.B. 384 (N.L.R.B. 1974)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George L . Gerken and John T . Gerken , Partners,
d/b/a Gerken & Sons Wholesale Foods and
Dennis G. Allen . Case 14-CA-7401
January 14, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On October 31, 1973, Administrative Law Judge
Morton D . Friedman issued the attached Decision in
this proceeding . Thereafter , Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, George L. Gerken
and John T. Gerken, Partners, d/b/a Gerken & Sons
Wholesale Foods, Belleville, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge it is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge:
Upon a charge filed on May 10, 1973, by Dennis G. Allen,
an individual, herein called the Charging Party or Allen,
the Regional Director for Region 14 of the National Labor
Relations Board, herein called the Board, issued a
complaint on June 12, 1973, on behalf of the General
Counsel of the Board against George L. Gerken and John
T. Gerken, Partners, d/b/a Gerken & Sons Wholesale
Foods, herein called the Respondent, alleging violations of
Section 8(a)(3) and (1) of the National Labor Relations
Act, herein called the Act. In its duly filed answer, the
Respondent, while admitting certain allegations of the
complaint , denied the commission of any unfair labor
practices.
Pursuant to notice , a hearing in this case was held before
me at St . Louis, Missouri , on August 21, 1973. All parties
were represented and were afforded full opportunity to be
heard.
Upon consideration of the entire record herein , including
the briefs of the parties , and upon my observation of each
witness appearing before me at the hearing herein, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a partnership of George L. Gerken and
John T. Gerken, with its office and principal place of
business at the city of Belleville, Illinois, is engaged in the
nonretail sale and distribution of canned goods, fresh
vegetables, and related products. Dunng the year ending
December 31, 1972, a representative period, the Respon-
dent purchased and caused to be transported and delivered
to its place of business in Belleville, Illinois, fresh
vegetables, canned goods, and other goods and materials
of a value in excess of $50,000 which were transported and
delivered to its place of business directly from points
located outside the State of Illinois.
It is admitted, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2),(6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Chauffeurs & Helpers
Local Union No. 50, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues'
The principal issue in this case is whether the Respon-
dent first laid off and then discharged employee Dennis
Allen because Allen filed a grievance and engaged in other
protected activities on behalf of the Union, or whether the
Respondent discharged Allen for cause. The other issues
are whether the Respondent threatened Allen with more
arduous working conditions in order to discourage his
union activity and threatened Allen with discharge because
he had filed a grievance with and sought assistance of the
Union.
B. The Facts
The Respondent has had a bargaining relationship with
the Union since 1946, the year that Respondent started
business. During that period of time, the Respondent has
entered into successive bargaining agreements with the
Union, including the bargaining agreement which expired
on April 1, 1972, covering a unit of Respondent's drivers.
The drivers' duties are principally to deliver Respondent's
208 NLRB No. 71
GERKEN & SONS WHOLESALE FOODS 385
merchandise to its various customers. During that period
of time, also, the relationship between the Union and the
Respondent has been, with the exception of the case of
Dennis Allen, the Charging Party herein, relatively
uneventful.
In January 1972, the Respondent received a 60-day
notice of request to negotiate a new contract to replace the
then current contract which was due to expire April 1,
1972. Evidently, thereafter, both the Respondent and the
Union either completely forgot about this request for
renegotiation or purposely ignored it. In any event, nothing
further was done about the renegotiation until sometime in
February 1973. In the interim, on Apnl 1, 1972, the date of
the expiration of the contract as noted above, the
Respondent gave to its drivers a 25-cents-per-hour wage
increase without consultation with the Union. Among the
drivers who received such increase was Dennis Allen.
Allen, one of the Respondent's five drivers i and a
member of the Union, was hired by the Respondent in
September of 1970. He started at the rate of $2.70 an hour
and received a 15-cent increase as the result of a union
negotiated contractual raise in 1971. Upon the expiration
of the contract on April 1, 1972, Allen along with the four
other drivers received a 25-cent raise so that at the time of
his discharge on May 4, 1973, he was making $3.10 an
hour. As noted above, the April 1973 raise was voluntary
and was given to the employees without consultation or
negotiation with the Union. In addition to the raises, Allen
at each Christmastime during his employment was given a
bonus by the Respondent, also in addition to any
contractual arrangement, the last such bonus being at
Christmas 1972, at which time Allen was given $100. In
addition, Allen was also permitted to borrow the Respon-
dent's truck for his own personal use upon several
occasions during his period of employment.
