Kem Distributing Co.Download PDFNational Labor Relations Board - Board DecisionsApr 20, 1966158 N.L.R.B. 158 (N.L.R.B. 1966) Copy Citation 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees aie free to become or remain, or to refrain from becoming or remaining, members of any labor organization. SHEFFER CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- cation in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board' s Regional Office, Federal Office Building, Room 2023, 550 Main Street, Cincinnati, Ohio, Telephone No. 684-3627. Kem Distributing Company and Truck Drivers & Helpers Local Union No. 728. Case No. 10-CA-6195. April 20,1966 DECISION AND ORDER On December 15, 1965, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled proceeding, finding that the Respondent has engaged in and is engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respond- ent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The complaint alleges, but the answer of the Respondent, Kem Distributing Com- pany, denies, that on or about July 14, 1965, the Respondent committed unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C., secs. 151, et seq., herein called the Act, by discharging, and thereafter failing and refusing to 158 NLRB No. 16. KEM DISTRIBUTING COMPANY 159 reinstate , one of its employees , John C Thomann , because of his membership in, and activities on behalf of, Truck Drivers & Helpers Local Union No 728, herein called the Union, and because he engaged in concerted activities with other employ- ees for the purposes of collective bargaining and other mutual aid and protection The complaint was issued and served upon the Respondent on August 17, 1965, and is based on a charge filed by the Union and served on the Respondent on July 21, 1965 Pursuant to notice , a hearing was held in Savannah , Georgia, on October 25, 1965, before Trial Examiner William F Scharnikow The General Counsel and the Respondent appeared by counsel and were afforded full opportunity to be heard, to examine and cross examine witnesses , and to introduce evidence on the issues Since the hearing, I have received and considered briefs submitted by the General Counsel and counsel for the Respondent Upon the entire record in the case, and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, Kern Distributing Company, is a Georgia corporation which maintains its principal office and place of business in Savannah , Georgia, where it is engaged in the sale and distribution of beer at wholesale During the representative 12 month period preceding the issuance of the complaint , the Respondent purchased and distributed goods of a value exceeding $50,000 which it received directly from points outside the State of Georgia I find that the Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to enteitain jurisdiction of this case H THE LABOR ORGANIZATION INVOLVED Truck Drivers & Helpers Local Union No 728 is a labor organization within the meaning of the Act III THE UNFAIR LABOR PRACTICES A The facts In addition to selling and delivering draught beer on a citywide route served by Manager Frank T Waters, the Respondent sells and delivers containers of beer by the case to bars and restaurants in Savannah on an east side route and a west side route In December 1964, J Emory ("Smokey") Powell, the Respondent's secretary and general manager, hired John C Thomann as driver-salesman on the Respond- ent's west side route On July 14, 1965 , about 7 months later, Powell discharged Thomann The question presented in this case is whether the Respondent discharged Thomann because he drank beer on the job or because he attempted to organize the Respondent 's employees and proposed to General Manager Powell that the Respond- ent be the first Savannah beer distributor to recognize the Union as the bargaining repiesentative of its employees Thomann, General Manager Powell, and Manager Waters were the principal wit- nesses at the hearing Each of these three witnesses showed a marked tendency to color his testimony, to exaggerate , omit, obscure , or gloss over details in accordance with his apparent interest in the outcome of the case Consequently, a common- sense appraisal of their testimony does not permit full acceptance of all of the testi- mony of any one witness Instead, in making my factual findings , I credit and rely on only the various elements of the testimony of each of these witnesses which appear to be plausible in overall context and in the light of my observation and appraisal of the particular witness and the other principal witnesses The following story which then emerges is comparatively simple and is based on what I regard to be the credible evidence given at the hearing Of course , when not otherwise indicated, my findings are made on uncontradicted evidence Some of the principal points of square testimonial conflict are set forth and resolved in the text But in a number of instances , I make a series of closely related and detailed findings concerning Thomann 's hire and his subsequent conduct , on the basis of plausible kernels of the variant testimony of several witnesses, and not completely nor indis- criminately on the testimony of any one of these witnesses In these last -mentioned instances, I have found it advisable merely to state my findings briefly in the text in order to avoid