Gulf Bottlers, Inc.

National Labor Relations Board - Board Decisions

May 20, 1960

127 N.L.R.B. 850 (N.L.R.B. 1960)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shipping room employees, plant clerical employees, and cafeteria
employees, but excluding all office clerical employees, professional
employees, guards, and supervisors as defined in the Act.'
[Text of Direction of Election omitted from publication.]
5 The parties stipulated as to the above unit.
Gulf Bottlers , Inc. and International Union of United Brewery,
Flour, Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO and Gulf Bottlers Employees ' Association , Inter-
ested Party
Gulf Bottlers , Inc. and International Union of United Brewery,
Flour, Cereal , Soft Drink and Distillery Workers of America,
AFL-CIO. Cases Nos. 15-CA-1448 and 15-CA-1514. May 20,
1960
DECISION AND ORDER
On November 27, 1959, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the 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 copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel, the Charging Party, and the Respondent filed exceptions to the
Intermediate Report, together with supporting briefs.
The Board t has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,2 and hereby adopts the findings,3 conclusions, and recommen-
dations of the Trial Examiner.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and
Members Bean and Fanning].
2 The Respondent has moved to introduce additional documentary evidence or, in the
alternative, to reopen the hearing for the purpose of introducing documentary evidence
concerning the amount of former employee Walker's shortages the week before he was
discharged As no contention has been made that the evidence which the Respondent
seeks to introduce was unavailable at the hearing or is newly discovered, we find that
the Respondent has not shown an adequate reason to support its motion, and the motion
is hereby denied it. M. Andrews Company of Oiegon, et at, 112 NLRB 626. We note,
however, that even if we were to permit the evidence to he introduced, we would not deem
it of sufficient probative force to warrant setting aside the Trial Examiner's finding that
Walker was discriminatorily discharged
3 We agree with the Trial Examiner's finding that the Respondent's driver-salesmen are
not supervisors within the meaning of the At Wells Davies Cooperative, 109 NLRB
1450, Southern Bleachery and Print Works liic, 115 NLRB 787 See also AT L R B v
Southern Bleachery & Print Works, Inc., 257 F. 2d 235 (C.A. 4), enfg. 118 NLRB 299,
cert denied 359 U S 911.
127 NLRB No. 107.
GULF BOTTLERS, INC.
ORDER
S51
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Gulf Bottlers,
Inc., New Orleans, Louisiana, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of Amer-
ica, AFL-CIO, or in any other labor organization, by discharging or
in any other manner discriminating against employees in regard to
hire or tenure of employment or any term or condition of employment.
(b) Interrogating employees concerning their union membership,
sentiments, and activities in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (1) of the Act; threat-
ening employees with loss of employment or the closing of the plant
if the aforesaid Union's organizing campaign is successful; and prom-
ising benefits to employees if they abandon their adherence to the
Union.
(c) Contributing support to Gulf Bottlers Employees' Association,
or to any other labor organization of its employees.
(d) Recognizing Gulf Bottlers Employees' Association as the rep-
resentative of its employees for the purpose of dealing with the Re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms or conditions of employment,
unless and until the said labor organization has been duly certified by
the National Labor Relations Board as the exclusive representative of
such employees.
(e) Giving effect to the collective-bargaining agreement, dated
December 1958, between the Respondent and Gulf Bottlers Employees'
Association, or to any extension, renewal, or modification thereof, or
to any superseding contract, unless and until the said labor organiza-
tion shall have been duly certified by the National Labor Relations
Board as the exclusive representative of its employees : Provided,
however, That nothing in this Decision and Order shall require the
Respondent to vary or abandon any wage, hour, seniority, or other
substantive feature of its relations with its employees which the Re-
spondent has established in the performance of this agreement, or to
prejudice the assertion by employees of any rights they may have
thereunder.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union of United
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of Ameri-
ca, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment 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 which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Gulf Bottlers
Employees' Association as the exclusive bargaining representative of
its employees for the purpose of dealing with the Respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other terms and conditions of employment, unless and until
the said labor organization shall have been duly certified by the Na-
tional Labor Relations Board as the exclusive representative of such
employees.
(b) Offer to Dudley Walker and Tony Fazzio immediate and full
reinstatement to their respective former, or substantially equivalent,
positions, without prejudice to their seniority and other rights and
privileges and make them whole in the manner set forth in section V
of the Intermediate Report entitled "The Remedy" for any loss of
earnings they may have suffered by reason of the discrimination
against them.
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, time-
cards, personnel records and reports, and all other records necessary
or appropriate to an analysis of the amounts of backpay due and the
rights of reemployment under this Order.
(d) Post at its plant in New Orleans, Louisiana, copies of the
notice attached hereto marked "Appendix." 4 Copies of said notice,
to be furnished by the Regional Director for the Fifteenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
GULF BOTTLERS, INC. 853
(e) Notify the Regional Director for the Fifteenth Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union
of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, or any other labor organiza-
tion, by discharging or in any other manner discriminating against
employees in regard to hire or tenure of employment or any term
or condition of employment.
WE WILL NOT interrogate our employees concerning their union
membership, sentiments, and activities in a manner constituting
interference, restraint, or coercion in violation of Section 8(a) (1)
of the Act; threaten our employees with loss of employment or
the closing of the plant if the aforesaid Union's organizing cam-
paign is successful; or promise benefits to our employees if they
abandon their adherence to the aforesaid Union.
WE WILL NOT contribute support to Gulf Bottlers Employees'
Association, or to any other labor organization of our employees.
WE WILL NOT recognize Gulf Bottlers Employees' Association
as the representative of our employees for the purpose of dealing
With us concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms or conditions of em-
ployment, unless and until the said labor organization has been
duly certified by the National Labor Relations Board as the ex-
clusive representative of our employees.
WE WILL NOT give effect to the collective-bargaining agreement,
dated December 1958, between us and Gulf Bottlers Employees'
Association, or to any extension, renewal, or modification thereof,
or to any superseding contract, unless and until the said labor
organization shall have been duly certified by the National Labor
Relations Board as the exclusive representative of our employees :
provided, however, that nothing in this Decision and Order re-
quires us to vary or abandon any wage, hour, seniority, or other
substantive feature of our relations with our employees, estab-
lished in performance of any such agreement, or to prejudice
the assertion by employees of any rights they may have there-
under.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, or form labor organizations, to join or assist International
Union of United Brewery, Flour, Cereal, Soft Drink and Dis-
tillery Workers of America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, 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) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer to Dudley Walker and Tony Fazzio immediate
and full reinstatement to their respective former or substantially
equivalent positions, without prejudice to their seniority and
other rights and privileges, and make them whole for any loss
of earnings they may have suffered by reason of the discrimina-
tion against them.
All our employees are free to become, to remain, or to refrain from
becoming or remaining members of the above-named labor organiza-
tions, or any other labor organization.
GULF BOTTLERS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the National Labor Relations
Act, as amended ( 61 Stat. 136), herein called the Act, was heard at New Orleans,
Louisiana, on various dates between April 21 and May 22, 1959 . Two complaints
were issued , one on February 26, 1959, the other on March 12 , 1959, by the Gen-
eral Counsel of the National Labor Relations Board (herein called the General
Counsel and the Board ), based on charges duly filed and served by International
Union of United Brewery, Flour , Cereal , Soft Drink and Distillery Workers of
America, AFL-CIO , herein called the Union or the Charging Party. The com-
plaints, consolidated for hearing , allege that Gulf Bottlers , Inc., herein called the
Respondent or the Company , had engaged in and was engaging in conduct violating
Section 8(a)(1), (2 ), ( 3), and (5) of the Act.
Specifically the Respondent is charged with ( 1) discriminatorily discharging
Anthony Fazzio and Dudley Walker on February 25, 1959 , because of their mem-
bership in and activity on behalf of the Union; ( 2) from December 8, 1958, refus-
ing to bargain with the Union as the collective-bargaining agent of an appropriate
unit of the employees ; ( 3) dominating and contributing support to the Gulf Bottlers
Employees ' Association, a labor organization ; and (4 ) engaging in various specifi-
GULF BOTTLERS, INC. 855
cally described other acts of interference, restraint, and coercion impinging upon
rights of its employees guaranteed in Section 7 of the Act.
Respondent's duly filed answers, besides alleging certain defenses, deny the
commission of any unfair labor practices.
All parties except the Gulf Bottlers Employees' Association were represented
at the hearing and were afforded full opportunity to participate, to examine and
cross-examine witnesses, to present oral argument, and thereafter to file briefs.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Gulf Bottlers, Inc., is a Louisiana corporation with its principal office and place
of business at New Orleans, Louisiana, where it is engaged in the bottling, sale,
and distribution of soft drinks. During the year 1958, Respondent purchased
materials and supplies valued in excess of $50,000 which were shipped directly
to Respondent from points outside the State of Louisiana. Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
,International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, and Gulf Bottlers Employees' Association are
labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Issues and General Setting
This is a case not uncommon in the annals of the Labor Board. Upon receiving
a demand from the Union for recognition, Respondent, after making individual
inquiries, called its employees together to discuss the matter. Then followed immedi-
ate economic concessions to the employees and the forming of an unaffiliated asso-
ciation of the employees (at the Respondent's suggestion), which was promptly
recognized by Respondent as their collective-bargaining agent. About 3 months
later, the only two employees who refused to join the newly formed employees'
association and who were the "spearheads" of the organizational drive were
discharged.
Out of this setting arise the General Counsel's 8(a)fl ), (2), (3), and (5) allega-
tions. Respondent's main defense is that the employees involved are supervisors, on
which ground Respondent prays for dismissal of the entire complaint. Respondent
also contends that the unit for which recognition was sought is not an appropriate
unit and that in any event the Union did not represent a majority of the employees
therein. In this connection, a great deal of the evidence and a major contention
of Respondent involves the validity of the authorization cards introduced by the
General Counsel to show the Union's majority status. Besides its claim that the
two alleged discriminatees were supervisors within the meaning of the Act and thus
not protected by Section 8(a)(3) thereof, Respondent strenuously defends against
the allegation of the complaint on the merits claiming that the evidence shows that
two were discharged only for cause. As for the Section 8(a)( I) and (2) allegations
on the merits, there is no doubt that Respondent violated those provisions of the
Act, as will be shown. Moreover, Respondent makes no serious contention to
the contrary.
The Events, Chronologically
About the middle of November 1958, Dudley Walker, one of the alleged dis-
criminatees herein, approached Tony Fazzio, a fellow employee of Respondent and
the other alleged discriminatee, about getting the Union to represent the employees.
Together the two met with Ernest J. (Whitey) Munster, the union representative,
and made arrangements to undertake an organizing campaign. Fazzio apparently
accepted the role of director of the drive. Union application cards were supplied
the two men and the campaign was under way.
On December 6, 1958 (a Saturday), the Union wrote Respondent claiming to
represent a majority of its driver-salesmen and requested recognition and bargaining.
Two days later, on December 8, a copy of the Union's petition to the Board for
certification was sent to Respondent describing the unit involved as:
All driver-salesmen, including full service drivers and their helpers employed
at New Orleans Bottling plant, but excluding all other employees, office clerical
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees , guards, watchmen , professional and technical employees and all
supervisors as defined in the Act as amended.
On the same day, according to Fazzio 's undenied and credited testimony, he was
called into England's office where the latter asked if he had signed a union card.
Fazzio replied that he had not. England asked if he knew of anyone else being
approached by the Union. The answer was "No." The next question by England
was if Fazzio heard anything about the Union would he let England know? Fazzio
said he would do so. England 's last query was, "Well, it is all right to put `okay'
by your names?" Fazzio said, "Yes."
The following day Fazzio was again called into the office . This time England
said, "Tony , the reason I called you in here is because I have got problems, some-
thing like happened several years ago , something I am not going to tolerate."
England went on to say that he had talked to some of the men about their "gripes"
and asked Fazzio if he could "add anything ." Fazzio mentioned a cut in pay that
most of the men were disturbed about. England said, "Tony , if you made a mistake
singing anything you have nothing to worry about. We all make mistakes . . . but
if you level with me and let me know of anybody else making mistakes , such as
signing a union card, you have got your job today and you will have it 10 years
from now."