On Friday, February 2, 1973, Allen engaged managing
partner John T. Gerken, familiarly known as Tom Gerken,
in a conversation in the Respondent's office. Allen
informed Tom Gerken that Allen's wife was going to have
a baby and that he was concerned with hospitalization and
other medical costs. Tom Gerken told Allen that the latter
should go to the union office to see what kind of coverage
Allen might have through the Union. In connection with
this, it should be noted that the Respondent, despite the
fact that its contract with the Union had expired on April
1, 1972, continued to make health and welfare payments to
the Union as required by the expired contract.
As a result of this conversation with Tom Gerken, Allen
visited the union office and spoke to Arthur Luekemeyer,
secretary-treasurer and business agent of the Union.
Luekemeyer told Allen that the latter had full coverage for
the maternity expenses. However, at that time, in looking
over the file with regard to the Respondent, Luekemeyer
noted and informed Allen that the contract had expired.
This was the first time that Allen became aware of such
fact. Luekemeyer then instructed Allen to inform the other
men about this fact and to get them together to come to the
union office to discuss possible demands and requirements
for a new contract which the Union would negotiate with
the Respondent. Allen consented to do this.
At 12 noon, on the following Monday, February 6, 1973,
in the office of the Respondent, Allen was informing the
other drivers of this meeting and the fact that the contract
had expired when Tom Gerken entered the room. Allen
thereupon informed Tom Gerken of the matter of the
expired contract and the proposed meeting to be held to
draft new contract demands. Gerken replied, "That was
some union" that did not even inform its members that
their contract with the Respondent had expired. At this
time he informed Allen that the latter was entitled to the
maternity benefits because the Respondent had been
paying the health and welfare benefit payments to the
Union up to that date.2
Three days later, on Friday, February 9, at approximate-
ly 1:45 p.m., Allen came into the Respondent's office to
check out his collections at the end of the day. There Tom
Gerken engaged Allen in a conversation.
Gerken asked Allen about the Union and especially
whether or not they had a contract. Allen answered that he
presumed they had a contract because the employees were
going to draw up proposals for a new contract the
following week. Then Tom Gerken said to Allen "Well, I'm
going to give you Monday off." When Allen asked the
reason for this Gerken answered "Well, I'm going to let
you go out and look for a better job. If you think you're
better, you can go out and find a better job." Then Allen
asked Gerken whether he was not the one who told Allen
to go to the Union to find out about the maternity benefits.
Gerken answered that he was just going to lay Allen off for
that Monday. When Allen asked about the following
Tuesday Gerken answered "Well, it's up to you whether
you come back or not." Gerken then told Allen "If you're
going to show me a hard time, I'm going to show you that I
can show you a hard time." Allen answered that that was a
hard way to find out about a union and the conversation
ended.
Following this conversation, on Monday, February 12,
Allen was off for the day but returned to work on Tuesday,
February 13.3
On Tuesday, February 13, the drivers met with Lueke-
meyer, union business agent, to draft their proposals to the
Respondent for a new contract. When the meeting ended,
Allen told Luekemeyer that he had been laid off on
February 12 for that day. According to Luekemeyer, whom
I credit, Allen told him he had been laid off while men with
less seniority were working. Luekemeyer told Allen that if
that was so, Allen was entitled to be paid for the day and
that he would take care of it. Thereafter, on February 14,
February 20, and again on March 30, at negotiation
meetings held with Tom Gerken, Luekemeyer told the
latter the Respondent would have to pay Allen for the day
Allen was laid off. Each time Tom Gerken refused to pay
Allen for that day telling Luekemeyer that he did not
believe "in paying anyone for not working."