unnecessary and confusing interruptions of the narrative In the case of each of these findings , a summary of the pertinent conflicting or variant testimony which I have considered is given in a footnote 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Thomann was hired by General Manager Powell in December 1964, they talked in the presence of Manager Waters about Thomann's discharge by Henry Screws Company, another Savannah beer distributor for whom Thomann had last worked as a driver-salesman for approximately 22 months. Powell had been informed that Screws had discharged Thomann for drinking beer at his customers' places of business and causing disturbances and that four of Screws' customers had objected to Thomann's continuing to call on them.' In his conversation with Powell, Thomann admitted drinking beer when he made deliveries to Screws' customers and that, although his discharge was entered on Screws' records as a "seasonal layoff," the real reason given to him by Screws was that he "had made four accounts mad at [him] on the West Side and that [he] wasn't allowed back in them . . . :' 2 More- over, Thomann gave Powell the names of three of these four accounts, explaining that in each case there had been some misunderstanding between him and the cus- tomer but that "it wasn't his fault." 3 And Powell said he "could understand how it could very easily happen to [Thomann] ... if he had too much to drink ... ."4 Powell then agreed to hire Thomann as the Respondent's driver-salesman on its west side route, with the understanding that his employment might be terminated in 60 days by either the Respondent or Thomann, without any "hard feeling" on either side .5 But Powell did tell Thomann at the end of their conversation that the Respondent did not permit drinking on the job. When Powell said this, Thomann asked him "if he was kidding; that he knew I drank on the job. He knew I built up my business with [Screws] by drinking at his customers' places ... and that's the way i This finding is based on Powell 's testimony showing his belief (whatever his source and whatever the facts may actually have been ) that, in hiring Thomann, he was hiring a driver -salesman who not only drank while on the job but who had gotten into difficulty because of it and had been discharged therefor by his previous employer. "The portion of the above finding concerning Thomann's admission to Powell that he had drunk while on the job for Screws is based upon Thomann 's testimony that he made such a statement in protesting Powell 's prohibition of his continuing to drink in the Respondent 's employ . ( See the text and footnote 6, below.) Powell testified he could not recall any such explicit admission by Thomann although Powell knew Thomann had the habit of drinking while on the job for Screws. (See the preceding footnote.) The quoted language on which the remaining portion of the finding in the text is primarily based is an excerpt from Thomann 's testimony . Thus, in his testimony, Thomann avoided reference to any connection between his drinking, his exclusion from these four accounts, and his discharge by Screws. According to Powell's testimony how- ever, Thomann, in giving Powell "the reasons why . . . [Screws] had let him go," referred to "the accounts he was not permitted to enter . . . [and] his excessive drink- ing on the job and off the job." The overall finding made in the text at this point is thus based both on the foregoing elements provided by Thomann's testimony and Powell's testimony. In my opinion, they show that Thomann in effect admitted to Powell that (whether deservedly or not) he had been discharged by Screws because of his drinking on the job and his antagonizing, and being thereafter excluded by, four of Screws' customers. S This finding is made on the testimony of Powell and Waters to the effect that the places named by Thomann were the Whitaker Street Bar, the Palms, and the Dungeon. Thomann's testimony on this particular point was that, although Screws had told him when he was discharged that he had been excluded from four of its accounts, Thomann did not know which accounts they were supposed to be, even at the time of the hearing in the present case, and that, as a matter of fact, he had called on all of his former accounts while later working for the Respondent. He thus implied that he had not told Powell that he had been excluded from any specific accounts of Screws. But at another point in this testimony, he' admitted that he had mentioned to Powell the Whitaker Street Bar as an account from which he had been excluded. He specifically denied having mentioned either the Palms or the Dungeon and testified that, as a matter of fact, he had voluntarily stopped calling on the Dungeon because its proprietor preferred to con- tinue dealing with the east side driver who had served his place at its former location on the east side route. 4 This finding is based on Powell's testimony which I believe to be credible on the point and which lends further support to my finding that Thomann's drinking while on the job for Screws was discussed by Thomann and Powell. 