Walker testified crediby that on December 9 Sales Manager Weber told him
England wanted to see him . In the office England told Walker that he "figured," he
could trust Walker more than he could any of the others so he asked Walker "did
(he) hear anything about any union activity going around ." Walker replied in the
negative . Then England asked Walker if he would inform him in the event he
heard anything about the Union to which Walker agreed . On his way out Walker
suddenly changed his mind and turned around and told England that he "wouldn't
pimp for him or to the men, either one," and left.
By his own admission England , upon receiving the Union 's request for recognition,
talked to all of the driver-salesmen asking them "if they were interested in the
union" or "if they had joined the union " and "if they knew anything about it in
general."
On December 10, when the drivers reported for work they were called into the
office for a meeting . There England , in the company of several of his supervisors,
asked the drivers "why they wanted a union" and "what their gripes were." Commis-
sions on the sale of home beverages , pull-in time off the route, and the quota of sales
required before a driver could have a helper were named as complaints by the
employees . England raised the commission on home beverage sales, eliminated the
quota requirement for helpers , and promised to consider other changes . i Thereafter
he asked the assembled employees "to make a decision whether they wanted the
union or whether they didn 't want the union " With this in mind, he supplied them
with paper and envelopes and requested that they write letters withdrawing from the
Union. When the envelopes had been collected, England found that several of
them contained "blank sheets of paper." He then had the employees separate into
two groups-those for and those against the Union .2 Thereupon further discussion
took place Tegarding the employees ' "problems." Finally the prounion employees
indicated the desire to discuss the matter among themselves which they then did.
In about a half hour they convened again with England. Fazzio stated that he had
been elected spokesman for the group . As such he told England that the prounion
employees "still weren 't satisfied" and that they had decided "to remain with the
union." 3
At this point the meeting had lasted several hours and it was then about noon.
Fazzio asked "if they could go out on their routes ." England 's reply was , No, the
routes won 't go out today , tomorrow or any other day with you fellows. As of
1 It is clear from England's testimony that some of the changes were announced at the
meeting but he equivocated about and was vague as to specific matters Some of the
General Counsel ' s witnesses, however, testified that he made several concessions then
and there
2 The General Counsel's witnesses estimated the number of employees in the prounion
group as exceeding those for the Company by a range of one to five The Respondent's
testimony invariably showed a majority against the Union , England testifying that it was
"either nineteen for the Company and sixteen for the Union or eighteen and seventeen."
3 This was England's testimony The employees ' statement that they " still weren't
satisfied" Is consistent with the General Counsel ' s position that Respondent made economic
concessions to the employees in that meeting in an attempt to turn them from the Union.
GULF BOTTLERS, INC. 857
today, the plant is closed." 4 The employees then left and upon the advice of Union
Representative Munster went to the Board's office about the matter.
The following day, having been requested the evening before to return to work,
the employees went out on their routes as usual. Also, on that day, according to
Fazzio's undenied and credited testimony, a group of prounion employees with
Fazzio as spokesman asked England to recognize the Union as the bargaining agent.
England said, "No, we don't have to recognize you as a union." Fazzio then asked
if he would consent to an election. England replied that he had legal advice as
to what he could do and could not do and commented that the Board would give
them an election. Then he added, "It's a very pretty speech, Tony. Who wrote it
for you, Whitey, Whitey Munster?"
When the drivers came in that day from their routes, England talked to a group
of them. He said, according to Fazzio's further credited testimony:
. . , he had nothing against unions, that he didn 't want no outside union to
come in there; that he thought if we could form our own association and call
it the Gulf Bottlers Employees Association, it would be a much better union.
Said that he could draw up a contract where we would have no discrimination;
we would have a regular committee to settle all grievances . Even further than
that, we would have an arbitration if it couldn 't be settled by management and
this committee; we would set up an arbitration and he said that we could get a
lawyer, and one time he said that he would even pay for the lawyer.
On December 12, according to Fazzio's further credited testimony, he was called
into the office with drivers Johnny Couch, Rodasta, and Dudley Walker where
England again talked about a contract with the Employees ' Association and asked
if they would sign such a contract . Fazzio told England at that time that he
"`would have to think about it."
Shortly thereafter England had his attorney draft a collective-bargaining agree-
ment which he requested the employees both individually and in groups to sign. To
this end England again called in Fazzio and Walker together with Benny Perniciaro
and tried to get them to sign the contract . Fazzio 's credited undenied testimony is
as follows:
Walker definitely declared himself that the contract wasn't worth anything
and he wouldn 't sign it. And Benny, he said he wasn 't going to sign it. So I
said, "Mr. England, since I have been made the spokesman of this group all the
way through, I didn't think it was any more than ethical for me to sign it last,"
so he looked at Walker and said , "Walker, do you want to sign it?"
And Walker said, "No," he didn't want to sign it.
And he asked Benny did he want to sign it and Benny said he didn 't want to
sign it and he said, "Tony , you're the last man."
So I still refused to sign it. So, I asked him could I read the contract. He
said sure. So remember I never had my glasses and he reached over and
says, "Here, use my glasses ." So I took his glasses and I read through this
contract and asked him how much did he expect me to absorb of reading it
through fast. He said the rest of them absorbed a lot out of it, they seemed
to, and I told him I couldn 't just read through it and get anything out of it.
Then I mentioned to him that I was pretty short, $11 shortage that I didn't
know where it went. It was I think $17 or $18 short, but $11 of it I didn't know
what happened to it and I told him my vacation was past due which I should
have gotten it in October and it was December 19th and I asked him would he
pay me for my vacation. He says, "Yes, sure I'll pay you for your vacation.
Do you need ay money?"
I said, "No , sir, my vacation pay will take care of it."
So he rings Miss Louise who I think is his secretary or head lady in the
office and he asked her could she get this check made out and she did, and on
leaving Mr. England asked me, says, "Tony, what do you think about the
contract?"
I said, "It's all right, Mr. England . There is only one thing wrong with it."
He said , "What's that?"
I said , "You should have had it about two years ago," and he grabbed my
hand and shook it and said, "That is the truest thing I have heard."
I walked out of his office
4 This is based on John Sadowski 's testimony corroborated by several of the General
Counsel's witnesses England denied making this statement. In view of the fact that
Respondent made individual requests to the employees that night at their homes to come
to work the next day, I do not credit England's denial.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Walker's undenied and credited testimony , it was apparently in
this meeting with England when none of those present would sign that he said,
"Boys , if the union gets in here you're going to lose anyhow, because I'm going to
close this plant down ." England also called in Stanley Suski with George Lecount
and Lawrence Mayeaux and asked if they would sign the contract . When Suski said
he would like to think it over England asked if they could possibly sign by Saturday
saying , "I know you don't work , but we are willing to pay you if you will get here
and sign it Saturday , because I am anxious to get all the men signed "
Eventually , all the driver-salesmen except the two alleged discriminatees , Fazzio
and Walker , signed the agreement . One or two meetings of the thus recognized
Employees ' Association were held on company property. At one of them attended
by their attorney , England "had a chat with them just before their meeting started"
but did not stay for the meeting. In January 1959, Respondent began deducting
association dues from the drivers ' pay pursuant to their individual authorization
and separate agreement with the Association.
In the meantime , on December 16, 1958, the Union again had written Respondent
requesting recognition in a unit composed of "all driver salesmen and their helpers,
full service drivers and their helpers , excluding all supervisors and all other em-
ployees of the company ," a majority of which employees the Union claimed to
represent . At no time did the Company ever reply to the Union 's requests for
recognition
In addition to the foregoing , the undenied and credited evidence shows the fol-
lowing incidents:
On December 9 Route Supervisor Grasson asked driver John Sadowski if he had
been contacted Eby anyone from the Union or if he had signed a union card. Sadow-
ski said that he had not. Grasson then told Sadowski that if he were approached
about the Union to tell them that he did not wish to be represented by the Union.
He also told Sadowski that if he had signed a card he wanted to know "so (we)
could write a letter to the Union stating that we did not wish to be represented by
the Union and no action would be taken against us." On the same day Grasson
also called Driver Couch into the office . Couch's undenied credited testimony was
that Grasson:
asked me if I had ever been approached by the union or signed a card or had
,any dealings with the union. I told him I hadn 't. He told me that if I had that
he wanted me to write a letter and inform the union that I didn 't want them to
represent me, and not to be afraid , that there would be no action taken against
me if I admitted that I did sign a card for the Union.
Similar interrogation was directed by Grasson that day to driver Eisemann.
On December 10 when Route Managers Salvaggio and Montz came to Sadow-
ski's home to tell him to come back to work and following day, Salvaggio told
Sadowski "that they had tried to form a union one time and it didn't go through and,
in fact, they almost lost their jobs over it." He also told Sadowski "that if the
union did come in the company would be forced to close." On the same night when
Route Manager Benoit came to Fred Eisemann 's house to tell him to report for work
the following day he said , "Between you and I we don't want a union, you know,
because it is just going to close the plant if the plant has to go union.. . .
The Alleged Supervisory Status of the Driver-Salesmen
The evidence shows that prior to the December 10 meeting between England and
the employees , before a driver-salesman could have a helper on his truck, he had
to attain a certain quota of sales. After December 10, as noted , this quota was
abolished and each driver-salesman could take a helper if he desired. After
December 10 , as before that date , Respondent carried the helpers on its payroll,
and paid the helper 's wages and all employment taxes and insurance involved in
his employment . It also withheld income taxes of the helpers on the basis of W-4
forms filed with the Company by and under the responsibility of the driver-sales-
man. At no time was there any requirement on the part of the Company that any
driver or class of drivers had to have helpers. Although the Company pays the
entire wage of the helper , as a practical matter $15 a week of that pay comes out
of the pockets of the drivers since if they refrain from using a helper they get $15
extra pay . Normally no more than one helper is employed on a truck.
The job of the driver-salesmen is to sell and distribute Respondent 's product-
soft drinks . In this job he drives a truck and makes deliveries to customers on his
route which is supervised along with the routes of several other drivers by a route
supervisor . He makes collections , assists the customer in displaying the mechandise,
GULP BOTTLERS, INC. 859
and solicits new business. He also checks and hauls back to the plant the returned
empty bottles and receives complaints from the customers which he acts upon if
they are within his power to act or transmits to his supervisors if they are not. The
duties of the helpers are to assist the driver in any manner the driver feels is neces-
sary. The major service performed by the helper, however, is to unload the full
cases from the truck and move them to the customer's premises as required by the
customer and directed by the driver and to haul out the empties and load them on
the truck. At times the driver himself may also engage in this form of manual
activity in addition to exercising his responsibility for the entire delivery transaction.
There is no question, and I find, that the driver-salesmen at all times material
herein who were entitled to have helpers, had and exercised the authority to hire,
lay off, or discharge those helpers. Most of the helpers were hired at the plant
where those already employed and those seeking employment congregated each
morning before the drivers left on their routes. A driver desirous of securing the
services of a helper on any occasion simply made his arrangements directly with an
available applicant without any intercession or clearance by management. In the
same manner a driver could dispose of the services of a helper, entirely on his own
inclination and initiative. Nor was it necessary that the driver pick his helper from
the pool usually available at the plant. He could pick his helper off the street, on
his route, or in any other manner or place he desired. His only responsibility to
the Company in this connection was to see that the Company got a tax withholding
form signed by the helper and that the helper was properly signed in for payroll
purposes. The. testimony of the route managers showed that if they felt they could
not directly discharge helpers they certainly could authoritatively so recommend to
the drivers.