I Allen drove a truck Monday, Tuesday, Thursday, and Friday of each Tom Gerken, and Luekemeyer
week On Wednesday he covered a set route for the Respondent as a 3 The foregoing from the credited testimony of Allen. I do not credit
salesman John T Gerken' s version of the conversation preceding the layoff for
2 All of the foregoing from credited portions of the testimony of Allen , reasons hereinafter set forth in this Decision
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, on February 16, 1973, prior to Luekemeyer's
meeting with Gerken, Luekemeyer sent to the Respondent
the employees' proposals for the new contract. This letter
was received by Tom Gerken some days thereafter. After
reading the proposals, Tom Gerken on the Monday
morning following the receipt of the letter containing the
proposals, called all the employees together and spoke to
them. He told them that they had demanded a $73 per
week raise and that the Respondent would not pay this and
that "they should quit their job and go get a different job
or go see Mr. Luekemeyer and see if he couldn't get them
on a concrete truck, because they paid big money, or go to
St. Louis and see if they could get on a tractor trailer
because they paid more money."4
Nevertheless, despite Gerken's initial reaction to the
employees' proposals, as noted above, negotiation sessions
were held on a number of days and finally on March 30,
1973, a new collective-bargaining agreement was signed by
all parties .5
Although Luekemeyer had spoken to Tom Gerken at the
bargaining meetings with regard to paying Dennis Allen
for February 12, as noted above, the Respondent refused
to pay Allen for that day. Accordingly, on April 23, Allen
not having received any satisfaction through Luekemeyer's
efforts, filed a formal written grievance through the Union
and through Luekemeyer with the Respondent. Luekemey-
er mailed this grievance to the Respondent on April 27 and
the Respondent received it within a day or two thereafter.
When Allen filed the grievance, Luekemeyer told Allen
that this was the first formal grievance that had ever been
filed against the Respondent in all the years of the
bargaining' relationship with the Respondent. Allen testi-
fied, without contradiction, that the reason he delayed so
long in filing a grievance was that he thought Luekemeyer
could straighten out the matter without a formal grievance.
Thus matters stood until Wednesday, May 7, 1973. On
that day Allen was preparing to leave for his usual sales
route when he was told that Tom Gerken, Jr., would
accompany him on the route. This was the first time
anyone had accompanied him on this route since the date
that he took it over in December 1971. So far as the record
shows, no explanation was given to Allen by anyone at the
management level of the Respondent as to why Tom
Gerken, Jr., accompanied him on that day. On the
following day, Thursday, May 3, Tom Gerken, Jr., and
another driver were sent on Allen's route while Allen was
sent on the other driver's route. According to Allen, whose
testimony in this respect I accept, only on one other
occasion, when Allen was ill, did anyone ever cover his
delivery route.
On that same afternoon, May 3, at about 1:45 p.m., Tom
Gerken asked Allen to come into Gerken's warehouse
office. Present beside Allen and Tom Gerken was George
Gerken, senior partner and founder of Respondent. Tom
Gerken, referring to the formal written grievance which
Allen had filed with the Union and which the Union had
forwarded to Tom Gerken, told Allen, in substance, that
4 This quotation from the uncontroverted testimony of Tom Gerken
5 From credited testimony of Luekemeyer This testimony was uncontro-
verted and, from my observation of Luekemeyer , I found him to be a very
reliable witness
6 All of the foregoing from credited testimony of Allen and of
since Allen had filed a grievance in which he complained
about being refused a day's pay for February 12, and since
Tom Gerken had given Allen a 25-cents-an-hour raise
approximately a year before, the extra money that Allen
had received since then totalled $500. Tom Gerken then
told Allen that since they owed Allen a day's pay,
according to Allen's grievance, Allen owed the Respondent
the sum of $500. At that point, George Gerken entered into
the conversation and asked Allen what the latter was trying
to do. George Gerken then continued by reminding Allen
of the favors Respondent had given Allen in the past such
as the bonuses and permitting Allen to use the Respon-
dent's truck for personal use whenever Allen asked. Allen
answered that he had thanked Tom Gerken for these
favors but that he did not think that Gerken should have
laid him off for the day of February 12. George Gerken
then replied to the effect that Tom could do anything that
he wanted to do, and "He can lay you off or fire you any
time he wants to." George Gerken added "We laid you off
Monday, hoping you wouldn't come back." When Allen
replied that he knew that, Tom Gerken reentered the
conversation and stated "Well, Dad, there's no use talking
to him. That's his nature. If that's the way he wants it,
that's the way it's going to be." At that point Allen walked
out of the office.