6 This was the testimony of Thomann which I accept. Powell testified merely that Thomann's employment was to be on a "trial basis" for 60 days. KEM DISTRIBUTING COMPANY 161 it caused you to get extra sales ... which would mean more money to me and more money to him, too." But Powell walked away without replying.6 During his 7 months ' employment by the Respondent , Thomann increased the sales on his west side route by 20 percent . Throughout this period he continued to drink beer at his customers ' places of business both when making deliveries and in his off hours . Furthermore , both General Manager Powell and Manager Waters knew he was drinking on the job and showed no disapproval as long as he did not drink too much . On one occasion in March 1965 , General Manager Powell accom- panied Thomann on his route and actually bought him two beers while they were calling on one of their customers .? Manager Waters , too, saw Thomann drinking beer at customers' places "at least" 15 times while Thomann was on the job, and bought beer for Thomann on 4 or more of these occasions in the period from 2 weeks to 3 months immediately following Thomann 's hire by the Respondent. And on another occasion when Thomann made a delivery at one of his customer 's places in the first 2 weeks after his hire , Waters bought beer for his own "helper" as well as for Thomann ( although Waters drank only a Coke ) and then said to Thomann, "We know you and Buddy [the Respondent 's other driver-salesman] drink beer and we know, also , that you can handle it; but 'Smokey' [Powell] couldn 't just come out and tell you to drink all you want, which is the reason for [his ] initial statement Ithat the Respondent didn't permit drinking on the job] .... One thing you don't want to do is let [Powell ] catch you." 8 In only one instance during the 7 months of Thomann 's employment , is it claimed by the Respondent that any actual difficulty arose as a result of Thomann 's drinking on the job . The incident occurred while Thomann was drinking beer shortly after noon on a Saturday in March or April 1965 at the Quail Room, one of the Respond- ent's customers on Thomann's route . Before stopping there, Thomann had made 8 Thomann , Powell, and Waters all testified that Powell told Thomann the Respondent did not permit drinking on the job. Powell testified that Thomann made no reply. Although Waters testified he had heard all of Powell 's and Thomann 's conversation, he was specifically questioned only as to whether there was any mention of the names of Thomann 's disgruntled customers and as to whether he heard Powell 's prohibition of drinking . Waters did not testify generally as to the full conversation nor whether Thomann made any reply to Powell 's prohibition . Despite Powell's denial, I have credited Thomann's testimony that he did in fact make the reply set forth in the text and that there was no further comment or remark made by Powell. a This finding is based on Thomann 's testimony , despite Powell 's denial at the hearing. Thomann testified that Powell rode with him on his route this particular day to push the sale of one of the Respondent 's brands and that , on their securing a new order for the brand from one of their customer-bars at the end of the day, Powell had bought himself and Thomann two beers a piece at this customer -bar before driving Respondent's truck back to the warehouse and then taking Thomann and his wife to another bar for a further celebration that evening . Powell testified that he had never bought Thomann any beer while Thomann was on the job although , on the occasion to which Thomann ,apparently testified and also on one other occasion , he did buy both Thomann and his wife several beers in the evening after work. 8 The substance of Thomann 's testimony is again credited and provides the basis for the findings made in this and the preceding sentence of the text . Whether deliberately, through oversight , or because of the narrow phrasing of the questions put to them by Respondent 's counsel, neither Waters nor Powell denied having seen Thomann drinking on the job while he was working for the Respondent. Nor did Waters deny Thomann's testimony to the effect that he told Thomann that both he and Powell knew Thomann and their other driver were drinking on the job, that Powell 's prohibition of drinking on the job was perfunctory , but that Thomann should not let Powell catch him drinking. Instead, Waters' testimony was merely that he himself drank no beer or other alcoholic beverage , and that he could not remember buying Thomann any beer "on the job" al- though like Powell he did buy beer for Thomann and his wife in the evenings-on one occasion when Waters made a special delivery of a keg of beer to one of Thomann's customers and on another occasion at a place where Waters sometimes tended bar in the evening. Waters further denied having bought his own "helper" a beer while they were both at work at a customer 's place ( as Thomann had testified), explaining ( as if this were the reason for his certainty ) that he had never had a "helper ." But Waters later testified that an "advertising man" did sometimes accompany him in his work. 221-731-67-vol. 1 5 8-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 special deliveries to other customers of a total of 37 cases. Manager Waters had sent him out on the first two of these deliveries at 10 o'clock that morning and then, upon Thomann's telephone call from the second customer's place , dispatched Thomann on the third delivery. After making