Kem Distributing Co.

National Labor Relations Board - Board Decisions

Apr 20, 1966

158 N.L.R.B. 158 (N.L.R.B. 1966)

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.