Later that afternoon, at approximately 4:30 p.m.,
Luekemeyer visited the Respondent's establishment and
discussed with Tom Gerken the merits of Allen's written
grievance. He explained to Tom Gerken that although at
the time of the I-day layoff, the 1971-1972 contract had
expired, nevertheless, the terms and conditions of employ-
ment contained therein continued by reason of a continua-
tion clause in the contract and that, therefore, the
Respondent had no legal right to lay off Allen or any other
employee at a time when junior employees were working.
In other words, layoffs had to be made in the order of
seniority. At the end of that discussion, Tom Gerken
indicated to Luekemeyer that he would pay Allen the day's
pay. It is significant, that at that time , although according
to Tom Gerken's testimony, as set forth below, he had
made up his mind to discharge Allen the following day for
Allen's mistakes, he did not mention these mistakes to
Luekemeyer or to Allen during the earlier conversation
with Allen on that day. At least, Luekemeyer did not
testify to this effect and Respondent's counsel did not
inquire of Luekemeyer with regard to any knowledge
Luekemeyer might have had of Allen's impending dis-
charge.6
The following day, May 4, Tom Gerken instructed Allen
to check out his money early upon Allen's return from his
delivery route. Tom Gerken then handed Allen three
checks and explained that one check was for his week's
pay, the second check was for Allen's 2-week vacation pay
which Allen had coming to him, and the third check was
for the day's pay of February 12. Then Tom Gerken told
Allen'that Gerken wanted to square things up with Allen.
He followed this with the statement "I'm laying you off
Luekemeyer Although George Gerken gave a slightly different version of
the conversation which occurred in the office of the Respondent between
Allen and the two Gerkens on Thursday afternoon, May 3, for reasons
hereinafter stated and because his version did not differ very materially
from Allen's version , I credit the version as contained in Allen 's testimony
GERKEN & SONS WHOLESALE FOODS 387
permanently because you made a mistake on one of my
biggest customers, Mascoutah, last week, and you've been
coming in late." 7 With that remark, and upon receiving the
three checks as stated, Allen left the Respondent's
premises.8
Several days thereafter, by letter dated May 8, 1973,
which letter was sent to both Allen and the Union, Tom
Gerken further sought to support the discharge by stating
that Allen had been discharged only after repeated
warnings concerning careless deliveries necessitating sec-
ond trips to correct the mistake and that the discharge
resulted because of Allen's disregard of work rules and
sloppy, careless work habits, resulting in antagonizing the
Respondent's largest customer.
C. The Respondent's Defense
Aside from giving slightly different versions of the
various conversations between Allen and Tom Gerken and
George Gerken, the Respondent contends, as indicated by
the recital of its letter of May 8, 1973, that Allen was
discharged solely for his inability to follow the Respon-
dent's work rules, for sloppy work, careless deliveries, and
generally bad working habits. According to the testimony
of Tom Gerken, during the last week of Allen's employ-
ment, the latter made six very serious mistakes and this was
after Allen had been warned on many occasions concern-
ing mistakes and sloppy work habits. In fact, according to
Tom Gerken, the reason for the layoff of February 12, as
above set forth, was that Allen's work habits had become
so bad by that time and the mistakes he made so
numerous, that the purpose of the February 12 layoff was
to give Allen an opportunity to obtain another position,
evidently because the Respondent was reluctant to take the
final step of discharging Allen.