In countering Respondent's contention that the driver-salesmen are supervisors
within the meaning of the Act,5 the General Counsel relies chiefly on two Board
decisions, both representation cases, Wells Dairies Cooperative, 109 NLRB 1450
(1954), and Southern Bleachery and Print Works, Inc., 115 NLRB 787 (1956). In
Wells Dairies there were approximately 50 driver-salesmen of whom 27 each had a
single helper and 2 had 2 helpers apiece. The driver-salesman's duties were to drive
a truck delivering the employer's products to customers on his route, to make col-
lections, and to solicit new business. The routes were divided into groups with a
supervisor over each group. The driver-salesmen were free to hire helpers when
they felt the need to do so. They also had authority to discipline or discharge
them. The route supervisors, too, had the authority to discharge the helpers. The
driver-salesmen determined the number of hours worked by the helpers and their
rate of pay. The employer paid the helpers but deducted the amount so paid from
the driver-salesmen's commissions. If the commission was not adequate to cover
the helper's wages the employer paid the difference but was not reimbursed by the
driver-salesmen. The employer also paid the social security taxes, workmen's
compensation, and unemployment insurance contributions on behalf of the helpers
and deducted their income taxes. The employer also gave the helpers a Christmas
bonus on at least one occasion.
On these facts the Board found that the helpers were employees of the company
and included them in the unit. In its decision the Board stated that:
As regards the alleged supervisory status of the driver-salesmen, the record
clearly shows that their direction of the helpers is routine in nature and we are
of the opinion that their authority is akin to that of a skilled craftsman with
respect to a single helper under his direction. Under all of the circumstances,
including the fact that each normally has only one helper, we are of the
opinion that driver-salesmen are not supervisors of "employees" within the
meaning of the Act 9 and we shall include them in the unit.
° Atlanta Coca Cola Bottling Company, 83 NLRB 187, 189.
In the Southern Bleachery case the employer purported to change a previously
nonsupervisory skilled classification (machine printer) to a supervisory classification
° Section 2(11) of the Act provides that :
(11) The term "supervisor" means any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by various means among which was the granting of "authority to perform such
functions as recommending the hire, fire, transfer , promotion and demotion of other
workers on their machines ." As for this function , the Board said ( at page 791) :
We have no doubt that almost any employer, when told by a skilled crafts-
man that his helper is incompetent and that he needs a new helper if he is
properly to perform his functions , would accept the judgment of the craftsman.
While this may be called effective recommendation , it is inherent in the
craftsman-helper relationship, as Congress obviously knew.
To hold that such craftsmen are supervisors , the Board goes on:
would be to eliminate a substantial part of the craftsmen in the Nation
from the coverage of the Act and fly in the face of the demonstrated concern
of Congress for craft units.6
The Board has therefore continued under the Taft-Hartley Act to treat craft
employees as nonsupervisory despite the existence of recommendatory powers
over their helpers, believing that to do otherwise would be to attribute to
Congress a result never intended.
Apparently equating the drivers in Wells Dairies with the machine printers in
Southern Bleachery the Board majority in the latter case directs these remarks to
their dissenting colleague:
We note that our dissenting colleague has heretofore joined in this approach,
even in cases where there was far stronger evidence of actual "supervisory"
authority than in the instant case . Thus in the Wells Dairies Cooperative case,
he joined in finding to be nonsupervisory driver-salesmen who had actual
authority-not just recommendatory power-to hire and discharge their helpers
and to fix their rates of pay and were obviously the only persons present to
supervise the helpers.
Respondent attacks the Wells Dairies decision on two grounds: ( 1) That notwith-
standing a finding therein that the driver-salesmen could hire , discipline , or dis-
charge their helpers the Board 's rationale for its decision was concerned solely with
the nature of the direction exercised by the driver-salesmen over the helpers and
totally ignored their authority to hire and fire. (2) That the Atlanta Coca Cola
Bottling Company case cited by the Board is no authority for the latter point since
it is distinguishable on the facts?
6In this connection the Board quoted as follows from the congressional reports on the
Taft-Hartley amendments :
Sen. Rep. No . 105, S . 1126, 80th Cong ., 1st Sess . 4 (1947 ). . . , the committee
has not been uninindful of the fact that certain employees with minor supervisory
duties have problems which may justify their inclusion in the Act. It has therefore
distinguished between straw bosses, lead men, set-up men, and other minor super-
visory employees , on the one handy and the supervisor vested with such genuine
management prerogatives as the right to hire or fire, discipline , or make effective
recommendations with respect to such acts . In other words, the committee has
adopted the test which the Board itself has made in numerous cases when it has
permitted certain categories of supervisory employees to be included in the same
bargaining unit with rank and file. Bethlehem Steel Company, Sparrows Point
Division, 65 NLRB 284 (expediters ) ; Pittsburgh Equotable Meter Company, 61 NLRB
880 (group leaders with authority to give instructions and to lay out the work) ; The
Richards Chemical Works , Inc, 65 NLRB 14 (supervisors who are mere conduits for
transmitting orders ) ; Endicott Johnson Corporation , 67 NLRB 1342 , 1347 ( persons
having the title foremen and assistant foremen but with no authority other than to
keep production moving) "
Sen. Rep . No 105, S. 1126 , 80th Cong ., 1st Sess. 19 ( 1947 ). "( 11) 'supervisor'
In framing this definition the committee exercised great care, desiring that the em-
ployees herein excluded from the coverage of the act be truly supervisors."
H.R. Rep. No. 510, H.R. 302, 80th Cong, 1st Sess. 35 (1947). "The conference
agreement , in the definition of 'supervisor ,' limits such a term to those individuals
treated as supervisors under the Senate amendment."
4 There the helpers were normally hired at the plant by the supervisors of the driver-
salesmen with the latter occasionally hiring or firing on the route subject to the approval
of the supervisors.
GULF BOTTLERS, INC. 861
As for the Southern Bleachery case Respondent contends in its brief that there was:
no allegation made by the Company in the Southern Bleachery case that
the employee in question, a machine printer, did in fact possess the authority
to hire and fire. At best, the Company in that case alleged that the "printer"
had recommendatory power in respect to the hiring and firing of their helpers.
The Board's comments at page 792 on the Wells Dairies case then were obiter
dicta, in that they were discussing an issue in a prior case when the same issue
was not before them. While, in Wells Dairies the Board avoided any comment
upon how they could overlook the hiring and firing aspect presented in that
case the Board in the Southern Bleachery case, where there was no issue of
hiring and firing directly presented, then collaterally referred to the issue in
their comments upon a dissent of one of their colleagues.
Whether or not the above observations of Respondent have any validity, the fact
remains that the Board in Southern Bleachery cites its Wells Dairies decision in
connection with its finding therein that the employees in question had the authority
to hire and discharge their helpers. While this may be dictum for the purposes of
the Southern Bleachery case, it certainly obviates any contention that the authority
to hire and discharge was not considered by the Board in its Wells Dairies decision
and was not meant to be cognizable for the purposes of that decision. In my opinion
Wells Dairies is controlling on the facts here. Accordingly I find that the driver-
salesmen are not supervisors within the meaning of the Act. In reaching this conclu-
sion I have given serious consideration to Respondent's argument both orally and
in its excellent brief. My only comment besides pointing out that the Board's
precedents are binding on me is that the essentials of Respondent's contentions were
raised in Board Member Rodgers' dissent in the Southern Bleachery case. Moreover
the court cases cited by Respondent here were called to the majority's attention in
Mr. Rodgers' opinion.
Conclusions as to the 8(a)(1) and (2) Allegations
As the Charging Party points out in its brief, "The real issue in this case is not
whether or not unfair labor practices have been committed, but rather to what
extent the Respondent has committed unfair labor practices." Having had a request
for recognition and being apprised of the Union's representation petition Respondent
nevertheless proceeded to instigate and assist in the formation of another bargaining
agent, and promptly recognized it as the bargaining agent of the employees. In the
process it solicited employees to withdraw from the Union and granted economic
benefits for that purpose; it also solicited employees to sign the charter and the
contract of the assisted organization, offered and permitted the assisted organization
the use of company property and facilities for meetings, and deducted its dues from
the employees' wages. All of the foregoing is clearly a violation of Section 8(a) (2)
and (1) of the Act. I so find. Halben Chemical Co., Inc., 124 NLRB 872. The
complaint alleges that Respondent dominated as well as assisted the illegally recog-
nized association. I see nothing in this record to show domination; the assistance,
of course, is clear.
As for the independent allegations of interference, restraint, and coercion of the
employees by Respondent I have no difficulty in finding that the interrogation of the
employees by various of Respondent's officials as found above regarding their union
activity as well as that of their fellow employees was coercive and in violation of
Section 8(a) (1) of the Act 8 Also coercive and violative of the Act were the
various threats to the employees as found above that a successful union campaign
would result in the closing of the plant or the loss of employment. Additional
violations of Section 8 (a) (1) of the Act are reflected in England's offer to Suski and
a group of employees that he was willing to pay them to come in on Saturday for
the purpose of signing the association contract and in England's statement to
Fazzio to the effect:
if you level with me and let me know if anybody else making mistakes
such as signing a union card, you have got your job today and you will have
it 10 years from now.
It is possible that the tightening of restrictions regarding the helpers may also have
been discriminatorily motivated and thus have been in violation of Section 8(a) (1)
8 Blue Flash Express, Inc, 109 NLRB 591 ; Pinkerton Folding Box Company, 121 NLRB
1308. In view of Respondent's overall conduct here little credence can be given to
England's claim that this interrogation was for the purpose of determining whether the
Union represented a majority of the employees.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (3 ) of the Act as alleged in the complaint . I make no finding in this matter
since such an additional finding wou ld add nothing to the recommended remedy.
The Alleged Discrimination Against Fazzio and Walker
According to Walker's credited testimony he began working for Respondent July
2, 1957, and worked continuously until he was discharged on February 25, 1959.
About 4 months before he was discharged he had given the Company 2 weeks'
notice of intention to resign . Sales Manager Weber called him in and persuaded
him to continue his employment with Respondent , telling him that he was a good
man who had "made more increase than most any man he had" and that he was
liked by all the men.9
Respondent advances three general reasons for Walker's discharge : ( 1) personal
appearance , (2) belligerent and disrespectful attitude toward his superiors , and (3)
failure to obey company rules. The latter complaint involved three specific charges-
i.e., (a) chronic failure to observe a prohibition against excessive cash shortages,
(b) failure to prevent his helper from trespassing in the plant, and (c) failure to
turn in a collected account.
The evidence shows that for years the Company had had a policy that helpers
were not to be allowed in the warehouse or building . That the Company 's wishes
were not strictly enforced or that their enforcement would be sporadic appears
from an admission by England , 19 from its periodic orders on the matter , and from
the testimony of one of Respondent 's route supervisors who summarized the situa-
tion regarding the matter of the so-called rule when he testified that "a lot of times
it wasn 't policed right."
Besides the matter of his shortages , the other two items offered by Respondent
as evidence of Walker's failure to observe company rules involved two specific
incidents both of which occurred sometime before the first part of January 1959.
According to England 's testimony , in early January he had found it necessary to
warn Walker about a breach of plant rules . Thus he testified that "on a routine
check of a past due account , namely with Emblem Furniture Company, it was
developed that the Emblem Furniture Company had receipts showing that their
account was not past due, and they paid Dudley Walker the money for the rental
of the vending machine and he had not turned it in." England told Walker "that
further instances of that nature would call for disciplinary action." On the same
occasion England called to Walker's attention another violation of the Company's
rules. According to England 's testimony Walker "had been aware of the fact that
helpers were not allowed in -the warehouse , and he was permitting his helper to
roam nilly willy around the plant and he was reminded again that it was a company
rule that his helper would not enter the warehouse ." England also testified that
Walker's attitude on this occasion was "very surly and disrespectful" and that he
protested "that he didn 't think that it was the duty of a route salesman to collect
any vending machine rent ." He also told England that he was going to protest
England's reprimand to the Labor Board.
In his testimony Walker did not deny the substance of the foregoing but explained
that he had been asked by England if Emblem Furniture owned anything and
promptly assured him that the account had been paid. When England said the
money had not been turned in Walker said he did not know why it had not been
turned in because he knew that the account had been paid . Being short anyway
Walker suggested that it be added to his shortage . As for the helper incident,
Walker testified that England told him he wanted his helper to stay out of the
yard. Walker asked , "is my helper the only one that was going to have to stay
out of the yard?" England said he was "going to talk to all of them," that he had
"come up a whole lot of cases short ." Walker said , "I'll tell you one thing. The
people you think is stealing is not stealing from you. It 's those guys that has got
their arms around you, it's your pimps."