the third delivery, Thomas stopped off at the Quail Room where he again telephoned Waters. Waters told him that there were no more "calls," that no more would be taken, and that Thomann was "to come on in ." Having thus made his "last stop," Thomann joined some friends at the Quail Room bar and during the next hour had several beers, and perhaps a couple of sandwiches as he had "on numerous occasions" according to Willis Edwards, the Quail Room's waiter and bartenders It is clear that on this occasion Thomann was neither making a delivery nor con- ducting any other business for the Respondent at the Quail Room. He had no order to deliver there and his regular calling day upon the Quail Room in the course of his route was Wednesday and not Saturday. Furthermore, Saturday was a day on which the Respondent did not operate its routes but merely maintained a skeleton crew at its warehouse to deliver such special orders as might be telephoned into the warehouse by its customers. Such special Saturday orders were ordinarily received and the deliveries completed by noon after which, the driver- salesman who happened to be on duty that Saturday was free to return to the warehouse and quit for the day. Thus, in view of Manager Waters' response to Thomann' s telephone call when the latter arrived at the Quail Room that Saturday, it appears that Thomann's work for the day had been completed except for the return of his truck to the warehouse. While Thomann was sitting at the Quail Room bar, Edwards, the bartender, tele- phoned Manager Waters, without telling Thomann he was doing so, that Thomann was there at,the•,Quail Room and that Edwards "thought ... Thomann had just a little too-much to drink to be driving a truck and ... needed some help ... purely for safety reasons ...." 10 After receiving this call from Edwards, Waters either actually came out to the Quail Room and told Thomann he had been drinking too, much and was to bring the truck back to the warehouse (as Waters testified) or merely telephoned Thomann at the Quail Room that he was to come, back to the warehouse (as Thomann testified) 11 On this point, I credit Waters' testimony and find that Waters did come out to the Quail Room and told Thomann to return to the warehouse. In any event, it is undis- puted and I find, that despite Waters' and Edwards' professed uneasiness as to Thomann's condition, Waters permitted him to drive the truck back to the warehouse. It is also undisputed, and I further find, that the incident prompted no immediate discipline of Thomann, and that Waters did not even report it to General Manager Powell until Powell asked him about it 3 or 4 months later upon learning of it in a casual conversation with Edwards. What was Thomann's actual or apparent condition while at the Quail Room that Saturday in March or April 1965? What was the significance of the entire incident in relation to Thomann's discharge more than 3 months later? These are the ques- tions posed by the evidence and must be decided in the light of all, and not merely a part, of the relevant evidence. Edwards' testimony has convinced me that, on the basis of his observation of Thomann before Edwards called Waters, Edwards had reason to believe Thomann "had too much to drink." Furthermore, although I credit Waters' denial, it seems significant to me that Thomann testified that, before Waters sent him out on deliveries that Saturday morning, he told Waters he had a "hangover" from the previous night. For, by this testimony, Thomann not only attempted to place responsibility on Waters O The above findings concerning Thomann 's activities that morning and the substance of his telephone calls to Waters and Waters ' answers are based on Thomann ' s testimony which I credit in these respects . In his testimony , Waters referred only to his dispatch- ing Thomann on the third delivery that morning and his later receipt of Edwards' call from the Quail Room (which I discuss later in the text ). Waters further testified that although he did not remember it, he would not deny that Thomann had telephoned him during that morning , since the "drivers all call in on Saturday morning " m The quotation is taken from Edwards' testimony which I credit Waters' testimony concerning the call he received from Edwards was to the same effect. u From Edwards' testimony it appears that Edwards did not see Waters but merely assumed Waters did come out to the Quail Room because Waters had told Edwards he would do so. BEM DISTRIBUTING COMPANY 163 for his working with a "hangover" and in apparently dubious condition,12 but also in effect conceded that there might have been some doubt as to his condition when he arrived at the Quail Room. But, on my appraisal, the evidence considered as a whole has also convinced me that Thomann's condition was not as serious as Edwards first thought and the Respondent now wants the Board to believe; that, after a not unreasonably long midday stop at the Quail Room, Thomann was apparently capable of driving his truck back to the Respondent's warehouse before quitting for the day; and (most important) that this isolated incident, occurring as it did against the background of the Respondent's actual tolerance of Thomann's moderate beer drinking on the job as well as against Tho- mann's continuing increased sales of the Respondent's