Then, according to Tom Gerken, when Allen made the
six mistakes in the week ending May 4, 1973, the situation
had become absolutely intolerable and he had no alterna-
tive but to fire Allen. The mistakes which brought about
the decision to discharge Allen were outlined by Tom
Gerken in his testimony. According to that testimony, two
times during that last week Allen had delivered the wrong
merchandise to the Mascoutah schools. The correct
merchandise, chili beans, was marked on the delivery
tickets and Allen asked the caretaker or cooks at the
Mascoutah schools to sign for the wrong merchandise,
pork and beans. Thereafter the customer (school district)
called up very angry and demanded that they put
somebody on the truck who could read the delivery tickets
and not have the cooks sign for things that were not
delivered. Then the person in charge of the school said that
she needed the chili beans, not pork and beans, for dinner
inasmuch as they were on her menu. Accordingly, the
Respondent had to send out a truck to pick up the two
mistakes and deliver the correct merchandise. That was
mistake number one. Also Allen delivered barbecue to the
wrong customer and someone else had to correct the
mistake. Then, the same week, on Thursday, when Allen
was returning to the Respondent s warehouse, he picked up
a gallon jug of barbecue, which admittedly was delivered
mistakenly by another employee, and put it on his truck.
On the way back the gallon jug rolled over because of
careless placement on the truck bed and the jug broke.
Finally, on Friday, the day that Allen was discharged, he
delivered to a restaurant a case of tomato juice instead of
tomato sauce and had some individual sign the ticket for
the delivery. Then, when it was discovered that the wrong
merchandise was shipped, the customer called Respondent
and they had to correct that mistake the Monday after
Allen was discharged. Upon learning of these mistakes,
according to Tom Gerken, he discharged Allen saying that
he did not have to keep a man that makes that many
mistakes and angers customers by delivering merchandise
not on the delivery ticket.
As noted above, if deliveries to the Mascoutah schools of
the pork and beans instead of chili beans was done twice
that could be counted as two mistakes. Then, as noted,
Tom Gerken specified only two other mistakes that Allen
had made, although he claimed that Allen had made six
altogether. At the most, he detailed only four.
Additionally, Tom Gerken testified that three other
employees had been fired not long before Allen was
discharged because they, too, had made too many
mistakes. However, no details of these discharges were
recited and the names of the employees who were allegedly
discharged and the dates of their discharges were not
given.
On the other hand, Allen testified that he had never been
reprimanded for his work performance before February 9,
1973. Allen admitted to making one mistake in delivering
chili beans to the Mascoutah school district instead of pork
and beans. However, he denied that he made that mistake
twice to two different schools. Further, Allen testified, with
regard to the broken glass container of barbecue, the
breakage was on Friday afternoon, the last day he worked
and not on Thursday; and that he was discharged within
15 minutes after he informed the Respondent of the
breakage upon his return to the Respondent's premises.
Allen also stated that he was unaware that during that last
week he delivered, as testified by Tom Gerken, tomato
juice instead of tomato sauce to a restaurant. Thus, Allen
admitted to only two mistakes made during that week.
However, Allen did admit, that in filing for unemployment
compensation, he stated that he was discharged "for
mistakes."
However, Allen did testify without contradiction by the
Respondent, that other employees who had made far
greater mistakes than breaking an $8 jug of barbecue had
not been discharged. These other incidents involved $800
damage to a truck by one of the drivers; a total wreckage
of a $3,000 automobile belonging to the Respondent by
one of the salesmen. Furthermore, Allen recited a number
of instances specifically naming dates and times at which
other delivery drivers such as Allen made a number of
mistakes and that nothing resulted by way of layoff or
discharge to these drivers.
It should be noted, in connection with all of the
foregoing, that at no time did the Respondent either at the
r Mascoutah is a school district in Illinois to which the Respondent x From credited testimony of Allen which was not substantially
evidently delivered a large quantity of merchandise each week controverted by the testimony of Tom Gerken.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time of Allen 's layoff or at final discharge , inform Allen
that the latter 's union activity was the reason for the
Respondent 's decisions.
D. Discussion and Concluding Findings
Respondent contends , as noted above , that it never at
any time either by Tom Gerken or by George Gerken
interfered with or threatened Allen in violation of his
Section 7 rights. Additionally, Respondent, also as noted
above , contends that Allen was first laid off and then
discharged because of his poor performance as an
employee and not for any discriminatory reasons.