9 To the extent that Weber's testimony about Walker ' s performance as an employee
can be considered a denial of the above testimony , I credit Walker here . In his testimony
Weber admitted that Walker kept up his route Walker 's route supervisor , Salvaggio,
conceded that as a salesman Walker performed "a little above average." It is obvious
that Weber must have said something complimentary to Walker to get him to change his
mind about leaving . And Walker's testimony that he gave notice and was requested to
remain is not denied
10 England testified that if any question was raised after December 10 about the helpers
being in the plant or on the premises "it was a reaffirmation of a rule that had been
enforced for years and which had been reaffirmed periodically. . . .
GULF BOTTLERS, INC. 863
According to England's testimony, on two occasions in February before Walker's
discharge on the 25th, he found it necessary to warn Walker about excessive
shortages, once on February 6 for a shortage of $18 to to $20, once on February 19
for a shortage "approaching $20." On both of these occasions Walker contended
that he had the right to use Respondent's funds and threatened to take to the Board
the matter of his being reprimanded about it. According to England's further
testimony on at least one of these occasions, Walker cut England short and ter-
minated the interview with the comment, "Mr. England, why don't you fire me9",
and walked out on England while he was still talking. On both occasions Walker's
route supervisor was supposed to have been present. According to England's
further testimony the following week Walker was again short, this time $12.91. As
a result, on February 25 Walker was discharged. On that date England told him,
"Walker, you have been short in large amounts frequently and you evidently do
not want to abide by company rules. You are dismissed."
According to Walker's testimony he was called in only twice by England about
shortages, once about February 13 and the next time on the occasion of his dis-
charge. On the first occasion England asked him to cut his shortages down. Walker
told him he would do so. Sometime during the interview Walker asked, "Other
people come up short, don't they?" England replied in the affirmative adding that
"that is my business." Walker also asked if he had been called in because he had
not signed the employee association contract, to which England replied that he was
calling in all of the employees.
According to Walker's further testimony, when he came off the route on February
25 he had a note to see England. In the office England greeted him with, "Well,
Walker, you are short again." Walker replied, "Well, Mr. England, I'm only a little
over $4 short this week." England said, "It don't make any difference, you are
short and I am dismissing you." Walker said, "Is it union activity that you are
firing me for because I am short?" England's reply was, "It could be but that's my
business . I can dismiss any man that I want to dismiss." Walker testified that his
shortage on this occasion was approximately $4.78. As noted, England testified that
Walker's shortage was $12.91. Although Walker's route supervisor, Salvaggio, was
supposed to have been present at the first two warnings," there is nothing in his
testimony about them. Furthermore, although the evidence shows that the Com-
pany's records reflect all salesmen shortages, there was no attempt by Respondent to
corroborate England's testimony from that source. For these reasons among others
I credit Walker's testimony that England only called him in once about shortages
prior to his discharge and that the amount of his shortage on that latter occasion
was about $4.78 as testified by Walker and not $12.91 as testified by England.12
In defense of its discharge of Fazzio Respondent points to six items which it
contends demonstrates his "poor job performance" and shows why he was dis-
charged. One of these charges is the same as the one leveled at Walker-repeated
cash shortages, three of them involve a failure to service an account, one involves
carrying an "unauthorized" helper, and the last and culminating trangression per-
tains to a shortage in a delivery to a customer. The evidence is this:
At the outset of the hearing, England was called as a witness by the General
Counsel under Rule 43(b) of the Rules of Civil Procedure for the District Courts
and asked why he had discharged Fazzio. He answered that it was for "several
reasons culminating in a complaint by a dealer that he was stealing." He also
gave as another answer for Fazzio's discharge the latter's "refusal to serve his
route" citing an incident involving the Gentilly Theatre where he "refused" to serve
the customer and a supervisor had to go out with the delivery. He also testified
that Fazzio had "been in trouble several times" and had been warned about
"drinking on the route" but offered no explanations or details.
Regarding the stealing complaint as well as the other reasons for the discharge,
England's testimony at this point was decidedly vague and evasive.13 Even after
' As for the one shortage that Walker admitted being called in about before lie was
discharged, he testified he understood it as a warning
19 Where documentary evidence such as business records, is available to corroborate oral
testimony , the 'failure to offer such corroboration by the party in possession is grounds for
interring that the material would be detrimental if produced. Drennon Food Products
Co , 122 NLRB 1353 ; N L F B v. Sam Wallick and Sam K. Schwalm , d/b/a Wailick
and Schwalm . 198 F . 2d 477, 453 ( C.A 3) ; also 2 Wigmore on Evidence , section 285
I draw such an inference here and would find it difficult not to do so in view of Respond-
ent's assiduous offers throughout the hearing of supporting documents where no such
support was needed.
"As for the stealing complaint , he could not recollect the name of the customer or the
kind of business he was in-even after they had been suggested to him.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having been given memoranda on the matter to refresh his recollection, he re-
peatedly avoided answering questions on his own saying at one point that he "would
rather read it out or refer to these paragraphs," at another that "I can give you the
reasons that are on here, which are peculiar to my knowledge, but I don't personally,
actively supervise Mr. Fazzio and there are other reasons," and at still another,
"Would you read all this? This is exactly the reason that I fired him on. All that
is contained in these two letters." And another, "The reasons for his dismissal are
on that paper," and another, "It is all in the memorandum."
The memorandum, dated January 22, 1959, States:
JANUARY 22, 1959.
Re: Anthony Fazzio
Anthony Fazzio was called into Mr. England's office and was informed of
the following violations of Company rules and regulations in the presence of
Roland Benoit, Route Manager:
1. Fazzio was carrying an unauthorized helper on the truck and he was
informed that this was against Company rules and was, in addition, in violation
of our insurance policy.
2. Fazzio was informed that the Gentilly Woods Theatre had called for
service on Friday, January 9, at 10:30 A .M. and he had subsequently called
the office to see if there were any calls for him and Beverly, the telephone
operator gave him the information that Gentilly Woods Theatre wanted service.
Fazzio ignored the call and refused to make the delivery necessitating Roland
Benoit, his supervisor, making the delivery on a special trip.
3. Fazzio was informed that the manager of the Winn Dixie Store at 3043
Gentilly called and complained that he had refused to wait for him to give
him an order and that he needed 50 cases immediately. It was necessary that
these 50 cases be sent on a special delivery from the plant.
4. Fazzio was also notified that his shortage at the end of the week in viola-
tion of the Company rules. During this discussion with Fazzio concerning his
shortages, Fazzio mentioned the fact that Barlow-had also been short a number
of times and Fazzio was informed, yes, that was true, and that being short was
one of the reasons that Barlow had been dismissed but he was also informed
that another reason Barlow was dismissed was due to drinking while on duty.
5. Fazzio was informed that the Colonial Beverage Company called and
complained that he would not serve them on January 3, and the plant had to
make a special trip to bring 25 cases. Colonial Beverage also complained that
Fazzio had a very bad attitude.
Fazzio was informed that further incidents of this nature would call for
disciplinary action.
In contrast to his reluctance or inability to elucidate as to the reasons for Fazzio's
discharge on his examination under Rule 43(b), England, on later direct examina-
tion was quite specific, relating how in January he talked to Fazzio in the presence
of Route Manager Benoit and reviewed his past violations of company rules essen-
tially as they appear in the above memorandum of January 22 14 To this end he
testified that: (1) In December Fazzio "neglected to service a Winn-Dixie store on
his regular route and the manager of the store became very upset and had to call
the plant and announce that our salesman had been there and had refused to serve
him and had gone out." As a result the Company had to "send a special order to take
care of a routine scheduled delivery." (2) Fazzio called in for orders and was
given an order to deliver to the Gentilly Woods Theatre "but he ignored the call,
went home after he had completed whatever route he completed, and it was necessary
that Roland Benoit, his route manager, make a special delivery." (3) "There was
another incident involving the Colonial Beverage Company. The owner of the
Colonial Beverage Company had called in and complained that he had told his ware-
houseman to tell Tony Fazzio that he would be gone for 10 minutes and to please
request Mr. Fazzio to wait there 10 minutes because he needed some merchandise
and would order it and have it delivered at the expiration of that short waiting time.
Mr. Fazzio refused to wait and the dealer called up and was very, very upset'
(4) "Mr. Fazzio had been observed on two or three successive days having or placing
an unauthorized person on company vehicles and the office had no record of that
individual being on the truck " 15 England further testified that he told Fazzio on
14 This contrast in attitudes revealed in England's direct and cross-examination to-
gether with some of the exaggeration revealed in his testimony do little to instill con-
fidence in Respondent's position here.
15 The procedure as to helpers as already shown was for the driver to get them to sign
a tax withholding form and to see that they were properly signed in each day That
GULF BOTTLERS, INC. 865
this occasion "that if instances like those that were related to him occurred again
that disciplinary action would be taken against him."
As to Fazzio's discharge, England testified:
I can recall a meeting in February at which time I talked to Mr. Fazzio
concerning all of the problems that he had created through the past month or
two and I related to him in detail the problems that he was creating within the
company and there had arisen a new problem which I discussed with him,
concerning a laundry or launderette, the owner of which had called and
claimed that Fazzio, our salesman, had stolen some cases from him.
Fazzio, when presented with additional problems that he had created, be-
came rather upset and angry and proceeded to tell me of the reasons why he
didn't like the owner of the laundry and he proceeded to get very mad and upset
at that particular customer of ours.
During the conversation he told me that he lived in Mr. Crews' neighbor-
hood . . . and that if Mr. Crews was going to try to get him in trouble that
he, Tony Fazzio, was going around and tell everybody in that neighborhood
not to trade with Mr. Crews. Now, Mr. Crews to us was a valuable customer.
We had sold him a $500 vending machine, and we didn't want to be in a position
where Mr. Crews was of the opinion that we were employing dishonest people
and we didn't want to be in a position where one of our route men was in effect
boycotting one of our customers on his own route, and Tony got madder and
madder and indicated his displeasure with Mr. Crews, and I felt that after
talking to Fazzio about all the problems that gone on before and now we had
this new problem which to me was of a very serious nature and concerned
the life blood of our business, namely that we hire people who represent a
quality product, that I don't think that Tony Fazzio represented what we
wanted on the route. So I told Fazzio that in view of what had gone on
before and in view of this latest finding that he was dismissed.
England further denied telling Fazzio that he was discharged until after Fazzio
"made the threat about the boycott."
Supporting England's additional testimony that an unidentified employee had
told him that Walker had said "he couldn't be fired," driver-salesman Veazy testified
credibly that on an occasion when he borrowed some $300 from England he told
England that Walker and Fazzio "were under the impression that they couldn't-
be fired until this whole affair was settled." The affair referred to was the union
matter.
We turn now to the testimony of Benoit, Fazzio's route manager, and Weber,
the sales manager.
Weber testified that it was he who initially took the calls involving the Rain or-
Shine, Winn-Dixie, Gentilly Theatre, and Colonial Beverage complaints. Weber's.
testimony as to these matters follows:
1. Rain or Shine
A. Well, Mr. Crews called me up one day and he was rather upset, stating
that he had ordered 10 cases of merchandise; that he had had three remaining
in the warehouse and that when he got to the warehouse that there was a total
of 10 and yet he was billed for 10 and he felt that he should have 13. I told
him, well, that I will take care of it and I told Roland Benoit to call Mr.
Crews, find out what the problem is and handle it.