bees, did not in fact eventually motivate the Respondent's discharge of Thomann 3 months later. For all we have in the record concerning Thomann's drinking that Saturday is Edwards' testimony that Thomann may have had only one beer at the Quail Room and Thomann's testimony that he had two beers there. Thus there is actually nothing to indicate that Thomann's drinking that day in April or March was immoderate and likely to have had an appreciable or apparent effect on him, unless (and here the record is silent) he had also been drinking earlier in the day before he reached the Quail Room. Furthermore, from the fact that Waters permitted Thomann to drive back to the warehouse, it appears that, on arriving at the Quail Room and after seeing and speaking with Thomann, Waters must have believed that Thomann was then capable of driving safely. Finally, as I have noted and both Waters and Powell testified, Waters never did report the incident to Powell until Powell, learning about it from Edwards 3 months later when Thomann was organizing the Savannah beer drivers and pressing Powell for union recognition, asked Waters what had happened. It is true that Waters attempted to justify his omission of any earier report to Powell, and this incidentally to give support in the present record to the Respondent's conten- tion that Powell had a strict rule against drinking on the job, by testifying that he knew that if he reported the incident to Powell, "Mr. Powell would fire him right then." But I do not credit this explanation. Instead, I find, for the reasons just sum- marized, that Waters did not report the March or April incident to Powell because, having checked on Thomann's condition, he did not then regard the incident as being serious nor did he believe that Powell would regard it as being serious enough to require any discipline, much less discharge. Thomann first heard in February 1965 that a union was interested in organizing the driver-salesmen for the beer distributors in Savannah. At that time, he went to Manager Powell and denied the truth of rumors that he (Thomann) was active in such a move. Between June 10 and 25, however, Thomann did sign an application for membership in the Charging Union. Following this, he asked other employees of the Respondent 13 to join the Union, and also the driver-salesmen of other Savannah beer distributors who, with the Respondent, are members of the Savannah Beer Wholesalers' Association. Then, meeting General Manager Powell at a bar on Friday evening, July 9, he urged Powell "to be the first [Savannah distributor] to go union," pointing out what he considered to be the advantages to the Respondent in such a course. But Powell would give him no answer.14 On the following Monday, July 12, General Manager Powell received a telephone call from Helen Summerlin, secretary of Wilbur Mathis, the Charging Union's busi- ness agent. Summerlin testified: I told Mr. Powell that I was Mrs: Summerlin, secretary to Wilbur Mathis, Busi- ness Agent for the Teamsters Local, and I was calling him in reference to recog- nition as representative of his employees ... that Mr. Mathis would like to meet with him that day at his convenience and Mr. Powell said that his calendar was full for that day, but he would check his calendar and call back. 12 Since I credit Waters ' denial of Thomann 's testimony on this point , I make no such finding. 13 Thomann testified that he also solicited a union membership application from Man- ager Waters, although it was stipulated by counsel at the hearing that Waters was a supervisor within the meaning of the Act . In any event ( although not without some doubt), I credit Waters' denial that Thomann had solicited his application. 14 Powell and Thomann , as well as Mrs Thomann ( who was with her husband), all testified that this was the essential substance of the conversation. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But General Manager Powell testified as follows concerning this conversation: . [Mrs. Summerlin] called me and said that Mr. Mathis or Mathison-I forget which she did say-wanted to talk to me about the Union. I told her I was real busy and I would check my calendar and call her back if time permitted ... I do not recall her mentioning the name of the union at all [but she did not say the Union represented the majority of the Respondent's employees]. I didn't know what the reason-what pertaining to the union she was calling about [nor who Mathis or Mathison was]. I didn't know whether she was calling in regard to a contribution, an ad in a magazine or what she was calling about. She said that Mr. Mathis or Mathison wanted to talk to me, but she didn't say in what respect. Upon consideration of this conflict between Summerlin's and General Manager Powell's testimony as to the substance of their telephone conversation, I credit the testimony of Summerlin. Accordingly, I find that Summerlin told Powell on Monday, July 12 (and Powell understood), that the Union's business agent wanted to confer with Powell about the Respondent's recognition of the Union as the representative of the Respondent's employees. Furthermore, I find that Powell could not help but connect this request with Thomann's urging Powell to recognize the Union only several days before this, and that he must have realized that Thomann was involved