While I do not fully credit Allen with regard to his
testimony to the effect that he had never before been
corrected or reprimanded in any manner with regard to his
work performance prior to February 9, 1973, the day on
which he was informed by Tom Gerken that he would be
laid off for the day of February 12, I do credit, in the main,
Allen's other testimony. Where Allen's testimony is in
conflict with the testimony of either Tom or George
Gerken , I credit Allen 's version . In addition to the
observation of these witnesses and their demeanor on the
witness stand , which forms part of the basis for my
crediting Allen over the others, I note that Luekemeyer's
testimony supports , to a substantial degree, the testimony
of Allen with regard to the transactions between Allen and
Luekemeyer. Additionally, in many respects, the testimony
of both George Gerken and Tom Gerken do not materially
differ from Allen's testimony except with regard to the
import of such testimony . Moreover , although Tom
Gerken recited that he laid off and discharged Allen for
poor performance and for making mistakes , he recited
only, at the most , four mistakes and not six. Furthermore,
with regard to the delivery of the tomato juice instead of
the tomato sauce , there is grave doubt that if Allen actually
made this mistake , it was called to the attention of the
Respondent before Allen 's discharge . This is so because
Respondent's employees work on Saturday. Yet, Tom
Gerken testified that Allen 's mistake was corrected on the
following Monday . If the mistake was as critical as Tom
Gerken testified , certainly the mistake would have been
corrected on Saturday when the Respondent 's drivers were
available to make such correction. Accordingly, for these
and other flaws in the testimony of Tom Gerken , I credit
Allen's versions of what occurred over those of Gerken.
We come now to the merits of the various allegations of
the complaint . The first allegation is that on February 9,
Tom Gerken, after asking Allen about the union contract
and after telling Allen that the latter was to be laid off for a
day, said "If you 're going to show me a hard time, I'm
going to show you that I can show you a hard time."
Although this statement does not, in and of itself , contain a
threat to interfere with Allen 's legitimate union activities,
in the context of the entire conversation and in the context
of the announcement of the layoff only a few days after
Allen told Tom Gerken that the employees were going to
hold a meeting to discuss the provisions of a new contract,
leads to the conclusion that this otherwise rather ambigu-
ous statement constituted a threat to Allen that Respon-
dent would in some manner retaliate against Allen if the
latter persisted in pursuing the matter of the new contract
on behalf of the Union . This is clearly a threat interfering
with Allen's right to engage in union activity and,
accordingly , is violative of Section 8(a)(1) of the Act.
With regard to the layoff of February 12, 1 would have
under different circumstances perhaps come to the
conclusion that Allen was , indeed , laid off because of poor
work performance and in order to give him an opportunity
to obtain a different job. However , the timing of this layoff
is extremely critical . At noted , Gerken told Allen that the
latter would be laid off a few days after Allen told him that
the employees were going to draw up proposals for a new
contract the following week . As above recited , the Union
had requested negotiations toward a new contract almost a
year prior to February 9, 1973. The Respondent had
ignored this request and had, indeed , given the employees
raises without the consent of or negotiations with the
Union. Then, suddenly, due to Allen's visit with Lueke-
meyer, the Union was back in the picture and Respondent
had to face the possibility of demands which it would not
have had to face had the Union not been brought back into
the picture . Thus, it is quite evident that Tom Gerken was
substantially irritated upon learning of the Union meeting,
and probable new demands . The layoff announcement,
which came only a few days later , I find , was in retaliation
for Allen's admitted activity in bringing the otherwise
moribund union situation back to life . I conclude,
therefore , that the layoff was in retaliation for Allen's
union activity and was, therefore, discriminatory and in
violation of Section 8(a)(3) of the Act.
In arriving at this conclusion , I note that despite the
Respondent's contention that Allen was laid off for poor
work performance , Allen was given a $100 Christmas
bonus only a little more than a month before the layoff.
Moreover , the Respondent must have considered Allen a
desirable employee up to the date of February 9 because it
had permitted Allen to use the Respondent 's truck for
personal purposes whenever Allen asked for the same.