A sequel to this incident appears in Weber's further testimony:
A. I think it was in March, probably around the 24th or 25th or 26th of
March Mr. Crews called our office. I wasn't in the office, but Mr. Burkhart
happened to take the call and Mr. Crews was very much upset that this theft
failure to do this was a common fault among the drivers is reflected by the fact that on
three occasions, from April 15, 1954, to May 25, 1956, the Company found it necessary to
issue memorandums on the matter addressed to all salesmen. The eailiest one began,
"Once again we request that you get a W-4 form made out on any helper that you put
on your truck." The next one began, "I would like to remind you that it is absolutely
necessary that you get a W-4 form filled out on any new helper that you hire to ii ork on
your truck " The last states, "Regarding helpers, the rules are and always have been.
that before you place a new helper on your truck you are to get a W-4 form filled out_
and turn this form in to the office " [Emphasis supplied I
560940-61-vol. 127--56
:866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hadn't been taken care of. So Al Burkhart told me when I came in out of
the trade in the evening.
Q. Who is Burkhart?
A. He is manager of our vending department. He is the man that sold Mr.
Crews the vending machine originally and he said, "I don't know if you know
this or not, but," he says, "Mr. Crews has not been satisfied on those three cases"
and I was surprised and I immediately got hold of Roland Benoit , the route
manager, and said, "I want this taken care of immediately." And next day
Mr. Crews received his three cases of merchandise.
2. Winn-Dixie
The Winn-Dixie manager called saying: "What the hell kind of route men do
you have? ..." He said, "Your route salesman came here an hour or two
ago. He opened the front door, he looked in, he saw me standing there and
he didn't say good morning; he didn't come in to check the rack or check the
stock and he left and he hasn't been back." And he said, "I need the merchandise
pronto."
'Weber told him he would get the merchandise immediately and made the delivery
himself with the aid of one of the route supervisors.
3. Gentilly Theatre
Weber watches the customer calls on Friday very closely because Respondent does
not operate on Saturday and a failure to service an account with a 2-day interim
would be much worse than neglect of an account for 1 day. He saw the Gentilly
Theatre call "and told the girl at the call board to make sure that Tony gets this call
because they have to have these cups to operate on a big night, which is Saturday and
,Sunday." Weber "didn't want them neglected; (he) didn't want anything to happen
that somebody else might have to go out there or maybe the call would be ignored."
,Benoit "finally took the cups out to the Gentilly Theater."
4. Colonial Beverage
The owner of the Colonial Beverage. He called me one day and he just had it.
He blew his stack. He was very angry on the phone and asked me what in the
hell kind of a route man I had on the route and I said "What's the matter'?"
He said, "Well, I was gone from my warehouse 10 minutes and I had my
colored boy there and he said your salesman , your route salesman," that is the
story he gave me, "told my colored boy he couldn't afford to wait 10 minutes
until the owner of the Colonial Beverage got back." I think he called in the
afternoon, sometime around 1:30 or 2:00.
Q. So what did you say to him?
A. Well, I always try to calm them down, because that is my job to build
goodwill and see that it is maintained and I told him, I said "Just settle down;
don't worry about it. We're going to get merchandise out to you right away,"
and I got ahold of Roland Benoit who is Fazzio's supervisor and I said, "Here's
another one. You better get on it and quiet this fellow down."
Route Supervisor Benoit testified as follows: ( 1) Route Manager Montz "warned
Fazzio one afternoon . about Fazzio having an extra helper on the truck." On
the same afternoon Benoit also told Fazzio that a second helper on the truck was
not allowed and said, "Mr. Fazzio, you know that don't you?" Fazzio told Benoit
-that "from then on he wasn't going to have another helper on his truck." (2) Fazzio
had been given the message to deliver the cups to the Gentilly Theatre. When Benoit
learned that Fazzio had gone home without delivering them he made the delivery
himself. The next time he saw Fazzio he "warned him about not taking those cups
-to the Gentilly Theater." Fazzio told him that it had "just slipped his mind."
(3) When Weber told Benoit about Winn-Dixie's complaint, Benoit informed Fazzio
-that he "didn't want it to happen again." (4) Benoit and another route manager
delivered 25 cases to Colonial Beverage on the occasion that Fazzio refused to wait
-for the manager's return. The latter "was pretty peeved-off about it, said that
Fazzio had an ugly attitude and as far as he was concerned he wouldn't have him
working for him and he didn't know why he was working for" Respondent. Benoit
-told the customer that he would "try to straighten Fazzio out," that the customer
-would have no "more trouble with him." Benoit told Fazzio what the customer
had said. Fazzio explained "that he had been there and that the colored fellow there
,didn't know whether he wanted any Pepsi Cola or not and he said he wasn't going
GULF BOTTLERS, INC. 867
to wait and he drove off." Benoit then "told Fazzio to handle the man as gently
as he could" and "left it go at that." (5) As to the Rain or Shine incident, Benoit
testified:
Mr. Weber gave me 'a note with the telephone number on it and he said
"Roland" said "You better call this man and straighten this thing out." So, I
called Mr. Crews at this number and he told me that he had ordered ten cases
of merchandise and he had three in the warehouse and that when he checked the
warehouse he only had ten. So, I asked Mr. Crews if I could go see him and
he said "No, not right now, what about tomorrow morning?" and so I said
"Tomorrow morning at eleven be all right?" and he answered "Sure, that will
be okay." So, Mr. Glassen and I went down there the next day.
Q. Who is Mr. Glassen?
A. He is a route manager. We got there around eleven and we waited until
around twelve and Mr. Crews showed up and we introduced ourselves to him
and then he told us the same story he had the day before. He said "I had ordered
ten cases from your driver. ' I left the money and the cases" and he said "I
checked it and I had three in the warehouse there was only ten." So he reached
into his pocket and got out a ticket and he says "I want to show you this ticket."
I said "Sure," so I looked at the ticket and it had seven cases of Pepsi Cola, had
two Nesbitt Orange and one root beer, so he reached in his pocket and got the
key and opened the warehouse and went in the warehouse and said "I want you
to see these cases" said "You can see for yourself. I have seven Pepsi Colas.
I have one Nesbitt Orange, I have two root beers" and had about eight or nine
bottles there and he said "I would like to get my cases, the three cases that are
missing" and said "what are you going to do about it?" and I said "Mr. Crews,
we will straighten this out." And so Mr. Glassen and I drove off.
Q. Did you eventually straighten it out?
A. Eventually we did. After Mr. Fazzio left. He said that he was going to
straighten it out himself, which he never did, and Mr. Crews, I understand called
the plant, Mr. Weber told me says "You better get this thing straightened out
today." So, I took the note that he gave me and I gave it to Mr. Porche, the
driver-salesman that is on that route now and I told Porche to go out there and
leave the three cases, leave that note and charge those three cases to Gulf
Bottling Company, today, "Make sure you get that today." He said "I am
going there today, so I will take care of it."
When Benoit called Fazzio into the office in the presence of Mr. Weber and told him
what happened, Fazzio told Benoit "he couldn't understand, couldn't understand at
all" and "got a little peeved-off and said that that man didn't have a damn thing,
he was in debt up to his tail, but that he was going to straighten it out anyhow, even
`if I have got to pay it out of my own pocket' and with that he left the office."
Benoit was present when England discharged Fazzio. England reviewed several
of the above complaints. When he got the Rain or Shine incident Fazzio told
England "I live in that neighborhood . . . I can hurt that guy. . . If he gives
me any trouble I can let some of those people know about it, about the things he is
doing to me." At this point England told Fazzio "he was sorry he couldn't use him
any more." Fazzio said, "Well, Mr. England . I know why you are firing me,
why don't you tell me you know why yourself." England said, "Fazzio, you can
think what you want to think. I am firing you for these reasons here."
In addition to the foregoing, it appears from Benoit's testimony that Respondent
has customers that are known to be complainers and that about "once a month
(route managers) have to go out to see a customer, . . . about something that a
salesman might have done in his place." Moreover it would appear from the tes-
timony of Route Manager Moritz that "it has happened" that on occasion customers
call in about drivers missing them. This is consistent with Benoit's further testimony
that the plant personnel deliver large orders direct from the plant if they "have to."
It also appears that another salesman, Munster, on two or three occasions missed
serving the Gentilly Theatre with cups. "A couple of times" he took a panel truck
and made the delivery. Munster was still employed at the time of the hearing.
As for the foregoing Fazzio testified as follows: 16
On January 16 when Fazzio came in from the route, Route Manager Montz asked
him, "Are you going to sign a extra helper in?" Fazzio said, "Why, nobody else
ever did it." Moritz said, "It's against company policy to carry two helpers " Fazzio
said, "If it is it's news to me because they have done it in the past and they wasn't
io This testimony is substantially undenled and I credit it as set forth except where
I may make specific exceptions
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sneaky about it. They done it wide open," and added, "but . if that's the way
it is, no other helper could ride on my truck." When Route Manager Benoit came
in he also mentioned the matter to Fazzio who replied that he had "already been
told by Hubert Moritz." Then England mentioned it telling him he did not want
Fazzio to do it again and adding, "I don't want your helper in my warehouse or my
yard. If you don't keep him out of there I'm going . . . to run his ass away from
here." Fazzio replied, "Mr. England, you are the boss. If that's the way you
want it that's the way it'll be. Are you mad at me, Mr. England." England said
"Well, I dont have any particular love for you since we are at such opposite poles."
Fazzio said, "Okay, Mr. England, thank you" and walked out
On January 22 he was called into the office where, in Route Manager Benoit's
presence, England told Fazzio, "Tony, I have some things here I can dismiss you on."
England thereupon referred to the Winn-Dixie incident where he accused Fazzio of
walking in and out without a word and without attempting to deliver the 50 cases.
that the store then called the plant for. Fazzio told him:
"Mr. England," I says, "that is nothing unusual about that." In fact, I didn't
walk in and walk out. I walked in and told the manager good morning and he
was standing there. They had the Regal man, the Falstaff man and all the.
other beer men standing there when I said good morning. I walked in and
checked my carton display and it was pretty well filled. I walked over to the
floor stock that they had in there and they had about 15 cases sitting on the
floor. He run up to the office with an armed service man, this money delivery
man, and they went and locked themselves in there and I just assumed they
didn't want these because he saw me, and if he wanted 50 cases he would have
said, "Pepsi-Cola man, bring me 50."
* * * * * *
There was nothing unusual about that stop because I have had 100 cases
delivered there for me and that was around the holidays.
Q. What holidays?
A. I think that happened around Thanksgiving. There was nothing unusual
about it. I mean you want to check records, they do it for everybody.
* * * * * * *
Then he said something about the Gentilly Theatre ringing up for some cups
and me not delivering them and it cost him money. He had to send the
supervisor out to make the delivery. I told him, "Mr. England, that lady and
I at that theatre agreed that she would call on Thursday so I could have them
cups on the truck on a Friday," which was the Gentilly day for delivery.
Now, the Gentilly Theatre is on one side of town and Gulf Bottlers is on
the other side of town. If it would have cost him money to send a supervisor
in a panel truck out there to make the delivery, what would it have cost him
if I had taken the cups and bring them all the way back to the lady. So I
told him it was agreed between me and the lady that she would call on
Thursday and lots of times she didn't. I have already taken cases and cups
in my own automobile to make deliveries.
* * * * * * *
One day, I don't remember when it was, I was walking out the gate with these
cups in my hand and Mr. Grassen, Benoit, and Moritz was all standing near
the gate, and I am coming along with the cups, and they know where the cups
was going, it was the Gentilly Theatre, and they all said this woman was a
pain in the behind because she gave Louis Munster the same trouble when he
had that stop, and that she ought to get a case of cups and get it over with.
* * * * * * *
I told him that I didn't deliberately do it. I told him it wasn't a deliberate act,
that I didn't bring the cups to the Gentilly Theatre. It skipped my mind. I
mean I wasn't trying to prove that I could do these kinds of things without
being disciplined about it. I mean I wasn't trying to be smart or anything like
that It was just one of those things that skipped my mind.
As for Colonial Beverage Fazzio told England he did not see how "the boss of
Colonial Home Beverage could say (his) attitude was bad because he wasn't even
there." Fazzio went on to say:
When I pulled up in front of the Colonial Home Beverage they had a colored
warehouse boy there and when he saw me I said, "How many Pepsi-Colas"
He said, "My boss didn't leave any orders for Pepsi. He left it for RC
Cola."