in an attempt to organize the Respondent's employees and procure representation for them by the Union. On Tuesday morning, July 13, the day following the Union's call to General Manager Powell, bartender Edwards of the Quail Room telephoned Powell and, as a result of this call, Powell went out to see Edwards at the Quail Room that afternoon. From Powell's testimony, it would appear that Edwards telephoned him simply to report that Thomann had been drinking at the Quail Room while serving his route the previous day, and that Powell, surprised by this information, visited Edwards that afternoon and then learned for the first time that Edwards had seen Thomann "drink- ing on numerous occasions" and (referring to the Saturday incident in March or April) had once had Manager Waters bring him back to the warehouse.15 But there were significant differences between this version of the conversations given by Powell and the version given by Edwards in his testimony. Edwards testified that in his telephone conversation with Powell he ordered a keg of draught beer for the Quail Room; that in the course of their conversation he told Powell that on the preceding day, Monday, Thomann had a couple of beers and a sandwich at the Quail Room; that this was all he then said to Powell about Thomann; that he did not say that Thomann had too much to drink on Monday, because that was not so and Thomann was "all right"; and that at the end of the telephone conver- sation, Powell merely said he would be out to see Edwards. As to his conversation with Powell that afternoon, Edwards testified that Powell asked him how many beers Thomann had had on Monday and Edwards said, "A couple was all I knew about"; that Edwards further told Powell he thought the latter should know not only that Thomann had drunk beer at the Quail Room that Monday, but that Thomann had at other times been "out there drinking and had a sandwich along with it"; 16 and that Edwards finally told Powell that afternoon about the Saturday incident in March or April when he had telephoned Waters because he thought Thomann was not in a safe condition to drive his truck. Upon consideration of this testimony of Powell and Edwards as to their conversa- tions over the telephone and at the Quail Room on Tuesday, July 13, I credit in full the testimony of Edwards in the detail just summarized. I further specifically con- clude therefrom (contrary to any impression that might otherwise be created by Powell's testimony) that Edwards telephoned Powell and ordered a keg of beer; that 15Powell's full testimony as to these conversations was the following: [On the (telephone , Edwards] told me that if I didn 't know that John [Thomann] was drinking on the job, he thought I should know . . . . I asked [Edwards] when he had seen him drinking and he said the morning of the day before . . . . During the day, I went out to see Mr . Edwards . . . . He reaffirmed what he had told me on the phone , that he had seen Mr. Thomann drinking the day before and he said that he had also seen him drinking on numerous occasions and that he had called once before about Mr. Thomann when I was out of town and had Mr. Waters come out and tell him to come in to the warehouse . . . . [He] told me it was several months prior ; however , he didn't tell me a specific date. i$ In answer to the question whether these occasions were "numerous ," Thomann used the phrase , "some few times ," explaining that "I don't know whether it was numerous- I don't know how many that would be .. . . KEM DISTRIBUTING COMPANY 165 it was not his intention to report Thomann 's drinking beer at the Quail Room the previous day or for that matter at any other time; that , as a matter of fact , Thomann had had a sandwich with his beer that morning and his condition had been "all right"; that , in the telephone conversation , Edwards merely mentioned off-handedly that Thomann had been in the Quail Room the day before ; that Powell then came to see Edwards that afternoon and pressed Edwards for further information concerning Thomann 's beer drinking which I believe he was considering using as the basis for Thomann 's discharge the next day; that, to Powell 's question as to how many beers Thomann had drunk on Monday, Edwards simply said that "a couple was all I knew about" ; but that Edwards then volunteered the further information that Thomann had drunk beer and had sandwiches at other times at the Quail Room, and that on one occasion 3 or 4 months before this, he had reported to Waters that he thought Thomann was not in a satisfactory condition to drive his truck. Following his conversation with Edwards, General Manager Powell asked Manager Waters, before the end of the same day, about the Saturday incident in March or April. According to Powell , Edwards' "report" and Manager Waters' verification of the 3-month old incident were the only reports which Powell received about Thomann's drinking on the job. Nevertheless , on the following morning, Wednesday , July 14, Powell called Thomann into the office and , without offering any explanation or ques- tioning Thomann , told Thomann "that was the last day of [his ] employment with Kern Distributing Company." On Thomann 's asking why he was discharged , Powell said it was for "drinking on the job," but refused to tell Thomann where he was charged with