However , with regard to George Gerken 's remark to
Allen on the afternoon of May 3 , 1973, I draw a conclusion
that there was no impropriety . As noted above , it is true
that prefacing this remark George Gerken reminded Allen
of the many good things that the Respondent had done for
him and that this followed the question , rhetorical in
nature , regarding what Allen was trying to do to the
Respondent. Nevertheless , the mere statement by George
Gerken that Tom Gerken could lay off or fire Allen any
time the latter wished , was not a threat , but rather, a
mistaken explanation by George Gerken of what he
considered to be the merits of the layoff of Allen on
February 12. Gerken testified that he was not present at
the time that Allen was laid off and knew only that his son
had told him that it was done as a disciplinary measure
because of Allen's poor work performance. In this context,
I do not find that the remark to the effect that Tom Gerken
could lay Allen off or discharge Allen at will interfered
with or threatened Allen with discharge in any manner
violative of Section 8(a)(1) of the Act.
There remains for disposition the allegation that Allen
was discharged on May 3 , 1973, because he filed a
grievance against the Respondent with the Union and for
other protected concerted activity. I have heretofore set
GERKEN & SONS WHOLESALE FOODS 389
forth the reasons why I do not credit Tom Gerken. Among
those reasons is the fact that Gerken was not specific when
he testified that other employees had been discharged for
like reason , and that although he contended Allen made six
mistakes , he could give details of only four alleged
mistakes that Allen made during Allen 's final week of
employment . Besides being the basis for refusing to credit
Tom Gerken , I also conclude that these very factors tend
to show that the Respondent ' s purported reasons for
discharging Allen are pretextual.
In support of the foregoing conclusion , I have relied
upon the fact that the day before Allen 's discharge, at a
meeting with Union Business Agent Luekemeyer, Tom
Gerken had been persuaded by Luekemeyer that Allen
must be paid the day's pay for February 12, which
payment Gerken had refused consistently up to the time
that a formal grievance was filed . Furthermore , I note that
this was the first formal grievance filed against the
Respondent . This could have had a very irritating effect
upon Tom Gerken . Additionally , I note the Gerkens'
annoyance with Allen during the conversation of Thurs-
day, May 3 , which evidenced their attitude toward Allen
for filing the grievance . Other factors taken into considera-
tion in coming to the conclusion that the reasons given for
Allen's discharge were pretextual , are the fact that the
timing of the discharge so soon after Respondent had been
forced by the Umon to acquiesce in the Union 's demand
that Allen be paid for the day's work of the day of
February 12 ; the fact that the Respondent in its testimony
did not deny the mistakes made by other employees which
were far more costly to the Respondent than the mistakes
made by Allen ; the fact that the Respondent gave Allen
three checks within a very few minutes after Allen
informed Tom Gerken of the broken jar of barbecue which
leads to the strong suspicion that the checks were written
before Allen informed Tom Gerken of the breakage; and
the fact that although the Respondent alleges that Allen
made mistakes during the week ending May 4, in the
conversation of Thursday afternoon preceding the dis-
charge , nothing was said to Allen with regard to the
mistakes , especially the mistakes allegedly made concern-
ing the Mascoutah school distnct, which Respondent
claimed was its biggest customer . Yet, this mistake would
have to have been known to the Respondent prior to that
Thursday conversation . Since the alleged reason for the
earlier layoff was for discipline , certainly the Respondent
would have mentioned the later mistakes to Allen in
discussing with him the grievance over the layoff.
Thus I find and conclude that Respondent 's contention
that Allen was discharged solely because of poor work
performance is without merit. I find and conclude that
Respondent 's announced reasons for Allen 's discharge
were pretextual and that Allen was discharged because he
successfully prosecuted the written grievance against the
Respondent through the Union on the day before he was
discharged.
In coming to the foregoing conclusion , I have not
ignored the testimony of Luekemeyer to the effect that this
was the first grievance that had been filed against the
Respondent in the years during which the Respondent and
the Union had a bargaining relationship . Moreover, I have
taken into consideration the fact that the Union and the
Respondent came to a satisfactory conclusion with regard
to the negotiations for a new contract and signed such
bargaining agreement on March 30 , 1973, without any
appreciable amount of difficulty . However , it is readily
perceivable that even an employer with a good labor
relations history would be even more piqued at an
employee who filed a formal grievance and successfully
prosecuted the same than would be an employer who had
had numerous grievances filed against it.