I said, "Where did your boss go?"
GULF BOTTLERS, INC. 869
He said, "I don't know where he went."
I said, "How long is you boss going to be?"
He said, "I don't know how long he's going to be."
I said , "Now, look, you don't know where he went or long he's going to be.
I can't sit here all day."
He said, "Go ahead and if we need anything we'll pick it up at the plant."
This man that supposedly said that I had a bad attitude, I told Mr. England
that if he thought that was so bad that Mr. Salvaggio had served the same
account and got in trouble with this man and was kicked out of it for two
weeks.
Q. Which Mr. Salvaggio?
A. The supervisor; and he told me that with his own mouth, .. .
On January 29, according to Fazzio 's further testimony , he was again called
into the office where in Route Manager Benoit's presence England told him, "Tony,
when you come in in the morning I want you to get a book, get on your truck,
get a check and get out of the yard. When you come in in the evening I want you to
pull your truck in the yard , have it checked , turn your money in , turn your collec-
tion sheet in and get out of the yard . I want no union activity on my property."
When Fazzio protested that that was how he was operating England said , "Don't
hand me that , Tony. Whitey Munster gets all his information from you." Fazzio
replied , "No, sir, Mr. England , he don't get all his information from me. You
don't watch me; you watch some of the people that you are fooling with and you'll
see who 's hurting you the most."
As for the Rain or Shine incident Fazzio testified:
On February 20 when I finished my route that day I was told by Mr . Benoit
that he wanted to see me, that he wanted to see me in Mr . Weber's presence.
We walked into Mr. England 's office and Mr. Weber came in and sat behind
the desk and Roland started talking. Mr. Weber had a pad in front of him
and a pencil and Roland said that he had a complaint from the Rain or Shine
Laundry, that the man had ordered 10 cases and he had two and a half cases
in his warehouse but when he went there to check all he found was 10 cases.
Roland said that him and Mr . Grassen went out there on that complaint and
verified that there was only 10 cases in there and he said that Mr. Crews, who
is the owner of the Rain or Shine Laundry, said "The Pepsi-Cola man must
have let the helper serve the stop , because if you don't watch the helpers they
do that all the time ," or similar to that.
And I said, "No, you can't blame it on the helper because I helps the
helper put them 10 cases in there."
1 don't make inventory of nobody 's warehouse , but I know we put 10 cases
in there and I said I was going to see Mr. Crews and if Mr . Crews still feels
he was shorted two and a half cases I would pay him out of my pocket but I
would never serve him again unless he is there to see what I put in the stock
and when I walked out of there I walked to Sciambra 's and met Walker. I met
Sadowski , Couch , and Leo Rodosta. There were four of the drivers sitting
there and I told them what the situation was and asked them if they could come
with me as witnesses to what conversation that me and Mr. Crews would have.
And, when I walked in Mr. Crews' Rain or Shine Laundry on Sophie Wright
Place-he has another place uptown-I said, Mr. Crews, you put me in a bad
position because they're trying to fire me for union activity and you ring up for
something like this.
And Mr. Crews said this, he says, "If that 's the kind of guy that supervisor
is," he says, "I talked to the supervisor and it was supposed to be straightened
out between you and I," and he says, "If that's the kind of guy he is," he says,
"I'm going to take the machine and throw it out , because," says , "he wasn't
supposed to make an issue out of this thing and I'm going to throw it out
because ," he said , "it makes no difference to me," he said, "I am $18,000 worth
in debts and I can't meet my payments."
When he came in from his route on February 25 Fazzio was told he was wanted
in the office. According to Fazzio 's testimony:
I went in the office and Mr. Benoit was present and Mr. England told me,
he says "You know one thing we are strict about is dealing with customers,"
He says "We build prestige and we want to keep it ," and says it was a com-
plaint from the Rain or Shine that I will have to dismiss you for , and I said
"Well, Mr. England , as far as I am concerned, that 's been all straightened out,
that he called Mr. Weber this morning and it's straightened out." And I
said , "Mr. England , you're not firing me for the Rain or Shine ; you are firing
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me for the Union." He says, "Well, you can believe what you want to believe."
I said, "Well, you are doing me an injustice, but I will leave. Mr. England
says "Look what you are doing to me." I asked him when my check would
be ready. He said it would be ready the next day.
I told him this. I says that I wasn't going to let it stand the way it was. I
told him I had brought clothes to the Rain or Shine and I had done business
with them and I lived in the neighborhood and I know of a lot of people in
the neighborhood and I said I could hurt Mr. Crews. Then I said I am not
going to let it stand the way it is, I was going to the Labor Board for what
they'd done me and for what Mr. Crews done me, if there was anything I
could do about it, I would do something about that, and if they wanted to twist
it around and make anything, I meant that if there was any legal action I could
take against Mr. Crews, I would.
Contrary to Respondent's version Fazzio testified that he had already been dis-
charged when he made the above comment that the "could hurt Mr. Crews." I
credit Fazzio.
Fazzio also testified on cross-examination that during his first period of employ-
ment with Respondent in 1954 or 1955 he and a fellow driver, Bernard Perniciaro,
got in a fight at a public bar they frequented near the plant. It was payday and the
two men were wearing their Pepsi Cola uniforms at the time. The police were
called. Fazzio and Perniciaro were not arrested but their adversaries were. Weber
walled in Fazzio and apparently reprimanded him for the aff air and told him that
he and Perniciaro were supposed to pay for the damage that occurred. Fazzio
refused to pay and heard nothing more about it.17
Fazzio also denied on cross-examination that he had been prevented from taking
his route out because of being under the influence of liquor. He did testify, however,
without contradiction, that such a thing did happen to Perniciaro who was still
working for Respondent at the time of the hearing.
Louis Crews, the proprietor of the Rain or Shine Laundry substantially corrob-
orated Fazzio's testimony. He further testified that when he discovered his shortage
he called the Company getting someone whom he could not identify and explained
"what had happened so in case the driver had three cases of drinks on his truck
he would know who they belonged to." When two supervisors called him the fol-
lowing day he told them what happened and further told them to forget the whole
thing if it would jeopardize the driver's job. They assured him that nothing was
going to happen to the driver. He did not at any time accuse Fazzio or the Company
of stealing anything. He also confirmed Fazzio's testimony as to the visit by Fazzio
and his colleagues and that he met Fazzio some days later on the street where Crews
confessed he had not yet called Weber but assured Fazzio he would do so. He then
called the Company. What he said in this conversation does not appear in the record.
Later, after Fazzio had been replaced, Crews informed the Company that he still
had not been recompensed for his shortage and he "got the drinks" with "no trouble
at all."
Additional Findings and Conclusions
Pointing to the fact that Fazzio admitted that on the occasions complained of
he failed to serve the Winn-Dixie, Gentilly Theatre, and Colonial Beverage accounts
and admitted other matters testified to by Respondent's witnesses. Respondent con-
tends in its brief that the "Company had cause to discharge Fazzio for poor job per-
formance" and that "it is immaterial that the Trial Examiner himself, or the Board,
for that matter, might have sought additional justification before discharging the
man or might have disciplined him in some lesser fashion. The important thing
here is that in this company's opinion the quantity of cause that undoubtedly existed
was sufficient cause and it was for this reason and no other that Fazzio was dis-
charged." As for Walker, Respondent also points to the admissions in his own
testimony, as sufficient grounds for his discharge. A review of these admissions
is concerned almost entirely with Walker's shortages and attitude although Re-
spondent adverts to Walker's admission of a reprimand 18 for careless driving and
of "having had three prior wrecks."
17 This evidence came in on Fazzio's cross-examination Besides showing how Respond-
ent was attempting to dredge up ancient history against Fazzio it also casts reflections on
the good faith of Respondent's contentions since it appears that Fazzio was rehired after
this incident had occurred
18 The reprimand, it appears arose out of an accident resulting from an incorrect traffic
direction given Walker by his helper some 4 months after he started working for Respond-
GULF BOTTLERS, INC. 871
I have no quarrel with Respondent's major premise. It is clear that an employer
can discharge an employee for any cause or for no cause at all so long as it has
no connection with the exercise of rights guaranteed employees in the Act 19 More-
over it is equally clear that neither the Board nor its Trial Examiners have any
right to substitute their judgment for that of an employer in matters involving the
conduct of the business.20 In reaching the conclusion that Fazzio and Walker were
actually discharged because of their union sympathies or activities,21 I do not do
so on the basis of my appraisal of the weight or quality of such cause but on the
basis that an appraisal of it in the light of the entue record shows that it is in-
sincerely raised and was utilized as pure pretext to mask Respondent's discriminatory
purpose.
There is no doubt in my mind that any employer in a direct service or sales
business where large numbers of employees are in contact with large numbers of
the buying public would be able, in any 3-month period, to point to numerous
matters involving their employees which require adjustment or the attention of
supervisory personnel. While a few of these might be the result of deliberate,
censurable conduct by the employees most are the result of fundamental human
limitations and are normally understood and accepted as such by the majority of
the public and employers notwithstanding that the matters may be initiating and
generally classed as "complaints." That Respondent has its share of these matters
and handles them as a matter of course would appear from Benoit's testimony
that route managers have to go out about once a month to see customers "about
something a salesman might have done in his place." Nevertheless, out of such
missions and out of some 12 discharges described by Respondent, not one like
Fazzio's appears to have been based on conduct involving customer relations. This
would indicate the lack of importance Respondent normally attached to the rela-
tively inconsequential accusations leveled at Fazzio. When I brand these matters
"relatively inconsequential" I do not mean to be substituting my judgment for
Respondent's as to their importance as reasons for discharge. I am simply pointing
out that Respondent apparently considered them "relatively inconsequential" in
all cases except Fazzio's. His failure to serve the Winn-Dixie store was not unique.
The plant often makes such deliveries. The Colonial Beverage account presumably
had caused similar difficulties for one of the supervisors when he had the route and
apparently was recognized as being in the category of a troublemaker as evidenced
by Route Manager Benoit's sole and conciliatory statement to Fazzio about it "to
handle the man gently as he could." Other salesmen had the same problem with
the Gentilly Theatre as Fazzio. And as for his failure to make the delivery by a
special trip in his truck costing Respondent money as claimed by England there
certainly is validity in Fazzio's observation that it was less expensive for Respondent
to send a light panel truck with the cups than to have him make the delivery across
town with his truck.
It seems to me, too, that an analysis of the Rain or Shine matter reveals an
attempt by Respondent to attribute to it a significance that it really did not feel.
In the first place England's characterization of the shortage as "stealing" by Fazzio
and as having been so complained about by Crews was credibly denied in Crews'
testimony and was unwarranted on England's part.22 I do not believe that Re-
spondent for one moment thought that Fazzio had deliberately shorted Crews three
cases. Furthermore, notwithstanding the prompt steps Respondent took to in-
vestigate the matter and its protestations as to Crews' valuable patronage, it was
fully a month before Crews was finally reimbursed his three cases. It is true that
Fazzio before he was discharged had indicated he would take care of Crews' shortage
even if he had to do so out of his own pocket. But it seems a little out of keeping
with Respondent's professed concern about customer goodwill that it should have
relied on Fazzio to repair the Company's damaged reputation here particularly if
it was believed that it was his dishonesty that caused the damage.
The so-called "unauthorized" helper incident also has its aura of exaggeration.
Actually, the complaint was that Fazzio had failed to file a tax withholding form-a
matter that apparently has been a chronic problem with Respondent over the years.
ent. Another of the "wrecks" involved his truck being run into by another car while the
truck was standing still The other "wreck" was not described.
10 Magnolia Petroleum Company v. N L R B , 200 F. 2d 148
21 N L R B v. Late Chevrolet Company, Inc., 211 F. 2d 653 (C A. 8).
21 Either their sympathy or activity on behalf of the Charging Party or their abstinence
from participating in the assisted union.
'-' A propensity to exaggeration on England's part is demonstrated by this as well as
other testimony by him
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same can be said about Respondent's charge that Walker failed to prevent his
helper from trespassing in the plant.