drinking on the job or who had complained about him. B. Conclusions The foregoing findings present all the material facts shown by the credible evidence in the instant record . Upon a proper appraisal of these facts and of the actors in the case (whom I had ample opportunity to observe while they were on the witness stand) depends the ultimate conclusion as to whether the Respondent discharged Thomann because of his drinking on the job or because of his known union activity and support. As I have noted in passing , 17 when General Manager Powell hired Thomann in December 1964, he knew he was hiring a driver -salesman who not only drank while on the lob but who had gotten into difficulty because of it and had been discharged therefor by his previous employer. Because Thomann was a good beer salesman, as his 20 -percent increase in the Respondent 's route sales later confirmed , Powell hired him but warned him that the Respondent permitted no drinking on the job. The Respondent relies on this warning as a strict , absolute prohibition of all drink- ing on the job and contends that Thomann 's disobedience of this prohibition was the reason he was fired . But consideration of the facts already found on the credible evi- dence precludes giving Powell 's warning such literal construction and effect . Instead- as shown by Powell 's failure to override Thomann's retort as to the desirability of his drinking at his customers ' places, by Manager Waters' later flat statement to Thomann as to Powell's exact intention , by Waters ' buying beer for Thomann on four or five occasions while both were on the job , and by Powell 's and Waters ' making no objection to Thomann 's beer drinking throughout the 7 months of his employment although they knew of it-it was obviously Powell 's intention (and Thomann had ample reason for knowing it) merely to assert in the strongest terms possible, and thus to preserve for himself , a broad, untrammeled , discretionary control over Tho- mann 's drinking to prevent its becoming excessive , but at the same time wink at such moderate drinking as might boost the Respondent 's sales. In effect , therefore, so far as there was any reasonably understood rule governing Thomann's drinking, it was that Thomann should not drink to an excess-not that he should not drink at all on the job. Therefore , by merely drinking beer in moderation at his customers ' places of busi- ness while he was on the job, as he admittedly did throughout his employment, Tho- mann did not disobey his employer's reasonably understood instructions. Nor is there any basis in the credible evidence for finding that Thomann drank to excess at any time while on the job for the Respondent and thus gave Powell apparent reason for discharging him, even in the only two incidents about which Powell learned from Edwards and upon which Powell based his discharge of Thomann. Certainly, Edwards' testimony concerning Thomann's visit to the Quail Room on Monday, July 12, is that Thomann had only a couple of beers and a sandwich . Similarly as to 17 See footnote 1, above, and related details of my findings in the text as to the sub- stance of General Manager Powell's and Thomann's conversation at the time Powell hired Thomann. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Saturday incident in March or April, as I have already found, all that appears from the evidence is that Thomann had one or two beers and that, although to Edwards his condition seemed dubious, Waters obviously thought he was fit to drive the truck back to the warehouse and made no report of the incident to Powell apparently because he did not believe it was serious enough to require any discipline of Thomann, much less discharge. Powell's assertion in his testimony that he discharged Thomann solely on the basis of Edwards' accounts of these two particular incidents and of the "numerous" times Edwards had seen Thomann drinking on the job, and on Waters' belated corroboration as to the March or April incident, is in itself questionable even aside from any con- sideration of Powell's recently acquired suspicion, if not actually knowledge, of Thomann's involvement in organizing for the Union. For, according to the testi- mony of both men, nothing in Edwards' account to Powell of the July 12 incident or even of the "numerous" times Edwards had seen Thomann drinking on the job, sug- gested that on these occasions Thomann had engaged in the immoderate or excessive drinking which I have found it to have been Powell's intention to prohibit. And, as to the March or April incident, even if Powell had believed it to be an instance of excessive drinking, it had been apparently an isolated instance, had occurred long before Edwards told Powell about it, and had not interrupted Thomann's continuing increase in the Respondent's route sales, so that it appears extremely unlikely that Powell would have discharged him for the March 'or April incident alone, particu- larly without first giving Thomann a chance to deny or explain. The real reason for Powell's discharge of Thomann appears, in my opinion, only on a consideration of the rapidity with which Thomann's discharge followed Powell's apparent realization that Thomann was engaged in organizing the driver-salesmen and that, as a result, the Respondent might be required to recognize the Union