I therefore conclude that the discharge of Allen was
discriminatory for all of the foregoing reasons and that,
accordingly , such discharge was in violation of Section
8(a)(3) and ( 1) of the Act.
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 relation to trade , traffic, and
commerce among 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, as set forth above, that the Respondent
has engaged in certain unfair labor practices , it will be
recommended that it cease and desist therefrom and take
certain affirmative action, set forth below , designed to
effectuate the policies of the Act.
It having been found that the Respondent , by threaten-
ing reprisals against an employee for the latter 's engaging
in union or otherwise protected concerted activity, has
restrained and coerced employees in violation of Section
8(a)(1) of the Act , I shall recommend that the Respondent
cease and desist therefrom.
Having found that the Respondent discriminatorily
discharged Dennis G . Allen, I shall recommend that
Respondent offer Allen immediate and full reinstatement
to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges. In
addition , I shall recommend that the Respondent make
Allen whole for any loss he may have suffered by reason of
the discrimination against him by payment to him of a sum
of money equal to that which he would normally have
earned from the date of his discharge , less net earnings
during said period . Backpay shall be computed with
interest on a quarterly basis in the manner described by the
Board in F. W. Woolworth Company, 90 NLRB 289,
291-295 ; Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact and upon
the entire record in the case , I make the following:
i
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By threatening its employee with reprisal for engag-
ing in union or other protected concerted activity, the
Respondent has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed said
employees in Section 7 of the Act and thereby Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discriminatorily discharging its employee Dennis
G. Allen, the Respondent has violated Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended:
ORDERS
Respondent, Gerken & Sons Wholesale Foods, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with reprisals because of
the employees' union or otherwise protected concerted
activities.
(b) Discouraging membership in Chauffeurs & Helpers
Local Union No. 50, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by
discharging any employee for engaging in union or
protected concerted activity, or by discriminating against
employees in any other manner in regard to their hire and
tenure of employment or any term or condition of
employment.
(c) In any like or similar manner interfering with,
restraining or coercing its employees in the exercise of their
rights to form, join, assist , or be represented by Chauffeurs
& Helpers Local Union No. 50, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activity for the
purposes of collective bargaining, or other mutual aid or
protection, or to refrain from any and all such activity
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section
8(a)(3) and as guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Dennis G. Allen immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges enjoyed, and make him whole for any loss of
earnings he may have suffered by reason of the discrimina-
tion against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve, and upon request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records and
reports and all other reports necessary to analyze the
amount of backpay due under this order.
(c) Post at its office in Belleville, Illinois, at places whersr
notices to employees are customarily posted, copies of the
notice attached hereto marked "Appendix." 10 Copies of
said notice, on forms provided by the Regional Director
for Region 14, after being duly signed by Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act not
found herein.
B In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten with reprisals any of our
employees because said employees engage in union or
other protected concerted activities.
WE WILL NOT discharge any of our employees for
filing grievances under our contract with Chauffeurs &
Helpers Local Union No. 50, or for engaging in any
other union or protected concerted activities.
WE WILL offer Dennis G. Allen full reinstatement to
his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and we will make him whole for any losses he may have
suffered as a result of our discrimination against him.
WE WILL NOT in any like or similar manner interfere
with, restrain, or coerce our employees in the exercise
of their right to form, join, or assist or be represented
by Local 50 of the Teamsters, or any other labor
organization, to bargain collectively through represent-
atives of their own choosing or engage in other
concerted activity for the purpose of collective bargain-
ing or other mutual aid or protection or to refrain from
any or all such activity.
GERKEN & SONS
WHOLESALE FOODS
(Employer)
GERKEN & SONS WHOLESALE FOODS 391
Dated By or covered by any other material. Any questions concern-
(Representative) (Title) ing this notice or compliance with its provisions may be
directed to the Board's Office , 210 North 12th Boulevard,
This is an official notice and must not be defaced by Room 448, St . Louis , Missouri 63101, Telephone
anyone . 314-622-4167.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,