As for the validity of Respondent's concern about any cash shortages on the
part of Fazzio, the same considerations apply to him as to Walker which will be
discussed below. Moreover, the one occasion reflected in the evidence which Fazzio
was reprimanded by England for a shortage seems to have been in sharp contrast
with a previous occasion, early in the union campaign, when England was trying to
get Fazzio to sign the contract with the company-sponsored employees' association.
On that occasion a $17 or $18 shortage by Fazzio was completely ignored by
England who , in addition to paying Fazzio his vacation money at that time , offered
to advance him additional funds.
The foregoing examples of Respondent's intransigence admittedly apply mostly
-to the charges against Fazzio. The insincerity of the charges against Walker,
however, is shown by other evidence . In their testimony Respondent 's witnesses
made it clear that all three of his general defects were apparent to Respondent and
indulged in by Walker during the entire course of his employment. Thus England
testified that Walker had been warned by Sales Manager Weber about his excessive
shortages "many times during the two-year period of his employment." Salvaggio,
his route supervisor, testified that Walker's attitude and appearance had been the
-subject of continual reproach by him during Walker's "whole two years" of employ-
ment. Yet despite these alleged shortcomings and Respondent 's concern about
'them, 4 months before Walker was discharged ostensibly because of these derelic-
tions and after having suffered some 20 months of them , Respondent talked Walker
-out of resigning and prevailed upon him to continue his employment with Re-
spondent . Of course , this was before the Union . On this point alone, it would
be difficult to give much weight to Respondent's position here. Certainly it would
appear that Respondent had condoned what faults it found in Walker and had
accepted him as was 23 until the Union made its ,appearance.
It is apparent that Respondent was concerned about excessive shortages on the
part of the drivers. It also appears that in the past employees had been discharged
for such shortages 24 It is also apparent that driver shortages are and were such
a common occurrence that only the excessive ones ever gave rise to any overt action
by Respondent. An excessive shortage , according to England , was one $10 or over.
When such shortages occurred the offending employees ' paychecks were held by
Sales Manager Weber, thus giving him an opportunity to discuss the matter with the
employee when he came to get his check. There is no doubt that Walker on
more than one occasion had to get his check from Weber for this reason . But from
December 10, with the inception of the Union , England relieved Weber of that
function and took it upon himself to call in all those with "abnormal" shortages-
i.e., $10 or over.
Several of the General Counsel's witnesses testified credibly and without con-
tradiction that they frequently had such shortages . One driver, John Sadowski,
'testified that he normally ran $6 to $10 short and that on one occasion when he
was $18.75 short on March 7, 1959, no one ever mentioned it to him. Another
driver, John Couch, testified that on several occasions he was short over $ 10. When
he got his checks from Weber on those occasions the latter would say little more
to him about it than to ask him why he was short so much . He also testified that
after the Union made its appearance England "talked " to him about a $12 or $14
shortage. Driver Wilfred Fisher testified that he checked in short "about every
week" from 1 cent to $28.89 . This last amount was a shortage he occurred a
week or two after Walker was discharged. No action was taken against him.25
The significance of Walker's shortage is considerably diluted by such evidence.
But even if in this connection it can be said there was a measure of disparity in
'Respondent's attitude toward and treatment of Walker 's shortages as compared to
as There is no doubt that Walker was very often short in his cash, at times enough to
have had it come to the attention of Weber as will be shown more fully below. Also it is
obvious from Walker's own testimony that his reaction and demeanor toward his superiors
-including England was something other than obsequious
u For instance the evidence shows that warning letters about shortages were written to
'three employees-one in 1950 and two in 1953-involving amounts from $ 17.98 to $40.
England testified that these three were discharged for shortages but no illuminating
details were offered.
An interesting sidelight on this shortage , according to Route Manager Benoit's testi-
mony , is that in addition to being short Fisher deliberately misrepresented to the office
manager that the shortage had been authorized by the route manager.
GULF BOTTLERS, INC. 873:
other employees, Respondent points to the Emblem Furniture matter as indicative
of just the opposite. According to Weber's testimony he had previously "dismissed
three of four people for dishonesty." Among these was an employee named Galino
who was discharged for failing to turn in a collection. Again there are no revealing
details. Whatever the situation was with Galino it is apparent that Respondent
appraised it as dishonest. The fact is that in Walker's case there is no evidence of
dishonesty or mens rea. He readily admitted that the account had been paid and
it boils down to a matter of another shortage. Without an implication of dis-
honesty, the matter falls into the class of the other "relatively inconsequential"
matters seized upon by Respondent as reasons for these discharges. If Respondent
means to imply that Walker's failure to turn in the account was a dishonest act the
question then arises, why he was not immediately discharged for it?
The foregoing considered in the light of Respondent's instigation of and illegal
assistance to the Gulf Employees' Association and its other acts of interference with
and restraint and coercion of the employees in the exercise of their rights under the
Act convinces me that the reasons advanced by Respondent for the discharges of
Fazzio and Walker were mere pretexts to mask their real and discriminatory, anti-
union motive. It is settled that "the existence of some justifiable ground for dis-
charge is no defense if it was not the moving cause." Wells, Incorporated v.
N.L.R.B., 162 F. 2d 457, 460 (C.A. 9). As stated by the court in N.L.R.B. v.
C. & J. Camp, Inc., et al. d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113,
115 (C.A. 5):
We are well aware of the provisions of the Act adding the affirmative protection
of the statute to that uniformly accorded by this court to discharge for
cause, . . . and in a case to which the statute is applicable, we would be the
last to deny that protection.
On the other hand, it is, and always has been, clear both before and after
the amendment that a discharge ostensibly for cause must, in order to be
protected as such, be in reality a discharge for cause, and that a trumped up or
synthetic discharge for cause may not be used by the employer as a shield and
buckler to protect him against a discharge, the zeal, the dominant motive of,
the moving cause for, which is anti-union discrimination.
Moreover, I believe that the evidence further shows that Respondent had such a
purpose from the beginning. The initiative and leadership that Fazzio and Walker
demonstrated in connection with the Union's campaign to organize has been shown
as has been their outspoken advocacy of the Union to England and their equally
outspoken refusal to accept its illegally assisted substitute. That these two were the
only ones among all of Respondent's employees to so act, of course, definitely sets
them apart from the others. And it is admitted that for these same reasons they
were considered in a special category by Respondent. England, when asked why
he personally had handled the discharges of Walker and Fazzio, when normally
such matters had been handled by his supervisors, testified that it was:
because it was obvious that Fazzio and Walker were the spearheads of the
union activities in our plant and I wanted to be doubly sure that should any,
disciplinary action be taken against them that it be completely justified.
With this in mind, among other things, England had sought legal advice early in,
December and had been told to expect the filing of NLRB charges in connection with
the discharge of Fazzio and Walker.26
Thus, it appears that England's purpose early in the union campaign was to
"discipline" Fazzio and Walker. Apparently upon being advised of the probable
result of any precipitate action, however, England began keeping a dossier on the
two so as to establish "cause" outside the purview of the Act.27 On February 25
26 England testified on direct examination that he had sought legal advice before dis-
charging Fazzio and Walker and was advised to expect "that charges would be filed in
this matter " On cross he was asked when lie had sought such advice, an objection was
interposed on the grounds of privilege and was overruled. Counsel then said, "I will
restate the question When was it that you sought legal advice on this matter9" England
answered, "In the early part of December " A careful reading of the transcript here
shows that the questions and answers pertained to legal advice about Fazzio and Walker
and were so understood by all concerned.
27 England, when interrogated by the General Counsel under Rule 43 (b) of the Federal
Rules of Civil Procedure, testified with the aid of a list of memorandum of charges against
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he took action. That action, I find, was discriminatory within the meaning of the
Act. In addition to the discrimination against Fazzio and Walker, Respondent also
discriminated against its employees when it prevented their going on their routes on
December 10, 1958, as set forth above.
Respondent further contends that since there is no evidence as to any activity by
Fazzio or Walker or anyone else on behalf of the Union within 30 days of the
discharges it cannot be said that there was any "intent to discourage nonexistent union
activity." Respondent's contention is not valid. The Radio Ofcer's Union, etc.,
A.F.L. v. N.L.R.B. (A. H. Bull Steamship Company), 347 U.S. 17. Nor is Re-
spondent's position valid that the Board has no jurisdiction of this matter in the
absence of a showing that the "acts alleged caused or resulted in any diminution of
the flow of Respondent's goods in commerce or caused, led or tended to lead to a
labor dispute of any discription whatsoever." Consolidated Edison Co. of New
York, Inc. v. N.L.R.B., 305 U.S. 197.
The Alleged Refusal To Bargain
Considering the record as a whole, I am unable to find that the General Counsel
has proved by a preponderance of the evidence that as of December 8 or December
16 Respondent had a legal obligation to recognize and bargain with the Union as the
exclusive bargaining agent of its employees within the meaning of Section 8(a) (5) of
the Act. The main consideration upon which I base my conclusion is the failure of
the proof to show with the necessary clarity and preciseness that the Union repre-
sented a majority of the employees in an appropriate unit at the time requests were
made for recognition. I must say, however, that other aspects of the General
Counsel's case also have appeared to me to be deficient in the type of clear-cut,
convincing evidence necessary to establish the required conditions precedent to an
obligation to recognize and bargain on the part of the Respondent.
1. The unit description
The Board has held that in order for a recognition and bargaining request to be
valid it must describe the unit for which recognition is sought. Barlow-Maney
Laboratories, Inc., 65 NLRB 928; Washington Coca-Cola Bottling Works, Inc., 117
NLRB 1163, 1165. And this description must be fairly specific and not ambiguous.
The C. L. Bailey Grocery Company, 100 NLRB 576, 579. The General Counsel
contends that the description of the unit contained in the copy of the Union's petition
which was sent to Respondent on December 8 cures any possible description defect
in the Union's original request for recognition on December 6. I agree. At that
point it is clear that the unit for which recognition was sought was composed of "all
driver-salesmen, including full service drivers and their helpers, employed New
Orleans Bottling plant." 28 Eight days later, however, the Union again requested
recognition and bargaining, this time as the exclusive representative of "all driver-
salesmen and their helpers, full service drivers and their helpers . . . of the
company." [Emphasis supplied.] While the original request was apparently limited
to the New Orleans employees the later request presumably included the Covington
employees. Furthermore, while the original request apparently included only the
both Fazzio and Walker. When asked whether he made the memorandum on Fazzio
'imself the record shows the following questions and answers
A. I made some and Mr Weber some of them.
Q When were they made up?
A. Various dates
Q. In other words you kept a book?
A Everytime he was disobedient or disobeyed Company rules a record was made
of it.
Q When did you start keeping this record?
A. I don't recall the exact date.
Q Beginning in January 9
A. It was in January
Q You hadn't kept records on Fazzio prior to that; is that correct"
A. No, we had verbal conversations with him, but no written records.
21 In addition to the bottling plant located in New Orleans from which about 90 percent
of Respondent's distribution routes were run, Respondent, at all times material, main-
tained a warehouse at Covington, Louisiana, some 45 or 50 miles from New Orleans from
which the remainder of its routes were run.
GULF BOTTLERS, INC. 875
helpers of the "full service drivers" 29 the later request encompassed all helpers. I
draw no specific conclusions from these facts other than to note that apparently
there was some equivocation and confusion on the part of the Union as to the unit
it claimed to represent. Of course, if the later request is interpreted as including the
Covington employees it is in conflict with the claim made by the General Counsel
as to the appropriate unit.
2. The appropriateness of the unit
Respondent claims that helpers should not be included in a unit with the driver-
salesmen because the authority of the latter "to hire, fire, layoff, recall, discipline and
,direct their helpers . is diametrically opposed to any conceivable mutuality
of interest between the driver-salesmen and his helper." In this connection Respond-
ent states that "on the one hand you would have the driver-salesmen, at least a
high school graduate, working on a commission basis with a relatively stable
employment prospect and on the other hand you would have the helper, a generally
illiterate employee, employed at a fixed rate of pay and with a history of casual
unstable employment." Much of the same distinction applied to the dnver-helper
relationship in the Wells Dairies case where the Board included the helpers in the
unit. Furthermore it is the customary practice of the Board to include helpers or
,apprentices in the units with the journeymen. Southern Bleachery and Print Works,
.Inc., supra. I see no reason to find the unit here inappropriate because of the
inclusion of the helpers.