as its employees collective-bargaining representative. Thus, as I have found, on Friday night, July 9, Thomann urged Powell to be the first Savannah distributor to recognize the Union; on Monday, July 12, the Union asked Powell to confer about recognition; on Tuesday, July 13, on Edwards' casually mentioning the fact to Powell that Tho- mann had "a couple of beers" at the Quail Room the day before Powell visited Edwards, pressed him for more information about Thomann's drinking, and learned of the long-past March or April incident; and on the next day, July 14, Powell dis- charged Thomann for "drinking on the job" without giving Thomann a chance to deny or explain the charge. In view of the insubstantiality of the grounds thus asserted by Powell, as shown in my earlier discussion, as well as the apparent immediate stimulus provided by Tho- mann's obvious involvement in the Union's oganizational activity, I conclude that Powell discharged Tohn C. Thomann, not for any drinking on the job but because he was obviously engaging in the Union's organizational activities and to attempt to secure recognition from the Respondent. I further conclude that by thus discharging John C. Thomann on July 14, 1965, the Respondent interfered with, restrained, and coerced its employees in the exercise of the organizational rights guaranteed by Sec- tion 7 of the Act, discriminated against Thomann in regard to his hire and tenure of employment in order to discourage membership in the Union, and thereby committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connec- tion with the business operations of the Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged John C. Thomann on July 14, 1965, I will recommend that the Respondent offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earn- ings suffered by reason of the discharge by payment to him of a sum of money equal KEM DISTRIBUTING COMPANY 167 to that which he would have earned from the aforesaid date of discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period. The backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. Furthermore, I will recommend that the Respondent pay interest on the backpay due to John C. Thomann, such interest to be computed at the rate of 6 percent per annum, using the Woolworth formula, to accrue commencing with the last day of each calendar quarter of the backpay period on the amount due and owing for each quarterly period. Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing fiindings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Truck Drivers & Helpers Local Union No. 728 is a labor organization within the meaning of the Act. - 2. Kem Distributing Company is an employer engaged in commerce within the meaning of the Act. 3. By discharging employee John C. Thomann on July 14, 1965, the Respondent discriminated against him in regard to his hire and tenure of employment in order to discourage membership in and support of the Union, thereby committing unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I will recommend that the Respondent, Kern Distributing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Truck Drivers & Helpers Local Union No. 728, or any other labor organization of its employees, by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the aforesaid Union, or representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to John C. Thomann immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered as a result of his discharge in the manner set forth in the section entitled "The Remedy." (b) Notify John C. Thomann if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary for the determina- tion of the amount of backpay due under the Recommended Order herein. (d) Post at its plant in Savannah, Georgia, copies of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being signed by a representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order Is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.19 19 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director , in writing , within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Boards, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Truck Drivers & Helpers Local Union No. 728, or in any other labor organization, by discriminatorily discharg- ing and refusing to reinstate any of our employees , or by discriminating in any other manner in regard to their hire and tenure of employment or any terms or condition of employment. WE WILL offer to John C. Thomann reinstatement to his former or a substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and we will make him whole for any loss of pay suffered as a result of his discharge. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above Union, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities. KEM DISTRIBUTING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify the above-named employee if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after the discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, 528 Peachtree- Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 526-5741. Rubber Rolls, Inc. and Frederick J. Anderson , an Individual. Case No. 6-CA-338d. April 20,1966 DECISION AND ORDER On February 7, 1966, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision. 158 NLRB No. 6. Copy with citationCopy as parenthetical citation