Another contention by Respondent is that if it should be found that a unit of
driver-salesmen and their helpers is appropriate for collective bargaining here, "those
driver-salesmen and helpers from Covington appearing upon the same payroll as
the other driver-salesmen and helpers should be included within the unit." As of
December 8, there were 38 driver-salesmen and 23 helpers employed in New Orleans
and 3 driver-salesmen and 3 helpers employed in Covington 30-a total of 55 in
New Orleans alone or 61 including Covington. As of December 16 there were 35
driver-salesmen and 29 helpers employed in New Orleans-a total of 64. Addition
of the Covington employees would make a total of at least 70 at that time. While
I am inclined to agree with Respondent that the Covington employees should be
included in the unit I deem it unnecessary to make such a finding because of the
.conclusion I reach that even in the smaller unit, the General Counsel has failed
satisfactorily to establish that the Union represented a majority of Respondent's
,employees.
3. The card majority
There were 39 union authorization cards received in evidence. Of these, only 25
bear dates on or before December 8. As of that date, as indicated, there were 55
employees in a unit excluding Covington. Thus, as Respondent points out, accept-
ing the General Counsel's evidence at face value, it fails to establish a majority
as of December 8.31 Moreover, Respondent vigorously attacks the propriety of estab-
lishing a majority on the cards herein, when, as Respondent puts it, consideration is
given to "all evidence as to forged cards, questioned dates and conflicting identifica-
tion as to where and when cards were executed." In this connection Respondent
points to several conflicts in the General Counsel's evidence as to the time, place,
and circumstances of the signing of various cards 32
80 Full service drivers do not call on and sell customers but service vending machines
-only.
80 An additional employee, Vial Blank, was also employed at Covington at this time
he General Counsel contends he was a route supervisor and thus identified with manage-
ment. Respondent claims he was a driver-salesman and thus in the unit. In view of my
overall findings herein, resolution of this issue is unnecessary
81 Ollie Fortenberry's card (which is not Included in this group of 25), is dated Decem-
ber 1958. He testified that he signed it December 8 The addition of his card to those in
question would not be sufficient to change the fact that as of December 8 there were not
enough cards to show a majority.
ii For example, Lawrence Williams testified that helper James Frelow signed a card in
the plant yard on December 15, which is the date appearing on the card. According to
Williams, Frelow dated the card and wrote the address and the words "Pepsi Cola."
According to Munster's testimony, it was be who filled in the date, name, and company
on Frelow's card in the latter's presence at the union hall, after having been given the
card at that time by Lawrence Williams Helper James Matthews testified that Frelow
signed a card the day before he did. Matthews' card is dated December 11, 1958 Frelow
himself testified that Williams wrote the date and all the other writing on the card
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also relies heavily on the testimony of a handwriting expert , GilbertJ. Fortier, who testified inter alto that at least one card was a complete forgery 33
and that the dates on another had been changed from January 10, 1959, to Decem-
ber 10, 1958.34 While a large proportion of the evidence adduced through Fortier
involved trivial matters, I believe that much weight must be given to his opinion
as to the two cards in question-particularly in the absence of any countervailing
expert testimony . Moreover , in rejecting these two cards , as I do, I rely on evidence
and considerations which I feel are significant , independent of Fortier 's testimony.
Thus, with respect to the card of James Hampton which bears the date of December
10, 1958, the evidence shows that Hampton appears on the company payroll for the
first time on December 16, 1958. Furthermore , the card was received at the
Regional Office January 15, 1959 , which , if it had been signed January 10, would
be consistent with Union Representative Munster's testimony that "as additional
cards were signed they were presented to the Board ." With respect to Wesley
Jennings ' card I believe there is substance to Respondent 's contention "that it is
normal to err in writing the old year during the first months of a new year but the
converse is decidedly unusual , that is, to anticipate the change to the unfamiliar
new year."
Seven helpers' cards were introduced bearing the date December 8, 1958. Enig-
matically , Fazzio , who appears to have been the only driver who actively engaged
in recruiting union members among the helpers and who testified that his helper,
Lawrence Williams, brought several helpers to him where they signed cards for him,
testified that it "was not until after December 10th that I got any helpers to sign
these cards ." 35 Consistent with this testimony , Union Representative Munster
testified that the decision to organize the helpers was not made until after England
eliminated the quota requirement for helpers which, it will be recalled , occurred in
the meeting he had with the drivers on December 10. Nowhere in the record is
there any attempt to explain this glaring inconsistency . Adding to these anomalous
circumstances is this further factor: all of the cards involved here (consistent with
Munster's testimony that as cards were received by him he would transmit them to
the Regional Office), show the Regional Office 's intake stamp except the seven
helpers' cards dated December 8 plus the card labeled a forgery by Fortier and the
card of James Frelow . The evidence shows that cards were received by the Regional
Office on December 8, 11, and 18 , 1958, and on January 15, 1959 On December
8, 19 cards were received-all drivers' cards . On December 11, six cards were
received ; four of them were helpers' cards , one dated December 9 and three dated
December 11; two were drivers' cards dated December 9 and 10 . On December 18,
three helpers' cards were received all dated December 12. On January 15, two
more helpers ' cards were received : one being that of James Hampton which Fortier
testified was overwritten from January 10, 1959, to December 10, 1958, and the
other being that of Douglas Patterson dated December 12, 1958. Again, there is no
satisfactory explanation why the seven cards in question should not have been
received by the Regional Office when helpers ' cards dated later than the seven had
been received.
On the foregoing evidence and considering all of the circumstances herein, I am
of the opinion that these seven cards, too , must be disregarded in determining the
extent of the employee organization by the Union as of any given date. The Gen-
eral Counsel contends that when all the evidence is "boiled down we have simply a
group of illiterate , uneducated , scared colored men (and some were mere boys)
who testified that they signed a union designation card about a couple of weeks
before Christmas ." While the General Counsel 's description of the witnesses is ac-
curate , his synthesis of their testimony (at least as regards these seven cards ), is not.
Thus of the seven only two related their signing to a more or less definite period
before Christmas, testifying that they signed 2 or 3 weeks before that day 36 1 am
fully cognizant of the handicap under which these witnesses testified and I sym-
except the signature and that this took place in the "check in" room of the plant. In
another example Williams testified that Douglas Patterson signed his card at Williams'
home while Patterson testified that he signed it in a car at the plant.
ss General Counsel's Exhibit No. 15-1, purporting to be the card of helper Wesley
Jennings.
S' General Counsel's Exhibit No 15-7, the card of helper James Hampton It should
be recalled that the crucial date at this point is December 16, 1958.
3e In spite of this testimony, Fazzlo identified three helpers' cards dated December 8 as
having been signed in his presence on that date
se These two were Oscar Clark and Glen Bullock Another helper, Ollie Fortenberry,
testified that he signed before Christmas but gave no estimate how long before
GULF BOTTLERS, INC. 877
pathize with the General Counsel because of the difficulty witnesses of this caliber
present in proving a case. But I am not at liberty to surmise or guess as to crucial
facts-particularly where there are so many questionable factors as are reflected in
the foregoing evidence.
The lack of majority status of the Union as of December 8 has already been
noted-even were I to accept the December 8 helpers' cards at face value. The
elimination of those cards, of course, accentuates that finding. Furthermore, when
those seven cards and the cards of Hampton and Jennings are eliminated it is clear,
and I find, that the General Counsel has failed to prove that the Union represented
a majority of the employees even in the smaller of two possible units as of December
16, the date of its later request for recognition and bargaining. Absent a showing
of majority representation of the employees by the Union, Respondent, of course,
was under no obligation to recognize it as the bargaining agent of those employees.
In reaching the conclusion that Respondent did not violate Section 8(a) (5) of the
Act I wish to make it clear that I do not believe or find that Respondent's refusal to
recognize the Union when the demands for recognition were made, was motivated
by a good-faith doubt of majority or any question as to the unit involved. Respond-
ent's conduct in the whole matter belies the slightest concern with any of the Act's
necessary conditions precedent to union recognition and collective bargaining and
shows a definite purpose to avoid recognizing the Union regardless of any possible
legal obligations it might have had to do so. That those conditions precedent have
not been satisfactorily established by the evidence is simply a windfall for Respond-
ent in this connection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, it
shall be recommended that the Respondent cease and desist therefrom and take cer-
tain affirmative action which it is found necessary to effectuate the policies of the
Act.
Having found that Respondent unlawfully assisted Gulf Bottlers Employees'
Association I shall recommend that Respondent (1) withdraw and withhold all
recognition from said association as the collective-bargaining agent of its employees
unless and until said Association shall have been selected as the bargaining agent
of said employees in a Board-conducted election, (2) cease giving effect to its
contract of December 1958, or any other agreements with association or to any
extensions, renewals, or modifications thereof until said Association shall have
demonstrated its exclusive representative status pursuant to a Board-conducted
election.
With respect to the discrimination found herein I shall recommend the usual
remedy of reinstatement for Fazzio and Walker 37 to their former or substantially
equivalent positions and that Respondent make them whole for any loss of pay in
the usual manner.38
I shall also recommend that Respondent cease and desist from engaging in con-
duct violating Section 8 (a) (1) of the Act.
The Respondent's infractions of Section 8(a) (1), (2), and (3) of the Act, herein
found, disclose a fixed purpose to defeat self-organization and its objectives. Be-
cause of the Respondent's unlawful conduct and its underlying purposes, I am
persuaded that the unfair labor practices found are related to other unfair labor prac-
tices proscribed by the Act and that the danger of their commission in the future
is to be anticipated from the course of the Respondent's conduct in the past. The
preventative purpose of the Act would be thwarted, unless the remedial order is
coextensive with the threat. In order, therefore, to make effective the interdependent
i Since the General Counsel stated that no backpay was being sought with respect to
the 1 day's loss of employment on December 10, 1958, when Respondent refused to let the
routes go out I make no recommendation in that connection.
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
(lb NLRB 827; Crossett Lumber Company, 8 NLRB 440, Republic Steel Corporation v.
N.L R B., 311 U.S 7; F W. Woolworth Company, 90 NLRB 289.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guarantees of Section 7, to prevent a recurrence of unfair labor praetices and thus
to effectuate the policies of the Act, it will further be recommended that the Re-
spondent be ordered to cease and desist from infringing in any mariner upon the
rights 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. International Union of United Brewery, Flour, Cereal , Soft Drink and Dis-
tillery Workers of America, AFL-CIO , and Gulf Bottlers Employees ' Association,.
are labor organizations within the meaning of Section 2(5) of the Act.
2. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. By contributing assistance and support to Gulf Bottlers Employees ' Associa-
tion , Respondent has engaged in and is engaging in unfair labor practices. within
the meaning of Section 8 (a) (2) and ( 1) of the Act.
4. By discriminating against its employees in regard to their hire or tenure of
employment thereby discouraging membership in or activities on behalf of the Union,.
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and ( 1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7 ) of the Act.
6. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a) (5) of the Act.
[Recommendations omitted from publication.]
Minneapolis -Honeywell Regulator Co. and Tool and Die Makers
Lodge No. 113, International Association of Machinists, AFL-
CIO, Petitioner. Case No. 13-RC-7058. May 20, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hymen Bear, hearing officer.
The hearing officer's rulings made at the hearing are free from pre-
judicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins]..
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. On March 2, 1960, the Petitioner filed a petition seeking to sever
a unit of all toolroom employees from an established production and
maintenance unit. At the hearing on March 23, the Petitioner stated
it was willing to include model shop employees in the unit, if the
1 United Electrical , Radio and Machine Workers of America, and Its Local 1114, inter-
vened at the hearing.
127 NLRB No. 108.